Medical Board of Australia v Arunkalaivanan

[2023] WASCA 117

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   MEDICAL BOARD OF AUSTRALIA -v- ARUNKALAIVANAN [2023] WASCA 117

CORAM:   BUSS P

VAUGHAN JA

HALL JA

HEARD:   20 OCTOBER 2022

DELIVERED          :   7 AUGUST 2023

FILE NO/S:   CACV 98 of 2021

BETWEEN:   MEDICAL BOARD OF AUSTRALIA

Appellant

AND

ANGAMUTHU ARUNKALAIVANAN

Respondent

ON APPEAL FROM:

Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL

Coram:   DEPUTY PRESIDENT, JUDGE GLANCY, SENIOR MEMBER DAVID AITKIN, SENIOR SESSIONAL MEMBER PETER WINTERTON

File Number            :   VR 71 of 2020

Catchwords:

Professions and Trades - Medical practitioner - Disciplinary proceedings before State Administrative Tribunal - Allegations of sexual misconduct - Tribunal found no case to answer - Tribunal not satisfied evidence of complainant was truthful, accurate or reliable - Whether Tribunal's reasons for not accepting complainant's evidence were illogical or irrational

Legislation:

State Administrative Tribunal Act 2004 (WA), s 105(1), s 105(2), s 105(9)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	M D Cuerden SC
Respondent	:	T J Palmer SC

Solicitors:

Appellant	:	Minter Ellison
Respondent	:	Panetta McGrath Lawyers

Case(s) referred to in decision(s):

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79

Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522

Commissioner for Consumer Protection v Carey [2014] WASCA 7

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21

Duncan v Independent Commission against Corruption [2016] NSWCA 143

Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2018] WASCA 32; (2018) 53 WAR 156

Giudice v Legal Profession Complaints Committee [2014] WASCA 115

Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315

Health Care Complaints Commission v Sultan [2018] NSWCA 303

Humich Nominees Pty Ltd v Commissioner of Main Roads [2020] WASCA 175

Legal Profession Complaints Committee v Lourey [2022] WASCA 114

Legal Profession Complaints Committee v Rayney [2017] WASCA 78; (2017) 51 WAR 142

Lourey v Legal Services and Complaints Committee [2023] WASCA 90

Medical Board of Australia and Arunkalaivanan [2021] WASAT 127

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992

Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320

Panegyres v Medical Board of Australia [2020] WASCA 58

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165

WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87

Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54

Western Australian Planning Commission v Board of Valuers [2018] WASCA 145

Young v Legal Profession Complaints Committee [2022] WASCA 52

JUDGMENT OF THE COURT:

Overview

1. The appellant, the Medical Board of Australia (Board), referred the respondent medical practitioner, Angamuthu Arunkalaivanan (Practitioner), to the State Administrative Tribunal under s 193(1)(a)(i) of the National Law.[1]  The Board alleged, among other things, that the Practitioner had behaved in a way that constituted professional misconduct in the course of a consultation with Patient A on 1 November 2018 and, separately, during a consultation with Patient B on 25 October 2019.  The Board's allegations included an allegation that the Practitioner touched each of Patient A and Patient B inappropriately for his sexual gratification.

   [1] The 'National Law' being the Health Practitioner Regulation National Law as set out in the schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA).

2. More specifically:

   1.In relation to Patient A, the Board claimed that the Practitioner:  (a) squeezed Patient A's breasts when there was no clinical basis or need to conduct such an examination; (b) failed to obtain Patient A's informed consent; (c) failed to arrange for a chaperone to be present during the examination; and (d) became sexually aroused while squeezing Patient A's breasts, pressing his erect penis against Patient A's left kneecap.

   2.In relation to Patient B, the Board claimed that the Practitioner:  (a) conducted a vaginal examination in a manner that was forceful and rough; (b) failed to obtain Patient B's informed consent; and (c) conducted the vaginal examination without the physical presence of a Board approved practice monitor to observe the examination, in breach of a condition placed on the Practitioner's registration on 27 June 2019.

3. The Practitioner denied that he touched either complainant in the manner alleged by the Board and denied all of the Board's other allegations.

4. The Tribunal was not satisfied that the Board had proved its allegations against the Practitioner to the requisite standard.[2]  Among other things, the Tribunal was not satisfied that either complainant's evidence was truthful, accurate or reliable.[3]  In accordance with s 196(1)(a) of the National Law the Tribunal made orders that the Practitioner had no case to answer and that no further action was to be taken in relation to the matter.[4]

   [2] Medical Board of Australia and Arunkalaivanan [2021] WASAT 127 (primary reasons) [2], [197].

   [3] Primary reasons [78] - [79], [116], [129], [169], [189]. See also [130], [134], [144], [146], [160], [162], [164].

   [4] Primary reasons [198].

5. The Board applies for leave to appeal.  The Board contends, in effect, that the Tribunal's reasons for rejecting Patient A's evidence were illogical and irrational.  This alleged error of law is said to also vitiate the Tribunal's reasons for rejecting the evidence of Patient B.  For the reasons that follow leave to appeal should be refused and the appeal must be dismissed.

The proceedings in the Tribunal:  the Board's case and the Practitioner's response

1. The Practitioner is a specialist obstetrician and gynaecologist.[5]  The Tribunal made detailed findings as to the Practitioner's qualifications, training and experience.[6]  In relation to the Practitioner's professional history, the Board relied on the fact that, in 2013, the Practitioner was disciplined in the United Kingdom for carrying out a breast examination inappropriately in October 2012.[7]  The Board alleged that there was a striking similarity between that conduct and the behaviour alleged in relation to Patient A.

   [5] Primary reasons [1].

   [6] Primary reasons [80] - [87].

   [7] Primary reasons [53.1], [58], [85].

2. The Board also relied on the circumstance that, in November 2020, there had been a finding pursuant to s 151 of the National Law that, in June 2019, the Practitioner inserted a 'Mirena' (a form of intrauterine device) during a consultation with a Ms F without prior explanation as to how this was going to occur and what Ms F should expect during the procedure.[8]

   [8] Primary reasons [69] - [72].

3. As might be expected, the Board's primary witnesses were the complainants - Patient A and Patient B.  However, the Board also relied on post-examination communications that each of Patient A and Patient B had with third parties.  There was also expert evidence on the issue of whether it was appropriate for the Practitioner to have performed a breast examination on Patient A at all.

4. Patient A's evidence in chief was adduced through six witness statements, three of which were comprehensive and the remainder of which were shorter and dealt with clarifications or discrete points.[9]  There are some differences in the witness statements.  Read together, the substance of Patient A's evidence was that:

   [9] ts 121 - 122.  They comprise:  (1) a statement dated 11 March 2019 GAB 848 - 856; (2) a statement dated 12 June 2019 GAB 857 - 863; (3) a supplementary statement dated 25 August 2019 (correcting a 'typing error' in the statement dated 12 June 2019) GAB 864; (4) a statement dated 25 August 2019 GAB 865 - 871; (5) a supplementary statement dated 21 October 2019 GAB 872; and (6) a statement dated 13 July 2020 GAB 873 - 874.

   1.On 1 November 2018 Patient A attended the Practitioner to obtain a second medical opinion on whether she required a hysterectomy.  Patient A attended the consultation alone.  After a 20-minute conversation the Practitioner told Patient A that he did not believe that a hysterectomy was required as instead an operation could be performed to remove fibroids that were causing Patient A's issues.

   2.The Practitioner then told Patient A that he wanted to undertake a full body examination of Patient A's person.  He directed Patient A to remove her clothes and told her to lie down on a bed in the consultation room.  Patient A said that she requested a female chaperone before the Practitioner performed the examination.  The Practitioner then departed the room.

   3.Patient A remained seated but removed her T-shirt and bra.

   4.The Practitioner returned alone and informed Patient A that his female colleague was busy.  Before Patient A had a chance to question why a chaperone could not be present the Practitioner walked over and stood immediately in front of Patient A.

   5.The Practitioner then placed his hands on Patient A's breasts and squeezed them repeatedly for about 20 seconds.  In her final statement, by way of further explanation, Patient A said that the Practitioner:

   placed his left hand on my right breast and his right hand on my left breast, both at the same time.  He then rhythmically squeezed both of my breasts at the same time, for approximately 20 seconds.  His hands were on the front of my breasts and squeezing my nipples.  He did not wear gloves.[10]

   6.Patient A felt the Practitioner's erect penis touch her left kneecap during the breast examination.  Patient A said that she could observe the Practitioner's erect penis under his trousers and his trousers were sticking out.

   7Patient A stood up.  Patient A told the Practitioner that she was not comfortable with the examination.

   8.In her statements of 12 June 2019 and 25 August 2019, but not in her initial statement of 11 March 2019, Patient A said that the Practitioner attempted to reassure her by saying '[t]his is how we do it in India'[11] (Patient A had earlier described the Practitioner as being of Indian descent and having an Indian accent).  Patient A said she responded by saying that this was nothing that she had experienced in prior examinations.

   9.Patient A dressed herself.  Patient A said that she observed the Practitioner entering notes in his computer that indicated that she refused to have a vaginal examination.  Patient A said that she did not specifically say that she declined to undergo a vaginal examination.

   10.The Practitioner handed Patient A an information sheet and a business card.  The Practitioner told Patient A to call him if she decided to proceed with the relevant procedure (an abdominal myomectomy).

   11.Patient A said that, at the time of her consultation, she was not troubled by breast pain.  Nor did the Practitioner ask Patient A whether she had experienced breast pain in the past or whether she currently had breast pain.  Patient A said that she did not mention breast pain to the Practitioner.

   12.Indeed, in her statement dated 21 October 2019, Patient A said that at no point did she report having a sore breast or breasts to any doctor that had been involved in her care.[12]

   [10] Statement dated 13 July 2020 par 5 GAB 873.

   [11] Statement dated 12 June 2019 par 37 GAB 861; statement dated 25 August 2019 par 37 GAB 869.

   [12] Supplementary statement dated 21 October 2019 par 3 GAB 872.

5. Patient A also referred to her subsequent text message exchange with her partner about the concerns Patient A had in relation to the examination.

6. Patient B also gave evidence by witness statement.[13]  Given the matters raised on appeal it is not necessary to summarise the whole of Patient B's evidence in chief.  Among other things Patient B gave evidence that, during a vaginal examination, she was left alone with the Practitioner in a curtained off area.  Patient B said that during the time the female chaperone was absent from the curtained area the Practitioner quickly and forcefully inserted some fingers from his right hand into Patient B's vagina causing her to jump because of the pain.

   [13] ts 77 - 78.  See also statement dated 13 January 2020 GAB 880 - 888.

7. The Board said that, in each case, the touching was not done for a legitimate medical purpose.  The Board alleged that the touching was for the Practitioner's desire for sexual gratification.[14]

   [14] Primary reasons [1].

8. The Practitioner gave evidence.  He also called:

   1.Twinkle Verma - Ms Verma was a receptionist at the medical practice at which the Practitioner consulted.  The Practitioner said that Ms Verma was the chaperone who observed his examination of Patient A.

   2.Jacqueline Trimby - Ms Trimby, a registered nurse, was the Board approved practice monitor employed by the Practitioner to observe his consultations after a condition requiring a practice monitor to do so was imposed on the Practitioner's registration on 27 June 2019.  Ms Trimby was present during the Practitioner's examination of Patient B.

9. The Practitioner denied that he touched either complainant in the manner alleged by the Board and denied the Board's other allegations.  He maintained that, in each case, the examination was medically appropriate and performed consistently with recognised medical techniques.  The Practitioner said that the examinations were carried out after the patients had each given their consent and that each examination took place in the presence of a chaperone.[15]

   [15] Primary reasons [2]. See also [109] - [110].

The Tribunal's decision

1. In outlining the Tribunal's reasons for decision it is convenient to spend more time developing the basis for the Tribunal's decision on the allegations concerning Patient A.  This is because, as will be seen, the challenge on appeal to the Tribunal's reasoning in dismissing the allegations concerning Patient B is entirely derivative on the challenge to the Tribunal's reasoning in relation to the allegations as to Patient A.

2. The Tribunal identified the primary issues it had to resolve.[16]  These included whether, as alleged by the Board, the Tribunal should adopt propensity reasoning in relation to the Practitioner's behaviour in the United Kingdom that resulted in disciplinary action and the findings regarding Ms F.[17]  There were also admissibility issues as to Patient A's and Patient B's post-examination communications with third-parties[18] (these were resolved against the Practitioner).[19]

   [16] Primary reasons [5] - [7].

   [17] Primary reasons [6].

   [18] Primary reasons [7].

   [19] Primary reasons [50] - [51].

3. After dealing with the relevant legal framework,[20] various professional guidelines and codes of practice,[21] and the admissibility issues,[22] the Tribunal addressed the Board's contention that three matters could be relied on as propensity evidence.[23]  These were:

   1.As to the allegations concerning Patient A, the evidence that the Practitioner was disciplined in the United Kingdom in relation to a breast examination carried out in October 2012.

   2.As to Patient B, the findings made in respect of Ms F.

   3.As to both Patient A and Patient B, that the evidence given by Patient A could be used as propensity evidence when considering the evidence given by Patient B; or, depending on the order in which the Tribunal resolved the allegations, the evidence given by Patient B could be used as propensity evidence when considering the evidence given by Patient A.

   [20] Primary reasons [9] - [15], [27] - [43].

   [21] Primary reasons [16] - [26].

   [22] Primary reasons [44] - [51].

   [23] Primary reasons [52] - [79].

4. The Tribunal declined the Board's invitation to engage in propensity reasoning in any of these respects.[24]  As, on appeal, this aspect of the Tribunal's reasoning is not challenged other than in a minor respect, it is not necessary to summarise this aspect of the decision.  It suffices to state that, as to the third way in which the Board contended the Tribunal should employ propensity reasoning, the Board was not satisfied that Patient A's account was truthful, accurate and reliable.  It followed that the Tribunal could not use Patient A's evidence as propensity evidence in relation to the allegations regarding Patient B.[25]

   [24] Primary reasons [62] - [64], [75], [78] - [79]. See also [141].

   [25] Primary reasons [78].

5. The Board then made credibility findings in relation to Ms Verma, Ms Trimby and the Practitioner.

6. Ms Verma's evidence was accepted as being honest, accurate and reliable.  However, the Tribunal found that it assisted very little in the resolution of the Board's allegations concerning Patient A.[26]  Ms Verma could not specifically recall Patient A's attendance;[27] nor, most relevantly, did Ms Verma recall the Practitioner ever performing a breast examination while she was present as chaperone.[28]  But Ms Verma's duties included acting as chaperone and she would do so whenever asked.[29]  Ms Verma said it was possible that she had forgotten the Practitioner examining Patient A's breasts.[30]  Ms Verma had no recollection of Patient A being distressed or angry after her consultation and did not recall anything unusual occurring on the day Patient A attended the practice for her appointment.[31]  Ms Verma could not recall an occasion where the Practitioner acted out of the ordinary towards a patient.  She never saw the Practitioner with an erect penis under his trousers.[32]

   [26] Primary reasons [91]. See also [142].

   [27] Primary reasons [90], [93].

   [28] Primary reasons [95].

   [29] Primary reasons [92].

   [30] Primary reasons [97].

   [31] Primary reasons [98] - [99].

   [32] Primary reasons [101].

7. The Tribunal also accepted Ms Trimby's evidence.[33]  She was 'a most impressive and compelling witness'.[34]  However, as Ms Trimby's evidence was only relevant to the allegations concerning Patient B, there is no need to recount the substance of Ms Trimby's evidence as accepted by the Tribunal.

   [33] Primary reasons [105].

   [34] Primary reasons [105].

8. Nothing about the Practitioner's evidence caused the Tribunal to have any concerns as to his honesty.[35]  He was found to be an 'honest and compelling witness'.[36]  In this respect the Tribunal seemingly accepted the Practitioner's evidence that:

   1.There was nothing unusual about his consultations with Patient A or Patient B (the Practitioner having no actual recollection of either consultation and his evidence being that he could only recall a consultation that was unusual or eventful).[37]

   2.Based on his notes, which were consistent with his oral evidence, each of Patient A and Patient B were examined in the presence of a chaperone and with consent.  Indeed, since the disciplinary finding in the United Kingdom, the Practitioner has always had a chaperone present when he performs an intimate examination.[38]

   3.The examinations of Patient A and Patient B were proper medical examinations and were not sexually motivated in any way.[39]

   [35] Primary reasons [107].

   [36] Primary reasons [129].

   [37] Primary reasons [107].

   [38] Primary reasons [109], [111], [113].

   [39] Primary reasons [110].

1. The Tribunal also accepted the Practitioner's evidence that he conducted Patient A's breast examination by standing in front of Patient A and using the 'four quadrant' technique:  he used the pads of his fingers to palpate Patient A's breast.[40]  The Tribunal rejected the characterisation that there was a 'squeezing'.[41]  The Tribunal also found, contrary to Patient A's evidence, that before the breast examination took place Patient A told the Practitioner that she was experiencing pain in her right breast.[42]

   [40] Primary reasons [147] - [148].

   [41] Primary reasons [148], [164].

   [42] Primary reasons [146].

2. Following the Tribunal's findings as to the credibility of Ms Verma, Ms Trimby and the Practitioner, the Tribunal recounted the evidence and findings in relation to the allegations made concerning Patient A.[43]

   [43] Primary reasons [116] - [144].

3. The Tribunal concluded, for reasons that it went on to enumerate (see [32] - [42] below), that it was not persuaded - even to the 'civil standard' - that Patient A's account of what happened at the consultation on 1 November 2018 was honest, accurate and reliable.[44]  The Tribunal was not persuaded that the Practitioner touched Patient A's breasts in the manner Patient A alleged.[45]  In this respect the Tribunal stated that, even if it put the Practitioner's denial aside, it would come to that conclusion because of the view reached as to Patient A's honesty, accuracy and reliability as a witness.[46]

   [44] Primary reasons [116]. See also [78].

   [45] Primary reasons [143].

   [46] Primary reasons [144].

4. Before dealing with Patient A's evidence, the Tribunal referred to the circumstance that Patient A exchanged a series of short text messages with her partner immediately after the consultation with the Practitioner.  The Tribunal observed that the terms of the text messages were 'fairly consistent' with her evidence about the incident.[47]  The Tribunal acknowledged that the Board relied on the text messages to bolster Patient A's credibility.[48]  In that respect the Tribunal considered the basis on which 'recent complaint' evidence was admissible in a criminal trial.[49]  While referring, correctly, to the limited basis on which such evidence was admissible in criminal proceedings, the Tribunal admitted the evidence as being relevant and probative of whether or not the incident described by Patient A occurred as she claimed.  The Tribunal held that the communications had 'the potential to buttress its maker's credibility'.[50]

   [47] Primary reasons [44].

   [48] Primary reasons [45].

   [49] Primary reasons [47].

   [50] Primary reasons [50].

5. The Tribunal returned to this issue after setting out its reasons for not being satisfied that Patient A's account was honest, accurate and reliable.  The Tribunal said that, in so assessing Patient A's credibility, it had taken into account the text messages that Patient A sent to her partner immediately on leaving the examination room.[51]  The first of these was sent around the time Patient A paid for the consultation.  It stated:

   [Partner's name] this doctor sqeese [sic] my chichis [sic].[52]

   [51] Primary reasons [135].

   [52] Primary reasons [135].

6. Patient A gave evidence that 'chichis' was a slang term for breasts in her first language - and it was to her breasts that she was referring in the text message.[53]

   [53] Primary reasons [135].

7. There were a further nine messages over the next nine minutes and more later in the day.  They were referred to by the Tribunal.[54]  The Tribunal summarised the evidence as demonstrating that, immediately after the consultation, Patient A informed her partner that the Practitioner had squeezed her breasts.  Moreover, the Practitioner had done so in a way that was not consistent with other examinations that had been performed on Patient A in the past or that she had viewed on the internet.  Patient A also referred to the Practitioner's penis being 'on my legs'.[55]

   [54] Primary reasons [136] - [138].

   [55] Primary reasons [139].

8. The Tribunal stated:

   This evidence clearly buttresses Patient A's credibility by demonstrating consistency of conduct in the hour immediately following her examination.  It does so because making a contemporaneous complaint or complaints about it to one's spouse is consistent with what one would expect a person who had experienced a sexual assault under the guise of a medical examination would do.  But, the fact that a complaint has been made, and made repeatedly, does not make it true and in this case the making of the immediate account and its repetition over time does not overcome the doubts cast upon Patient A's credibility by the other matters to which we have already referred.[56]

   [56] Primary reasons [140].

9. The 'other matters' to which the Tribunal had already referred were the seven reasons it had earlier enumerated for concluding it was not satisfied on the balance of probabilities that Patient A's account was honest, accurate and reliable.  In summary these are as follows.

10. First, while Patient A gave evidence that she recalled the consultation with the Practitioner, she was unable to recall the details of another medical examination she had at around the same time.  Patient A was initially unable to recall a medical examination some 10 days earlier than the consultation with the Practitioner at all.  On being reminded of the medical examination Patient A was then unable to recall inserting a speculum into her vagina (as was recorded in medical records of the examination).  The Tribunal said that this 'caused us to have concerns about the genuineness of her recollection and her memory'.[57]

    [57] Primary reasons [117].

11. Second, Patient A's account changed in a significant respect between her first and second witness statements.  The second witness statement added that the Practitioner responded '[t]his is how we do it in India' when Patient A expressed her discomfort with the breast examination.  The Tribunal considered it was 'notable' that the second statement was provided after Patient A had conducted internet searches and found information which referred to the disciplinary finding against the Practitioner in the United Kingdom.  The very same words (ie 'this is how we do it in India') were attributed to the Practitioner in an online report as to the United Kingdom disciplinary finding as read by Patient A following her internet searches.  The Tribunal found that the use of that phrase in the circumstances (ie as additional information using the very same words as attributed to the Practitioner in an article Patient A had read) suggested that Patient A's account was not reliable.[58]

    [58] Primary reasons [118] - [120].  See also [62](3).

12. Third, Patient A's evidence that she had never reported to any doctor that she was experiencing breast pain - and did not inform the Practitioner that she was experiencing breast pain because that was not the case - was inconsistent with other evidence.  As to what occurred in the consultation with the Practitioner, Patient A's evidence was inconsistent with the Practitioner's notes and oral evidence.  As to the evidence that Patient A had never reported having a sore breast or breasts to any doctor:  (1) medical records revealed that Patient A had reported experiencing right breast pain to several doctors in the course of consultations; and (2) medical records revealed that patient A had an ultrasound of her right breast in January 2017.[59]

    [59] Primary reasons [121].

13. The Tribunal stated:

    While we accept that a person might be unable to recall specific details of particular medical appointments as a result of the passage of time (for example, the name of doctors she saw at particular times or perhaps even which breast had been the subject of an ultrasound examination or because they had a lot of other matters on their mind at the time), we think it is implausible that Patient A would not recall even having raised with any doctor that she had experienced breast pain, let alone that she had had an ultrasound of her breast.[60]

    [60] Primary reasons [123].

14. Fourth, the Tribunal had real concerns as to the honesty, accuracy and reliability of Patient A's evidence because other aspects of Patient A's oral evidence were inconsistent with written records.  Two examples were provided.  Patient A's evidence that she could not recall having ever refused a vaginal examination and that, when at King Edward Memorial Hospital, she did not remove her own Mirena, were inconsistent with documentary records to the contrary.  Patient A did in fact refuse vaginal examinations and did remove her own Mirena on occasions which preceded her consultation with the Practitioner.[61]

    [61] Primary reasons [124] - [126].

15. The Tribunal stated:

    We find that Patient A's denial of any recall of those occasions, and in particular the removal of her own Mirena, is inherently implausible.  We find it unlikely that she would honestly be unable to recall any of these events and yet have an accurate recall of the details of her consultation with [the Practitioner].  As a result of this evidence we have real doubts about the honesty, accuracy and reliability of Patient A's evidence more generally.[62]

    [62] Primary reasons [127].

16. Fifth, Patient A's evidence was that the breast examination left her feeling dirty such that, after it, she refused the vaginal examination.  The Practitioner's notes recorded that Patient A refused the vaginal examination but consented to the breast examination before either was performed.  Given the Tribunal's finding that Patient A had refused vaginal examinations on earlier occasions, and the Practitioner's notes, the Tribunal was not satisfied on the balance of probabilities that Patient A's evidence on this issue was honest, accurate and reliable.[63]

    [63] Primary reasons [128].

17. Sixth, Patient A's account was directly contradicted by the Practitioner - who the Tribunal found to have been an honest and compelling witness.[64]  In other words, put simply, in a 'word against word' sense the Tribunal accepted the Practitioner's evidence as to what happened in the consultation insofar as there was a contest between the evidence of the Practitioner and the evidence of Patient A.

    [64] Primary reasons [129].

18. While, in this respect, the Tribunal preferred the evidence of the Practitioner over the evidence of Patient A, the Tribunal was at pains to explain that Patient A's evidence was insufficient even putting aside the view it took of the Practitioner's evidence.  The Tribunal stated:

    Even if we had not believed [the Practitioner] and had put his evidence to one side we would not be satisfied, based on the concerns we have identified about the honesty, accuracy and reliability of Patient A's evidence, that the Board has established on the balance of probabilities that [the Practitioner] touched her breasts in the way she alleges that he did.[65]

    [65] Primary reasons [129]. See also [144].

19. Seventh, the Tribunal was not satisfied with the reliability of Patient A's evidence that she felt the Practitioner's erect penis against her leg while he was squeezing her breasts.  While, ultimately, Patient A maintained that she thought what she felt and saw was the Practitioner's erect penis, the Tribunal found that Patient A accepted the possibility that what she felt was something other than the Practitioner's penis - Patient A was not sure what it was that she felt against her leg.[66]  Among other things, the Tribunal referred to this exchange in cross‑examination:

    And what I secondly want to suggest is you wouldn't have been able to tell one way or the other whether he did have an erection from looking?---Well, I think there's something there.  It's like ---

    What could you see?---He was standing.

    Yes?---And from his stance he was (indistinct) you can see something there.  I don't know what it was.

    What do you mean something?---I don't know what it was.  It could be his penis.  It was erect, yes.  It had to be that because what else could be in that area?[67]  (emphasis added)

    [66] Primary reasons [130]. See also [131].

    [67] ts 182.

20. Also, the Practitioner gave evidence, which the Tribunal accepted, that since 2016 he has been unable to achieve an erection.[68]

    [68] Primary reasons [132].

21. It has been necessary to refer to each of the Tribunal's seven reasons in some detail because, as will be seen, the Board argues that each reason - save for the third reason - is illogical or irrational so as to establish legal error in the Tribunal's approach to fact-finding.

22. After not accepting Patient A's account of the consultation, the Tribunal turned to whether there was a clinical basis for conducting a breast examination on Patient A.[69]  The Tribunal explained the necessity to address this issue by reference to the way in which the Board put its case.  The Board said that, even if the examination was not conducted for a sexual purpose, the Practitioner had no clinical basis or need to conduct such an examination - and, in nevertheless performing the breast examination, the Practitioner examined Patient A's breasts without first obtaining Patient A's informed consent.[70]  A case to that effect was advanced in the Board's application.[71]

    [69] Primary reasons [145] - [157].

    [70] Primary reasons [145].

    [71] Application dated 31 August 2020 pars 6, 11(c) BAB 66, 67.

23. This aspect of the case was self-evidently affected by the Tribunal's previous finding that, in discussing her medical history with the Practitioner, Patient A reported experiencing breast pain.[72]

    [72] Primary reasons [146], [156].

24. While, in this respect, there was competing expert evidence,[73] the Tribunal found that the experts held legitimate but competing views as to what a gynaecologist should do when a patient presented as Patient A presented to the Practitioner.[74]  Accordingly, the Tribunal was not persuaded that it was inappropriate for the Practitioner to conduct the breast examination or that the breast examination was unnecessary.[75]

    [73] Primary reasons [150] - [154].

    [74] Primary reasons [155].

    [75] Primary reasons [156] - [157].

25. Finally, given the Practitioner's evidence and the rejection of Patient A's account of the examination, the Tribunal was not satisfied to the requisite standard that the Practitioner failed to obtain Patient A's informed consent to the examination.[76]

    [76] Primary reasons [158] - [164].

26. In relation to Patient B, the Tribunal was not satisfied that Patient B's account of the Practitioner's conduct was accurate and reliable.[77]  The Tribunal was not satisfied that the conduct complained of by Patient B occurred.[78]  Six reasons were given for this conclusion.[79]  Those reasons included the Tribunal's acceptance of Ms Trimby's evidence[80] and the Practitioner's evidence.[81]  It followed from the failure of the Board's case as to the Practitioner's conduct in respect of Patient B that the ground alleging lack of consent had also not been made out.[82]

    [77] Primary reasons [169].

    [78] Primary reasons [189].

    [79] Primary reasons [170] - [176].

    [80] Primary reasons [172].

    [81] Primary reasons [174].

    [82] Primary reasons [195] - [196].

Appeals from a decision of the Tribunal

1. Part 5 of the State Administrative Tribunal Act 2004 (WA)[83] deals with appeals from the Tribunal's decisions.  An appeal of the kind brought by the Board requires leave to appeal.[84]  Importantly, such an appeal can only be brought on a question of law.[85]  Thus the 'appeal' is in the nature of judicial review; it is not an appeal by way of rehearing.[86]

   [83] Referred to below as the 'SAT Act'.

   [84] SAT Act s 105(1).

   [85] SAT Act s 105(2).

   [86] Commissioner for Consumer Protection v Carey [2014] WASCA 7 (Carey) [69], [72], [163]; Lourey v Legal Services and Complaints Committee [2023] WASCA 90 [7].

2. Whether a question is one of law must be approached as a matter of substance.[87]

   [87] Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 (Haritos) [62](6), [94], [203]; Lourey v Legal Services and Complaints Committee [8].

3. It is essential that the question of law relied on for the purpose of s 105(2) of the SAT Act is identified with precision.[88]  The question of law is not simply to be distilled from the ground or grounds of appeal.[89]  The relevant question of law is to be stated, by ground, as part of the grounds of appeal in the appellant's case.[90]  The existence of a question of law is a qualifying condition to invoke the court's jurisdiction under s 105 and is also the subject matter of the appeal itself.[91]  It follows that the ambit of the appeal is confined to the question or questions of law.[92]

   [88] Carey [165]; Giudice v Legal Profession Complaints Committee [2014] WASCA 115 [73]; Panegyres v Medical Board of Australia [2020] WASCA 58 [219]; Legal Profession Complaints Committee v Lourey [2022] WASCA 114 [127]. The Federal Court of Australia takes the same view in relation to appeals under s 44 of the Administrative Appeals Act 1975 (Cth):  Haritos [62](2), [91], [97].

   [89] Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 (Osland) [21].

   [90] Supreme Court (Court of Appeal) Rules 2005 (WA) r 32(4)(e).

   [91] Osland [21]; Carey [165]; Giudice v Legal Profession Complaints Committee [73]; Legal Profession Complaints Committee v Lourey [127].

   [92] Lourey v Legal Services and Complaints Committee [9].

4. This court has recently observed that the importance the court attaches to identification of the relevant question of law is, regrettably, not matched by practitioners appearing in the court.[93]  Nearly 10 years ago reference was made to the 'chronic failure' by most practitioners appearing in the court to articulate, with precision or at all, questions of law in appeals under s 105 of the SAT Act.[94]  That failure continues.[95]  As will be seen, it occurred in the present case.

   [93] Lourey v Legal Services and Complaints Committee [10].

   [94] Giudice v Legal Profession Complaints Committee [70].

   [95] See eg Panegyres v Medical Board of Australia [219]; Young v Legal Profession Complaints Committee [2022] WASCA 52 [123]; Legal Profession Complaints Committee v Lourey [129]; Lourey v Legal Services and Complaints Committee [10], [21].

5. An appellant's case in respect of an appeal pursuant to s 105(2) which fails to comply with the requirement to state the relevant question of law is defective. It should no longer be expected that the Court of Appeal registrar will accept such an appellant's case for filing.[96]

   [96] Lourey v Legal Services and Complaints Committee [23].

6. Section 105(9) of the SAT Act provides for the court's powers in determining the appeal. The court dealing with the appeal may:

   (a)affirm, vary, or set aside the decision of the Tribunal; or

   (b)make any decision that the Tribunal could have made in the proceeding; or

   (c)send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,

   and, in any case, may make any order the court considers appropriate.

7. The Board sought orders on appeal that the Tribunal's orders be set aside and that the matter be remitted to the Tribunal, differently constituted, for reconsideration.

Leave to appeal

1. Leave to appeal will be granted if, in all the circumstances, it is in the interests of justice.[97]

   [97] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] - [18].

2. There are no rigid or exhaustive guidelines governing the grant of leave to appeal.  In general, however, an applicant for leave must show that there is sufficient doubt to justify the grant of leave and that allowing the error to go uncorrected would impose substantial injustice.  The latter is more readily satisfied where the decision of the Tribunal that is sought to be appealed is a final decision.[98]

   [98] Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 [106].

3. The application for leave to appeal turns on the merits of the Board's grounds of appeal.  For that reason it is convenient to examine the merits and then return to the question of leave.

The grounds of appeal

1. The Board relied on two grounds of appeal:

   1.The Tribunal erred in law in rejecting the evidence of Patient A because its reasons for doing so were illogical and irrational (pars [116] - [144]).

   2.The Tribunal erred in law in rejecting the evidence of Patient B in reliance on its rejection of Patient A's evidence for reasons which were illogical and irrational as alleged in ground 1 (par [188]).

2. The Board thus characterised the Tribunal as having 'rejected' Patient A's evidence.

3. In some cases there will be a distinction between the rejection of a complainant's evidence, on the one hand, and not being satisfied on the balance of probabilities that the complainant's evidence should be accepted, on the other.  The former may mean that the decision-maker is affirmatively satisfied that the complainant's evidence is incorrect.  The latter requires only that the decision-maker not be affirmatively satisfied that the complainant's evidence is to be accepted as correct.  That said, sometimes a decision-maker refers to 'rejecting' a complainant's evidence (or an aspect of the complainant's evidence) where, in substance, the decision-maker is simply not affirmatively satisfied that the complainant's evidence should be accepted as correct.

4. The Tribunal referred both to not being persuaded, to the requisite standard, that Patient A's account was honest, accurate and reliable[99] and also to having 'rejected' Patient A's account of the examination.[100]  However, reading the primary reasons fairly as a whole, this is a case where the Tribunal was not affirmatively satisfied on the balance of probabilities that Patient A's evidence as to the examination was to be accepted.[101]  That is the tenor of the Tribunal's specific finding when initially made.  The subsequent reference to rejecting Patient A's account of the examination is properly understood as summarising the effect of the earlier finding.

   [99] Primary reasons [116]. See also [78], [129], [130], [134], [144], [146] (here differentiating between generally not feeling an 'actual persuasion' that the examination proceeded as described by Patient A and an aspect of Patient A's evidence that was 'rejected'; namely, that Patient A had not complained to any doctor of ever having experienced breast pain).

   [100] Primary reasons [164].

   [101] In oral submissions, senior counsel for the Board said that he put the appeal in terms of 'not accepting' Patient A's evidence:  Appeal ts 24.

5. The Board's complaint of alleged legal error insofar as the Tribunal 'rejected' Patient A's evidence - and its associated submissions in that respect - must be understood keeping in mind the actual conclusion reached by the Tribunal.  The Tribunal was not affirmatively satisfied that Patient A's evidence about the examination should be accepted as correct.  The references that follow to Patient A's evidence being 'rejected' and the 'rejection' of Patient A's evidence are to be understood in this sense.

6. In written submissions the Board, in effect, accepted that ground 2 was dependent on ground 1.  Subject to the relevance of the Tribunal's rejection of Patient A's evidence, the Board did not allege that the Tribunal's reasons for rejecting the evidence of Patient B bespoke an error of law.[102]  However, the Board relied on Patient A's evidence as propensity evidence in the case concerning Patient B.  Accordingly, on appeal the Board contended that if - as alleged by ground 1 - the Tribunal erred in law in rejecting the evidence of Patient A, that error of law infected and vitiated the Tribunal's rejection of the Board's allegation in respect of the Practitioner's conduct towards Patient B.[103]

   [102] Appellant's submissions par 71 WAB 19.

   [103] Appellant’s submissions pars 72 - 73 WAB 19.

7. The Board failed to comply with the requirement to state in its appellant's case the relevant question of law for each ground.  At the appeal hearing senior counsel for the Board agreed that the questions of law were to the following effect:[104]

   1.Was the Tribunal's reasoning process illogical and irrational insofar as the Tribunal rejected the evidence of Patient A?

   2.If the answer to question 1 is yes, was the Tribunal's reasoning process illogical and irrational insofar as the Tribunal rejected the evidence of Patient B in reliance on its rejection of Patient A's evidence?

   [104] Appeal ts 2 - 3.

8. Accordingly, the appeal is grounded on the contention that the Tribunal's reasoning process was illogical and irrational insofar as the Tribunal rejected the evidence of Patient A.  In this respect, senior counsel for the Board accepted that the question of law in relation to ground 2 is wholly dependent on the Board being successful on the question of law in relation to ground 1.[105]

   [105] Appeal ts 3.

9. The questions as stated in [65] above are questions of law within the meaning of s 105(2) of the SAT Act. At bottom the questions raise whether the Tribunal adopted a manner of decision-making which failed to discharge its obligations according to law. So understood the questions raise whether the Tribunal made decisions it was not authorised to make. To appreciate why this is so it is necessary to examine the authorities dealing with judicial review on the ground of illogicality or irrationality.

Challenging a decision of the Tribunal on the basis that the Tribunal's reasoning process is illogical or irrational

1. The Board submitted that a decision where the Tribunal was not satisfied as to the ultimate conclusion of fact the applicant contended for involved an error of law if the Tribunal reached its state of non-satisfaction by a process of reasoning which was illogical and irrational, not being based on findings or inferences of fact supported by logical grounds.  This was said to be an illustration of the concept of legal unreasonableness as explained in Minister for Immigration and Citizenship v Li[106] - one based on an examination of the reasoning process rather than the outcome of an exercise of power.  The Board referred to the following passage in the plurality's reasons in Li:

   Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.[107]

   [106] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332.

   [107] Minister for Immigration and Citizenship v Li [72].

2. In that respect, unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.[108]  Importantly, however, the inquiry is not directed to whether the justification is persuasive or cogent - for then the court would be embarking on merits review to deal with no more than an impermissible attack on the merits of the decision.[109]

   [108] Minister for Immigration and Citizenship v Li [76]. Thus this court has recognised that a decision may be legally unreasonable where it lacks an evident and intelligible justification. See eg Western Australian Planning Commission v Board of Valuers [2018] WASCA 145 [173] - [176]; Humich Nominees Pty Ltd v Commissioner of Main Roads [2020] WASCA 175 [122].

   [109] Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2018] WASCA 32; (2018) 53 WAR 156 [108].

3. It is well established that, on appeal, this court must not usurp the fact-finding function of the Tribunal.[110] The SAT Act, by creating a statutory right of appeal in the narrow terms of s 105(2), discloses an intention to limit the capacity of the court to review factual findings of the Tribunal.[111] The right of appeal provided by s 105(2) does not extend to mere questions of fact. However, legally erroneous fact‑finding may found an appeal on a question of law within s 105(2). As Brennan J (as his Honour was then) explained in Waterford v Commonwealth when discussing the equivalent provision to s 105(2) as found in s 44 of the Administrative Appeals Act:

   A finding by the AAT [ie the Administrative Appeals Tribunal] on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law.  Section 44 of the AAT Act confers on a party to a proceeding before the AAT a right of appeal to the Federal Court of Australia 'from any decision of the Tribunal in that proceeding' but only 'on a question of law'.  The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make.  There is no error of law simply in making a wrong finding of fact.[112]  (emphasis added)

   [110] Osland [19].

   [111] Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522 [14].

   [112] Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 77.

4. There are a number of ways in which a factual finding may be vitiated by an error of law.  For example, the decision-maker may misidentify the relevant legal test to be applied; the decision-maker may misapply the correct test; there may be no evidence to support the finding of fact, ie the finding of fact may not be open on the evidence; or the decision-maker may adopt a manner of decision-making which fails to discharge its obligations according to law.  A contest as to whether a factual finding is vitiated in one of these ways requires an evaluation of the fact-finding process of the decision-maker to decide on its legality.  The contest is not concerned with the merits of the factual finding; it is instead concerned with whether the decision-maker has acted lawfully and with authority.

5. In Legal Profession Complaints Committee v Rayney Martin CJ (Murphy JA & Corboy J agreeing) observed that, with one presently irrelevant exception,[113] there is no appeal to this court from findings of fact made by the Tribunal.[114]  However, the Chief Justice also identified three categories of case where a challenge to a factual finding on the part of the Tribunal raised a question of law which was within the ambit of an appeal to this court.  One of those was where it was asserted that a finding of fact 'was made by a process of reasoning that was illogical, irrational, or lacked a basis in findings or inferences of facts supported on logical grounds'.[115]  In this respect Martin CJ relied on the decision of the Full Court of the Federal Court of Australia in Haritos.

   [113] See SAT Act s 105(13).

   [114] Legal Profession Complaints Committee v Rayney [2017] WASCA 78; (2017) 51 WAR 142 [193].

   [115] Legal Profession Complaints Committee v Rayney [193] (referring to Haritos [212]).

6. In Haritos the Full Court held that it may be an error of law to make a decision which is irrational, illogical and not based upon findings or inferences of fact supported by logical grounds.[116]

   [116] Haritos [212].

7. Haritos, in turn, relied on two High Court decisions concerned with judicial review for jurisdictional error - Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002[117] and Minister for Immigration and Citizenship v SZMDS.[118]  In SZMDS Crennan and Bell JJ explained the availability and scope of illogicality and irrationality as a basis for judicial review of a decision as to a jurisdictional fact:

   What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions.  The complaint of illogicality or irrationality was said to lie in the process of reasoning.  But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.  If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.[119]

   [117] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 (Applicant S20/2002) [9], [37], [81].

   [118] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) [40] (referring to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 [38], which in turn relied on Applicant S20/2002), [130]. See also [42], [53], [132].

   [119] SZMDS [131].

8. Crennan and Bell JJ later explained that the correct approach was to ask whether it was open to engage in the process of reasoning in which the decision-maker engaged and to make the findings that the decision-maker made on the material before it.[120]  Accordingly, it suffices if the decision-maker's reasoning process and relevant conclusion is justifiable.

   [120] SZMDS [133]. See also [135].

9. In these respects, illogicality or irrationality mean something more than emphatic disagreement with the decision.[121]  Crennan and Bell JJ were at pains to make it clear that nothing in their reasons in SZMDS sanctioned the deployment of the grounds of 'illogicality' or 'irrationality' in decision-making to achieve merits review.[122]  It is also as well to recall the caution expressed by Allsop J (as his Honour was then) in Minister for Immigration and Multicultural and Indigenous Affairs v NBDS as to when an illogical or irrational approach to fact-finding might reveal jurisdictional error:

   What is plain, though, is that the demonstrating of one illogical aspect of fact finding in a wider scheme of factual analysis will rarely betray such a failure to attend to the jurisdictional task as to call in aid, for instance, what Gleeson CJ said in [Applicant S20/2002].  In such cases, all one has really done, at best, is demonstrate how an error of fact came to be made.  Generally, such errors will be within jurisdiction.[123]

   [121] SZMDS [129]. See also Applicant S20/2002 [128]; Haritos [213].

   [122] SZMDS [96].

   [123] Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265 [11]. To similar effect see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 [34].

10. A decision that is merely contestable is not illogical or irrational in the required sense.  Nor can it suffice to establish some faulty inference of fact.[124]  The Full Court of the Federal Court has stated that 'extreme' illogicality must be demonstrated measured against the standard that it is not enough for the relevant question of fact to be one on which reasonable minds may come to different conclusions.[125]  In this context the words 'illogical' and 'irrational' are used with their proper meaning of devoid of, or contrary to, logic; or ignorant or negligent of, and not in conformity with, the laws of correct reasoning.  The decision-maker's grounds for the impugned finding must reach the level of being 'arbitrary' or 'perverse'.[126]

    [124] Applicant S20/2002 [9].

    [125] DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 [30](5).

    [126] WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 [7] (although Lee J dissented in the result this aspect of his Honour's decision is consistent with authority and should be accepted).

11. A finding that a determination is illogical, irrational and not based on findings or inferences of fact supported by logical grounds is not made lightly.[127]  As is also confirmed in the passage from NBDS reproduced at [76] above, not every lapse in logic will give rise to illogicality or irrationality of the requisite kind.[128]  But in seeking judicial relief based on illogicality or irrationality it does not need to be established that the decision would have been different but for the lack of reasoning; it is sufficient if the decision may have been different.[129]

    [127] SZMDS [40], [130]; Haritos [213].

    [128] SZMDS [131].

    [129] Haritos [213].

12. To better understand the operation of the doctrine of illogicality or irrationality it is helpful to examine how it was applied in two cases - one where the ground was rejected (Applicant S20/2002) and the other where the ground was upheld (Haritos).

13. In Applicant S20/2002 a challenge was made to a decision of the Refugee Review Tribunal affirming a decision refusing to grant a protection visa.  In considering whether the applicant had a well‑founded fear of persecution the RRT rejected the applicant's claim that he had suffered torture at the hands of Sri Lankan authorities.  The RRT was critical of the applicant's credibility to the point where the RRT reasoned no weight should be given to the corroborating evidence of the applicant's witnesses.  The High Court dismissed an appeal, by majority, holding, relevantly, that no jurisdictional error had been established - the RRT's determination was not irrational or illogical as the applicant contended.

14. The applicant challenged the RRT's reasoning process in rejecting his evidence and giving no weight to the corroborative evidence of his other witnesses.

15. Gleeson CJ stated:

    It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.[130]

    [130] Applicant S20/2002 [12].

16. His Honour observed that, in substance, the applicant's complaint was that the RRT did not have regard to the whole of the evidence before deciding whether it believed the applicant and did not properly assess the significance of a corroborating witness.  In answer to that contention Gleeson CJ said:

    Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others.  Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything.  Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.  I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.[131]

    [131] Applicant S20/2002 [14].

17. McHugh and Gummow JJ stated that it may be preferable for a decision-maker to assess whether the applicant had lied by also weighing the available corroborative evidence.  It was, however, not irrational to focus on the case as it was put by the applicant.  Their Honours noted that, in a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the trier of fact may well treat what is proffered as corroborative evidence as having no weight.  McHugh and Gummow JJ held that it was not irrational to proceed on the footing that no corroboration can undo the consequences for an applicant's case of a conclusion that his or her case is comprised of lies by him or her.[132]

    [132] Applicant S20/2002 [49].

18. Haritos concerned an appeal against a decision of the AAT upholding a taxation assessment.  One issue before the AAT was whether alleged subcontractor payments were made.  H, a director of the taxpayer company, gave evidence that the payments were made.  The AAT decided that it would not accept H's evidence about the subcontractor expenses without corroboration.  There was corroborative evidence from various witnesses relating to benchmarks applicable in the service industry in which the taxpayer was engaged to support the case concerning the payments to subcontractors.  This included the evidence of DC (who provided an opinion, based on his industry experience, as to whether the taxpayer's labour costs constituted an appropriate level of expenditure), K (who gave similar evidence to DC from the perspective of a chartered accountant) and A (a forensic accountant who reconstructed financial statements for the taxpayer and reviewed the reasonableness of the statements by, among other things, benchmarking aspects of the statements with industry and other benchmark reports).  However, the AAT concluded that it could place no weight on the corroborative evidence of DC, K and A because - according to the AAT - the corroborative evidence itself was based on H's evidence.

1. On appeal to the Full Court the taxpayer said that the AAT's reasoning was illogical or irrational because there was clearly an independent basis for the corroborative evidence.  The Full Court accepted, in relation to DC's evidence, that the benchmarking figures had an independent basis.[133]

   [133] Haritos [221].

2. The Full Court held that there was no error in the AAT first considering the reliability of H's evidence standing alone.[134]  However, there was nothing inherently implausible about the taxpayer incurring substantial expenses in relation to subcontractors.[135]  So far as the AAT did not place any weight on DC's evidence because, in the AAT's view, DC's opinion was ultimately derived from H's evidence or on material which could not be verified, the Full Court stated:

   The approach by the Tribunal involved an error of law.  The error was, as the appellants submitted, the drawing of a conclusion about the nature or character of [DC's] evidence that was irrational, illogical and not based on findings or inferences supported by logical grounds.  The material, being the evidence of [DC], simply did not admit of a conclusion rationally reached that it was based on assertions of [H] and [K] or material that could not be verified.  So to conclude was not merely a wrong finding of fact; it was to make a finding effectively without any material, such was the mischaracterisation of the evidence.  If a witness (witness 1), whose reliability is such as to demand corroboration, says fact X occurred, and witness 2, whose reliability is not in question, says fact Y occurred and fact Y is corroborative of fact X occurring, and witness 2 gives a basis for stating that fact Y occurred independently of witness 1, for a Tribunal to reject witness 2 as corroborative because of an asserted source in witness 1's evidence that is not present in the evidence, is irrational or illogical in the sense referred to in SZMDS.  It can be seen as equivalent to finding a fact with no evidence:  Kostas; or to drawing a conclusion that it was reasonably open to make a finding, when it was not so open:  TNT Skypak.[136]  (emphasis added)

   [134] Haritos [215].

   [135] Haritos [215].

   [136] Haritos [217].

3. Accordingly, the AAT's characterisation and rejection of DC's evidence was legally erroneous (being the result of illogical or irrational reasoning) because the Tribunal's finding that DC's evidence was based on H's evidence was the functional equivalent of making a positive finding of fact where there was 'no evidence' to support that finding.

4. The Full Court emphasised that its conclusion did not involve it entering into the field of merits review or fact-finding; it was no more than supervising the fact-finding process of the AAT.  The Full Court stated that, in relation to central and important evidence, the AAT could not say that the material was not to be afforded any weight because it derived from a tainted source when an examination of the material revealed that it did not derive from the source said to be tainted.  This, in the Full Court's view, was 'to fail to deal in the review process with possibly significant evidence for a reason that has no evidential foundation or for a reason that is sufficiently irrational or illogical as to be legally unreasonable'.[137]

   [137] Haritos [218].

5. Similar conclusions were reached as to the evidence of K and A.[138]

   [138] Haritos [226].

6. In both Applicant S20/2002 and Haritos it is apparent that the question of illogicality or irrationality is concerned with the quality of the decision-maker's reasoning process.  The test is stringent and not easily met.  A key consideration is whether there is a logical connection between the evidence as a whole and the reasons for decision.[139]  In Haritos, where illogicality or irrationality was found, the AAT was in error in its 'basic approach' to the significance of relevant evidence - the error was not merely one which related to the preferring of one witness over another or the weight to be attached to the evidence.[140]  By contrast there was no illogicality or irrationality in Applicant S20/2002 in reasoning that the applicant had lied without, at an earlier stage, expressly weighing alleged corroborative evidence.

   [139] SZMDS [135].

   [140] Haritos [227].

7. Applicant S20/2002 and SZMDS were concerned with judicial review as to a jurisdictional fact.  That is not the issue in the present appeal; the Board challenges the legality of the Tribunal's fact-finding insofar as the Tribunal did not accept Patient A's evidence as to the consultation.  But, as has been seen, in Legal Profession Complaints Committee v Rayney this court accepted that the doctrine of illogicality or irrationality could be applied to challenge the lawfulness of the Tribunal's factual findings.  The observation in Rayney was strictly obiter dicta.[141]  While, in this respect, Rayney is not conclusive, in Haritos the Full Court of the Federal Court of Australia applied the doctrine in supervising the legality of the fact-finding process of the AAT.  And there are other decisions of intermediate appellate courts in which it has been held that a finding on factual matters made by an administrative decision-maker can be reviewed for legal error on the basis that the reasoning which led to the factual finding was illogical or irrational - at least where the factual determination was critical to the decision-maker's ultimate conclusion.[142]

   [141] Legal Profession Complaints Committee v Rayney fn 144.  In Rayney all of the factual issues raised by the appeal were capable of being determined by the application of conventional principles relating to 'no evidence'.

   [142] Duncan v Independent Commission against Corruption [2016] NSWCA 143 [278] - [281], [287], [472]; Health Care Complaints Commission v Sultan [2018] NSWCA 303 [85] - [86].

8. There was no challenge in the present appeal to the principle as accepted in obiter dicta in Legal Profession Complaints Committee v Rayney. Consistently with what has been accepted in other intermediate appellate courts, it should be accepted that illogicality or irrationality in fact-finding that is critical to an ultimate conclusion in the Tribunal will amount to an error of law that may be the subject of an appeal under s 105(2) of the SAT Act. The Board did not contend for any wider statement of principle. Nor is one needed: the Tribunal's non-acceptance of Patient A's evidence was self-evidently critical to the Tribunal's orders that the Practitioner had no case to answer and that no further action was to be taken in relation to the matter.

9. However, in applying the doctrine of illogicality or irrationality to a challenge to a decision of the Tribunal based on an error of law the same stringencies must apply as when illogicality or irrationality is relied on to establish jurisdictional error in the context of judicial review.

10. With that understanding of the applicable principles it is possible to now examine the Board's contention that the Tribunal erred in law in rejecting the evidence of Patient A as its reasoning process for so doing was illogical or irrational.

Disposition:  Ground 1 - was the Tribunal's reasoning process illogical and irrational insofar as the Tribunal rejected the evidence of Patient A?

The parties' submissions

1. The Board submitted that its allegations against the Practitioner in relation to Patient A ultimately turned on whether the Tribunal was persuaded on the balance of probabilities that it should accept Patient A's evidence as to what happened in her consultation with and examination by the Practitioner on 1 November 2018.

2. That proposition is uncontroversial.  But, critically, there was a contest on the evidence:  the Practitioner (supported by his contemporaneous notes) and Patient A (supported by her text messages sent immediately afterwards to her partner) gave conflicting accounts of what occurred during the 1 November 2018 consultation and examination.  The Board itself accepted that this was a case where 'it was effectively Patient A's word against the Practitioner's'.[143]  Such credit-based findings are a matter for the Tribunal.  That said, illogical or irrational reasoning leading to a finding that a complainant was not an honest or reliable witness may establish legal error to ground an appeal to this court.  In evaluating such a contention caution must be exercised to ensure that this court does not impermissibly embark on merits review.

   [143] Appellant's submissions par 58 WAB 17.

3. In oral submissions, senior counsel for the Board suggested that the Tribunal had not made demeanour-based credibility findings.[144]  That is, with respect, not entirely correct.  In making its favourable findings as to the Practitioner's credibility the Tribunal referred to the Practitioner having given his evidence 'in a confident and forthright manner'.[145]  Moreover, in acknowledging that there was nothing about the Practitioner's evidence that caused the Tribunal to have any concern about his honesty, the Tribunal acknowledged the limitations of demeanour based credibility findings.[146]  Accordingly, it is apparent that the Tribunal's expressed lack of concern about the Practitioner's honesty was based - at least in part - on the way in which the Practitioner gave his evidence.

   [144] Appeal ts 8.  See also appeal ts 22 - 23.

   [145] Primary reasons [112].

   [146] Primary reasons [108].

4. Moreover, it is important to recall what was said by McHugh J (Mason CJ, Deane, Dawson & Gaudron JJ agreeing) in Abalos v Australian Postal Commission:

   [W]hen a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked.  It does not follow that, because [the trial judge] made no express reference to the demeanour or credibility of either [witness A] or [witness B], demeanour or credibility played no part in [the trial judge's] findings …[147]

   [147] Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, 179.

5. In summarising the Tribunal's reasoning process, the Board emphasised that the Tribunal had not only rejected the reliability and accuracy of Patient A's evidence - the Tribunal also rejected the honesty of Patient A's evidence.[148]

   [148] Appeal ts 23.

6. The Board made two overarching submissions:

   1.First, the Tribunal only had regard to the clinical justification for the breast examination after considering and rejecting Patient A's evidence.  The Board accused the Tribunal of compartmentalising its reasoning.  The Board submitted that if there was no, or only a doubtful, justification for the breast examination, that was relevant to the evidentiary contest between the Practitioner and Patient A.

   2.Second, Patient A's evidence as to having sent her partner the various text messages was unchallenged.  The text messages, read fairly, were entirely consistent with Patient A's account of the consultation with the Practitioner.  They constituted a recent complaint - a matter relevant to Patient A's credit (of consequence so far as the Tribunal expressed concerns as to Patient A's honesty as well as her reliability).  The Board submitted that the Tribunal could not, logically and rationally, conclude that Patient A's evidence lacked honesty and reliability without engaging with the facts and terms of the text messages.

7. The Board also relied on the text messages in characterising as illogical or irrational various of the seven reasons given by the Tribunal for holding that it was not persuaded that Patient A's account of the consultation with the Practitioner was honest, accurate and reliable - the text messages were relied on as countering the Tribunal's second and sixth reasons.

8. Otherwise, the Board addressed, more specifically, each of the seven reasons given by the Tribunal for concluding that it was not satisfied that Patient A's account of her consultation with the Practitioner was honest, accurate and reliable.  With one exception, the Board contended that each reason was illogical or irrational.  The Board accepted, however, that the Tribunal's reasoning for its third reason was open to it (see [136] - [141] below).  In this respect the Board said that, in rejecting Patient A's account for the reasons that followed, the Tribunal was necessarily referring to the cumulative effect of the seven reasons given.  The Tribunal was not to be understood to have found that each of the seven reasons independently led to the rejection of Patient A's evidence.

9. The Board challenged the Tribunal's reasoning process rather than the outcome reached by the Tribunal.  It was said that no rational and logical tribunal would have reached the Tribunal's conclusion as to the honesty, accuracy and reliability of Patient A's evidence for the reasons given by the Tribunal.  Senior counsel for the Board summarised its contention as being that the Tribunal's reasons for rejecting (or not accepting) the evidence of Patient A were unreasonable as being illogical or irrational.[149]

   [149] Appeal ts 9 - 10.

10. Initially, in oral submissions, senior counsel for the Board went as far as to say that to succeed in the appeal the Board need only establish that one of the Tribunal's seven reasons was illogical or irrational.[150]  Later senior counsel retreated from that position, suggesting it was a question of degree - the question was whether the Tribunal's reasons as a whole were illogical or irrational.  Senior counsel for the Board summarised the position as being that the illogicality or irrationality must be such that in the context of the case it infected the whole of the Tribunal's reasoning process.[151]

    [150] Appeal ts 18.

    [151] Appeal ts 19 -20.  See also appeal ts 28.

11. Senior counsel for the Board was correct to abandon the initial submission that it was enough for the Board to establish that one of the Tribunal's seven reasons was illogical or irrational.  That might, as Allsop J observed in NBDS, demonstrate how an error of fact came to be made (see [76] above).  But in circumstances where the Tribunal relied on seven separate reasons as supporting its factual analysis it becomes necessary to demonstrate illogicality or irrationality in the reasoning as a whole to conclude that the Tribunal adopted a manner of decision-making which failed to discharge its obligations according to law.  The Board must establish that the decision lacks an evident and intelligible justification.  Let it be assumed that one or more of the Tribunal's seven reasons for not accepting Patient A's evidence is or are legally illogical or irrational.  The court must be astute to ascertain whether the illogical or irrational reasoning infects the Tribunal's overall conclusion that it should not accept the material parts of Patient A's evidence.  If, considered as a whole, the reasons demonstrate an evident and intelligible justification for the Tribunal's conclusion that it was not satisfied on the balance of probabilities that Patient A's account was honest, accurate and reliable, it cannot be said that the Tribunal's reasoning as a whole was illogical or irrational.

12. Due to the way in which the Board presented its appeal, it will be necessary to address each of the Tribunal's seven reasons for not accepting Patient A's evidence when considering whether, as contended by the Board, the Tribunal's reasons as a whole demonstrate illogicality or irrationality.  Before undertaking that task we will consider the Board's two overarching submissions.  In doing so (and, in due course, in considering the arguments made as to the Tribunal's seven reasons) we should make it plain that we are conscious of the need to have regard to the reasoning as a whole.  Dissection by parsing the Tribunal's reasoning into its component parts runs the risk of evaluating matters out of context or failing to have regard to the combined force of the things on which the Board relies (or, for that matter, to the combined force of the Tribunal's reasoning process as a whole).  It is, however, necessary to start somewhere - and it is also necessary to address each of the Board's arguments.  For ease of exposition, it is convenient to deal with the various aspects of the Tribunal's reasoning individually.  But in doing so we are conscious of and have regard to the Tribunal's reasoning as a whole.

13. We also note that the Board itself addressed the various aspects of the Tribunal's reasoning separately and distinctly - sometimes, in so doing, ignoring or giving little consideration to other aspects of the Tribunal's reasoning that also bore on the particular aspect which the Board was then criticising.  There was no recognition that in so approaching the argument the Board was itself engaging in the very process of compartmentalising that it levelled against the Tribunal.

14. It has been necessary to refer to the Board's submissions at length because of the way in which they were presented and developed.  There is no need for such exposition in relation to the Practitioner's submissions.  Senior counsel for the Practitioner submitted, in substance, that the Tribunal's fact-finding was not, on any view, open to the various characterisations of illogicality and irrationality as formulated by the Board.  That submission is correct, for the reasons we now explain.

Illogicality or irrationality in the Tribunal's reasoning process - the Board's two overarching submissions

Alleged failure to have regard to clinical justification for the breast examination

1. The Board argued that the Tribunal compartmentalised its reasoning and, in so doing, failed to consider the clinical justification for the breast examination when considering the competing lay evidence about what happened during the consultation and examination.

2. The issue regarding the clinical justification for the breast examination required evaluation of competing expert evidence adduced by the Board and the Practitioner.

3. It is true that the Tribunal undertook its consideration of whether there was a clinical justification for the breast examination after it concluded that it was not persuaded that Patient A's account of the consultation was honest, accurate and reliable.  It does not follow, however, that the Tribunal compartmentalised its reasoning.  The passage from Gleeson CJ's reasons in Applicant S20/2002 reproduced at [83] above is apposite. The mere expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. It was logical for the Tribunal to deal separately with the issue of clinical justification given the way the Board advanced its alternate case (see [44] above). We are not satisfied that, by addressing the expert evidence as to clinical justification specifically in this manner, the Tribunal necessarily excluded that evidence from consideration so far as it was relevant to the consideration of Patient A's evidence about what happened during the examination.

4. In this regard, consistently with the Board's case before the Tribunal, the clinical justification issue could only logically support the acceptance of Patient A's evidence if there was no clinical justification for the breast examination.  That was the Board's case before the Tribunal.  The Board said that the breast examination was 'totally unnecessary' and that this supported the contention that the Practitioner's actions were nothing to do with clinical care and all to do with sexual desire.[152]  However, that case failed on the evidence.  The Tribunal was not persuaded that the breast examination performed by the Practitioner was unnecessary.[153]  The Board did not contend that this conclusion was the product of illogical or irrational reasoning.  Accordingly, there was not an absence of clinical justification for the breast examination such as would support acceptance of Patient A's evidence rather than the Practitioner's evidence.

   [152] ts 467.  See also ts 469.

   [153] Primary reasons [157].

5. In other words, given the Tribunal's conclusion on the clinical justification for the breast examination, the issue did not support the Board's case about what happened during the consultation.  No error of reasoning - let alone illogical or irrational reasoning - is exposed by the Tribunal not referring to this issue and the associated competing expert evidence when evaluating the evidence and making findings in relation to what happened during the consultation and examination.

The alleged failure to engage with Patient A's text messages

1. In relation to the text messages, the Board complained about the Tribunal's reasoning process so far as - according to the Board - the Tribunal had not engaged in a logical and rational way with the inherent conflict between the messages and the Tribunal's non‑satisfaction of Patient A's honesty.

2. The Board relied on the text messages as recent complaints that bolstered Patient A's credibility.

3. The text messages dealt with three things.  They corroborated Patient A's account of the examination to the extent that Patient A informed her partner that:

   1.The Practitioner squeezed Patient A's breasts.

   2.There was no chaperone present (although Patient A asked for a chaperone).

   3.While squeezing Patient A's breasts the Practitioner put his penis on Patient A's legs.

4. We do not accept that the Tribunal failed to engage with Patient A's text messages.  The Tribunal summarised the contents of the text messages.[154]  The Tribunal identified the use that might be made of the text messages in assessing Patient A's evidence.[155]  In resolving what weight to give to the text messages the Tribunal identified three relevant matters:  (1) the content of the communications (a matter expressly addressed by the Tribunal); (2) when the communications were sent (also expressly addressed by the Tribunal); and (3) whether anything else might have occurred that influenced the content of the text messages (a matter which was not commented upon by the Tribunal  insofar as there was nothing which might have influenced the content).[156]

   [154] Primary reasons [135] - [139].

   [155] Primary reasons [50] - [51].

   [156] Primary reasons [51].

5. After considering the evidence going to these matters, the Tribunal observed that the text messages evidence 'clearly buttresse[d] Patient A's credibility by demonstrating consistency of conduct'.[157]

   [157] Primary reasons [140].

6. Importantly, the Tribunal said that in assessing Patient A's evidence it had taken the text messages into account.[158]  However, the Tribunal was not satisfied that it should give the text messages determinative weight in assessing Patient A's evidence, stating:

   [T]he fact that a complaint has been made, and made repeatedly, does not make it true and in this case the making of the immediate account and its repetition over time does not overcome the doubts cast upon Patient A's credibility by the other matters to which we have already referred.[159]

   [158] Primary reasons [135].

   [159] Primary reasons [140].

7. In this respect, contrary to the Board's contention, the Tribunal provided an evident and intelligible justification for its reasoning.

8. While the text messages were supportive of Patient A's credibility, a matter acknowledged by the Tribunal, the combined force of the seven other matters the Tribunal had referred to meant that the Tribunal was not affirmatively satisfied on the balance of probabilities as to the credibility of Patient A's evidence.  This was a conclusion reached by the Tribunal after it had the opportunity of seeing and hearing Patient A give evidence.  Critically, in a number of material respects, the Tribunal identified concerns as to the genuineness and plausibility of Patient A's evidence.[160]  The Tribunal also identified aspects of Patient A's evidence in cross-examination that conflicted with the assertion in the text messages that the Practitioner put his penis on Patient A's leg.[161] Those concerns self-evidently inform the doubts as to Patient A's credibility expressed by the Tribunal in the passage reproduced at [120] above, doubts that were not - in the Tribunal's view - overcome by the reinforcement to Patient A's credit via the recent complaint evidence.

   [160] See eg primary reasons [117], [123], [124] - [127].

   [161] Primary reasons [130] - [131].

9. It may be accepted that the text messages might have given rise to a different process of reasoning.  Logical or rational minds might differ in respect of the weight to be given and the conclusions to be drawn from the text messages.  But, properly understood, nothing in the Board's challenge to this aspect of the Tribunal's reasoning amounts to anything more than emphatic disagreement with the Tribunal's fact‑finding and conclusion.  Contrary to the implicit premise of the Board's contention, nothing in the text messages demanded that they be given determinative weight.  The Tribunal's reasoning that the buttressing of Patient A's credit did not displace the doubts cast on Patient A's credibility by the other aspects of her evidence was not illogical or irrational in the sense discussed in the authorities.

10. Senior counsel for the Board also relied on what was said to be a failure to cross-examine Patient A on the veracity of the text messages.  There is nothing in this point.  Counsel for the Practitioner cross-examined Patient A in detail as to her account of the examination.  It was not necessary for the Practitioner's counsel to separately cross-examine Patient A on the text messages when they were being used for no more than to buttress Patient A's credibility.  It was plain from the cross‑examination that Patient A's credibility was in issue.  In any event the absence of such cross-examination cannot establish any illogicality or irrationality in the Tribunal's non-acceptance of Patient A's evidence given the manner in which the Tribunal approached the issue.

Illogicality or irrationality - the challenge to the seven reasons given by the Tribunal in rejecting Patient A's evidence

1. Senior counsel for the Board acknowledged that some of the Tribunal's seven reasons could, logically and rationally, have been open to the Tribunal on the evidence by employing a different pathway of reasoning.  It was submitted, however, that this was not the process of reasoning that the Tribunal adopted.  In this regard the Board contended that it was not open to the Practitioner to justify the decision on the basis of different reasoning to that in fact employed by the Tribunal.[162]

Reason 1 - Patient A's inability to recall details of another medical examination (see [32] above)

[162] Appeal ts 43.

1. The Board raised two things about the Tribunal's expression of concerns about the genuineness of Patient A's recollection and memory based on her difficulty in recalling details of another medical examination around the same time as her consultation with the Practitioner:

   1.The Board said there was a 'fundamental difference' between a person being able to recall the details of an occasion on which they were indecently assaulted and being unable to recall the details of an occasion on which there was no indecent assault.

   2.The Board said that there was no record that Patient A had declined a speculum or vaginal examination at the other examination - this meant that the Tribunal's reasoning had a further 'fundamental' problem as a person cannot logically or rationally be unable to recall something in any relevant sense if the thing did not happen.

2. The second submission misses the essential points made by the Tribunal in respect of this aspect of Patient A's evidence.  Patient A's evidence, as recorded by the Tribunal,[163] was that initially Patient A did not recall attending a medical examination at King Edward Memorial Hospital on 19 October 2018 (ie about 10 days before the consultation with the Practitioner).[164]  Nor was Patient A able to recall inserting different speculums into her own vagina in the course of that examination.[165]  The hospital records established that there was such an examination and the two insertions occurred in the examination.[166]  In both respects the Tribunal correctly identified difficulties that Patient A had in recalling details of another medical examination that she had at around the same time as the consultation with the Practitioner.  There is no merit in the Board's second submission.

   [163] Primary reasons [117].

   [164] ts 141 - 144.

   [165] ts 143 - 144.

   [166] GAB 831 - 832.

3. As to the first matter, while it may be accepted that there is a qualitative difference between the two types of event, it does not follow that it was illogical or irrational for the Tribunal to have concerns about Patient A's recollection and memory based on this aspect of the evidence.  Patient A could remember one event in close detail but - at least initially - could not recall the other event at all, notwithstanding that the two events were close together in time.  And, even when prompted, Patient A could not recall significant matters that occurred in the course of the other medical examination in contradistinction to her professed detailed recollection of the consultation with the Practitioner.

4. It is entirely orthodox for a trier of fact to evaluate the credibility, accuracy and reliability of a witness's evidence by, among other things, considering his or her capacity to recollect other events at around the same time.  There was nothing illogical or irrational in this aspect of the Tribunal's reasoning.  Really, the Board's complaint is one of weight - the Board plainly considers that little or no weight should be accorded to this deficiency in Patient A's evidence.  Such a complaint as to the Tribunal's fact-finding is not a matter for this court on an appeal against the Tribunal's decision.  The doctrine of illogicality or irrationality cannot be allowed to become a back-door means to challenge decisions of the Tribunal on the basis that the Tribunal merely erred in fact.

Reason 2 - change in Patient A's account after reading internet article as to the United Kingdom disciplinary finding against the Practitioner (see [33] above)

1. The Board said that the change in Patient A's statement, following the internet research as to the Practitioner and the discovery of his earlier disciplinary history in the United Kingdom, did not logically or rationally provide a basis for concluding that Patient A's evidence was unreliable 'in its entirety'. The Board relied in particular on the terms of the text messages (already addressed at [115] - [124] above) and the contents of Patient A's first statement (which was given before the research).

2. So put, the Board's complaint as to this aspect of the Tribunal's reasoning was one of degree.  There was, necessarily, acceptance that some of Patient A's evidence was potentially adversely affected by the change in the statement.  But the Board suggested that, logically and rationally, the impact had to be confined to this particular evidence.

3. This, again, goes to the weight the Tribunal should have given to this aspect of the evidence rather than whether the Tribunal's reasoning was illogical or irrational in the legal sense.  Any concerns the Tribunal had about the reliability of this aspect of Patient A's evidence were logically and rationally relevant to the Tribunal's evaluation of Patient A's reliability as a whole.  It is, with respect, entirely orthodox for a trier of fact to evaluate the reliability of a witness's evidence as a whole by, among other things, considering the extent to which particular aspects of the evidence have been shown to be unreliable or implausible.  The Board's insistence to the contrary is an illustration of how the Board sought to dissect the Tribunal's reasoning into component parts, without consideration of the wider context, thereby compartmentalising its contentions.

4. The point is made by briefly referring to Patient A's cross-examination on the change in the statement.  The difference in the two statements was identified.[167]  Counsel for the Practitioner then suggested that the reason the exact words from the newspaper article were inserted into Patient A's statement was that she, Patient A, decided it must have been something the Practitioner said to Patient A.  Patient A said:

   No.  I remember very clearly.[168]

   [167] ts 151 - 154.

   [168] ts 154.

5. This was in the context of a cross examination where, to that point, Patient A had constantly said that she did not remember or did not recall numerous matters[169] - including the conversation she had with the Practitioner before the breast examination[170] (something that conflicted with what was said in Patient A's witness statement).[171]  Patient A was then asked why, if she remembered it so clearly, the statement attributed to the Practitioner was left out of the first statement.  The response was 'I don't know'.[172]

   [169] There are at least 120 references to 'I don't recall' or 'I don't remember' by Patient A in less than 30 pages of transcript:  ts 125 - 154.

   [170] ts 125.

   [171] Statement dated 11 March 2019 pars 21 - 22 GAB 850.

   [172] ts 155.

6. The Tribunal accepted that Patient A's account was not reliable.[173]  In stating, however, that she remembered 'very clearly' the words '[t]hat's how we do it in India', Patient A asserted a firm and positive recollection that was potentially very damaging towards the Practitioner.  The unreliability of this aspect of Patient A's evidence - as found by the Tribunal - was such as to cast doubt on the reliability of other aspects of Patient A's evidence that Patient A claimed to clearly recall.  It was logical and rational for the Tribunal to take this into account when weighing Patient A's and the Practitioner's respective evidence and, in particular, in assessing Patient A's honesty, accuracy and reliability as a witness.

Reason 3 - Patient A's inability to recall having reported breast pain (see [34] - [35] above)

[173] Primary reasons [120].

1. The Board accepted that, in and of itself, the Tribunal's reasoning on this point was open to it.  However, the Board said it was merely one of the seven cumulative reasons relied on by the Tribunal.  It was not suggested that this matter, of itself, led the Tribunal to reject Patient A's evidence.

2. The Board's argument on appeal failed to consider the material impact of this aspect of Patient A's evidence, and the Tribunal's consequential reasoning, on the remainder of Patient A's evidence.  The question of whether Patient A had reported breast pain to the Practitioner was a significant issue in the case.  As has been seen, the Board contended that there was no clinical justification for the Practitioner to conduct a breast examination (Patient A, on the Board's case, not having reported any breast soreness).  It was not simply the case that Patient A asserted that she had not mentioned any breast pain to the Practitioner.  Patient A's evidence was that she had not reported having a sore breast or breasts to any doctor.

3. Patient A initially maintained this evidence in cross-examination.[174]  Very quickly, however, rather than being unequivocal in stating that she had never made any report of a sore breast or breasts to any doctor, Patient A's evidence became that she did not recall or did not remember reporting a sore breast or breasts to any doctor.[175]  Nor could Patient A recall ever having a breast scan or ultrasound, a position maintained in the face of persistent cross-examination based on contemporaneous medical records establishing that Patient A undertook a breast ultrasound in January 2017 due to experiencing soreness in one of her breasts.[176]

   [174] ts 130.

   [175] ts 130.

   [176] ts 129, 132 - 134, 139.

4. The Tribunal found Patient A's evidence in this respect to be implausible (see [35] above).  The Tribunal found it implausible that Patient A could not recall having raised with any doctor that she had experienced breast pain and - all the more so - could not recall that she had a breast ultrasound.

5. The implausibility of this aspect of Patient A's evidence went to her honesty.  It was, the Tribunal found, implausible that Patient A would not recall raising the report of breast pain with a doctor and all the more so undergoing an ultrasound of her breast.[177]  What was implausible was Patient A's persistent evidence of non-recollection - something that went to the heart of Patient A's credit as a witness.  In the circumstances it was logical and rational for the Tribunal to conclude that it was not persuaded that Patient A's account of her consultation with the Practitioner was honest.  It is entirely orthodox for a trier of fact not to accept or even to reject the credibility of a witness's evidence because, among other things, his or her evidence in cross-examination on a significant issue is considered to be implausible.

   [177] Primary reasons [123]. See also GAB 613.

6. This aspect of the Tribunal's reasoning, unchallenged on appeal, provided strong support for the Tribunal's ultimate conclusion.

Reason 4 - Patient A's lack of recollection of matters in her medical records (see [36] - [37] above)

1. The fourth matter relied on by the Tribunal was that, because Patient A's oral evidence was inconsistent with written medical records of other examinations, there were real concerns about the honesty, accuracy and reliability of Patient A's evidence as to the manner in which the Practitioner performed the breast examination.

2. The Board said that:

   1.The Tribunal formed its conclusions on this aspect of Patient A's evidence on the basis that the medical records had been 'put to' Patient A.  This was not the case.  Indeed, the medical records were not even read over, or described accurately, to Patient A in cross-examination.

   2.So too, as to whether Patient A removed her own Mirena, the position was more nuanced than the way it was put to Patient A in cross-examination.

   3.The Tribunal misapprehended the medical records in that:

   (a)the records did not establish that Patient A refused a vaginal examination on 10 May 2017 or 19 October 2018 (contrary to the Tribunal's finding);

   (b)the records otherwise only established that Patient A 'declined' a vaginal examination on 9 and 12 May 2017 (contrary to the Tribunal's finding that Patient A 'refused' a vaginal examination).

   4.There was no logical or probative connection - or any connection at all - between the circumstances of the removal of Patient A's Mirena and the events which took place at the consultation with the Practitioner.

3. It may be accepted that there is some infelicity in the expression of the Tribunal's reasons.  As to the Board's first point, strictly speaking the medical records were not put to Patient A.  However, a general description of the effect of the medical records was mentioned by the cross-examiner in the course of cross-examination.[178]  The imprecision in the Tribunal's description of the cross-examination does not bespeak any illogicality or irrationality in its reasoning.  On the second point, the substance of Patient A's evidence was that she did not recall taking her own Mirena out.[179]  The medical records established that at an examination at King Edward Memorial Hospital on 13 May 2017 Patient A removed the Mirena herself with assistance from a midwife.[180]  The Tribunal made a finding in these terms.[181]  The matter of relevance was Patient A's demonstrated inability to recall a material aspect of a medical examination which a person in the position of Patient A might be expected to recall vividly.  Again, the complaint made does not bespeak any illogicality or irrationality in the Tribunal's reasoning.

   [178] ts 142 - 147.

   [179] ts 144 - 146.

   [180] GAB 811.

   [181] Primary reasons [124](b).

4. The Board's third point is also misconceived.  True it is that the Tribunal referred to two additional dates where there was no record of Patient A refusing or declining a vaginal or speculum examination.  But this is merely an immaterial error of factual detail rather than an error of law by illogical or irrational reasoning.  The records of 9 and 12 May 2017 referred to Patient A declining a vaginal or speculum examination when presenting at King Edward Memorial Hospital on those dates.[182]  There is, in this context, no relevant distinction between declining or refusing a vaginal examination.  In any event, in the course of cross-examination, Patient A did not recall either 'declining' or 'refusing' a vaginal examination.[183]

   [182] GAB 808 (9 May 2017); GAB 809 (12 May 2017).  Indeed, so too did the records of 13 May 2017:  GAB 810.

   [183] ts 141.

1. As to the Board's final point, the Tribunal found that Patient A's denial of any recall of these occasions - and in particular the removal of her own Mirena - was inherently implausible.  The implausibility of this evidence, in the Tribunal's view, resulted in 'real doubts' about the honesty, accuracy and reliability of Patient A's evidence more generally.  The Tribunal considered it unlikely that Patient A would honestly be unable to recall these events and yet have an accurate recollection of the details of the consultation with the Practitioner.[184]  We have already explained how the giving of implausible evidence may be relevant to evaluating a witness's credibility (see [140] above).  There was nothing illogical or irrational in the Tribunal taking into account the inherent implausibility of Patient A's evidence of lack of recall in assessing Patient A's overall credibility as a witness.

Reason 5 - Patient A's refusal of vaginal examinations on other occasions (see [38] above)

[184] Primary reasons [127].

1. The Board contested, as illogical or irrational, the Tribunal's conclusion that it was not satisfied as to the honesty, accuracy or reliability of Patient A's evidence that the breast examination left her feeling dirty, such that she then refused to undergo a vaginal examination by the Practitioner, because Patient A had refused vaginal examinations on earlier occasions.

2. The Board said that:

   1.The only occasions on which Patient A had previously refused a vaginal examination were 9 and 12 May 2017.

   2.The circumstances in which Patient A presented at King Edward Memorial Hospital on 9 and 12 May 2017 were very different to the circumstances of Patient A's consultation with the Practitioner.

   3.There was no logical or rational reason for concluding that the fact that Patient A had declined vaginal examinations in different circumstances on 9 and 12 May 2017 meant that she refused to undergo a vaginal examination by the Practitioner.

3. According to the Board, to determine whether a prior refusal of a vaginal examination could logically or rationally lead to the conclusion that Patient A declined a vaginal examination on this occasion, required consideration of the context in which Patient A had declined a vaginal examination on the earlier occasion.  The Tribunal would then have to consider whether the same or similar circumstances pertained at the time of Patient A's consultation with the Practitioner.

4. The Tribunal did not rely solely on Patient A's prior refusal of vaginal examinations for this aspect of its reasoning.  The Tribunal also relied on the Practitioner's notes.  These recorded that Patient A declined the vaginal examination but consented to the breast examination before either examination was performed.  The Practitioner gave evidence, which the Tribunal evidently accepted, that his notes would be accurate.[185]

   [185] Primary reasons [128].

5. The logicality and rationality of this aspect of the Tribunal's reasoning is satisfactorily grounded on the Practitioner's notes.  This is particularly the case given the next of the Tribunal's reasons (see [39] ‑ [40] above and [152] - [159] below).  It is not necessary, in the circumstances, to consider whether - as the Tribunal evidently considered to be the case - it was logical and rational to reason that Patient A's history of declining vaginal examinations made it more likely that she would have declined a vaginal examination by the Practitioner.

Reason 6 - the Tribunal's acceptance of the Practitioner's evidence (see [39] - [40] above)

1. The Board characterised the Tribunal's sixth reason as the Tribunal having relied on the Practitioner's evidence 'as to the request for a chaperone'.  However, the Tribunal's acceptance of the Practitioner's evidence was not confined in this way.  The Tribunal referred to the account of 'requesting a chaperone and what happened thereafter'.[186]  Reading the Tribunal's reasons fairly, and as a whole, the Tribunal accepted the Practitioner's evidence as to what happened at the consultation (and in the course of the examination) insofar as there was a contest between the Practitioner's evidence and Patient A's evidence.

   [186] Primary reasons [129].

2. The Board submitted that the Practitioner's evidence, and that of Patient A, were two sides of the same coin.  The Tribunal's assessment of the Practitioner as an honest and compelling witness was necessarily influenced by its consideration of, and reasons for rejecting, Patient A's evidence.  Accordingly, in the Board's submission, the Tribunal's acceptance of the Practitioner's evidence could not be divorced from its rejection of Patient A's evidence.  The Board contended that the Tribunal's allegedly illogical and irrational reasons for rejecting Patient A's evidence infected the Tribunal's entire reasoning process.

3. In this respect, the Board made a variety of further points:

   1.The Board emphasised that the Practitioner's evidence was that he had no actual recollection of his consultation and examination of Patient A - the Practitioner's evidence being based on his usual practice and his notes.

   2.The chaperone, Ms Verma, said that she did not recall the Practitioner ever conducting a breast examination - something that the Tribunal's reasons failed to engage with.

   3.The Tribunal's reasons on this point similarly failed to engage with Patient A's contemporary text messages.

4. The Tribunal was well aware that the Practitioner had no actual recollection of Patient A's consultation and examination.[187]  The Tribunal recorded that the Practitioner's evidence was based on a review of his notes and his usual practice.[188]  It cannot be suggested that this, alone, meant that it was illogical or irrational to prefer the Practitioner's evidence over that of Patient A.  Nor did the Board go that far.  Beyond mentioning this aspect of the Practitioner's evidence the Board did not develop why the Practitioner's lack of actual recollection impacted on the logicality or rationality of the Tribunal believing the Practitioner's evidence.

   [187] Primary reasons [107].

   [188] Primary reasons [109].

5. The Tribunal did engage with Ms Verma's evidence (see [20] above).  The Tribunal attached little weight to Ms Verma's evidence because she had no independent recollection of Patient A's consultation and examination.[189]  It was not suggested that Ms Verma's evidence corroborated the Practitioner's evidence in any material respect.  The omission to say anything more about something that lacked probative force one way or the other does not establish illogicality or irrationality.

   [189] Primary reasons [142].

6. The text messages, as recent complaint evidence, were relevant to the assessment of Patient A's credibility; but, other than in that derivative respect, not relevant to the Practitioner's credibility. The text messages are otherwise dealt with at [115] - [124] above.

7. The Board is then left with its submission that the Practitioner's evidence and Patient A's evidence were two sides of the same coin.  As far as the Board went on to contend that this meant that the acceptance of the Practitioner's evidence was influenced by the Tribunal's reasons for not accepting Patient A's evidence there are two difficulties with the submission.  First, that is not the way the Tribunal reasoned.  The Tribunal first considered the Practitioner's evidence.  The Tribunal accepted that the Practitioner was a truthful witness.  This, in part, was a demeanour-based finding.  It was not based on the rejection of Patient A's evidence.  Rather, as the Tribunal's sixth reason itself records, the Tribunal relied on its positive finding - in which it accepted the Practitioner's evidence - as a further basis not to accept the honesty, reliability and accuracy of Patient A's conflicting account of the consultation and examination.  Second, the contention presupposes that the Tribunal's reasons for not accepting Patient A's evidence are legally erroneous as being illogical or irrational.  As these reasons explain, that premise has not been made out.

8. The Board has not established its assertion of legal illogicality or irrationality which vitiates the Tribunal's sixth reason for not being persuaded, on the balance of probabilities, that Patient A's evidence was honest, accurate and reliable.

Reason 7 - Patient A's evidence as to the Practitioner's 'erect penis' against her leg (see [41] - [42] above)

1. In answer to the Tribunal's conclusion that it was not satisfied, to the requisite standard, of the reliability and accuracy of Patient A's evidence that she felt the Practitioner's erect penis against her leg while the Practitioner was squeezing Patient A's breasts, the Board stated:

   1.It is 'simply impossible' to extract from Patient A's cross-examination either:  (a) an acceptance by Patient A that she was not sure what it was that she felt against her leg; or (b) a conclusion that Patient A's evidence on the point was equivocal.

   2.The Tribunal's recitation of the Practitioner's evidence that he had been unable to achieve an erection since 2016 was an incomplete summary.  The Board referred to evidence that the Practitioner was able to achieve an erection with certain non-prescription medication.[190]  The Board also said that the evidence was self-serving and uncorroborated.

   [190] ts 366 - 367.

2. There is nothing in the second point.  The Tribunal recorded that the Practitioner obtained medication from Bali and India to address his erectile dysfunction problem.[191]  Nor does it matter that the evidence was self-serving and uncorroborated.  The Tribunal found that the Practitioner was an honest and compelling witness.  In any event, the Practitioner's inability to achieve an erection was a secondary consideration to this aspect of the Tribunal's reasoning.  The Tribunal primarily relied on its conclusion that it was not satisfied of the reliability and accuracy of Patient A's account of feeling the Practitioner's erect penis against her leg.

   [191] Primary reasons [132].

3. We have set out part of the relevant cross-examination (see [41] above).  The Tribunal included this within a much longer extract.[192]  As the Tribunal found,[193] Patient A clearly formed the view that what she felt was the Practitioner's penis against her leg.  Patient A said '[t]hat was his penis one hundred percent'.[194]  But earlier Patient A had said:

   Well, I think there's something there.[195]

   I don't know what it was.[196]

   I don't know what it was.  It could be his penis.[197]

   [192] Primary reasons [130].

   [193] Primary reasons [131].

   [194] ts 184.

   [195] ts 182.

   [196] ts 182.

   [197] ts 182.

4. Patient A ultimately contended - in categoric terms that admitted of no other possibility - that she felt the Practitioner's erect penis against her leg while the Practitioner was squeezing her breasts.  But Patient A's evidence was not consistent.  Patient A did, as the Tribunal found, accept in the terms reproduced immediately above that she did not know what it was that she felt against her leg.  In this respect, as the Tribunal concluded, Patient A's evidence was equivocal.

5. There is no merit in the Board's contention that this aspect of the Tribunal's reasoning is illogical or irrational.  To the contrary, based on the concessions extracted in cross-examination, there was an evident and intelligible justification for the Tribunal's conclusion that it was not satisfied of the reliability and accuracy of Patient A's evidence of feeling the Practitioner's erect penis against her leg.  The trenchant terms in which Patient A eventually expressed herself, notwithstanding her earlier concessions of uncertainty as to what she felt, could only increase the doubt experienced as to the reliability and accuracy of this aspect of Patient A's evidence.  Moreover, as previously explained, logically and rationally this had potential implications for the overall assessment of Patient A's honesty, accuracy and reliability as a witness.

Conclusion as to ground 1

1. We have, in the earlier sections of these reasons, dismissed the Board's various challenges to the separate aspects of the Tribunal's reasoning that the Board challenged as illogical or irrational.  None of those challenges succeed.  Standing back, and considering the Tribunal's reasons as a whole, we reject the Board's contention that the Tribunal's reasons for not accepting Patient A's evidence are illogical or irrational.  Indeed, rather than being illogical or irrational, the combined force of the Tribunal's seven enumerated reasons for not accepting Patient A's evidence is such that the whole is greater than the sum of the parts.

2. This is not a case where a trier of fact has reached a conclusion that has no evidential foundation.  The Tribunal's reasoning is transparent, intelligible and defensible on the evidence.  There is, in our view, an evident and intelligible justification for the Tribunal's conclusion that it was not satisfied, on the balance of probabilities, that Patient A's account of what occurred to her during the consultation with and examination by the Practitioner on 1 November 2018 was honest, accurate and reliable.  It cannot be concluded that the Tribunal erred in law in rejecting the evidence of Patient A because its reasons for doing so were illogical and irrational.  The question of law posed at [65.1] above must be answered 'No'.  Ground 1 fails.

Disposition:  Ground 2 - was the Tribunal's reasoning process illogical and irrational insofar as the Tribunal rejected the evidence of Patient B?

1. The question of law in relation to ground 2 was accepted to be wholly dependent on the Board being successful on the question of law in relation to ground 1 (see [60] - [66] above).  The Board has failed on ground 1 and the question of law associated with ground 1.  It follows that the question of law associated with ground 2, and ground 2 itself, both necessarily fail.

Conclusion and orders

1. Both grounds of appeal fail.  The way in which ground 1 was presented and developed by the Board has meant that it has been necessary to consider whether numerous aspects of the Tribunal's reasoning process were illogical or irrational.  While this has resulted in reasons of some length, we are not satisfied that the Board's contentions of illogicality or irrationality have sufficient merit to justify the grant of leave to appeal.  Leave to appeal should be refused.

2. We would make orders that:

   1.Leave to appeal against the orders of the State Administrative Tribunal made 23 September 2021 in matter No VR/71/2020 is refused.

   2.The appeal is dismissed.

3. The parties should be heard on the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MD

Associate to the Honourable Justice Vaughan

7 AUGUST 2023