King v Health Care Complaints Commission - [2011] NSWCA 353

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: King v Health Care Complaints Commission [2011] NSWCA 353
Hearing dates: 26 July 2011
Decision date: 22 November 2011
Before: McColl JA at [1];
Macfarlan JA at [18];
Handley AJA at [115]
Decision:
(1) Appeal allowed in part;
(2) The orders of the Medical Tribunal of 5 May 2011 set aside, save as to costs with effect from the date 21 days after the date of this judgment;
(3) Proceedings remitted to the Tribunal for further hearing, according to law, to determine what orders should be made consequential on its findings published on 5 May 2011;
(4) Appeal otherwise dismissed;
(5) Appellant to pay 80% of the respondent's costs of the proceedings in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
ADMINISTRATIVE LAW - appeal against a decision of the Medical Tribunal with respect to a point of law - whether Tribunal denied appellant procedural fairness in making findings of professional misconduct against him - whether Notice of Complaint alleged sexual misconduct - whether Commission required to formulate complaints in a pleading - whether Tribunal required to formulate charges
ADMINISTRATIVE LAW - Medical Tribunal - whether Tribunal breached its duty of procedural fairness in not conducting a separate hearing in respect of penalty
Legislation Cited: Health Care Complaints Act 1993
Health Practitioners Regulation National Law (NSW) No 86(a)
Health Practitioners Regulation Amendment Act 2010
Legal Profession Act 1987
Medical Practice Act 1992
Occupational Health and Safety Act 1983
Cases Cited: Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1
Australian Competition and Consumer Commission v Info4pc.com Pty Ltd [2002] FCA 949; (2002) 121 FCR 24
Browne v Dunn (1893) 6 R 67
Carew Reid v Carew Corporation Pty Ltd (Full Court of the Western Australian Supreme Court, 23 April 1993, unreported)
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758
CSR Ltd v Eddy [2008] NSWCA 83; (2008) 70 NSWLR 725
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
Daskalopoulos v Health Care Complaints Commission [2002] NSWCA 200
Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241; (2010) 77 NSWLR 173
F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295
Forge v ASIC [2004] NSWCA 448; 213 ALR 514
Gad v HCCC [2002] NSWCA 111
Hall v New South Wales Trotting Club Limited [1977] 1 NSWLR 378
Harkin v R (1989) 38 A Crim R 296
HCCC v Karalasingham [2007] NSWCA 267
John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508
Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155; (2005) 221 ALR 823
Kioa v West [1985] HCA 81; 159 CLR 550
Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531
Lithgow City Council v Jackson [2011] HCA 36; (2011) 281 ALR 223
Lucire v Health Care Complaints Commission [2011] NSWCA 99
Matthews v ASIC [2009] NSWCA 155
MH6 v Mental Health Board [2009] VSCA 184; (2009) 25 VR 382
Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Nominal Defendant v Saleh [2011] NSWCA 16; 57 MVR 412
O'Reilly v Law Society of NSW (1988) 24 NSWLR 204
R v Manson (NSW Court of Criminal Appeal, 17 February 1993, unreported)
R v McIntosh (NSW Court of Criminal Appeal, 26 September 1994, unreported)
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Sabag v Health Care Complaints Commission [2001] NSWCA 411
Sabet v R [2011] VSCA 124
Smith v NSW Bar Association [1992] HCA 36; 176 CLR 256
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
The Queen v MacKellar ex parte Ratu [1977] HCA 35; 137 CLR 461
Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491
Weinstein v Medical Practitioners Board of Victoria [2008] VSCA 193; (2008) 21 VR 29
Wentworth v NSW Bar Association [1992] HCA 24; (1992) 176 CLR 239
White v Ryde Municipal Council [1977] 2 NSWLR 909
Category: Principal judgment
Parties: Dr Victor King (Appellant)
Health Care Complaints Commission (Respondent)
Representation: Counsel:
J Gormly SC/M Ainsworth (Appellant)
P Strickland SC/K L Eastman (Respondent)
Solicitors:
Holman Webb Lawyers (Appellant)
Health Care Complaints Commission (Respondent)

File Number(s): CA 2011/171615
Decision under appeal

Citation:

Health Care Complaints Commission v Dr Victor King [2011] NSWMT 5

Date of Decision:

2011-05-05 00:00:00

Before:

Murrell DCJ; Dr E Kertesz; Dr G Yeo; Dr C Berglund

File Number(s):

40017/10

HEADNOTE

[This headnote is not to be read as part of the judgment]

By Notice of Complaint ("the Complaint") dated 30 April 2010 the Health Care Complaints Commission ("the Commission") notified the appellant practitioner, Dr Victor King, that the Commission had referred a complaint to the Medical Tribunal ("the Tribunal") that the appellant had been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 Medical Practice Act 1992. The Complaint made certain allegations against the appellant concerning his treatment of three female patients known in the proceedings as Patients B, C and D. The allegations are set out in the judgment of Macfarlan JA at [25].

On 5 May 2011 the Tribunal upheld the complaint of professional misconduct against the appellant and ordered that he be deregistered and that no application for review be made for 18 months. In its Reasons for Decision the Tribunal made various findings against the appellant, including that the appellant engaged in inappropriate sexual conduct towards the three patients, the most serious conduct involving the appellant moving his finger in and out of the vaginas of Patients B and D during vaginal examinations that he conducted.

The appellant appealed from the decision of the Tribunal. The issues for determination on appeal were:

(i) whether the Tribunal accorded procedural fairness to the appellant in respect of its findings of sexual misconduct;

(ii) whether the Tribunal failed to give proper reasons for its decision; and

(iii) whether the appellant was denied procedural fairness as a result of there being no separate hearing on penalty.

The Court held, allowing the appeal in part but otherwise dismissing the appeal:

In relation to (i)

(per Handley AJA and McColl JA)

1. The statutory framework within which the patients' complaints were brought before the Tribunal did not require the Commission to formulate complaints in a pleading nor did it require the Tribunal to formulate charges: [4], [15], [168] and [170].

2. The Tribunal did not breach its common law duty of procedural fairness. The appellant and his advisers were on notice that the allegations of professional misconduct relating to Patients B and D were based on the appellant's intimate examinations of them, including what had happened during the "extended periods" when the appellant's finger(s) were inside their vaginas: [10], [173], [185].

3. There were allegations in the Complaint that were of a sexual nature: [13] - [14], [146] - [150].

(per McColl JA)

4. The elaboration of the appellant's conduct by reference to the movement of his finger(s) in Patient B and Patient D's statements was a particular of what occurred. If there was no clinical basis for that conduct, then its sexual nature was manifest: [13] - [14].

(per Macfarlan JA, dissenting)

5. A properly particularised complaint identifying the allegations made against the medical practitioner is the foundation of the Tribunal's jurisdiction, with the ambit of those allegations circumscribing the Tribunal's exercise of its powers pursuant to the Medical Practice Act . A high measure of particularity is required: [50], [52].

6. The conduct that the Tribunal found to be the most serious misconduct engaged in by the appellant was not alleged against him in the particulars of the Complaint. The Tribunal's findings that certain conduct of the appellant constituted sexual misconduct were not open to it because particulars of the Complaint did not allege that the conduct was sexual in character: [41] - [47].

7. The manner in which the proceedings were conducted did not overcome these deficiencies, with the consequence that the appellant was not afforded practical justice: [48] - [61].

In relation to (ii)

(Per Handley AJA, McColl JA agreeing, Macfarlan JA dissenting).

8. The Tribunal's reasons contained sufficient primary findings and adequately explained the basis for the ultimate finding of professional misconduct: [201].

In relation to (iii)

(Per Handley AJA, McColl JA agreeing, Macfarlan JA not deciding).

9. The Tribunal acted in breach of its duty of procedural fairness in ordering deregistration without giving the appellant the opportunity to adduce evidence and make submissions on the appropriate orders consequential on the Tribunal's findings: [202] - [205]

Forge v ASIC [2004] NSWCA 448, 213 ALR 514; Hall v New South Wales Trotting Club Limited [1977] 1 NSWLR 378; Lucire v Health Care Complaints Commission [2011] NSWCA 99 referred to.

Judgment

McCOLL JA : I have had the benefit of reading the draft reasons of Macfarlan JA and Handley AJA. I agree with Handley AJA's reasons and would add the following.

The key issue on which the appeal turned was whether the appellant had been accorded procedural fairness in the manner in which the respondent prosecuted, and the Medical Tribunal upheld, a complaint that the appellant had been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Medical Practice Act 1992 (the "MP Act").

Procedural fairness requires a fair hearing, not a fair outcome. The statutory framework within which a decision maker exercises statutory power is of critical importance when considering what procedural fairness requires as, too, are the facts and circumstances of the particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (at [25] - [26]) per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

I agree with Handley AJA that the statutory framework within which the patients' complaints were brought before the Medical Tribunal did not require the Director of Proceedings to formulate complaints in a pleading.

The scheme established by the MP Act for dealing with complaints is very different from that considered in Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73. That case concerned the professional disciplinary provisions of the now repealed Legal Profession Act 1987 which constrained the bringing of a complaint against a legal practitioner to the terms of the "information laid by the appropriate Council or the Commissioner" in accordance with the Act: s 167; Walsh (at [66]). No such words of limitation appear in the MP Act. As Handley AJA's reasons demonstrate, the "complaint" referred to in the MP Act and the Health Care Complaints Act 1993 are the original complaint which initiates the chain of inquiry which may bring matters before the Tribunal.

Nor, with respect, is there an apt analogy between the disciplinary regime under the MP Act and jurisprudence relating to the commencement of criminal proceedings. That jurisprudence, as is demonstrated in John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 (at 519 - 521), is based on the necessary sufficiency of an information to found the jurisdiction to deal with an alleged criminal offence. That ancient jurisprudence does not apply in terms to the statutory disciplinary jurisdiction created by the MP Act. Further, as the plurality said in Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 (at [26]) after the passage set out in Macfarlan JA's judgment (at [55]):

"The common law requirement is that an information, or an application containing a statement of offences, 'must at least condescend to identifying the essential factual ingredients of the actual offence'. These facts need not be as extensive as those which a defendant might obtain on an application for particulars. " (Emphasis added)

The information in Kirk v Industrial Court (NSW) was held to be deficient because it failed to identify the act or omission said to constitute a contravention of s 15 or s 16 of the Occupational Health and Safety Act 1983, which identification was essential to enable the employer to know how to defend the proceedings as permitted by s 53 of that Act: Kirk v Industrial Court (NSW) (at [12], [14] - [16], [25] - [28], [34], [37] - [38], [54]). The proceedings before the Medical Tribunal were not governed by such strict constraints.

Notwithstanding the absence of a statutory directive to formulate complaints in a pleading, it cannot be gainsaid that a complaint should, for reasons of procedural fairness, be formulated in appropriate terms: Lucire v Health Care Complaints Commission [2011] NSWCA 99 (at [45]) per Basten JA (McColl JA and Sackville AJA agreeing). The nature of that obligation can be discerned from SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (at [32]) where the High Court quoted with approval the following statement in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (at 590 - 591):

"It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material."

When considering what fairness demands in the circumstances, regard has to be paid to the realities of the situation, not the legalities: White v Ryde Municipal Council [1977] 2 NSWLR 909 (at 925) per Reynolds JA (Moffitt P agreeing); MH6 v Mental Health Board [2009] VSCA 184; (2009) 25 VR 382 (at [30]) per Redlich JA and Hargrave AJA; Lucire v Health Care Complaints Commission (at [61]).

I agree with Handley AJA that the appellant and his advisors were on notice that the respondent alleged that what happened during the "extended periods" when his finger(s) were inside patient B and patient D's vaginas, including the movement of his finger(s) during those periods, were the essential details of that aspect of the patients' allegation that by reason of that conduct, he had been guilty of either unsatisfactory professional conduct and/or professional misconduct. He was clearly given the opportunity of ascertaining the relevant issues and notified of the nature and content of adverse material.

In addition to the matters to which Handley AJA has referred as supportive of that proposition, it is singular, in my view, that neither the appellant's amended notice of appeal or the written submissions filed on his behalf prior to the hearing, complained that he was not on notice that the respondent relied upon the movement of his finger(s) during those examinations as part of its case before the Medical Tribunal. Rather, the gravamen of the appellant's complaint as set out in his amended notice of appeal was that the Medical Tribunal breached its obligation of a fair hearing by making findings that his "conduct was sexual and serious when such allegations were not pleaded, were made over objection during the opening, were not put to the appellant and were not supported by probative evidence." Those grounds, as expounded in the appellant's written submissions, focused on the submission that the Notice of Complaint did not allege, or hint at "by other than reference to sexual body parts, that the Appellant behaved in a sexually motivated way or in a manner to secure sexual gratification."

The proposition that the vice of the Medical Tribunal's finding that the appellant was guilty of misconduct in moving his finger(s) in and out of the vaginas of patient B and patient D when that detail was not particularised in the Notice of Complaint was seized upon by counsel for the appellant when it emerged after questions from the Bench. The absence of reference to that issue in either the notice of appeal or the written submissions prior to appeal is, in my view, telling against the proposition that the appellant was not aware of the significance of those parts of patient B and patient D's statements containing those allegations.

Further, insofar as the appellant's original complaint is concerned, there could be no doubt, in my view, that the allegation in the Notice of Complaint that the appellant was guilty of unsatisfactory professional conduct and/or professional misconduct in that he had, inter alia, "engaged in improper or unethical conduct relating to the practice of medicine" coupled with the allegation that he "had inserted his finger(s) into [patient B's and patient D's] vagina for an extended period and contrary to recognised clinical standards" was an allegation of a sexual nature. Practically speaking, this clearly put the appellant on notice that he had to meet such a case. The elaboration of that conduct by reference to the movement of his hands in patient B and patient D's statements, was a particular of what occurred during the "extended period".

In my view, neither the appellant nor his legal advisors could have been under any misapprehension as to the significance of the complaints concerning the insertion of (and movement of) the appellant's finger(s) in the patients' vaginas in the context of the proceedings before the Medical Tribunal. If there was no clinical basis for that conduct, then its sexual nature was manifest: Harkin v R (1989) 38 A Crim R 296.

I also agree with Handley AJA that the Medical Tribunal did not have a statutory duty to formulate charges. A decision-maker is obliged "to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power... [or] advise of any adverse conclusion which would not obviously be open on the known material": Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 (at [9] per French CJ and Kiefel J with whom Heydon and Crennan JJ agreed). However:

"... the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."

F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 (at 369) per Lord Diplock cited with approval by the Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (at [48]); see also Minister for Immigration & Citizenship v SZGUR (at [9]).

The Medical Tribunal's characterisation of the appellant's conduct as "reprehensible", "inappropriate sexual conduct", "[t]he most serious misconduct", "sexual impropriety" ( Health Care Complaints Commission v Dr Victor King [2011] NSWMT 5 at [49], [56]) was a logical corollary of its conclusions (at [18] and [44] - [45]) that, in substance, there was no clinical justification for the appellant's conduct. It was, in my view, apparent from the nature of the statutory power the Medical Tribunal was exercising and the material before it that such adverse conclusions may be drawn.

I agree with the orders Handley AJA proposes.

MACFARLAN JA :

NATURE OF CASE AND CONCLUSIONS

By Notice of Complaint dated 30 April 2010 the respondent Health Care Complaints Commission ("the Commission") notified the appellant, Dr Victor King, that the Commission had referred to the Medical Tribunal of New South Wales ("the Tribunal") established under the Medical Practice Act 1992 (the " MP Act ") a complaint that Dr King had been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of that Act.

Following a hearing that took place on 14, 15, 17, 18 and 30 March 2011 the Tribunal, constituted by a District Court judge, two registered medical practitioners and a lay person, found that the complaint was well-founded ([2011] NSWMT 5). It concluded that Dr King had engaged in conduct constituting professional misconduct, that he should be deregistered and that an application for review of that deregistration should not be made for a period of 18 months. The order for deregistration was subsequently stayed after Dr King gave an undertaking not to practise pending any further order of this Court.

The MP Act was repealed on 1 July 2010 by Schedule 3 to the Health Practitioners Regulation Amendment Act 2010. The Health Practitioners Regulation National Law (NSW) No 86(a) (the "National Law") commenced operation on the same date. As a result of the transitional provisions contained in the National Law, the MP Act continued to govern the proceedings in the Tribunal concerning Dr King. However the present proceedings on appeal are governed by the National Law. Accordingly Dr King has appealed against the Tribunal's decision pursuant to s 162(1) of the National Law which relevantly confers a right of appeal to this Court against "a decision of the Tribunal with respect to a point of law".

For the reasons appearing below, I have come to the following conclusions in relation to the appeal:

(a) The conduct that the Tribunal found to be the most serious misconduct engaged in by the appellant (that is, moving his finger in and out of the vaginas of two patients) was not alleged against him in the particulars of the complaint supplied by the Commission (see [57] - [63] below).

(b) The Tribunal's findings that certain conduct of the appellant constituted sexual misconduct were not open to it because the particulars of the complaint supplied by the Commission did not allege that that conduct was sexual in character (see [64] - [77] below).

(c) The manner in which the proceedings against the appellant were conducted did not overcome these deficiencies, with the consequence that the appellant was not afforded practical justice (see [78] - [104] below).

(d) The Commission did not breach the rule in Browne v Dunn (see [105] - [106] below).

(e) The Tribunal failed to give proper reasons for its decision (see [108] - [112] below).

(f) As a consequence of the matters referred to in (a) - (c) and (e) above, the Tribunal's decision should be set aside and the proceedings remitted for determination by a differently constituted Tribunal.

THE COMPLAINT AGAINST THE APPELLANT

In 2007 and 2008 the appellant conducted a general practice at the Chinatown Medical Centre in Sydney. In the course of that practice he treated three female patients referred to in the proceedings as Patients B, C and D. Both the Tribunal and this Court made orders that the names of those patients be kept confidential. At the time of their first consultations with the appellant, Patients B, C and D were aged approximately 31 years, 27 years and 19 years respectively. The Tribunal described the English of Patient B, who is from a non-English speaking background, as "not fluent" (Decision [17]).

The Notice of Complaint alleged that the appellant was guilty of unsatisfactory professional conduct and/or professional misconduct in that he:

"i) demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or

ii) engaged in improper or unethical conduct relating to the practice of medicine; and/or

iii) contravened the Medical Practice Regulation 2003 ; and/or

iv) contravened the Medical Practice Regulation 2008 ".

As the terms of the allegations against the appellant are of central importance to the issues on this appeal, it is necessary to set out in full the particulars contained in the Notice of Complaint. These were:

" Patient B

2. Between 22 September 2007 and 11 January 2008 Patient B consulted with the practitioner. On 5 October 2007 Patient B consulted the practitioner at the Chinatown Medical Centre. During the course of the examination of Patient B on 5 October 2007 the practitioner recommended to Patient B that she undergo a pap smear. Patient B gave her consent to a pap smear.

It is alleged that:

2.1 On 5 October 2007 the practitioner failed to provide adequate clinical advice and explanation to Patient B in relation to his assessment or examination or treatment of the patient;

2.2 On 5 October 2007 during the course of performing the pap smear the practitioner:

2.2.1 asked Patient B to hold the speculum contrary to recognized clinical practice;

2.2.2 inserted his finger into Patient B's vagina for an extended period and contrary to recognized clinical standards;

2.2.3 touched Patient B's clitoris contrary to recognized clinical standards;

2.2.4 asked personal and intimate questions of Patient B unrelated to the examination during the course of the examination.

3. On 7 November 2007 Patient B consulted with the practitioner at the Chinatown Medical Centre.

It is alleged that:

3.1 the practitioner performed a further pap smear for Patient B in circumstances where a further pap smear was contrary to recognized clinical standards;

3.2 the practitioner failed to provide adequate clinical advice and/or explanation to Patient B in relation to his assessment or examination or treatment of the patient;

3.3 during the course of performing the pap smear on 7 November 2007 the practitioner:

3.3.1 asked Patient B to hold the speculum contrary to recognized clinical practice;

3.3.2 inserted his finger into Patient B's vagina for an extended period and contrary to recognized clinical standards;

3.3.3 touched Patient B's clitoris contrary to recognized clinical standards;

3.3.4 asked personal and intimate questions of Patient B unrelated to the examination during the course of the examination.

4. On or about 10 November, 2007 Patient B consulted with the practitioner at the Chinatown Medical Centre and during the course of the consultation the practitioner recommended and/or offered to perform a further pap smear for Patient B contrary to recognized clinical standards.

5. The practitioner failed to keep records in relation to his consultations with Patient C [sic, B]:

5.1 as was appropriate in the circumstances;

5.2 contrary to the requirements of clause 1 of Schedule 2 of the Medical Practice Regulation 2003 and/or clause 1 of Schedule 1 of the Medical Practice Regulation 2008.

Patient C

6. Between 17 April, 2008 and 12 May, 2008 Patient C consulted with the practitioner on seven (7) occasions at the Chinatown Medical Centre in relation to an injury to her right wrist.

It is alleged that:

6.1 During the course of the consultations the practitioner failed to adequately assess or instigate an appropriate management plan or treatment in relation to Patient C's wrist complaint;

6.2 During the course of the consultations the practitioner asked personal and intimate questions of Patient C unrelated to the assessment or examination or treatment of Patient [C]'s presenting condition and rubbed her hand and arm in a personal manner on several occasions;

6.3 During the course of the consultations the practitioner failed to provide adequate clinical advice and explanation to Patient C in relation to his assessment or examination or treatment of the patient;

6.4 On 17 April 2008 the practitioner recommended and/or offered to Patient C to conduct an intimate examination, which was unrelated to the assessment or treatment of her presenting condition, using words to the effect that he could 'check down there';

6.5 On 28 April 2008 the practitioner recommended and/or offered to Patient C to conduct an intimate examination, which was unrelated to assessment or treatment of her presenting condition, using words to the effect that he could 'check down there for free'; and/or

6.6 The practitioner failed to keep records in relation to his consultations with Patient C:

6.6.1 as was appropriate in the circumstances;

6.6.2 contrary to the requirements of clause 1 of Schedule 2 of the Medical Practice Regulation 2003 .

Patient D

7. Between about 11 March, 2008 and 8 April, 2008 Patient D consulted with the practitioner on four (4) occasions at the Chinatown Medical Centre.

It is alleged that:

7.1 During the course of consultations on 26 and 28 March 2008 the practitioner failed to provide adequate clinical advice and explanation to Patient D in relation to his assessment or examination or treatment of the patient;

7.2 On or about 26 March, 2008 Patient D attended upon the practitioner complaining of 'redness and itchiness around the genitalia'. During the course of the examination the practitioner recommended a vaginal examination to obtain a swab. Patient D gave her consent to such an examination. During the consultation the practitioner:

7.2.1 unnecessarily showed Patient D photographs of diseased male and female genital organs;

7.2.2 gave Patient D inappropriate advice that her boyfriend should wear gloves when he touches her vagina;

7.2.3 gave Patient D inappropriate advice that oral sex should not be performed immediately after consuming food;

7.2.4 conducted a vaginal examination in which the practitioner applied lubricant to his (gloved) fingers and inserted them into Patient D's vagina for a[n] extended period and contrary to recognized clinical standards;

7.2.5 prescribed Ceclor, a broad spectrum antibiotic, for treatment of thrush contrary to recognized clinical standards

7.3 On or about 28 March 2008 the practitioner informed Patient D that she had thrush and he informed her that the best way to deal with the condition was manual removal contrary to recognized clinical standards."

THE TRIBUNAL HEARING

At the hearing before the Tribunal the Commission tendered statements of the three patients and an expert report of Dr Walid Jammal. These persons were cross-examined by counsel for the appellant.

The appellant tendered a statement of himself and two expert reports of Dr Norman Walsh. The appellant and Dr Walsh were cross-examined by counsel for the Commission.

THE TRIBUNAL'S DECISION

The Tribunal found that the appellant "was an unreliable witness who gave the evidence that he thought would best assist his case" (Decision [3]). With one exception the Tribunal accepted the evidence of Patients B, C and D. The exception was Patient B's evidence that the appellant touched her clitoris (Decision [13] and [17]). The Tribunal did not accept this evidence and accordingly did not find that particular 3.3.3 had been established.

Patient B

The Tribunal said that it was "comfortably satisfied" that particulars 2.1, 2.2.4, 3.1, 3.2, 5.1 and 5.2 contained in the Notice of Complaint (see [25] above) had been established (Decision [27]).

The Tribunal did not list 2.2.2 or 3.3.2 as particulars that it found established but did make the following findings that were arguably relevant to those particulars:

" The Tribunal is comfortably satisfied that, on 5 October and 7 November 2007, the practitioner did insert a finger or fingers into the patient's vagina. It is possible that, on 5 October, he did so for the legitimate reason of locating the cervix. On 7 November 2007 it is possible that he did so for the legitimate reason of rearranging the uterus and repositioning the speculum. However, on 7 November, there could have been no legitimate reason for the practitioner to move his finger 'in and out' of the patient's vagina. The movement of a finger or fingers in this fashion over a significant period is a matter about which the patient could not have been mistaken. The patient said that the activity continued for about three minutes. Impressions about the time occupied by a traumatic incident can be incorrect. However, the Tribunal is satisfied that the conduct continued for a significant period" (Decision [18])

In relation to particular 2.2.4, the Tribunal noted that "although the general subject matter of the questions was appropriate, the questions sought inappropriate detail and were asked at an inappropriate time" (Decision [27]).

In relation to particular 3.1, the Tribunal stated that "it was medically incorrect to repeat a pap smear after five weeks ... [a] repeat test should be conducted at six months" (Decision [21]).

Patient C

The Tribunal said that it was "comfortably satisfied" that each of the particulars in relation to Patient C (that is, particulars 6.1 - 6.6) had been established (Decision [42]).

In relation to particular 6.2, the Tribunal noted "that it was appropriate to enquire about the patient's sexual activity when the topic of cervical cancer vaccine was raised on 17 April" (Decision [42]).

Also in relation to particular 6.2 the Tribunal said:

" At most attendances, the practitioner softly stroked the patient's right hand and wrist in an intimate fashion, rather than palpating specific areas of the wrist for diagnostic purposes. While gently stroking the patient's arm, the practitioner asked the patient questions about her sex life (whether she had a boyfriend, the nationality of her boyfriend and whether she was having sex with her boyfriend). In the course of her evidence, the patient demonstrated the nature of the stroking motion (T 60.36 - 61.11) . When he gave evidence, the practitioner demonstrated appropriate palpation at specific points on the inside and outside of the wrist. It is not possible that the patient mistook palpation for stroking" (Decision [32]).

Patient D

The Tribunal found that particulars 7.1, 7.2.1, 7.2.2, 7.2.5 and 7.3 had been established (Decision [55]).

When dealing with particular 7.2, the Tribunal said, presumably with reference to particular 7.2.4, that the appellant "caused his gloved finger to move in and out of the patient's vagina for a significant period" (Decision [55]). It had earlier described the evidence that Patient D gave on this topic as follows:

" The patient said that the practitioner applied lubricant to the inside of her vagina using his gloved fingers. He then examined her vagina. The patient felt the practitioner's fingers 'moving around in (her) vagina, they were moving out and in and around continuously for the whole time they were in there' (Exhibit A, tab 9), which the patient estimated to be about 30 seconds. The practitioner then removed his fingers and inserted a speculum. He took pathology samples and prescribed Ceclor, a broad-spectrum antibiotic for possible bacterial vaginosis and Canesten, an anti-fungal cream, for thrush (a fungal infection)" (Decision [44]).

The Tribunal referred to the appellant's "conduct of moving his fingers in and out of the patient's vagina" as "reprehensible" (Decision [49]). It described the advice concerning digital sex as without "medical basis" (Decision [51]) and the appellant's conduct in showing the photographs to the patient as "at best, thoughtless and irresponsible" (Decision [52]).

Finding of Professional Misconduct

The Tribunal's decision concluded, save for a section on costs, with the following:

"Finding of Professional Misconduct

56 The established particulars of complaint show that, over a period of seven months from October 2007 to April 2008, the practitioner engaged in inappropriate sexual conduct towards three young female patients. The behaviour included inappropriate questioning about the patients' sexual behaviour, stroking the arm of patient C in an intimate way and offering to perform Pap smears. The most serious misconduct involved the practitioner moving his finger in and out of the vaginas of two patients. Apart from sexual impropriety, the practitioner demonstrated a low level of competence in relation to treatment of patient C's right wrist injury, and kept inadequate records in relation to patients B and C.

57 Each of the particulars of complaint that the Tribunal finds established ... constitutes unsatisfactory professional conduct either because it demonstrates conduct significantly below a reasonable standard (section 36(1)(a)) or, in the case of medical record keeping, it involves a contravention of the Act or regulations (section 36(1)(b)).

58 In relation to patients B and D, each of the occasions of clinically unjustified digital penetration amounts to unsatisfactory professional conduct of a sufficiently serious nature to justify suspension: s 37 Medical Practice Act 1992 . Conduct of this nature is a grave departure from proper standards. It involves a serious abuse of trust and breach of practitioner/patient boundaries. In this case, the conduct involved a violation of patients who were particularly vulnerable because of their youth and inexperience.

59 When all aspects of unsatisfactory professional conduct are considered, they demonstrate professional misconduct that is both serious and multifaceted, extending from sexually inappropriate behaviour to significant shortcomings in the areas of communication and medical record-keeping.

Outcome

60 Professional misconduct may not warrant deregistration. However, in this case the professional misconduct involved numerous departures from proper standards, some of which were extremely serious.

61 The practitioner continues to deny the most serious departures (those involving sexual impropriety). He has demonstrated neither insight nor remorse, and has advanced no evidence that he has addressed the underlying problems.

62 As to odd behaviour such as asking patient B to hold the speculum and suggesting that patient D's boyfriend wear gloves for digital sex, the Tribunal is unclear whether the behaviour was motivated by a desire for sexual gratification or was the result of simple ignorance. However, the combination of odd behaviour, inappropriate sexual questioning and the two episodes of digital penetration causes considerable disquiet to the Tribunal.

63 The Tribunal cannot be satisfied that the practitioner poses no risk to the public. Consequently, in exercising its functions for the purpose of protecting the health and safety of the public, the Tribunal considers that the only available course is to direct that the practitioner be deregistered."

THE APPELLANT'S CHALLENGES TO THE TRIBUNAL'S DECISION

The main bases of the appellant's challenges to the Tribunal's decision were as follows.

The appellant's first contention was that the conduct that the Tribunal found to be the appellant's most serious misconduct (that is, moving his finger in and out of the vaginas of Patients B and D) was not alleged against him, whether as sexual conduct or otherwise, in the Notice of Complaint. He submitted that he was accordingly denied procedural fairness.

Secondly the appellant contended that the Tribunal's findings that much of the appellant's conduct was sexual conduct did not reflect allegations made in the Notice of Complaint served upon him. Again he submitted that he was therefore denied procedural fairness.

Thirdly the appellant contended that he was denied procedural fairness as a result of the Commission not putting to him in cross-examination that much of his conduct was sexually motivated.

Fourthly the appellant contended that the Tribunal failed to give proper reasons for its conclusion that he had been guilty of sexual misconduct.

Fifthly the appellant contended that there was no evidence on the basis of which the Tribunal could have reached the conclusion that he was guilty of sexual misconduct.

DENIAL OF PROCEDURAL FAIRNESS

Relevant principles and statutory provisions

The MP Act relevantly provided that any person was able to make a complaint (s 41) to the New South Wales Medical Board, which was established under that Act, or to the Commission (s 42) that a registered medical practitioner "has been guilty of unsatisfactory professional conduct or professional misconduct" (s 39).

Section 43 provided as follows:

"43 Complaints to be in writing etc

(1) A complaint (except one made by the Board or the Director-General) must be in writing and contain particulars of the allegations on which it is founded. A complaint need not be made in terms that are strictly consistent with the terminology of section 36 [referring to the meaning of 'unsatisfactory professional conduct'].

(2) The Board or the Commission may consider and investigate a complaint even if it does not comply with these requirements but must not refer the complaint under Division 3 until they are complied with."

In this case Patients B, C and D lodged complaints with the Commission. The Commission subsequently referred the complaints to the Tribunal pursuant to the MP Act : Part 4, Div 3. The Commission did this by issuing the Notice of Complaint dated 30 April 2010. By reason of s 43(2) this referral was only permissible if the complaints, as then formulated in the Notice of Complaint, complied with the requirements of s 43(1).

The disciplinary powers that ss 60 to 65 of the MP Act conferred on the Tribunal were only able to be exercised if the Tribunal found that "the subject-matter of a complaint against a person [had] been proved" or the medical practitioner made a relevant admission in writing (s 60). In particular the Tribunal's powers to suspend a person from practising medicine or to deregister a person were expressed to be exercisable when the Tribunal found "on a complaint about the person" that the person was, for example, guilty of professional misconduct (s 64).

A properly particularised complaint identifying the allegations made against the medical practitioner was thus the foundation of the Tribunal's jurisdiction, with the ambit of those allegations circumscribing the Tribunal's exercise of the powers that the MP Act conferred upon it.

Such a regime is a familiar one in the context of both courts and disciplinary and other administrative tribunals. The Legal Services Tribunal established under the Legal Profession Act 1987 was one example (see Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73 at [61] - [63]). A tribunal of this type which makes findings outside the "complaints as formulated and particularised" exceeds its power and jurisdiction (ibid at [67]). As with the statutory provisions in question in Walsh v Law Society , "the requirements of particularity" contained in the MP Act "(and the safeguards thereby introduced for the practitioner concerned) would not be narrowly construed" (at [62]).

Furthermore the following observation footnoted in Walsh v Law Society in relation to complaints against legal practitioners in my view reflects also the measure of particularity required in relation to complaints against medical practitioners:

"Even before the Act, a high measure of particularity was required by the principles of procedural fairness in respect of complaints against legal practitioners. See, eg, Smith v NSW Bar Association (1992) 176 CLR 256; Johns v Law Society of NSW [1982] 2 NSWLR 1 at 6; O'Reilly v Law Society of NSW (1988) 24 NSWLR 204" (footnote to [65]).

The following comments made in O'Reilly v Law Society of NSW , one of the decisions cited in the above passage from Walsh v Law Society , are also applicable by analogy to complaints against medical practitioners:

"It is essential, both for the due protection of the interests of the solicitor and for the proper approach by the decision-making tribunal to its task, that charges of professional misconduct should be specified with particularity. Only then will the findings made gave rise to decisions of appropriate certainty and particularity ... The appellant was entitled to have clear notice at the hearing of before the Statutory Committee of the precise ways in which the Society alleged he had been guilty of professional misconduct" (at 210 - 1 per Kirby P).

"This Court has said on more than one occasion that despite the nature of the proceedings natural justice requires that the solicitor being brought before the Statutory Committee be apprised in clear terms of the nature of the case which he or she is called upon to meet" (at 224 per Clarke JA).

The importance of the provision of proper particulars was emphasised by the High Court in John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 in a different but in my view again analogous circumstance. In the context of a prosecution under the Consumer Protection Act 1969, Mason CJ, Deane and Dawson JJ said:

"As has been seen, the information in the present case failed to identify an essential factual ingredient of the actual offence, namely, the 'material particular' in which the statement, which the appellant was alleged to have caused to be published, was false or misleading. That failure was not a merely technical one. It was fundamental ... Whether it was the absence of intention or some other circumstance which was alleged to make the statement false or misleading does not appear from the information and consequently it failed to specify how the appellant was said to have committed the offence" (at 520 - 1).

In Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 the High Court again emphasised in the following terms the proper particularisation of charges:

"The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge ( Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 489 per Dixon J; [1937 HCA 77). In John L Pty Ltd v Attorney-General (NSW) ((1987) 163 CLR 508; [1987] HCA 42) it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed ( John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 at 519). In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet ( John L Pty Ltd [1987] HCA 42; (1987) 163 CLR 508 at 519). The common law requirement is that an information, or an application containing a statement of offences, 'must at the least condescend to identifying the essential factual ingredients of the actual offence [ibid at 520] ... '" (at [26]).

Contrary to the Commission's submission, the fact that the Tribunal was entitled to "inform itself of any matter in such manner as it [thought] fit" ( MP Act , Schedule 2, cl 1) did not detract from the appellant's entitlement, as a matter of procedural fairness, to be apprised of the case to be put against him. That provision was concerned with a different matter, namely, the manner in which allegations the subject of a complaint might be established. The decision in Weinstein v Medical Practitioners Board of Victoria [2008] VSCA 193; (2008) 21 VR 29, to which the Commission referred, does not support its submission. That decision affirmed the importance of affording procedural fairness to persons who are the subject of complaints.

The particulars contained in the Notice of Complaint

As noted above, the appellant contended that the acts that the Tribunal described as constituting the "most serious misconduct" (i.e. "the practitioner moving his finger in and out of the vaginas of two patients": Decision [56]) were not alleged against him in the Notice of Complaint.

This submission is in my view well-founded. The particulars alleged that the appellant inserted his finger into the vaginas of patients B and D "for an extended period and contrary to recogni[s]ed clinical standards" (particulars 2.2.2, 3.3.2 and 7.2.4) but significantly the Tribunal did not find that particulars 2.2.2 or 3.3.2 had been established or in relation to particular 7.2.4 make a finding that the appellant inserted his finger "for an extended period". This may have been because the Tribunal found, at least in relation to Patient B, that the appellant had, or may have had, a legitimate reason for inserting a finger or fingers into the patient's vagina (Decision [18] quoted in [30] above). This may have been the case with Patient D also, although the Tribunal did not say that it was.

However, the Tribunal clearly regarded the movement (as distinct from the presence) of the appellant's fingers in the vaginas of Patients B and D as significant (see for example Decision [18]), no doubt because the description of the appellant's fingers moving in and out of the patients' vaginas was capable of suggesting that the appellant's actions had a sexual connotation.

The allegation of movement in this fashion was not, as the Commission submitted to this Court it was, covered by the particulars referring to the presence of the appellant's fingers in the vaginas of Patients B and D. The particulars refer only to presence, not movement.

This omission from the particulars cannot be regarded as insignificant as the Tribunal regarded the appellant's movement of his fingers as the "most serious misconduct" in which he engaged (Decision [56] quoted in [39] above). In my view that conduct was not alleged against him in the Notice of Complaint. I shall return to the significance of that in due course.

The Commission submitted that it was significant that s 60 referred to the Tribunal's powers becoming exercisable when the " subject-matter " of a complaint was found to have been proved and that:

"Relevant to this appeal, the 'subject matter' of the complaint is the clinically unjustified vaginal examinations of Patients B and D. The details of what happened during the vaginal examinations is a particular of that subject matter" (Submissions dated 3 August 2011 [14]).

I do not agree with this submission. The "subject-matter" of a complaint comprises the matters alleged against the registered medical practitioner that are said to justify the exercise of disciplinary powers against him or her. In my view the authorities to which I have referred indicate that the present context is one requiring a high degree of particularity. Where, as here, a registered medical practitioner is alleged to have improperly conducted vaginal examinations, the practitioner is entitled to be told precisely what it was about those examinations that was improper. This entitles the practitioner to be told of not only, to use the Commission's expression, "details of what happened during the vaginal examinations" but also any objective character, such as a sexual character, that the examinations are alleged to have had.

The appellant's second submission on the procedural fairness point was that none of the conduct that the Tribunal found constituted "inappropriate sexual conduct" or "sexual impropriety" (Decision [56]) was alleged in the Notice of Complaint to have been sexual conduct and that this omission precluded the Tribunal finding that it was so characterised. This submission is in my view also well-founded. As the appellant submitted, the Notice of Complaint does not allege that any of the particularised conduct of the appellant constituted sexual conduct.

The parties implicitly accepted on the appeal that guidance as to what constitutes sexual conduct in the present context can be obtained from decisions in the field of criminal law concerning indecent assault.

In Harkin v R (1989) 38 A Crim R 296, Lee CJ at CL (with whom Wood and Mathews JJ agreed) said the following:

"It is in my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation. That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault. The genitals and anus of both male and female and the breast of the female are the relevant areas. Thus, if the appellant intentionally touched the breast of the girl Elizabeth, it is my view that if there is nothing more, and there is not, that in itself is sufficient to give to the assault the necessary sexual connotation and to render it capable of being held to be indecent, and it is then for the jury to determine whether in the case of a mature man of 38 and a girl of 11 years and nine months that should or should not be regarded as conduct offending against the standards of decency in our community. The purpose or motive of the appellant in behaving in that way is irrelevant. The very intentional doing of the indecent act is sufficient to put the matter before the jury. But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification" (at 301).

Of course care needs to be taken in applying the examples given in that passage to the case of a medical practitioner. It is often part of a medical practitioner's role to touch a person's genitals, breasts or anus. Whilst it may be able to be assumed in other contexts that such touching almost invariably has a sexual connotation, the same cannot be assumed in the case of a medical practitioner. In that case an objective determination of whether the conduct had a sexual connotation has to be made.

The approach in Harkin was adopted in R v Manson (NSW Court of Criminal Appeal, 17 February 1993, unreported) and by the Victorian Court of Appeal in Sabet v R [2011] VSCA 124. It was also adopted (by reference to the decision in Manson ) by this Court in Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241; (2010) 77 NSWLR 17. In that case Campbell JA quoted the following passage from the earlier decision of R v McIntosh (NSW Court of Criminal Appeal, 26 September 1994, unreported):

"To say that the test is an objective one does not mean that the alleged act of indecency must be considered divorced from its surrounding circumstances. These circumstances may show that what otherwise would be indecent was not - for example, an examination of a woman's vagina, ordinarily an indecent act when conducted by a stranger, would not be indecent if conducted by the woman's medical practitioner for medical purposes. The 'surrounding circumstances' include the intention or purpose of the alleged wrongdoer. If the medical practitioner in the example given was conducting the examination not to treat his patient but for his own sexual gratification the examination would be an indecent act (see Manson page 3)" ( Eades at [50]; see also per Basten JA at [9]).

The particulars in the present Notice of Complaint did not allege that any of the appellant's conduct was sexual in character. The appellant rightly conceded on the appeal that the nature of some of the conduct alleged might have given rise to a suspicion that the Commission intended to allege that to be the case but in my view that does not appear as a matter of necessary inference from the terms of the Notice of Complaint.

Some of the particulars raise the suspicion to which I have referred more obviously than others. Particular 2.2.2 is one such particular but in circumstances where the appellant was, or may have been, justified in inserting his finger into Patient B's vagina (see Decision [18] quoted in [30] above), the allegation that he did so in relation to Patient B "for an extended period and contrary to recogni[s]ed clinical standards" is as consistent with an allegation of incompetence as of sexual misconduct.

Likewise particular 2.2.3 (which the Tribunal did not find established) referring to the touching of Patient B's clitoris (contrary to recognised clinical standards) is consistent with an allegation of incompetence as well as one of sexual misconduct.

Particular 2.2.4 referring to the asking of "personal and intimate questions of patient B unrelated to the examination during the course of the examination" is capable of referring to inappropriate curiosity and invasion of privacy, not necessarily involving sexual misconduct on the part of the appellant. Alternatively it could refer to incompetent conduct. The Tribunal accepted that "the general subject matter of the questions was appropriate" but concluded that the questions "sought inappropriate details and were asked at an inappropriate time" (Decision [27]). It said that the questioning "[a]t the very least ... demonstrated very poor communication skills" (Decision [20]). Findings of this type were open on the particulars. The Tribunal's finding that the questioning amounted to sexual misconduct (Decision [56] quoted in [39] above) was not. Similar comments are applicable to the Tribunal's finding that the appellant's conduct in "offering to perform Pap smears" constituted "inappropriate sexual conduct" (Decision [56] quoted in [39] above).

In these circumstances I do not consider that the Notice of Complaint sufficiently apprised the appellant that he was at risk of the Tribunal making the findings that he engaged in "inappropriate sexual conduct", "serious [sexual] misconduct" and "sexual impropriety" (Decision [56], [59] and [61]).

If the Commission intends to allege that examinations by a medical practitioner constituted sexual conduct because the practitioner had a sexual motivation in performing the examinations, the practitioner is entitled to be apprised of that allegation. The position is analogous to that in John L Pty Ltd v Attorney-General where the information in question was found to be defective because it did not identify the "intention or ... other circumstance which was alleged to make the statement false or misleading" (at 521). Such particulars are necessary if the practitioner is to be apprised of the " precise ways" in which he or she is alleged to have been guilty of professional misconduct (see O'Reilly at 210 - 1 per Kirby P, quoted in [53] above). The point is far from a mere technicality because it was such of the appellant's conduct as the Tribunal found involved sexual impropriety that, in its view, constituted the most serious departures from proper standards (see Decision [56] quoted in [39] above).

The Commission objected to the appellant relying upon this submission because, so the Commission contended, it did not fall within the grounds of appeal contained in the appellant's Amended Notice of Appeal. I do not uphold this objection. The appellant's first ground of appeal is broad enough to encompass the point in question and the Commission has in any event had adequate notice of it and an adequate opportunity to respond to it, including by the lodgment of post-hearing written submissions.

The divergence between the Tribunal's decision and the particulars provided to the appellant in the Notice of Complaint of the Commission's allegations against him cannot be regarded as insignificant because the Tribunal plainly regarded its characterisation of the appellant's conduct as sexual as highly significant, rendering his conduct professional misconduct. For example the Tribunal referred to "numerous departures from proper standards, some of which were extremely serious" (Decision [60]). It then identified "the most serious departures" as being "those involving sexual impropriety" (Decision [61]).

The extent of the divergence of the Tribunal's findings from the allegations in the Notice of Complaint is emphasised by [62] of the Tribunal's decision. Having found that certain conduct involved sexual impropriety, the Tribunal commented in that paragraph that it is unclear whether certain other behaviour, which it describes as "odd" was "motivated by a desire for sexual gratification or was the result of simple ignorance". This made it clear that a finding that the appellant had a sexual motivation was implicit in the Tribunal findings of sexual impropriety. The Tribunal was not entitled to find that the appellant was so motivated in the absence of the Commission having made a clear allegation to that effect in its Notice of Complaint.

Practical injustice

In the alternative to its primary submission that the case against the appellant was properly alleged in the Notice of Complaint, the Commission contended that by reason of the manner in which the Tribunal hearing was conducted the appellant had in any event had ample notice of the allegations made against him and therefore suffered no procedural unfairness.

The Commission relied upon the well-known statement of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 that "[w]hether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice" (at [37]) and to subsequent decisions of this Court in CSR Ltd v Eddy [2008] NSWCA 83; (2008) 70 NSWLR 725, Nominal Defendant v Saleh [2011] NSWCA 16; 57 MVR 412 and Lucire v Health Care Complaints Commission [2011] NSWCA 99 applying this concept.

The Commission also relied upon decisions of this Court in Sabag v Health Care Complaints Commission [2001] NSWCA 411 and Daskalopoulos v Health Care Complaints Commission [2002] NSWCA 200 which it submitted indicated that, although proper particulars of allegations may not have been provided, the manner in which proceedings before a disciplinary tribunal are conducted may indicate that the practitioner has not suffered any practical injustice.

As the relevance of the principles stated in Sabag and Daskopoulos to the present case was not contested, I shall proceed upon the assumption that they are in fact relevant. However before doing so I note that those cases were concerned with allegations of a different character to those in the present case. In Sabag and Daskalopoulos the allegations that were arguably not properly particularised, but nevertheless litigated at the hearing, were concerned with the competence of the respondent medical practitioners. The relevant allegations in the present case are however of a considerably more serious character. They are to the effect that the appellant had contact of a sexual nature with the patients without their consent. If this conduct occurred, it would not only have been grossly improper from a professional point of view but would have constituted criminal conduct. There is good reason to confine a person making such allegations strictly to its particularised case. In particular it is arguable that the principle that should be applied is one which is analogous to the following principle which is well established in relation to applications to punish a person for contempt of court.

Many cases have established that in relation to such applications "[it] is not appropriate to seek to fill in material gaps in the allegations of contempt by filing and serving subsequent afffidavits" ( Carew Reid v Carew Corporation Pty Ltd , Full Court of the Western Australian Supreme Court, 23 April 1993, unreported, per Malcolm CJ; see also Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 at [31] per Lee and Finn JJ; Australian Competition and Consumer Commission v Info4pc.com Pty Ltd [2002] FCA 949; (2002) 121 FCR 24 at [9]; Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155; (2005) 221 ALR 823 and Matthews v ASIC [2009] NSWCA 155 at [40] - [41]).

In Carew Reid , Nicholson J explained the rationale for this principle in a passage that was in part quoted and approved by this Court in Matthews v ASIC at [41]:

"The requirements of form however are, in my view, more than mere form because, in this case, they go to a substantial aspect of justice. That is, an alleged contemnor should have clearly particularised in the document particularising the alleged contempt the case against him or her. There are two reasons for that. The first is so that such allegations may be promptly and accurately met and the second is - importantly in this case - that such matters will not be lightly raised. In my opinion, to strike out an application for contempt, which is devoid of particulars in the document raising the alleged contempt, is not just to respect legal form.

In that situation, a failure to comply with form is a matter of substance because it goes to the evidencing of the entitlement to initiate such a serious proceeding. In that context, in my view, to insist upon compliance is to act according to a requirement of justice ..."

Assuming that they are relevant, the principles stated in Sabag and Daskalopoulos however require that consideration be given to the features of the hearing before the Tribunal that the Commission contends afforded the appellant procedural fairness, notwithstanding (so it is assumed for the purposes of this alternative submission) that the allegations against the appellant were not properly particularised in the Notice of Complaint. Accordingly I turn to undertake that consideration.

The conduct of the hearing

The Commission relied upon a number of matters in support of its alternative submission.

First the Commission pointed to the fact that prior to the hearing before the Tribunal the Commission had served on the appellant statements of Patients B, C and D that apprised the appellant of the nature of the evidence that the Commission proposed to call.

Secondly it referred to the Commission's counsel having said in opening at the hearing that the complaints raised "very serious allegations of sexual misconduct, and a pattern of behaviour" (Transcript p 6; see also pp 19, 20, 23 and 24).

Thirdly it referred to counsel for the Commission's cross-examination of the appellant during which the appellant was asked whether he saw Patient B as "a person who might be receptive to any sexual advances on your part" or the consultations with this patient as an opportunity "to engage in unwelcome sexual conduct" or "to pursue some sexual gratification in the manner in which you examined this patient" (Transcript pp 282 - 283).

Fourthly it relied upon the Commission's counsel having referred at the end of the hearing to the appellant's conduct as having been "sexual conduct" (Transcript p 341) and to counsel having also made that allegation in the written submissions that followed.

I shall deal with these matters in turn.

The statements of Patient B that the Commission served described the appellant moving his finger in and out of the patient's vagina a number of times. One description that was typical of the others was in the following terms:

"It felt like he put his finger [sic] into my vagina up to the end, as far as they would go. I thought because it felt to me like they could go no further and when he was moving his fingers in and out I could feel pain around my vagina and inside my lower tummy. I remember after this that blood came out. I remember this happened twice and the second time was the same as the first. I think it was for a few minutes. I remember while this was happening that I was thinking why it was taking a long time to check this. He was using his right hand to do this" (Statement of 14 December 2010 at [5]).

Patient B later said:

"The way that he touched me is the way my boyfriend touches me when we have sex. That is why I thought what he did was wrong because this is how my boyfriend touches me and not how a doctor should touch me" (ibid at [8]).

However Patient B made this latter comment after she had described the appellant touching her clitoris whilst he had his finger in her vagina. The Tribunal did not accept the evidence that the appellant touched Patient B's clitoris, and, at least arguably, Patient B's reference to the way that her boyfriend touched her related only to this allegation that was not substantiated, as did Patient B's assertion in an earlier statement of 19 August 2008 that after the appellant's second examination of her she believed that "he wanted to do sex with me" (at [24]).

In a statement that was served on the appellant, Patient D said that she "could feel [the appellant's] fingers moving around in my vagina, they were moving out and in and around continuously for the whole time they were in there" (Statement of 24 April 2009 at [11]). She said "it felt like he was trying to put the lubricant on the wall of my vagina" and that "he told me that he needed to put some lubricant on in order to get the speculum in" (Statement of 27 August 2010 at [7]). Patient D did not, at least explicitly, characterise the appellant's conduct as sexual.

The Commission did not in its written submissions lodged after the appeal suggest that there was anything of relevance to the present point in any of the statements of Patient C that were served on the appellant (compare [33] and [34] of submissions dated 3 August 2011).

In my view there was nothing in the statements that the Commission served on the appellant that gave the appellant significantly greater notice of the possibility of the Tribunal making findings of sexual misconduct than that given by the Notice of Complaint. Certainly the statements should reasonably have generated a suspicion that the Commission intended to allege that the appellant's touching of Patient B's clitoris was a sexual act but that was an act that the Tribunal ultimately found had not been proven. Beyond that, the statements did not clearly convey to the appellant that the Commission's case would be that the appellant committed acts of serious sexual impropriety and identify which of the many acts alleged against him fell into that category.

In opening the case before the Tribunal the Commission's counsel said that the complaints raised "very serious allegations of sexual misconduct" (Transcript p 6). The appellant's counsel took immediate and strong objection to this statement upon the basis that that proposition was not part of the allegations of which the appellant had been apprised (Transcript p 7). Later in her opening the Commission's counsel referred to particular 6.4 (referring to the recommendation or offer to Patient C of an "intimate examination") as involving "sexual conduct" (Transcript p 19). Later again, after describing the complaints concerning Patients C and D, the Commission's counsel said by way of summary that they involved the following three types of allegations:

"There are the allegations relating to conduct which can properly be described as sexual misconduct, then there are allegations in relation to a departure from accepted clinical standards in the manner in which the consultations were conducted, and that includes the communication with the patients, and then, thirdly, there is the issue with respect to clinical notes" (Transcript p 20).

As counsel's only earlier reference to sexual conduct was to particular 6.4, the "sexual misconduct" to which she referred in the passage just quoted would seem to have been a reference to that particular, and only that particular.

Later again in her opening the Commission's counsel tendered a copy of the New South Wales Medical Board's written policy on sexual misconduct. The appellant's counsel objected to the tender upon the basis that sexual misconduct had not been pleaded. In the course of argument the Deputy Chairperson said to the appellant's counsel:

"... So Mr Ainsworth, as I understood it, the suggestion in the evidence of the patients C and D was that there was touching or suggestions or conversations about sexual matters, with a view to - there was a sexual aspect of it that was of interest to your client. That's the general tenor of the evidence of patients C and D. So I suppose that could be categorised as sexual activity" (Transcript p 24).

It is not clear to what "touching" of Patient C or D the Deputy Chairperson was referring. She may have been mistakenly referring to Patient B's evidence that the appellant touched her clitoris. This was evidence that the Tribunal ultimately did not accept. The Deputy Chairperson did not refer to the appellant's insertion of his fingers into Patient B and D's vaginas or to the in and out movement of the appellant's fingers as having "a sexual aspect".

Final addresses to the Tribunal were largely in writing. Under the heading "Professional misconduct - sexual conduct in relation to a patient" in its written submissions the Commission referred to allegations of the appellant touching Patient B's clitoris, to vaginal examinations conducted in a manner that was not clinically justified and to "inappropriate and unjustified questions of a sexual nature of the patients" ([5] and [6]). Its references earlier in the submissions to the appellant's examinations were to the "extended period" for which the appellant's fingers were said to be in the patients' vaginas ([2(12)] and [4(7)]). The Commission did not refer in its submissions to the movement of the appellant's fingers in and out (the matter upon which the Tribunal focused in its Decision), nor did it do so in conjunction with its reference to "sexual conduct" in the brief oral submissions that the Commission's counsel made (Transcript p 341).

In my view the circumstances to which the Commission pointed do not overcome the problem that the most serious findings that the Tribunal made were not alleged in the Notice of Complaint. The appellant was not, either prior to or during the hearing (at least not until final submissions) apprised of the case that the Tribunal found was proved against him. Indeed the Commission did not at any stage allege that the conduct which the Tribunal found constituted the most serious sexual impropriety, that is, the appellant's movement of his fingers in and out of Patient B and D's vaginas, was conduct of a sexual nature.

Moreover the appellant's strong objections when the Commission first referred at the hearing to sexual conduct cannot be ignored. In my view they demonstrate that the present case is a far-cry from one where the hearing was conducted upon an implicitly agreed basis different from that identified in the formal pleadings or particulars. It was not a case of the type hypothesised in Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 "where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial" (at 664).

In these circumstances it is in my view unnecessary to assess the force of the appellant's submissions that he would have acted differently if the case against him had been clearly and properly alleged against him (Written Submissions dated 28 July 2011 at [15]). It is unnecessary because he has established that in fundamental respects he did not receive a fair hearing. The appellant did not receive "practical justice" (see Lam's Case quoted in [79] above) because the Tribunal made against him significant findings of professional misconduct that were not reflective of allegations that he had been called to answer in the proceedings.

For these reasons my conclusion is that the appellant was denied procedural fairness in that he was found guilty of professional misconduct which in important respects was not alleged against him in the Notice of Complaint and of which he did not otherwise receive sufficient notice. Consequently the decision of the Tribunal should be set aside and the proceedings remitted to a differently constituted Tribunal for determination. This result reflects the orders that the appellant sought in his Amended Notice of Appeal. The appellant did not seek an order that this Court dismiss the complaint against him.

The Browne v Dunn submission

I make the following comment upon the appellant's submission based upon the rule in Browne v Dunn (1893) 6 R 67. The appellant submitted that he was denied procedural fairness because counsel for the Commission did not, at least explicitly, put to him in cross-examination that his conduct was sexually motivated. I shall assume for the purpose of considering this submission that this was not put to him although the contrary is arguable in light of the cross-examination referred to in [88] above.

If the Notice of Complaint had alleged that much of the appellant's conduct was sexually motivated, the appellant may well in his statement have denied that to have been the case. If this had occurred and the Commission wanted to pursue its allegation, it would have been incumbent upon the Commission to challenge that denial in cross-examination in order to comply with the rule in Browne v Dunn . Where the appellant's statement did not contain that denial (for the good reason that the Commission had not made against him an allegation that called for it) the Commission was not required to suggest to the appellant in cross-examination that his acts were sexually motivated. The problem for the Commission was an anterior one - namely, it had not made that allegation in the Notice of Complaint, with the consequence that the appellant had not addressed it in his statement.

ALTERNATIVE SUBMISSIONS OF THE APPELLANT

In light of my view that the Tribunal's decision should be set aside for the reasons I have given above, the appellant's fourth and fifth contentions (see [44] - [45] above) do not strictly arise. Nevertheless it is appropriate that I comment upon the appellant's submission that the Tribunal failed to give adequate reasons for its decision as the point is one of some importance. It is inappropriate and unnecessary that I deal with the appellant's other principal submission (that there was no evidence to support the Tribunal's findings) as the matter is to be the subject of a rehearing in the Tribunal at which the facts will need to be re-determined. It is unnecessary also to deal with the appellant's complaint that the Commission did not conduct a separate hearing in respect of penalty.

Sufficiency of the Tribunal's reasons

The Tribunal was required to give "the reasons for [its] decision" ( MP Act : s 165). In my view it did not sufficiently do this.

The Tribunal proceeded from findings of primary fact as to the appellant's conduct to descriptions of that conduct as "inappropriate sexual conduct" and as involving "sexual impropriety" (Decision [56] and [61]) without explaining why it considered that characterisation to be appropriate.

For example, the Tribunal did not say why it took the view that the appellant's questioning of the patients about their sexual behaviour amounted to sexual conduct on the part of the appellant (see Decision [56] quoted in [39] above). I do not intend to suggest that such a view was not open to the Tribunal but simply that its view about the sexual character of the conduct was of such significance to the outcome of the proceedings, and to the appellant's reputation and professional future, that the reasoning process needed to be spelt out.

If the Tribunal considered that the appellant's stroking of the arm of Patient C "in an intimate way" (to take another aspect of the appellant's conduct held to involve sexual impropriety, again see Decision [56]) was not capable of explanation as inappropriate paternalism or other inappropriate non-sexual familiarity, it needed to state its reasons for taking that view.

As noted earlier, the appellant's movement of his fingers in and out of the vaginas of Patients B and D, which the Tribunal found had occurred, was capable of being regarded as having a sexual connotation. However, the Tribunal needed to say, if it considered it to be so, that the movement was consistent only with sexual conduct on the part of the appellant and could not be explained by the appellant, perhaps in an incompetent and unnecessary fashion, applying lubricant to the inside of Patient D's vagina, this having been what Patient D said the appellant was professing to do at the time (Decision [44]).

ORDERS

In his Amended Notice of Appeal the appellant sought an order that he be released from his undertaking not to practise (see [20] above) although he recognised that it was appropriate that his right to practise be restricted. The Tribunal is better placed than this Court to consider the precise nature of the restrictions that should be imposed. Accordingly this Court should release the appellant from his undertaking but give the Commission an opportunity to approach the Tribunal for appropriate interim relief before that release becomes effective.

Although he discounted the suggestion, Dr Walsh, the peer reviewer qualified for the appellant, realised that it might be suggested that the appellant conducted his intimate examination of D for his sexual gratification (blue 549F).

The statements of the patients about their perceptions at the time were evidence that the appellant's conduct was sexual. The common law principle, and the reasons for it, were explained by French CJ, Heydon and Bell JJ, with the agreement of Gummow J, in Lithgow City Council v Jackson [2011] HCA 36; (2011) 281 ALR 223 para [45]:

"The common law permitted the reception of non-expert opinion evidence where it was very difficult for witnesses to convey what they had perceived about an event or condition without using rolled-up summaries of lay opinion - impressions or inferences - either in lieu of or in addition to whatever evidence of specific matters of primary fact they could give about that event or condition. The usual examples are age, sobriety, speed, time, distance, weather, handwriting, identity, bodily health and emotional state, but a thorough search would uncover very many more ... in many cases, to endeavour to describe the primary facts underlying the inference may be ineffective or misleading without stating the inference. The reason why it is very difficult for the observer is that it is almost impossible to separate the inferences from the primary facts on which they are based, and often very difficult to identify and recollect the primary facts themselves."

The plurality referred [46] to the following statement in Wigmore:

"It is a good general rule that a witness is not to give his impressions, but to state the facts from which he received them, and thus leave the jury to draw their own conclusion... there are cases where a single impression is made by induction from a number of others; as, where we judge whether a man is actuated by passion, we are determined by the expression of his countenance, the tone of his voice, his gestures, and a variety of other matters: yet a witness speaking of such a subject of inquiry, would be permitted directly to say whether the man was angry or not ... I take it, that wherever the facts from which a witness received an impression are too evanescent in their nature to be recollected, or are too complicated to be separated and distinctly narrated, his impressions from these facts become evidence"

The relevance of expert evidence.

During the opening in the Tribunal counsel for the appellant said [26] above, that "no expert was briefed" to comment on whether the conduct charged was sexual misconduct. He added [28] above: "Nobody was ever asked ... whether any of this conduct in the view of the peer reviewers, could be seen as sexual conduct."

The peer reviewers were not asked to comment on the appellant's motives and purposes, and that evidence would have been of no weight. They could comment on his compliance with or departures from proper clinical standards but they could not read his mind. The Tribunal however could draw inferences from his conduct, his conversation, his departures from clinical standards and the perceptions of the patients, and it had seen and heard the witnesses.

Pleading

The Notice of Complaint contained the complaints by B, C and D as formulated by the Director. Section 43(1) provided that a complaint to the Commission must be in writing and contain particulars of the allegations on which it is founded. Subsection (2) prohibited the Commission referring a serious complaint to the Tribunal under s 52(1) until the requirements of s 43(1) were met.

The 1993 Act contained parallel provisions. Sections 8 and 9(1) enabled a client to make a complaint in writing to the Commission. It had to include particulars (s 9(2)).

Sections 19-22 required the Commission to assess a complaint, and s 23(1)(b)(iii) required it to investigate any complaint which, if substantiated, would provide grounds for disciplinary action against the practitioner. Section 16(1) required the Commission to notify the practitioner of a complaint within 14 days after completing its assessment.

Part 5 dealt with the investigation of complaints. If, after investigation, the Commission proposed to refer a complaint to the Director under s 39(1)(a), it was required by s 40(1) to give the practitioner an opportunity to make submissions.

B's complaint included her formal statements of 19 and 20 August 2008 (blue 11-16). The first alleged that the appellant moved his finger(s) in and out of her vagina. She made other formal statements of 15 October 2008 and 14 December 2010, but the latter was made after her complaint had been referred to the Tribunal.

D's complaint form signed on 30 March 2009 (blue 35-9) alleged that the appellant applied lubricant to her vaginal walls (blue 37D) breached "the moral standards of care", "exploited ... power and trust" (blue 38J) and "shown complete disregard for any ethical boundaries" (blue 38O). This was supplemented by her formal statements of 24 April and 27 May 2009 before her complaint was referred. The former alleged that during her intimate examination the appellant moved his fingers in and out, and the latter alleged that he touched her improperly.

One of the Director's functions (1993 Act s 90B(1)(a)) was to determine whether a complaint should be prosecuted before the Tribunal.

The Director was not required by statute, the Medical Tribunal Rules or the Medical Practice Regulations to formulate complaints in a pleading.

Complaints are "referred" to the Tribunal: ss 43(2), 52(1), 56, 90 and 147(1), not commenced in it. Although "any person" can make a complaint under the Act (s 41), and s 8 of the 1993 Act allows many persons to make complaints, they are made to the Commission. Its statutory functions and those of the Director do not include making complaints.

There was no explicit basis in statute or statutory instrument for treating the Notice of Complaint as a complaint, or the complaints referred. The Tribunal did not have a statutory duty to formulate charges. It was to "conduct an inquiry into any complaint" (s 159), as it thought fit (s 161(1)). Questions of procedure were to be decided by the presiding judge (s 154(1)). If it found "the subject-matter of a complaint ... proved" it could exercise its disciplinary powers.

The Notice of Complaint was the Director's summary or distillation of the complaints, formulated as an aide memoire for the benefit of the appellant and the Tribunal, but the complaints referred were those made and signed by the patients. Those by B and D contain, as particulars in accordance with s 43(1), allegations that the appellant moved his finger(s) in and out of their vaginas.

I have held [10]-[13] that the Notice of Complaint alleged, with sufficient particularity, that the appellant's insertion of his finger(s) into the vaginas of B and D constituted professional misconduct. I will also consider whether the absence of any explicit reference in that document to finger movements in the vaginas denied the appellant procedural fairness.

Common law duty of procedural fairness

Since there was no statutory or equivalent duty to formulate and particularise charges the Tribunal was bound to see that this was done as part of its common law duty of procedural fairness.

Thus decisions on statutory and equivalent provisions, including rules of court, which require the formulation and particularisation of criminal and like charges are not relevant.

A person facing disciplinary action is entitled, at common law, to reasonable notice of the charges against him and an opportunity to answer them. In The Queen v MacKellar ex parte Ratu [1977] HCA 35, 137 CLR 461, 476 Mason J said:

"... in many circumstances natural justice requires that a person against whom an order is proposed to be made that will deprive him of some right or interest or the legitimate expectation of some benefit is entitled to particulars of the case sought to be made against him."

In Kioa v West [1985] HCA 81, 159 CLR 550, 582 Mason J said that a person in such a position:

"is entitled to know the case sought to be made against him and to be given an opportunity of replying to it ".

In Smith v NSW Bar Association [1992] HCA 36, 176 CLR 256, 269 Brennan, Dawson, Toohey & Gaudron JJ said:

"... procedural fairness required that the appellant be given an opportunity to be heard as to whether the finding should be made."

In Sabag v HCCC [2001] NSWCA 411; Gad v HCCC [2002] NSWCA 111, and Daskalopoulos v HCCC [2002] NSWCA 200 this Court held that the Tribunal's findings of professional misconduct involved a denial of procedural fairness.

In Sabag Sperling J, giving the principal judgment for the majority, referred [83] to the requirement in s 43 that any complaint must contain particulars of the allegations on which it is founded. He continued:

"The primary function of particulars is to apprise the opposite party of the case to be met. There is a special need for particulars in disciplinary proceedings ... because of the elements of degree and judgement involved in a finding of professional offence ... The particulars of the complaint must specify the conduct relied upon sufficiently to apprise the person not only of the bare facts relied upon but also of those aspects of the conduct relied upon as satisfying the elements of degree and judgment which are involved."

Sperling J, who with Beazley JA, held that there had been a denial of procedural fairness did not base his decision on the formal complaint alone. He said [106]-[107]:

106. There was nothing in the complaint giving notice ... of either of these two matters ... as conduct to be relied upon as constituting or contributing to the professional offences charged. There was no such notice in the opening address by counsel for the complainant ... It was not put to the appellant in cross-examination by the Tribunal ... Neither of the ... matters was put to the Tribunal in the closing address by counsel for the complainant, as elements of the complainant's case ... The Tribunal itself did not raise these matters for consideration before giving its decision.

107. In short, the appellant had no notice that these matters would be or might be relied upon by the Tribunal as constituting or contributing to its ultimate findings. The appellant did not have an opportunity to be heard in relation to those matters."

In his dissenting judgment Davies AJA found otherwise because the issue had "emerged at the trial and ... been litigated". The majority found [116] that the issue had not been litigated.

In Gad (above) Stein JA, who gave the principal judgment, said [44] that "it was necessary to bring home to the appellant that it was the respondent's case that his records were not simply inadequate, but falsified so as to mislead". He relied [47] among other things on the failure to cross-examine the practitioner on the issue.

In Daskalopoulos (above) Hodgson JA, who gave the principal judgment, referred [50] to "the requirement of clarity in allegations made against persons charged with professional misconduct and/or unsatisfactory professional conduct." He found a denial of procedural fairness because of [53] "the difference between the particular and the finding, and the lack of any clear formulation during the hearing of any amended particular or allegation in relation to that particular."

In HCCC v Karalasingham [2007] NSWCA 267 at [27]-[31], and Lucire v HCCC [2011] NSWCA 99 at [42]-[45] Basten JA criticised "pleadings", i.e. Notices of Complaint, in the present form, and pointed to the difficulties they created. However the Court did not decide that the "pleadings" had caused a denial of procedural fairness.

In my judgment there was no breach of the common law duty of procedural fairness in this case. The appellant and his advisers could not have been in any doubt that the Commission, and the two patients, were alleging professional misconduct based on his intimate examinations, including what had happened during the "extended periods" when his finger(s) were inside their vaginas.

The formal interview in October 2008, the Board's enquiries in November 2008 and March 2009, and the conditions imposed on the appellant's registration: [17]-[20] above, indicated that the appellant's conduct with B and C was viewed as sexual or possibly so.

Any residual doubt, or perhaps hope, that this might not be the case was removed during the opening of the Commission's case in the Tribunal. It was probably removed the week before when the Commission gave notice that they would be relying on the Board's policy about sexual misconduct: [28] above.

The appellant's advisers, wisely perhaps, did not seek further and better particulars of the matters relied on to establish that the intimate examinations constituted professional misconduct. When, during the opening, it became clear beyond doubt that the Commission was alleging sexual misconduct, counsel for the appellant protested, but there was no application to strike out any part of the Notice of Complaint, no application for further particulars, no application for an adjournment and no objection to the evidence.

The appellant had already given his version in writing of what happened during these examinations. The expert evidence had already dealt with the relevant clinical standards and the respects in which, and the extent to which, the appellant's conduct had fallen short of what was appropriate.

Macfarlan JA has referred to the cross-examination of the appellant about his sexual interest in these patients [72], and in my opinion there was no breach of the rule in Browne v Dunn (1894) 6 The Reports 67. However, in my view, such cross-examination was not even necessary. As Lord Herschell LC said at 71:

"... there are cases in which ... notice has been so distinctly and unmistakably given and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it."

The rule was considered in Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1, where Hunt J reviewed the later authorities, and concluded at p 26:

"... unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings."

The relevant evidence had been led by the Commission, and the appellant and his advisers were aware of the inferences that B and D had drawn from his conduct which the Commission relied upon.

The claim that the appellant was denied procedural fairness must be evaluated by considering his options. As Basten JA said in Lucire [2011] NSWCA 99 [61] "This question requires an assessment of practical and strategic considerations ... not merely ... of abstract possibilities."

The appellant's expert could not be asked to express an opinion about the appellant's motives and purposes. The appellant was already bound, for practical reasons, to go into the witness box. The Tribunal did not sit the day following the opening and the appellant's advisers had an opportunity to assess their position and obtain instructions. The appellant, unlike the practitioners in Sabag , Gad , and Daskalopoulos , knew when he went into the witness box what was being alleged, and had the opportunity to explain or justify his conduct.

Adequacy of reasons

The remaining ground of appeal challenged the adequacy of the Tribunal's reasons. Macfarlan JA would uphold this ground, but I must respectfully differ.

The Tribunal accepted, with some qualifications, the evidence of B [17], C [38], and D [45], [48]. In doing so it necessarily rejected the appellant's evidence to the contrary and it specifically rejected [45] his evidence that he did not insert his finger(s) into D's vagina on 26 March 2008. It also made findings about the expert evidence.

The Tribunal found [8] that on 7 November 2007 "there could have been no legitimate reason" for the appellant moving his fingers in and out of D's vagina, and that she could not have been mistaken. It found that [19] there was no reason to question her that day about sexual activity, [20] it was "improper" to ask such questions during the intimate examination, and [22] there was no clinical reason for taking a repeat pap smear.

In relation to C the Tribunal found [42, 6.2] that the appellant asked personal and intimate questions unrelated to her examination and treatment, and rubbed her hand and arm in a personal manner on several occasions.

In relation to D the Tribunal found [55, 7.2] that on 26 March 2008 the appellant caused his gloved finger(s) to move in and out of the patient's vagina for a significant period and [49] that this conduct was reprehensible.

The Tribunal concluded [56] that the established particulars of complaint showed that over a period of seven months the appellant engaged in inappropriate sexual conduct with three young female patients, in his questions, in his touching C's hand and arm "in an intimate way", and in moving his fingers in the vaginas of B and D without [58] clinical justification.

In my judgment those reasons contained sufficient primary findings and adequately explained the basis for the ultimate finding of professional misconduct.

No separate hearing on "penalty"

The last ground of appeal alleged that the Tribunal should have published its findings and given the parties an opportunity to adduce evidence and make submissions on the appropriate orders consequential on those findings. In ordering deregistration without giving the appellant this opportunity the Tribunal acted in breach of its duty of procedural fairness.

The need for a second sentencing stage is an accepted feature of the criminal process. In Forge v ASIC [2004] NSWCA 448, 213 ALR 514 [417]-[427] this Court applied the principle to proceedings for civil penalties against directors which could involve disqualification. In Hall v New South Wales Trotting Club Limited [1977] 1 NSWLR 378 the principle was applied to proceedings in a domestic tribunal involving possible expulsion from a voluntary association. In that case Hutley JA said at p 382:

"... a person found guilty cannot really address until he knows of what he has been found guilty."

In Lucire [2011] NSWCA 99 [65] Basten JA, giving the principal judgment, said that the practitioner:

"... should not have been required to address submissions to the Tribunal on the appropriate orders until the Tribunal had determined whether and in what respects her conduct constituted professional misconduct."

In my judgment this ground of appeal succeeds, and the orders of the Tribunal should be set aside. It seems that the appellant continued to practise, subject to the Board's conditions, until he was deregistered on 5 May 2011. Macfarlan JA stayed the orders pending the determination of the appeal on the appellant's undertaking not to practise in the meantime.

The Court does not know when the Tribunal will be able to reconvene nor the time the parties may need to prepare for that hearing.

The order for deregistration has not yet been acted on. The appellant's status pending the further hearing, and whether, and to what extent, he should be free to practise are matters that will have to be decided elsewhere. To allow time for this process the orders of this Court that I propose should not take effect until 21 days after publication of these reasons.

When the Tribunal has received any further evidence relevant to the orders it should make, consequential on its findings, and has heard the parties, it will not be constrained legally by its earlier orders. The appellant's success on this ground involves a risk of double jeopardy, as this Court pointed out to Mr Gormly during the hearing.

Costs

The challenge to the Tribunal's findings occupied practically the whole of the hearing time and required the reproduction of the whole of the material before the Tribunal. The appellant's successful challenge to the consequential orders was barely opposed and could have been supported on the reasons of the Tribunal, the submissions below, and limited parts of the transcript. In these circumstances the appellant should be ordered to pay 80% of the Commission's costs of the proceedings in this Court.

Orders

I therefore propose the following orders:

(1) Appeal allowed in part;

(2) The orders of the Medical Tribunal of 5 May 2011 set aside, save as to costs with effect from the date 21 days after the date of this judgment;

(3) Proceedings remitted to the Tribunal for further hearing, according to law, to determine what orders should be made consequential on its findings published on 5 May 2011;

(4) Appeal otherwise dismissed;

(5) Appellant to pay 80% of the respondent's costs of the proceedings in this Court.

**********

Decision last updated: 22 November 2011

Medium Neutral Citation:	King v Health Care Complaints Commission [2011] NSWCA 353
Hearing dates:	26 July 2011
Decision date:	22 November 2011
Before:	McColl JA at [1]; Macfarlan JA at [18]; Handley AJA at [115]
Decision:	(1) Appeal allowed in part; (2) The orders of the Medical Tribunal of 5 May 2011 set aside, save as to costs with effect from the date 21 days after the date of this judgment; (3) Proceedings remitted to the Tribunal for further hearing, according to law, to determine what orders should be made consequential on its findings published on 5 May 2011; (4) Appeal otherwise dismissed; (5) Appellant to pay 80% of the respondent's costs of the proceedings in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	ADMINISTRATIVE LAW - appeal against a decision of the Medical Tribunal with respect to a point of law - whether Tribunal denied appellant procedural fairness in making findings of professional misconduct against him - whether Notice of Complaint alleged sexual misconduct - whether Commission required to formulate complaints in a pleading - whether Tribunal required to formulate charges ADMINISTRATIVE LAW - Medical Tribunal - whether Tribunal breached its duty of procedural fairness in not conducting a separate hearing in respect of penalty
Legislation Cited:	Health Care Complaints Act 1993 Health Practitioners Regulation National Law (NSW) No 86(a) Health Practitioners Regulation Amendment Act 2010 Legal Profession Act 1987 Medical Practice Act 1992 Occupational Health and Safety Act 1983
Cases Cited:	Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 Australian Competition and Consumer Commission v Info4pc.com Pty Ltd [2002] FCA 949; (2002) 121 FCR 24 Browne v Dunn (1893) 6 R 67 Carew Reid v Carew Corporation Pty Ltd (Full Court of the Western Australian Supreme Court, 23 April 1993, unreported) Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 CSR Ltd v Eddy [2008] NSWCA 83; (2008) 70 NSWLR 725 Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 Daskalopoulos v Health Care Complaints Commission [2002] NSWCA 200 Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241; (2010) 77 NSWLR 173 F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 Forge v ASIC [2004] NSWCA 448; 213 ALR 514 Gad v HCCC [2002] NSWCA 111 Hall v New South Wales Trotting Club Limited [1977] 1 NSWLR 378 Harkin v R (1989) 38 A Crim R 296 HCCC v Karalasingham [2007] NSWCA 267 John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155; (2005) 221 ALR 823 Kioa v West [1985] HCA 81; 159 CLR 550 Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 Lithgow City Council v Jackson [2011] HCA 36; (2011) 281 ALR 223 Lucire v Health Care Complaints Commission [2011] NSWCA 99 Matthews v ASIC [2009] NSWCA 155 MH6 v Mental Health Board [2009] VSCA 184; (2009) 25 VR 382 Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 Nominal Defendant v Saleh [2011] NSWCA 16; 57 MVR 412 O'Reilly v Law Society of NSW (1988) 24 NSWLR 204 R v Manson (NSW Court of Criminal Appeal, 17 February 1993, unreported) R v McIntosh (NSW Court of Criminal Appeal, 26 September 1994, unreported) Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Sabet v R [2011] VSCA 124 Smith v NSW Bar Association [1992] HCA 36; 176 CLR 256 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 The Queen v MacKellar ex parte Ratu [1977] HCA 35; 137 CLR 461 Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73 Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 Weinstein v Medical Practitioners Board of Victoria [2008] VSCA 193; (2008) 21 VR 29 Wentworth v NSW Bar Association [1992] HCA 24; (1992) 176 CLR 239 White v Ryde Municipal Council [1977] 2 NSWLR 909
Category:	Principal judgment
Parties:	Dr Victor King (Appellant) Health Care Complaints Commission (Respondent)
Representation:	Counsel: J Gormly SC/M Ainsworth (Appellant) P Strickland SC/K L Eastman (Respondent) Solicitors: Holman Webb Lawyers (Appellant) Health Care Complaints Commission (Respondent)
File Number(s):	CA 2011/171615
Decision under appeal	Citation: Health Care Complaints Commission v Dr Victor King [2011] NSWMT 5 Date of Decision: 2011-05-05 00:00:00 Before: Murrell DCJ; Dr E Kertesz; Dr G Yeo; Dr C Berglund File Number(s): 40017/10