Freeman and Medical Board Of Australia [No 2] - [2023] WASAT 27

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION:   FREEMAN and MEDICAL BOARD OF AUSTRALIA [No 2] [2023] WASAT 27
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
MR J O'SULLIVAN, SENIOR MEMBER
DR E MARILLIER, SENIOR MEMBER

HEARD:   27 JULY 2022
DELIVERED          :   6 APRIL 2023
PUBLISHED           :   6 APRIL 2023
FILE NO/S:   VR 26 of 2020
BETWEEN:   AKINYEMI FREEMAN
Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent

Catchwords:

Vocational regulation – Medical practitioners – Allegations of sexual misconduct – Immediate action – Correct approach to consideration of evidence – Risk to persons – Necessary to take action to protect public health and safety – Public interest

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 3(2)(a), s 3(3)(c), s 4
Health Practitioner Regulation National Law (WA) Amendment Act 2018, s 57
Health Practitioner Regulation National Law (Western Australia), s 151(2), s 155, s 156, s 156(1)(a), s 156(1)(a)(i), s 156(1)(a)(ii), s 156(1)(e), s 157, s 199(1)(h)
State Administrative Tribunal Act 2004 (WA), s 27, s 27(3)

Result:

Application successful in part
Decision of respondent set aside and substituted with decision that applicant's registration be subject to conditions

Category: B

Representation:

Counsel:

Applicant	:	Mr B L Nugawela
Respondent	:	Ms FA Stanton

Solicitors:

Applicant	:	Waterbrook Legal
Respondent	:	Minter Ellison

Cases referred to in decision:

Bernadt v Medical Board of Australia [2013] WASCA 259
Briginshaw v Briginshaw (1938) 60 CLR 336
Cheema v Medical Board of Australia [2020] SACAT 40, 8
Farshchi v Chinese Medicine Board of Australia [2018] VCAT 1617
Freeman and Medical Board of Australia [2020] WASAT 64
Freeman and Medical Board of Australia [No. 2] [2023] WASAT 27
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Khosa v Legal Profession Complaints Committee [2021] WASCA 64
Lee and Medical Board of Australia [2022] WASAT 28
Liddell and Medical Board of Australia [2012] WASAT 120
Medical Board of Australia v Adams [2023] WASCA 41
Medical Board of Australia v Sami [2022] VSC 90; (2022) 66 VR 513
Medical Practitioners Board of Victoria v Lal [2009] VSCA 109
Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701, 8
Olowosegun and Medical Board of Australia [2017] WASAT 148
O'Sullivan v Farrer [1989] HCA 61, (1989) 168 CLR 210
Rao and Medical Board of Australia [2022] WASAT 55, 8
WD v Medical Board of Australia [2013] QCAT 614, 8

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant is a registered medical practitioner.
From the end of 2015, he employed Ms D initially on a casual basis and, later, as the practice manager of his practice (GMC) on a permanent basis until he terminated her employment in or about September 2018.
On 23 August 2019, Ms D made a notification to the respondent in which she alleged that the applicant had sexually harassed and bullied her throughout 2017 and 2018 at GMC, at her home, and elsewhere (Notification).
The Notification consisted of a completed Australian Health Practitioner Regulation Agency (AHPRA) form and a copy of a complaint particularly made by Ms D to the Australian Human Rights Commission (AHRC) on 15 April 2019. This earlier complaint set out, in considerable details over more than six pages, various allegations of sexual harassment and bullying, together with associated documents concerning her employment, copies of photos and handwritten notes allegedly from the applicant to her and an undated and unsigned document apparently written by Ms D describing her experiences (AHRC Complaint).
On 24 February 2020, the respondent determined to take immediate action to suspend the applicant's medical registration pursuant to s 156 of the Health Practitioner Regulation National Law (Western Australia)[1] (National Law) on the basis that such action was necessary to protect public health (IA Decision).
[1] The Health Practitioner Regulation National Law (Western Australia) is contained in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) and applies as a law of Western Australia by s 4 of that Act.
By application dated 18 March 2020, the applicant sought review of the IA Decision (Application), together with a stay of the effect of it. That stay was granted by Judge Sharp on 16 June 2020. [2]
[2] Freeman and Medical Board of Australia [2020] WASAT 64 (Freeman #1).
By application dated and lodged 24 May 2021, the respondent commenced proceedings in the Tribunal (VR 38 of 2021) alleging that the applicant had engaged in professional misconduct on the basis, in effect, of the allegations made by Ms D.
Those proceedings (ie: VR 38 of 2021) were listed for hearing in June and July 2022 but, on 20 April 2022, criminal charges were laid against the applicant which resulted in the hearing in VR 38 of 2021 being vacated on 24 May 2022.
By orders made the same day, the present application (ie: VR 26 of 2020) was listed for hearing in June 2022, which was later adjourned to 27 July 2022.
Unfortunately, counsel for the applicant attended at the 27 July hearing in the mistaken belief that the hearing was for an extension of the stay granted in June 2020. As a result, following a relatively brief hearing, leave was given for further written submissions to be filed by the parties, and orders were made requiring the filing of without prejudice conditions.
The respondent's case is that the material before the Tribunal allows us to form a reasonable belief that immediate action is required on two bases:
(a)first, because of the applicant's alleged conduct, it is said that we can reasonably believe that he poses a serious risk to persons, and that it is necessary to take immediate action to protect public health or safety under s 156(1)(a) of the National Law; and
(b)secondly, because we can reasonably believe that immediate action is otherwise in the public interest under s 156(1)(e) of the National Law.
In both cases, the respondent submitted that the only way in which public health or safety can be protected, and that the public interest can be maintained, was by suspending the applicant's medical registration, so that he is prohibited from practising medicine.
Legislative scheme
As noted above, the IA Decision was made on the basis of s 156(1)(a) of the National Law but the respondent's case now relies on both that subsection and s 156(1)(e) as the basis for its submission that immediate action is necessary. Those provisions are in the following terms:
(1)A National Board may take immediate action in relation to a registered health practitioner or student registered in a health profession for which the Board is established if –
(a)the National Board reasonably believes that –
(i)because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii)it is necessary to take immediate action to protect public health or safety;
…
(e)the National Board reasonably believes the action is otherwise in the public interest.
(2) However, the National Board may take immediate action that consists of suspending, or imposing a condition on, the health practitioner's … registration only if the Board has complied with section 157.[3]
[3] Section 157 provides for a show cause process. The applicant complained that the respondent's reliance at the hearing on the 'public interest' ground under s 156(1)(e) had not been the subject of the 'show cause' process under s 157. We deal with this issue in further detail below.
'Immediate action' is defined by s 155 of the National Law and includes, among other forms of action, suspending a health practitioner's registration and the imposition of conditions on the practitioner's registration.
The Tribunal's jurisdiction to review the respondent's decision to take immediate action is conferred by s 199(1)(h) of the National Law.
As was noted in Lee[4] s 156(1)(e) was inserted as an amendment to the National Law in 2018.[5] Previously, s 156(1)(a) was in its current form but immediate action could not be taken on the basis that it was in the public interest to do so. We otherwise adopt what was said in Lee in relation to the purpose of the 2018 legislative amendment. In particular:
… the Parliament plainly contemplated[6] that an allegation that a health practitioner has committed a serious crime, albeit one that lacks an obvious connection to clinical practice, may, depending on the circumstances, warrant immediate action against the practitioner. Immediate action may be warranted having regard to various public interest considerations, including the protection of the public, or maintenance of public confidence in the medical profession. Other public interest considerations may also be relevant.[7]
[4] Lee and Medical Board of Australia [2022] WASAT 28 (Lee) at [27].
[5] Health Practitioner Regulation National Law (WA) Amendment Act 2018, s 57.
[6] See the example in s 156(1)(e) as to when action may be taken in the public interest.
[7] Lee at [30].

The legal principles

As McLure P observed in Bernadt CoA[8] it is necessary to identify with precision what it is that must be the subject of the respondent's and, on review, the Tribunal's reasonable belief.
[8] Bernadt v Medical Board of Australia [2013] WASCA 259 at [65]. There is nothing in the reasons of either Newnes JA or Murphy JA that suggests that they disagree with this aspect of her Honour's reasons.
Her Honour held that there are three components in s 156(1)(a)(i) and (ii) that must be the subject of a reasonable belief to justify the taking of immediate action:
(i)(1) because of (that is, by reason of) the practitioner's
conduct, performance or health
(2) the practitioner poses a serious risk to persons; and
(ii)it is necessary to take immediate action to protect public
health or safety.
The High Court in Rockett[9] considered the meaning of the phrase 'reasonable grounds for believing'. The majority concluded:[10]
… Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
[9] George v Rockett [1990] HCA 26; (1990) 170 CLR 104 (Rockett) .
[10] Rockett at [116].
In Bernadt CoA, Newnes JA held that the Tribunal is not required to make findings as to whether in fact the applicant poses a serious risk to persons or whether immediate action was in fact necessary to protect public health. Rather, the Tribunal is only required to determine whether it holds a reasonable belief as to those matters.[11] A reasonable belief requires the existence of facts which are sufficient to induce the belief in a reasonable person.[12] Or, as McLure P put it, there must be proven objective circumstances to justify the belief.[13]
[11] Bernadt CoA (Newnes JA) at [171].
[12] Bernadt CoA (Newnes JA) at [173].
[13] Bernadt CoA (McLure P) at [66].
In WD,[14] HornemanWren J set out the principles applicable to the taking of immediate action:[15]
[14] WD v Medical Board of Australia [2013] QCAT 614 at [8].
[15] See also Cheema v Medical Board of Australia [2020] SACAT 40 at [43] and Rao and Medical Board of Australia [2022] WASAT 55 (Rao) at [42].
1.an immediate action order does not entail a detailed enquiry;
2.it requires action on an urgent basis because of the need to protect public health and safety;
3.the taking of immediate action does not require proof of the conduct, but rather whether there is a reasonable belief that the registrant poses a serious risk;
4.an immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations;
5.the mere fact and seriousness of the charges, supported by the untested statements of witnesses, in a particular case, might well be sufficient to create the necessary reasonable belief as to the existence of risk;
6.the material available should be carefully scrutinised in order to determine the weight to be attached to it;
7.a complaint that is trivial or misconceived on its face will clearly not be given weight;
8.the nature of the allegations will be highly relevant to the issue of whether the order is justified.
Horneman-Wren J in Oglesby[16] made the following observations regarding the approach to be taken when assessing the likelihood of future conduct posing a risk to persons:
… I am not of the view that it is necessary to be satisfied that certain conduct will be engaged in by a registered health practitioner before the reasonable belief can be held that the practitioner poses a risk to persons. In my view, it is not even necessary to be satisfied that it is more probable than not that the practitioner will engage in some conduct in the future. In my view, a reasonable belief may be held that a practitioner poses a serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons. If the possibility of engaging in the conduct was so remote as to be fanciful, or the possible harm trivial, then I would not think that a belief could reasonably be held that the practitioner posed a serious risk to persons.
[16] Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701 at [20].
Both passages appear to us to be consistent with the principles in Rockett and Bernadt CoA and have previously been applied by this Tribunal.[17]
[17] Rao at [42], [71] and [131].
The above passage quoted from Oglesby is very similar to the decision of Cavanough J in Sami.[18] That case turned on whether s 156(1)(a) of the National Law requires the relevant 'National Board' (or the appropriate tribunal on review) to choose between differing versions of past events by way of forming a 'reasonable belief' in that regard. his Honour held that it did not.[19] Amongst various statements to the same effect, he held:
In short, the statutorily required assessment is of conduct-related risk. The assessment will answer the statutory description, and, subject to the principles of administrative law, will satisfy the actual statutory requirements, if it duly takes into account what is said on all sides about any relevant conduct (including any relevant anticipated conduct) of the practitioner.[20]
[18] Medical Board of Australia v Sami [2022] VSC 90; (2022) 66 VR 513 (Sami).
[19] Sami at [23] and [106].
[20] Sami at [101].
In the present case, the Respondent's Submissions filed 20 June 2022 (Respondent's Submissions)[21] relied upon the above passages in WD, Oglesby and Sami and, on one view,[22] appeared to seek to distinguish them from the approach taken by the Tribunal in Liddell[23] and Bernadt Tribunal[24] saying that since those decisions 'participating tribunals have elaborated on the nature of the review'.
[21] Respondent's Submissions, paras 56 – 59.
[22] Applicant's (Draft) Outline of Submissions dated 25 July 2022 (Applicant's Stay Submissions) stated that it was 'uncertain whether the [respondent] is submitting that Liddell is wrongly decided (or from a different era) and should not be followed' – at para 21(a).
[23] Liddell and Medical Board of Australia [2012] WASAT 120 (Liddell).
[24] Bernadt and Medical Board of Australia [2012] WASAT 185 (Bernadt Tribunal)..
By contrast, the Applicant's Stay Submissions and the Applicant's Outline of Submissions of 2 September 2022 (Applicant's Submissions) both sought to rely on Liddell and, amongst other things:
(a)'(tentatively) submitted that there may be a conflict between Lee and Lidell (sic) in situations where true propensity evidence is involved';[25]
(b)submitted that that the passage in Oglesby 'may be fraught/tainted with wrong/over-emphasised propensity reasoning';[26]
(c)doubted whether one of the principles in WD (as was accepted in Rao)[27] was 'a correct statement of the Law';[28] and
(d)described the statement of Cavanough J in Sami as a 'non‑statutory gloss upon the words in s 156(1)(a) … [which] should not be a substitute for the established interpretation of the section'.[29]
[25] Applicant's Stay Submissions, para 21(a).
[26] Applicant's Stay Submissions, para 21(c).
[27] Rao at [42].
[28] Applicant's Submissions, para 10.
[29] Applicant's Submissions, para 11.
The WA Court of Appeal's recent decision in Adams[30] was delivered after the Tribunal reserved its decision in this matter. The Court approved the approach taken in Sami, holding that:
… determining what, if any, immediate action is appropriate does not involve determining what had occurred in relation to the matter notified. Rather, the inquiry is directed to the future; the focus is upon the nature and extent of risks to persons and the steps to be taken to address such risks. Ordinarily, it will be sufficient for the Board or Tribunal to know what the allegation is, what material supports it and whether the allegation is denied, without attempting to go into the merits of the allegation. In this respect, the position has some analogy with the task of a decision-maker under the 'working with children' legislation; … Consistently with this, as Newnes JA observed in Bernadt v Medical Board of Australia, pt 7 of the National Law provides for a relatively summary process and makes no provision for the practitioner to be given any real opportunity to test the factual basis of the Board's belief. [31]
[30] Medical Board of Australia v Adams [2023] WASCA 41 (Adams).
[31] Adams at [93].
We therefore reject the applicant's submissions which sought to cast doubt on the expression of principles in Lee, WD, Ogelsby and Sami: there was no departure from the principles in Liddell by the Tribunal in Lee; the principles summarized in WD and outlined in Ogelsby are good law, as is Sami.
What was different in Liddell (and Bernadt Tribunal) was the manner in which the respective applicants ran their cases compared to how (most) subsequent cases have been run.
In Liddell the Tribunal had before it both oral evidence from the complainant against Dr Liddell, as well as the oral evidence of Dr Liddell himself upon which he was cross-examined.[32]
[32] Liddell at [26].
Such an approach has not been often repeated since, no doubt in part for the reasons identified in Liddell[33] where the Tribunal said:
The approach taken by the parties in this matter throws up some potentially difficult procedural problems. For example, where the basis for the immediate action is an allegation or allegations of some form of serious misconduct, it can be expected that, following the immediate action, that conduct will become the subject of an application by the Board to the Tribunal for the imposition of a disciplinary penalty. If an application for review of the immediate action is made by the practitioner, and a full hearing as to the conduct takes place on that application, and findings in relation to the conduct are made, questions arise as to the effect of those findings of fact on any subsequent hearing of a disciplinary complaint about the same events. …[34]
[33] Liddell at [27].
[34] See also Sami at [174].
The applicant in this case (in the Applicant's Stay Submissions) also sought to describe the evidence in Liddell as 'propensity' evidence,[35] and submitted that the respondent's case 'seems to hinge upon an extended notion of "propensity"'.[36]
[35] Applicant's Stay Submissions, para 21(d).
[36] Applicant's Submissions, para 14.
That approach was, correctly in our view, not continued in the Applicant's Submissions, although the previous submissions were not expressly disavowed.

However, while the Applicant's Submissions purported to rely on Liddell, in our view several submissions went well beyond what was held in that case. So, for example, the Applicant submitted that:
(a)The Tribunal must decide whether the evidence positively justified a reasonable belief that the offending conduct likely occurred – or at least prefer the cogency of the uncorroborated evidence of the complainant, over that of (and adduced by) the practitioner':[37]
(b)The Board's “reasonable belief” has to be based upon a state of reasonable satisfaction that the impugned conduct … in fact occurred.[38]
[37] Applicant's Submissions, para 3.
[38] Applicant's Submissions, para 5.
For the above reasons, neither Liddell nor any other case referred to in either party's submissions goes so far and those submissions are inconsistent with what the WA Court of Appeal said in Bernadt CoA and Adams and Cavanagh J in Sami.
Equally, the applicant's reference to the Briginshaw[39] test[40] is misplaced. The Briginshaw principle goes to the civil standard (balance of probabilities) which is, in turn, concerned with fact finding. As is noted above, the Tribunal in Liddell held that the legislative regime does not contemplate the Board making factual findings concerning a health practitioner's conduct. [41]
[39] Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw).
[40] Applicant's Submissions, para 6.
[41] See also Adams at [93].
The applicant in these proceedings ran his case in a manner that is similar to that taken in Liddell. While he did not give oral evidence (and was therefore not cross examined) Dr Freeman did rely upon several sources of information which purport to advance an alternative set of facts to that alleged by Ms D. Those sources of information include:
1.A letter dated 18 February 2020 sent by his solicitors at the time to AHPRA on behalf of the Board in which he set out at length his account of what had happened and which attached various photos and copies of text messages (February 2020 Letter);
2.A witness statement of the applicant filed 16 October 2020 (Applicant's Statement);
3.A witness statement of Jedidiah Tobiloba Freeman (the son of the applicant) filed 16 October 2020 (Jedidiah's Statement);
4.A Book of Documents filed 16 October 2020 (Applicant's Initial Bundle);
5.A further Book of Documents, described as 'Volume 3' filed 22 July 2022 (Applicant's Further Bundle);
6.In addition, the applicant filed an affidavit sworn by him on 6 April 2020 in support of his application for a stay. Attached as annexures to that affidavit are, amongst others, the witness statements of Ikram Mohamud Haji and Sarah Toyitan Adigun, who worked at GMC during times at which Ms D was employed there, and which go to whether or not the alleged conduct in fact occurred.
As the Tribunal noted in Liddell, such a course is fraught[42] and cases since have, in general, proceeded on the basis that the allegations are denied but not otherwise tested nor are they the subject of either written or oral evidence which seeks to put an alternative version of events. Such a course preserves the applicant's right to silence in any criminal proceeding as well as avoids the prospects of findings of fact about which questions may arise in any subsequent hearing of a disciplinary complaint.
[42] Liddell at [27].
None of the above ought to be taken as criticism of the applicant or his advisers for the course taken, which is, plainly, a matter for him. It is simply to note that the course taken is somewhat unusual and to provide something of the procedural background to the submissions made by counsel for the applicant as to how the Tribunal ought to proceed in relation to the factual evidence.
Regardless of how an applicant might run his or her case, it is necessary for the Tribunal to ensure that whatever material is put before it is 'carefully scrutinised in order to determine the weight to be attached to it.'[43]
[43] Liddell at [22].
The preceding discussion goes to the principles that apply to the meaning, scope and application of the phrase 'reasonable belief'. Those principles have mainly been developed in the context of s 156(1)(a) but they also apply to s 156(1)(e).
The Victorian Court of Appeal in Lal[44] described the term 'public interest', as it appears in s 156(1)(e) of the National Law, as 'protean' so that the matters relevant to its consideration will depend on the statutory context.[45] The Court went on to hold that '… the protection of the public is a key aspect of the public interest'.[46]
[44] Medical Practitioners Board of Victoria v Lal[2009] VSCA 109 (Lal) at [56].
[45] See, also, Khosa v Legal Profession Complaints Committee[2021] WASCA 64 at [37]; O'Sullivan v Farrer [1989] HCA 61, (1989) 168 CLR 210, 216.
[46] Lal at [57].
It is well established that the 'public interest' is 'not a one-sided construct' but is, rather, a multi-faceted concept.
In Lee, this Tribunal held that the public interest under s 156(1)(e) may warrant immediate action 'having regard to various public interest considerations, including the protection of the public, or maintenance of public confidence in the medical profession'.[47] It also adopted the VCAT's discussion of the public interest in Farshchi as follows:
The public interest includes maintenance of a regulatory system which responds in a fair and proportionate manner when allegations are made.
There is a public interest in members of health professions, in whom training and expenditure has been made, being able to practise.
There is a public interest in "area of need" professionals being able to practise.
There is a public interest in proportionality, particularly where a matter is unlikely to finalise quickly.
There is a public interest in ensuring immediate action is only taken when it is necessary to do so. …[48]
[47] Lee at [30].
[48] Farshchi v Chinese Medicine Board of Australia [2018] VCAT 1617 at [71] – [75], adopted with approval in Lee at [47].

The Allegations and the applicant's response(s)

Overview and Factual Background

The allegations relied upon by the respondent were set out in AHPRA's letter to the applicant of 17 February 2020 on behalf of the respondent (Allegations). The Allegations more or less correspond to the allegations set out in the AHRC Complaint which, as noted above, was included as part of the basis of the notification to the respondent.[49]
[49] Applicant's Initial Bundle, Tab 1.
As stated above, broadly speaking Ms D alleges that the applicant sexually harassed and bullied her between January 2017 and September 2018.[50]
[50] Respondent's Bundle of Documents, Vol 1 dated 24 April 2020 (Respondent's Bundle of Documents Vol 1), page 50.
Broadly stated the applicant says that his relationship with Ms D was romantic, albeit platonic (by which it would appear he means not physical) and that his romantic feelings towards Ms D were reciprocated.
In what follows, we address each of the Allegations in turn. In doing so we emphasise that, consistent with the above principles, we are not engaged in a fact-finding exercise. Rather, we are concerned with identifying risk.
However, before we do so it is necessary to set out the following background, which is taken from Ms D's witness statement dated 14 September (Ms D's Statement) 2020 and which was not challenged by the applicant.
Ms D was born in Nigeria and speaks both English and Yoruba. She married in Nigeria in 1996. Between 1999 and 2003, she and her husband, who works for Shell, lived in the Netherlands after which they returned to Nigeria. They have four children who were born (respectively) in 1999, 2001, 2003 and 2005.
In 2012 her husband moved to Australia (without her or their children) for six months after which he was asked to return for three years. The whole family moved to Australia in August 2013, relying on her husband's 457 visa.
In 2015 Ms D (who has university qualifications and was previously employed in Nigeria) started looking for paid work and was introduced to the applicant, who is also of Nigerian origin and who attends the same church, as a result of which he offered her work.
In or about April or May 2016, due to the imminent expiry of her husband's 457 visa, Ms D applied for a 187 visa. The applicant sponsored Ms D as her employer.
Ms D's husband returned to Nigeria in October 2016. She remained in Australia with their children to allow them to finish their schooling in Australia.
Ms D alleges that it was after that occurred that the applicant's behaviour towards her changed.

Applicant visits Ms D's home – January 2017

Ms D's allegations

The first Allegation relied upon by the respondent is that, on 23 January 2017 the applicant visited Ms D's home, knowing that she was alone, and refused to leave until she had sex with him. Ms D alleges that he touched her indecently before she fled to the garage and locked herself in her car in order to protect herself, while the applicant stayed in her house and slept in her bed.
The allegation is described by Ms D in considerable detail in the AHRC Complaint both in the application form and in a nearly four‑page document (undated and unsigned) headed 'Employment and termination at [GMC]', which appears to have been attached to the complaint. The allegations in both are very serious although the latter alleges that the incident occurred on 24 January 2017. [51]
[51] Respondent's Bundle of Documents Vol 1, pages 10 – 42.
The allegation is also set out in more detail and with more background context in Ms D's witness statement filed on 14 September 2020.
In her witness statement Ms D alleges that in January 2017 the applicant invited her to the movies, which request she agreed to because she saw him 'like [her] father'.[52] She says that during the movie the applicant tried to hold her hand and whispered to her that he loved her and that afterwards he asked her to spend more time with him.[53]
[52] Ms D's Statement, para 114.
[53] Ms D's Statement, para 116.
She also deposes that for his January 2017 birthday, the applicant received several bunches of flowers, with which she was photographed 'so he could remember the day'.[54] Those photos were taken at 7.37 pm and 7.44 pm, apparently at GMC. Ms D says that she took one of the bunches home where two more photos were taken. She attaches each of the four photos to her statement. Three of them contain her image. Each photo shows what appear to be a dozen long-stemmed red roses. She also deposes that she gave him a wristwatch as a gift for his birthday.[55]
[54] Ms D's Statement, para 121.
[55] Ms D's Statement, para 122.
Ms D alleges that prior to 23 January 2017, the applicant had only been to her home once previously, when she and her husband had hosted a dinner party.[56]
[56] Ms D's Statement, para 127.
She says that on 23 January 2017 she left work early to drop her children at a school camp in Serpentine and that when she returned home it was 8.00 pm.[57]
[57] Ms D's Statement, paras 125 – 130.
Ms D sent the applicant a text message at 9pm in which she says, 'Hello sir, Just getting back home now'.[58] She says that she has no memory of sending that message or of receiving a message in reply from the applicant which said 'Here'.[59]
[58] Ms D's Statement, para 132.
[59] Ms D's Statement, para 134.
In her statement she says that the applicant knocked on her front door soon after she returned home and, after she reluctantly let him in, they spoke for 10 – 15 minutes on separate seats in her lounge room before he moved next to her and told her that he intended having sex with her.[60]
[60] Ms D's Statement, paras 135 – 142.
She says that when she got up and moved to the front door to open it for him to leave, the applicant blocked her way and said that he intended spending the night with her. She says that he attempted to grope her and that she sat on the floor and used her hands to prevent him from touching her breasts, thighs and genitals.[61]
[61] Ms D's Statement, paras 143 – 145.
After some time, she said that he went to her bedroom and invited her to join him[62] at which point she went to the garage and locked herself in her car.[63] At 5.00 am she says that the applicant appeared at the car, that he was very angry and that, after exchanging some words, he went back inside before leaving.[64]
[62] Ms D's Statement, para 149.
[63] Ms D's Statement, para 153.
[64] Ms D's Statement, para 155.
She says that she felt 'traumatised and shocked' but that she 'did not even consider not going back to work' and told no-one at work about the incident. She did, however, tell her husband who was 'shocked' and they discussed how to manage the applicant's behaviour towards her in circumstances where the applicant had already told them that his wife was planning to leave him, that he would lose everything if she (his wife) discovered what he had done and that Ms D would be blamed for it by the Perth Nigerian community.[65]
[65] Ms D's Statement, paras 161 – 162.
On 28 January 2017, Ms D sent the applicant a lengthy text message which reads, in part, as follows:
Good morning sir. How are you and how is work? Just want to check on you. Please you are not my enemy. Oloore mi ni yin[66] and I can never forget. God brought us together for a purpose that is completely different from your imagination! It is to showcase you …
…
Live (sic) I've mentioned to you, Your (sic) other need can be sourced for else where (sic) because I am not allowed to do that but please let's face the task ahead and trust the Almighty God for the very best. Have a great weekend sir.[67]
[66] Ms D says that this means that she thought of the applicant as her benefactor for employing her.
[67] Ms D's Statement, para 163.
Ms D deposes that after January 2017 the applicant started buying her gifts, including a portable air conditioner, clothes, a wristwatch, jewelry (including a pearl necklace), and shoes and that he would get angry with her if she did not accept them.[68]
[68] Ms D's Statement, para 169 and paras 175 – 176.
Ms D deposes that 'nearly every day' after 23 January 2017, the applicant would 'try to touch' her and that she altered her behaviour to avoid it, including not working in an office where he could trap her and wearing certain clothes such that, she says, he told her that she would 'dress for work like I was going to a battle ground'.[69]
[69] Ms D's Statement, paras 181 – 186.
She also deposes that, after 23 January 2017 the applicant would come to the house 'every week' on the pretext of checking on the children, would ask to speak to her by phone late at night, and sent her sexually explicit text messages which she says she deleted for fear of her children seeing them. She says that she asked Adepeju Freeman, the applicant's daughter-in-law (Peju), to stay at her house to 'keep [the applicant] away from [her] house].[70]

The applicant's version of events

[70] Ms D's Statement, paras 197 – 198.

The Practitioner, in the February 2020 Letter, sets out at length his account of what had happened.[71]
[71] Applicant's Initial Bundle.
He says that by January 2017, the applicant had been to Ms D's home 'many times' and that he attended on 23 January 2017 at her invitation. He says that they spoke on the couch for an hour and he then left. He says that the text messages exchanged on that evening and her attendance at work the following day are consistent with his version of events. He says that the phrase 'your other need' in Ms D's text message of 28 January is a reference to Ms D cooking food for the applicant, in circumstances where he was separated from his wife.[72]
[72] February 2020 Letter, paras 11 – 14(d).
The Applicant's statement is to the same effect – that she invited him to her home, that she texted to let him know that she had returned home after dropping her children at camp, that they sat on separate couches and spoke about work and that he left at 10 pm.[73] He also says that following her text message of 28 January 2017, he attended her home to discuss the message saying to her 'if someone reads this, what would they think'[74] to which she replied that people were saying that it was inappropriate that she was cooking for him to which he said that he would 'get [his] lunches elsewhere'.[75]

Other evidence

[73] Applicant's Statement, paras 91 – 99.

[74] Applicant's Statement, para 104.

[75] Applicant's Statement, para 105.

Peju's witness statement filed 19 October 2020 goes some way to corroborating the evidence of Ms D set out above although it does not address the text messages sent between the applicant and Ms D on 23 January 2017.
Peju deposes that she worked for the applicant from 2012 to 2015. She says that although the applicant never touched her inappropriately she considers 'the way that he looks at women is often suggestive'.[76]
[76] Witness Statement of Adepeju Freeman, undated (Peju's Statement), para 15.
She says that she stayed with Ms D two or three nights a week, although she doesn't say when that started save that it was after her husband moved to Canberra for work in 2016. She says that the applicant arrived at Ms D's house 'on quite a few nights while [she] was there, usually at 8pm or 9.00 pm'. She says that she found the visits 'awkward' and would mostly stay in her room.[77]
[77] Peju's Statement, paras 28 and 30 – 31.
Peju also deposes that '[d]uring 2018, [Ms D] told [her] that there had been things going on with [the applicant]', although the only particular given is that Ms D told Peju that the applicant 'had made passes at her'.[78]
[78] Peju's Statement, para 41.
However, Peju also says that 'shortly before [she] stopped working at [GMC]', which was in September 2018, Ms D gave Peju a more detailed description of what she alleges had occurred, including that the applicant 'came to her house when the children and [Peju] weren't there and wanted to sleep with her'.[79]
[79] Peju's Statement, para 42.4.
Peju's statement ends by saying that she has not seen the applicant since January 2020 and that she 'feels estranged from [her] family‑in‑law'[80] and that the community had advised her not to take sides in the current dispute.

Trip to Merredin

[80] Peju's Statement, para 45.

The second Allegation relied upon by the respondent is that on or about 28 May 2017, the applicant booked a hotel room and engaged in persistent demands that Ms D stay with him in the hotel overnight to enable him to have sex with her. [81]
[81] In her Complaint, she said that the trip occurred on 26 March 2017. In his response to the respondent's initial letter, the applicant said that it occurred on 29 May 2017. In her witness statement, Ms D says that the Merredin visit occurred on 28 May 2017.
In her witness statement of 14 September 2020, Ms D says that the applicant invited her to Merredin to see an elderly patient who had been good to him when he migrated from Nigeria. She said that she told him that she would 'check with [her] husband' who told her to be careful in light of what had happened on 23 January 2017. She says that she wanted to go on the trip because she hadn't seen much of WA and that she told the applicant that she would go with him but only if it was a day trip.[82]
[82] Ms D's Statement, paras 258 – 260.
She says that in visiting the elderly patient the applicant introduced her as his 'partner' and that she (Ms D) remonstrated with him in Yoruba and then described herself to the elderly lady as the practice manager.[83]
[83] Ms D's Statement, para 263.
Ms D says that after visiting the elderly patient, the applicant drove Ms D around town, showing her some of the sights, without getting out of the car, but then stopped in the car park of a motel and told her that he had reserved a room for them. She says that she refused to get out of the car.

The applicant's version of events

The applicant agrees that he and Ms D went on a trip to Merredin in May 2017.[84]
[84] Ms D's Statement, paras 265 – 270.

In his February 2020 letter, the applicant says that he stopped the car at the motel and invited Ms D to lunch at the motel's restaurant, the Gumtree, but that they discovered it was not open (it being a Sunday and the Gumtree was only open between Tuesday and Friday) and that they then drove back to Perth, having lunch on the way.[85]
[85] February 2020 letter, para 22.
The applicant says that Ms D's version of events is inconsistent with a video of the two of them, taken on 1 June 2017, in which they are chatting amicably as well as text messages sent in the following week.[86]
[86] February 2020 letter, para 24.
In the Applicant's statement, he says that Ms D expressed interest in a trip to Merredin after the applicant had spoken to her about his time there when he first came to Australia.[87] He says that they agreed that they would visit the elderly lady, have lunch at the Merredin Hotel, (he says that he 'knew that the food was excellent') and then return to Perth.[88]
[87] Applicant's Statement, para 133.
[88] Applicant's Statement, para 136.
He says that he called the Merredin Hotel to book a lunch, that Ms D was standing next to him when he did so, that he was told that the restaurant was closed on Sunday but that room service was available. He says that he then suggested to Ms D that they might book a room 'so that we could have lunch at the Motel, and she agreed'.[89]
[89] Applicant's Statement, para 137.
He says that after visiting the elderly lady, they drove to the Motel and that he went to reception which was closed, he then returned to the car, they agreed that it was getting late and that they should just drive back home, eating al fresco at Midland McDonalds.[90]

The witness statements of Ms Lombardini

[90] Applicant's Statement, paras 141 – 143.

The respondent has filed two witness statements of Shelley Ann Lombardini, one of two managers of the Merredin Motel, which (together) confirm that on 27 May 2017, she took a booking from the applicant for a room at the Merredin Motel for 28 May 2017, that he arranged to arrive at midday, rather than the earlier check-in time of 2.00 pm and that he was invoiced for $135 on 28 May 2017. She also confirms that the 'Motel has never offered lunch on Sundays, either in the restaurant or by way of room service in the motel rooms' and that her usual practice when taking a booking for a Sunday is to advise the guest that 'the Motel does not provide room service on a Sunday'.[91]

Alleged sexual assault 11 July 2017

[91] Witness Statement of Shelley Ann Lombardini dated 25 November 2020, paras 3 – 8.

The third Allegation is that on 11 July 2017 the applicant grabbed Ms D's breasts from behind when they were both in the GMC kitchen and 'indicated to her that he had disabled security cameras to enable him to freely engage in such behaviour'.[92]
[92] Respondent's Bundle of Documents, Volume 2, pages 50 – 54.
In the Complaint Ms D says that she was washing dishes in the sink when the applicant walked up behind her and hugged her from behind and attempted to grab her breasts. She says that she pushed him away and shouted at him that she did not like what he was doing and demanded that he stop. She says that he replied to her that 'women are like toys; I will play with as many as possible' and went on to say that he had disabled the GMC security cameras 'so that nobody can see what we were doing'.[93]
[93] Applicant's Initial Bundle.
In her statement of 14 September 2020, Ms D says that one of her 'strategies' to keep the applicant away from her was to allow him to take photos of her on her mobile phone. She says that he had originally wanted to take photos of her on his phone but that she told him to use her phone. She says that she allowed him to take photo of her because when he did so he was at a distance from her and it was a 'distraction' from him trying to touch her. [94]
[94] Ms D's Statement, para 206.
She says that on 11 July 2017, after taking her photo, the applicant left the room and she washed her teacup in the sink. While she was doing that he returned, placed a hand on each of her breasts and pressed the front of his body to her back. She says that he was in that position for 5 – 10 seconds before she could get him away from her, during which time she screamed and dropped her cup.[95] She says they then had a conversation during which she told him she did not like what he was doing.

The applicant's response

[95] Ms D's Statement, paras 307 – 310.

In the February 2020, the applicant denies this incident ever occurred and that he was attempting to source CCTV footage from that date to demonstrate that that was the case. We note that no such footage is before us.
In the Applicant's statement he says that the photos of her taken on 11 July 2017 were taken on his phone, not hers, and were sent to her (together with many other photos of her) on 7 August 2017.[96] The text message sending those photos is not accompanied by any message.

Alleged sexual assault, late July/early August 2017

[96] Applicant's Statement, para 153.

The fourth Allegation is that in August 2017 the applicant '[g]rabbed [Ms D's] breasts and buttocks and touched her genital area at GMC'.[97]
[97] Respondent's Bundle of Documents, Volume 1, page 51.
In the Complaint Ms D alleges that, on an unstated date in August 2017, the applicant requested that she assist him in the practice manager's office and that he was already present when she entered the office, that he locked the door behind her, tried to remove her clothes, and grabbed her breasts and buttocks and touched her genital area. She says that she was able to unlock the door and flee.
In her statement of 14 September 2020, she says that the alleged assault occurred on a Friday before 4 August 2017, which appears to make it 28 July 2017. Her statement goes into very considerable detail, describing the alleged assault over 52 paragraphs.[98] She says that while the applicant was 'playful' during other events when he is alleged to have touched her, this time he 'had been very aggressive'. She says that during the alleged assault, she managed to push him away from the door and that in doing so he fell to the ground, which allowed her time to unlock the door, exit both the room and GMC itself, after which she ran (outside) for about 150m. When he did not follow, she says that she returned to the building and knocked on the door and pleaded with him to return her possessions so that she could return home. When he opened the door to throw her bag out, she says that she was about 50 metres away, and that she saw that he was wearing his white undershirt which was stained with her makeup.

The applicant's response

[98] Ms D's Statement, paras 329 – 381.

In the February 2020 letter, the applicant denies this incident ever occurred and says that the office doors have push button locks which would have prevented him from locking her inside the office.
In the Applicant's statement he simply denies the allegation.

Other evidence

As noted above, in her statement Peju says that Ms D told her of certain matters prior to her (Ms D) ceasing work at GMC, which was in September 2018.
One of those matters is described by Peju as an occasion when Ms D 'went into the practice manager's office, and [the applicant] had locked the door and tried to rape her. She said that she had torn his shirt and ran out of the room'.[99]

Alleged bullying – 15 August 2017

[99] Peju's Statement, para 42.2.

The fifth Allegation relied upon by the respondent is that the applicant 'bullied [Ms D] at work following her refusal of [his] advances'.[100]
[100] Respondent's Bundle of Documents, Volume 1, page 51.
In her Complaint, Ms D alleges that on 15 August 2017, the applicant humiliated her in front of colleagues at a meeting to discuss the progress of an accreditation process that she was running as practice manager. She says that the applicant told the staff that she had not done any meaningful work in preparing the practice for accreditation. She says that she tried to leave work after the meeting but discovered that the applicant had blocked her car in with his. She says that later in the day he had apologised for humiliating her and said that he had only done so because she had refused to have sex with him.
Ms D's statement of 14 September 2020 is in similar terms. It concludes by saying that when writing up the minutes of the meeting she did not include the applicant's allegations about her failings because she thought the meeting's minutes would be considered as part of the accreditation review.[101] She also explains a note that she says she gave to the applicant on 17 August 2017 – 'A good, loyal and committed friend is difficult to come by. Keep and cherish the one you have' – on the basis that she wanted to remind the applicant that her loyalty and commitment should not be taken for granted.[102]

The applicant's response

[101] Ms D's Statement, para 397.

[102] Ms D's Statement, paras 398 – 399.

In the February 2020 letter, the applicant relies upon the minutes of the meeting, which do not record the alleged bullying statement and which he says were taken by Ms D, to deny the allegation.
In the Applicant's statement he denies the allegation, says that he never acted in a way to shame or bully Ms D, and again relies upon the minutes of the meeting.

Other evidence

As noted above, in her statement Peju says that Ms D told her of certain matters prior to her (Ms D) ceasing work at GMC, which was in September 2018.
One of those matters is described by Peju as an occasion when the applicant 'bullied [Ms D] at a staff meeting in front of other staff members.[103]
[103] Peju's Statement, para 42.5.
We note that the witness statement of Yusnita Dewi signed 19 October 2020 (Yusnita's Statement) is silent on the matter. Ms Dewi says that she worked at GMC between May 2017 and March 2018 and that the applicant said to her various negative things about Ms D but Ms Dewi makes no mention of the staff meeting at which Ms D was allegedly humiliated.

Applicant tells Ms D he will continue to pursue her for sex

The sixth Allegation relied upon by the respondent is that the applicant 'indicated during conversations that [the applicant] would continue to pursue [Ms D] sexually despite her repeated refusal of [his] advances]'.[104]
[104] Respondent's Bundle of Documents, Volume 1, page 51.
In the Complaint, Ms D alleges that on 6 November 2017 the applicant told Ms D (in effect) that he was going to keep 'trying [his] luck to have sex with [her]', that he would not give up and that he would 'take over' from her husband and eventually marry her. It also alleges that for several days thereafter he sent her 'inappropriate, handwritten messages'. Three are attached, one is illegible, the other two say: 'They say you only fall in love once but that cannot be true. Every time I look at you I fall in love all over again' and 'You make me happy in a way no one else can'.
In her statement Ms D provides considerably more detail, including that:
1.Her husband returned to Australia in mid-October 2017;
2.The applicant sent her roses for her birthday on 27 October 2017, that she took a photo of her with the roses and sent him a text saying 'Wow! This is lovely. E se pupo sir'.
3.The applicant travelled to Nigeria for a week and, on his return, told her that he had missed her and that he would write her notes each day.
4.Having given her the first note, he said he was worried that he could not deny his handwriting and that she should destroy the notes. She said that she destroyed the first two notes in his presence.
5.After giving her the first two notes, he sent a text saying 'you have not seen anything yet. … Love you'.
6.She told him that she only loved him like a father and that she could never be engaged in any illicit affairs with him 'because it is an abomination to God'.[105]

The applicant's response

[105] Ms D's Statement, paras 434 – 445 and 452.

The applicant does not deny writing the notes but says that he gave them to Ms D on Valentine's Day (not in August) in a 'light hearted moment' and that both of them were laughing. He also says that she left him a similar note on his desk. This is the note that she says was given by her to him on 17 August 2017 in response to his alleged bullying on 15 August 2017.[106]
[106] Ms D's Statement, paras 177 – 186.
He also says that the notes could not have been given to her between 6 and 10 November 2017 because the timesheets show that she was not at work on those dates – he attaches timesheets for the purpose. In this regard, Ms D says that she took no leave during this period and attached her pay slips for the fortnights commencing 30/10 and 13/11/2017. Without more we cannot resolve the apparent inconsistency between the timesheet and the pay slips even if it were appropriate and necessary to do so.

The applicant opened the toilet door while Ms D was using the toilet

The seventh Allegation is that the applicant 'opened the door of the staff toilet at GMC when [Ms D] was using the toilet'.[107]
[107] Respondent's Bundle of Documents, Volume 1, page 51.
In her Complaint, Ms D says that the applicant told her on 'numerous occasions' that she was required to leave the toilet door open when she was in the toilet so that he could come into the toilet when she was there.
The Complaint goes on to say that on 27 February 2018 he forcefully opened the toilet door while Ms D was using the toilet, which caused the toilet door to break one of its hinges. She says that after the incident he said to her, in effect, that he had previously told her to keep the toilet door open, that his actions were merely a 'sample' of what he is capable of and that he had made up his mind to have sex with her.
In her statement Ms D says that she went to the toilet at the beginning of her lunch break when only she, the applicant and one other staff member were present at GMC. She says that the applicant shook the door in an attempt to force it open and when asked what he was doing, he said to her that he had told her many times not to lock the door. She said that the door came off its top hinge and she then opened the door, after which he repeated that he had told her not to close the toilet door and that she now knew 'what [he] can do'.[108]
[108] Ms D's Statement, paras 468 – 475.
She says that the door was by then completely off its hinges and that when she returned from her lunch break it was still in that condition. When asked what he would tell the staff, he said that he would tell them that the door 'got broken'. She says that she told Ms Dewi that the applicant had forcefully opened the door on her when she was using the toilet.[109]

The applicant's response

[109] Ms D's Statement, paras 478 – 480.

In the February 2020 letter, the applicant denies that the incident occurred. He says that there is no reason for him to ask Ms D to keep the toilet door unlocked and that he lacks the strength to remove the door from its hinges. He says that had the incident occurred other staff would have heard it. He also relies upon a text sent by Ms D to the applicant 10 days after the alleged event that he says is inconsistent with it occurring.
In the Applicant's statement he denies the allegations and repeats that there is no reason for him to ask Ms D to keep the toilet door unlocked.[110]

Other evidence

[110] Ms D's Statement, paras 188 – 189.

Ms Dewi says in her statement of 19 October 2020 that on an undated Saturday she attended work and found that there was no door attached to the toilet. She says that she telephoned Ms D who told her that the applicant had forcefully opened the door while she was using the toilet and had broken it. She says that after that conversation, she and Ms D became 'more open' with each other about their experiences with the applicant.[111]
[111] Yusnita's Statement, paras 22 – 24.
Peju also says that Ms D told her that 'on one occasion she was in the toilet at [GMC] and [the applicant] broke the door'.[112]

Assault on 23 May 2018

[112] Peju's Statement, para 42.3.

The eighth Allegation is that on 23 May 2018 the applicant 'grabbed [Ms D's] breasts and buttocks from behind in the kitchen of GMC'.[113]
[113] Respondent's Bundle of Documents, Volume 1, page 51.
In the Complaint, Ms D says that on that date the applicant grabbed her breasts and buttocks from behind while she was making a cup of tea and that she pushed him away and demanded that she stop. She says that he responded by saying words to the effect that he doesn't give up easily and that he will continue to try but it would get to a point after which he 'won't push any further' but she won't like what he will do after that. Ms D's statement is to the same effect.
The applicant denies the allegation in both the February 2020 letter and the Applicant's Statement. In the former he says that the allegation is inconsistent with a text message sent by Ms D on 17 May 2018 which includes three smiley face emojis and says 'Good morning sir'.

Other 'evidence'

Ikram Mohamud Haji and Sarah Toyitan Adigun

The applicant relies upon statements of Ikram Mohamud Haji and Sarah Toyitan Adigun (a niece of the applicant), both of whom worked as receptionists at GMC at times when Ms D was employed. Both say that the applicant always behaved appropriately with staff and that neither of them saw him act differently with Ms D than any other staff member.

Jedidiah Tobiloba Freeman

The applicant also relies upon a witness statement of his son, Jedidiah Tobiloba Freeman, filed 16 October 2020.
In effect, he says that from around late 2015 he noticed his father become close to Ms D and that, at the same time, he noticed his father's relationship with his mother 'become progressively estranged'.[114] He says that his mother said to him in the second half of 2016 that she thought that the applicant's relationship with Ms D was 'inappropriate'[115] and that she later told him that there was a 'heated exchange' between his mother and Ms D at the GMC Christmas party that year.[116]
[114] Jedidiah's Statement, para 11.
[115] Jedidiah's Statement, para 14.
[116] Jedidiah's Statement, para 15.
He also says that Ms D took him aside when he was at GMC in late 2017 and told him that his mother had 'the wrong impression' of her and that she assured him that 'nothing ever happened' between her and the applicant.[117]
[117] Jedidiah's Statement, paras 21 and 26.
Finally, he says that he became aware of the 'significant animosity' between Ms D and the applicant '[b]y late 2018, early 2019' and that he and two of his brothers had met with her – not to apologise for what the applicant was alleged to have done but to 'see whether we could facilitate a reconciliation with her and achieve peace', which is said to be a common process in the Christian-Yoruba culture.[118] He said that at that meeting Ms D made a 'number of serious accusations against [the applicant]' which were 'so out of character to everything [they] knew about [their] father' but that he left the meeting of the view that the 'dispute' had been resolved.[119]

Ms D's Husband

[118] Jedidiah's Statement, paras 29 and 33.

[119] Jedidiah's Statement, paras 36 – 37.

Ms D's husband also provided a statement in which he says that Ms D described to him many of the Allegations and that they discussed how to manage the situation she says she found herself in, including the possibility of going to the police.
He says, in effect, that they remained quiet about the applicant's alleged behaviour in order to avoid doing harm to the applicant and in order to protect Ms D's application for residency in Australia. He says that he told Ms D that she needed to disclose the behaviour only when Ms D's application for residency was rejected and it went to the AAT for review. At some stage in that process, the applicant withdrew his support for the application and Ms D's husband 'realised that [Ms D] could not continue with the AAT process without explaining why [the applicant] withdrew his support for the visa'.[120]
[120] Witness Statement of Mr O dated 26 November 2020, para 50.

As a result, the applicant was not given the opportunity to respond to the issue via the 'show cause' process provided by s 157 of the National Law.
The applicant submits[137] that the show cause process in s 157 is mandatory – the section says that the process 'must' be observed if the respondent is proposing to take immediate action in the form of suspension or the imposition of a condition – and that, therefore, the respondent cannot rely on the sub-section.
[137] Applicant's Submissions, para 13.
We disagree. As the respondent submits,[138] s 27 of the SAT Act provides that the proceedings before us are a hearing de novo and that we may have regard to material that was not before the original decision maker, irrespective whether it existed at the time of the original decision.
[138] Submissions in Reply, para 10.
Perhaps most relevantly s 27(3) of the SAT Act provides that:
The reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
In any event, the evident purpose of s 157 is to provide the relevant medical practitioner with procedural fairness – an opportunity to understand the allegations made against them and to respond ahead of any decision being made to suspend their registration or impose a condition upon it.
The Tribunal is bound to provide procedural fairness – s 32(1) and s 32(6) of the SAT Act. In the present circumstances, where the respondent's reliance on s 156(1)(e) does not involve anything more than the making of submissions (i.e. there was no new factual or other material filed with the Tribunal as a result of the respondent's late reliance on s 156(1)(e)) the applicant has received procedural fairness in that:
1.The respondent's submissions were filed on 20 June 2022;
2.The hearing was not held until more than five weeks later, on 27 July 2022;
3.The Tribunal granted the applicant leave to file further submissions, which were filed on 2 September 2022.
In our view, the provision of an opportunity to understand the way in which the respondent puts its case in relation to s 156(1)(e) and the provision of sufficient time to make submissions in response, provides the applicant with the procedural fairness which s 157 appears to provide at first instance.
Such an outcome appears consistent with the Tribunal's decision, albeit in relation to a different provision, in Olowosegun.[139]

Immediate action is also in the public interest

[139] Olowosegun and Medical Board of Australia [2017] WASAT 148 at [48] – [49].

For reasons that are largely set out above, we are of the view that the material before us provides a proper basis for us to form a reasonable belief that immediate action is in the public interest.
As set out above, we are of the view that there is a material risk that the applicant will act in a manner similar to that alleged by Ms D and Ms J towards women with whom he has developed a degree of familiarity, such as might occur in a workplace.
There is no doubt that the public interest, as the term is properly understood within the context of the National Law, includes the protection of the public and the maintenance of confidence in the medical profession.
We have already addressed the question of the protection of the public in our reasons concerning s 156(1)(a).
In our view, our proposed conditions will also address the question of the maintenance of confidence in the medical profession.
The allegations against the applicant concern sexual misconduct against more than one complainant and are supported by detailed statements from the complainants as well as, to some extent, statements from independent parties. In those circumstances it is necessary for the ongoing confidence that the public has in the profession that there be a suitable and proportionate response; patients, and members of the public more generally, deserve to know that the risk as identified is being managed appropriately.
In addition, in our view the public interest extends to ensuring that workplaces are safe and comfortable places for medical and allied health practitioners, as well as support staff, to work, including that they are free from sexual harassment, indecent assault, unwanted advances and other forms of sexual misconduct.
In our view, the proposed conditions described above address that aspect of the public interest in that the person responsible for the practice in which the applicant does, or proposes to, work will be advised of the allegations against the applicant, as well as the characterization of the risk as we have identified it, and will then be able to address that risk in a manner suitable and relevant to the practice.

Conclusion

For these reasons, we are of the view that there is a proper basis for us to reasonably believe that:
(a)because of the applicant's conduct, he poses a serious risk to persons, and it is necessary to take immediate action to protect public health or safety; and
(b)immediate action against the applicant is otherwise in the public interest.
In our view, the applicant's general registration to practice medicine should be subject to conditions which are consistent with our reasons.
We propose to make the following orders but will hear from the parties as to their final form:
1.The Practitioner must ensure that a full copy of the written reasons of the State Administrative Tribunal in Freeman and Medical Board of Australia [No. 2] [2023] WASAT 27 (Reasons) is provided, in both hard and electronic form, to the practice manager, head of department or equivalent of each and every place at which he practices, or proposes to practice medicine within 14 days prior to the commencement of such practice or, if he is already so practicing, within 14 days of the imposition of this condition.
2.The Practitioner must ensure that each person to whom the Reasons is provided, signs, dates and writes their name and position on a second copy of the final page of the Reasons and returns that page to him.
3.Within 7 days after having obtained a copy of the signed Reasons, the Practitioner must provide to AHPRA a copy of the final page of the Reasons which has been signed, dated and inscribed in accordance with Order 2 above.
4.If any person to whom the Reasons have been provided in accordance with these conditions imposes any requirement or limitation on the Practitioner's ability to practice medicine or on his ability to interact with other members of the relevant practice, or develops processes or procedures designed to achieve the same result, then the Practitioner must, within 7 days of the imposition of that requirement or limitation, or the development of the relevant process or procedure, provide to AHPRA written notification of that fact.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
RM
Associate to Deputy President Judge Jackson
6 APRIL 2023