Nursing and Midwifery Board of Australia v Robinson
[2021] VSC 823
•14 December 2021
| IN THE SUPREME COURT OF VICTORIA | Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2021 01350
| NURSING AND MIDWIFERY BOARD OF AUSTRALIA | Applicant |
| v | |
| MARK ROBINSON | Respondent |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 November 2021 |
DATE OF JUDGMENT: | 14 December 2021 |
CASE MAY BE CITED AS: | Nursing and Midwifery Board of Australia v Robinson |
MEDIUM NEUTRAL CITATION: | [2021] VSC 823 |
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NURSE PRACTITIONERS — Nursing and Midwifery Board of Australia – Allegations of breach of professional boundaries as between nurse and patient – Different accounts of events – Claims of failure to find an alleged fact, failure to take account of particular evidence, denial of procedural fairness, legal unreasonableness and failure to provide legally sufficient reasons – Application for leave to appeal on a question of law – Reliability – Tribunal’s advantage – Forensic risks taken by Board – Steen v Worksafe Victoria [2014] VSCA 299 considered – Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148(1) – Application for leave to appeal allowed, but appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | BW Jellis | Minter Ellison |
| For the Respondent | No appearance |
HIS HONOUR:
A Introduction
The respondent is a registered nurse who commenced in that calling in 1986. He has been registered at all relevant times under the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law).[1] He does not seem to have been the subject of any disciplinary complaint or action prior to the matters the subject of the present proceeding.
[1]Health Practitioner Regulation National Law (Victoria) Act2009 (Vic) s 4 gives effect to the Health Practitioner National Law Act 2009 (Qld) in Victoria. ‘National Law’ for the purposes of this judgment is used to refer to both the Victorian and the Queensland legislation, as the case may be.
The matters the subject of the present proceeding concern dealings with a patient, W1. The respondent first encountered W1 in 2015, when he completed a physiotherapy plan or some other form of patient assessment for her at the clinic at which he was employed in the outer south-east of Melbourne. W1’s general practitioner practised at the clinic.
W1 said that she also attended the clinic in 2016, in the course of which the respondent completed another physiotherapy plan.
W1 attended the clinic for a further physiotherapy plan on 17 January 2017. W1 was facing knee replacement surgery and had some chronic disease. She was then 70 years of age and roughly 20 years older than the respondent. It was common ground, as between W1 and the respondent, that during that consultation they had discussed a link to a YouTube video that showed a young man speaking about Donald Trump.
No complaints arose directly from the consultation on 17 January 2017. However, the respondent said that he had been looking for a property in the area and that during the consultation W1 had mentioned a property near her own home. W1 denied that contention.
Later that day, the respondent attended W1’s home. The respondent sent W1 a text message and the visit was arranged. None of the various text messages exchanged between W1 and the respondent between 17 January and 20 January 2017 were in evidence.
W1 later complained that the respondent had obtained her contact details and/or address from records at the clinic. The respondent denied that, and said that W1 had given him her number on an earlier occasion when they had run into one another at a local shopping centre. He said that she had invited him for a meal. He also said that he had saved W1’s number into his phone as merely the number, not under a name. W1 denied any such encounter or events.
It was, however, common ground that the attendance at W1’s home on 17 January 2017 related, at least in part, to the respondent showing W1 the YouTube video. The respondent said that it also related to issue of the property, but that was denied by W1. It was not in dispute that attendance for any such reasons was not clinically justified.
W1 said that in the course of the attendance at her home on 17 January 2017, the respondent had, in effect, made moves upon her sexually. For his part, the respondent said that W1 had made a ‘pass’ at him and was then acutely embarrassed when he had not reciprocated. The respondent said that he had then left.
It was not in dispute that two days later, on 19 January 2017, there were further text messages between W1 and the respondent. That was initiated by W1. She said that she had sent the respondent a text saying ‘perhaps we could catch up’. In substance, the respondent replied that he could attend W1’s home after 5:00pm the next day, Friday, 20 January 2017. The respondent admitted that there had been messages that were sexual in nature; he said that it was in the nature of ‘sexual banter’, which he had thought he was undertaking with someone else, not W1.
The respondent said that at some point on the Thursday he realised that he had been mistakenly engaging in ‘sexual banter’ with W1 via text. He said that he attended W1’s home the next day in order to, in effect, clear things up and apologise. By contrast, W1 said that the respondent attended and sexual intercourse took place.
There was some further, but essentially minor, communications between the respondent and W1 on one or two days on or after 24 January 2017. Nothing of real substance presently turns upon those interactions.
Some time later, W1 had lunch at a café with a friend, W2, and reported a version of the events to her.
On 31 January 2017, W1 attended the clinic and saw her general practitioner, W3. She reported a version of the events to him – which mostly involved providing him with a written version entitled ‘my most embarrassing experience’.[2]
[2]CB83-88.
W3 later stood the respondent down from his position at the clinic and reported the allegations to the Nursing and Midwifery Board of Australia (the Board).
At a later consultation with W3, on 7 February 2017, W1 was referred for tests for hepatitis A, B and C and HIV.
In February 2017, the Board took ‘immediate action’ against the respondent under s 156 of the National Law: his registration was suspended.
On 19 March 2018, the Board referred two allegations for the determination of the Tribunal.[3] The Board alleged that the respondent had engaged in either ‘professional misconduct’ or ‘unprofessional conduct’ within the meaning of the National Law in that he had –
(a) ‘inappropriately accessed’ W1’s clinical records for the purpose of obtaining her telephone number and/or residential address and therefore used those records for a purpose unrelated to her treatment or clinical management; and
(b) failed to promote and preserve the trust and privilege inherent in the relationship between nurses and people receiving their care by failing to maintain professional boundaries between himself and W1 – particularly in the alleged events between 17 and 20 January 2017.
[3]CB16-23.
The essence of the allegations were that the respondent had inappropriately accessed W1’s personal details, interacted with her in a sexual way on 17 January 2017 and exchanged text messages of a sexual nature prior to engaging in sexual intercourse with W1 on 20 January 2017. For his part, the respondent admitted that he had attended W1’s home on both occasions, which was not clinically justified on either occasion, but he otherwise had his own version of events by reference to which he denied the most serious of the accusations levelled against him.
B The Tribunal hearing and determination
The Tribunal was constituted by three Members and heard the evidence of witnesses on 28 February and 1 March 2019. There was a further hearing date on 10 October 2019, although I was informed in the course of the present hearing that nothing of any substance occurred on that day.
The Tribunal heard the oral evidence of –
(a) W1, who also had, in effect, made three written documents pertaining to the events;[4]
[4]Document entitled ‘My most embarrassing experience’ (CB83-88), statement to Australian Health Practitioner Regulation Agency (AHPRA) dated 7 August 2017 (CB80-82) and witness statement dated 13 March 2018 (CB77-78).
(b) W2, who had made a written statement;[5]
(c) W3, who had made a written statement and provided some clinical notes;[6] and
(d) the respondent, who had made an unsigned statement.[7]
[5]Witness statement dated 20 March 2018 exhibiting attached statement to AHPRA dated 8 November 2017 (CB90-93).
[6]Witness statement dated 30 April 2018 exhibiting attached clinical notes (CB95-106).
[7]Statement undated (CB72-75).
Albeit that the respondent was earlier legally represented, by the time of the hearing he was unrepresented and appeared in person.
That created difficulties which are very evident in the transcript and culminated in him expressing the view that he had been treated unfairly, or, as he put it, ‘railroaded’, especially during cross examination by counsel for the Board.[8] After that point, the respondent signalled that he would not further participate in the hearing, and he essentially did not do so save for providing a written explanation of his position, part of which was responsive to requests made of him during the part of the hearing to which I have referred.[9]
[8]See, in particular, T143-144 (CB254-255), 154-157 (CB265-268), 167-169 (CB278-280) and 171-173 (CB282-284). I should, perhaps, confirm that different counsel appeared for the Board in the present application.
[9]CB313-319.
In making these observations, I do not mean to suggest that all participants at the hearing did anything other than their level best to deal with what, as it came to emerge, was plainly a very difficult situation.
In addition to the respondent’s document referred to above, the Tribunal also received a written outline of the Board’s submissions.[10]
[10]CB306-311.
On 24 April 2020, the Tribunal delivered what in the present proceeding came to be referred to as the ‘Liability Reasons’.[11] Those reasons were detailed and also came to be the focus of the present application.
[11]Nursing and Midwifery Board of Australia v Robinson (Review and Regulation) [2020] VCAT 522 (‘Liability Reasons’). For clarity, paragraph references to the Tribunal’s reasons in this judgment refer to the Liability Reasons unless otherwise specified.
In the Liability Reasons, the Tribunal noted that it was required to make findings of fact in respect of the two allegations before it. In that, it correctly noted that the Board bore the onus of establishing that the respondent had engaged in unprofessional conduct or professional misconduct and referred to both the civil standard of proof and, appropriately, the reasoning of Dixon J in Briginshaw v Briginshaw.[12]
[12](1938) 60 CLR 336, 361-362 (‘Briginshaw’).
It is unnecessary to here recite every aspect of the Tribunal’s detailed consideration and analysis of the relevant evidence, but in respect of allegation 1 it considered there to have been insufficient evidence that, on or about 17 January 2017, the only place that the respondent could have obtained W1’s telephone number was from her clinical record. Ultimately, the Tribunal considered the evidence to be inconclusive about how the respondent had obtained W1’s address.
In respect of allegation 2, the Tribunal considered various aspects of the relevant evidence before it; some of it in a manner to which the applicant drew attention in the present proceeding, and to which I will come shortly.
The substance of the position – especially concerning the allegations that the respondent had interacted with W1 sexually – was that, for the reasons it gave, the Tribunal considered W1 not to have been a reliable witness.[13] On the other hand, it considered the respondent to have given ‘frank evidence’,[14] but also rejected parts of his evidence.[15] In this regard, the Tribunal had the important advantage of observing the oral evidence given by both W1 and the respondent, as well as a detailed interaction directly between them.[16] Various parts of the reasoning ultimately depended directly or indirectly upon the impressions which the three members of the Tribunal evidently formed.[17]
[13]See, in particular, Liability Reasons (n 11) [89]-[97].
[14]Ibid [119].
[15]Ibid [70] and [101].
[16]Cf., Woolworths Ltd v Warfe [2013] VSCA 22, [114]-[116] (‘Warfe’).
[17]Particularly, Liability Reasons (n 11) [22], [59]-[60], [89]-[93] and [115]-[116].
In the end, the Tribunal was essentially left to consider, evaluate and act upon the various parts of the evidence that remained, in circumstances where, as it observed more than once, neither the Board nor the respondent could put the critical text messages before it.
In this context, the Tribunal noted the admissions made by the respondent ‘completely against his interest’,[18] such as having attended W1’s home without clinical reason on two occasions and having also sent her text messages, some of which were of a sexual nature.
[18]Ibid [119].
In light of the above, the Tribunal ultimately concluded, in summary, that –
aThe Board has not established that, on or about 17 January 2017, Mr Robinson inappropriately accessed W1’s patient records for a purpose unconnected with her clinical care or treatment;
bAs conceded by Mr Robinson, on 17 January 2017 Mr Robinson attended the home of W1 for reasons that were not clinically necessary or justified;
cThe Board has not established that Mr Robinson engaged in conduct of a sexual nature with W1 at her home on 17 January 2017;
dIn the period from 17 January 2017 to 20 January 2017 Mr Robinson sent text messages to W1 some of which were sexually suggestive, as conceded by Mr Robinson.
eThe Board has not established the content of the text messages sent between 17 January 2017 and 20 January 2017.
fOn 20 January 2017, as conceded by Mr Robinson, Mr Robinson attended W1’s home in circumstances that were not clinically necessary or justified.
gThe Board has not established that Mr Robinson had sexual intercourse with W1 on 20 January 2017.
hOn 24 January 2017, as conceded by Mr Robinson, Mr Robinson sent a text message to W1 that said “hello?’;
iThe Board has not established that Mr Robinson called W1’s home phone number.
jThe Board has established that Mr Robinson called W1’s mobile number twice on 31 January 2017.
kThe Board has not established that Mr Robinson attended the home of W1 on 31 January 2017.[19]
[19]Liability Reasons (n 11) [132].
The Tribunal later delivered ‘Penalty Reasons’ dated 30 March 2021,[20] in which it determined that the respondent had behaved in a manner that constituted ‘professional misconduct’ within the meaning of paragraph (b) of the definition in the National Law. The Tribunal reprimanded the respondent and placed conditions upon his registration.
[20]Nursing and Midwifery Board of Australia v Robinson (Review and Regulation) [2021] VCAT 326 (‘Penalty Reasons’).
C The present proceeding
The Board commenced proceedings in this Court by notice of appeal dated 27 April 2021.[21]
[21]CB3-7.
In that regard, pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the VCAT Act), the Board seeks leave to appeal from orders made by the Tribunal on 30 March 2021.
Any such appeal must be brought only in respect of a question of law. The limits upon such an application, and appeal if leave is granted, are well-established.[22]
[22]Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48, [28]-[31] and Patsuris v Gippsland and Southern Rural Water Corporation (2016) 218 LGERA 167, [41]-[47].
In this context, the Board identified the questions of law upon which it is sought that the appeal be brought, as follows –
1. Did the VCAT fail to make a finding of fact on a material issue?
2. Did the VCAT fail to have regard to a relevant matter?
3. Did the VCAT fail to afford procedural fairness to the Board?
4. Was the VCAT’s decision legally unreasonable?
5. Did the VCAT fail to give adequate reasons for its decision?[23]
[23]CB4.
In connection with questions stated in that form, the Board articulated five grounds of appeal as follows –
1.The VCAT erred by failing to find that Mr Robinson had intentionally sent the text messages to the complainant on 19 January 2017 and, thereby, failed to have regard to a material matter when assessing the allegations against him.
2.The VCAT erred by failing to have regard to the following matters in assessing the allegations made by the complainant against Mr Robinson:
a. On 19 January 2017, Mr Robinson sent sexually suggestive text messages to the complainant.
b.Shortly before 20 January 2017, the visit was arranged by text messages between the Mr Robinson and the complainant (contemporaneous with the sexually suggestive messages).
c. Shortly after 20 January 2017, the complainant attended the clinic where Mr Robinson worked, made a formal complaint to the practice manager, and arranged testing for sexual transmitted diseases.
3.The VCAT did not accept the evidence of the complainant. It characterised her evidence as unreliable by reason of alleged “inconsistencies”. It failed to afford procedural fairness because the Board was given no notice of these matters, and the so-called inconsistencies were not put to the complainant when she gave evidence.
4.VCAT erred because its findings as to the conduct of Mr Robinson were irrational and/or legally unreasonable.
5.The VCAT erred by failing to give adequate reasons for its decision.[24]
[Unnecessary portions omitted]
[24]CB4-7.
In argument, counsel for the Board identified grounds 1, 2, 4 and 5 as in several respects overlapping. In particular, counsel acknowledged that grounds 4 and 5 were unlikely to persuade independently of grounds 1 and 2.[25]
[25]T45.
Ground 3 was distinct, although several different complaints were argued under the general ‘umbrella’ of procedural fairness. Some of the complaints were in addition to those identified in the notice of appeal and developed in written submissions.
D Ground 1: Failure to find that sexualised text messages were sent deliberately
This ground was advanced as going to a ‘critical’ issue. Counsel for the Board submitted that in failing to find that on 19 January 2017 the respondent had deliberately sent text messages to W1 containing sexually suggestive content, the Tribunal had failed to make a finding in respect of a material fact.[26]
[26]Cf., Chang v Neill (2019) 62 VR 174, [92]-[93].
In many ways, the Board’s contentions were propelled by the following reasoning of the Tribunal at [85] –
We accept Mr Robinson’s concession that he sent sexually suggestive text messages to W1. While we did not find Mr Robinson’s explanation about the sending of the text messages to be plausible, this does not, of itself, take the matter any further than the concession already made by Mr Robinson.
[Emphasis added]
From that rejection, the Board essentially contended that it should have followed that the respondent sent the sexualised text messages to W1 deliberately. That was particularly so, it was submitted, because in the very same sequence of text messages the respondent had arranged to attend W1’s home on 20 January 2017 and had in fact done so.
In this sense, having not found that the respondent sent the text messages deliberately was said have borne not only upon the failure of the Tribunal ultimately to find that the respondent and W1 had engaged in sexual intercourse at W1’s home on 20 January 2017, but also upon the Tribunal’s assessment of W1’s reliability as a witness.
The particulars to the allegation referred to the Tribunal included reference to the sending of ‘some’ text messages that were ‘sexual in nature’. That particular did not use the words ‘deliberate’ or ‘intentional’, but that might be said to have been implicit in the allegation made.[27]
[27]CB21.
In any event, that it was contended that the respondent had deliberately sent sexually suggestive text messages to W1 emerged clearly at the hearing; particularly in the course of cross-examination of the respondent by counsel for the Board.[28]
[28]See, in particular, T158-163 (CB269-274).
That contention was not lost on the Tribunal. Such is evident from the Liability Reasons generally, and particularly in [72] to [84] (leading up to [85]).
In that regard, in the final three paragraphs prior to [85] the Tribunal reasoned as follows –
[82] In the hearing W1 disagreed with Mr Robinson’s explanation of the text messages she received on 19 January 2017. W1 said she believed the text messages were intended for her, and did not recall any suggestion by Mr Robinson that they had been sent in error. She said:
In my opinion they were definitely for me because he – well, he would have known I was single and he asked me how long it had been since I had sex and then the details as per my report is what went back and forth. It did.
And later
You did not ever to my recollection, you did not ever explain to me that those texts were not for me, that you pressed the wrong button. I feel because, the did – the text messages to you and I that they were definitely meant for me because I knew who I was replying to.
“We spoke about sex in the text messages and it was clear why he was coming to my house.”
[83] The Tribunal is satisfied that this was W1’s understanding. The Tribunal is not able to determine that this was Mr Robinson’s understanding.
[84] The text messages were not in evidence. Although Mr Robinson admits sending sexually suggestive texts, he says these were not intended for W1, and he does not agree that he sent the specific sexualised questions set out in the allegations. The Tribunal is not able to form its own view on this issue. However, the Tribunal notes that W1’s earlier accounts simply referred to text messages, there was no indication that the texts were sexually suggestive. It was not until her March 2018 addition that she provided this detail. Her statement does not record specific texts, in the manner that has been set out in the particulars. In the absence of evidence of the text messages, and, given that this detail was not provided by W1 until her third statement, we are not comfortably satisfied that Mr Robinson sent the specific sexually suggestive messages to W1 as alleged in paragraphs (iv), (A), (B) and (C) of Allegation 2. We find that the Board has not proved this aspect of Allegation 2.
[Emphasis added.]
The following is evident from those paragraphs, and the Tribunal’s reasoning from [72] to [84] more generally –
(a) the Tribunal appreciated the contention of the Board that the arrangement to meet had occurred at some point during the course of the text messages between W1 and the respondent;
(b) the Tribunal also appreciated the contention of the Board – and, indeed, the contention of W1, whose evidence to that effect it quoted – that the respondent had sent the sexually suggestive text messages deliberately;
(c) the Tribunal understood that the respondent said that he had sent the sexualised text messages to W1 by accident;
(d) the Tribunal referred more than once to the fact – and seems to have been acutely aware – that it did not have copies of the text messages concerned;
(e) the Tribunal referred repeatedly to what had occurred ‘in the hearing’ and so had regard to the presentation of W1 and the respondent respectively as witnesses;
(f) the Tribunal also referred to the need for it to be ‘comfortably satisfied’ of the allegations made against the respondent and so was mindful of Briginshaw which, as I have noted, it had earlier quoted at some length; and
(g) in this context, the Tribunal was – at [83] – in substance, ‘not able to determine’ that the respondent had sent the sexualised text messages to W1 deliberately,[29] which it further explained at [84].[30]
[29]Although it might be said that the Tribunal’s observation at [83] concerns the respondent’s state of mind, in context – particularly in light of the further explanation at [84] (ie, ‘The Tribunal is not able to form its own view on this issue.’) – it must also be taken to be a statement of the state of mind of the Tribunal concerning the fact in issue.
[30]That the Board understood that the Tribunal had not accepted the contention that the sexualised text messages had been sent to W1 deliberately is quite clear from its written outline of submissions filed after publication of the Tribunal’s Liability Reasons (see, CB323). That the Tribunal had not accepted that contention was later confirmed in its Penalty Reasons at [17].
It follows that the Tribunal’s rejection of the respondent’s explanation at [85] cannot have been a complete rejection of his claim to have sent the text messages to W1 accidently. For the reasons that it gave, the Tribunal was ‘not able to form its own view’ on that issue.[31]
[31]Liability Reasons (n 11) [84].
In context, the rejection at [85] was of the contention that the respondent had intended to send the messages to a particular friend with whom he had said that he was ‘accustomed to exchanging sexually suggestive text messages as a form of “joke”’ – to which evidence the Tribunal referred specifically at [79]. At [79], the Tribunal noted that the texts with the friend ‘were not put into evidence’, but also noted that the respondent had provided screen shots from his phone to show that ‘he regularly stores numbers under # on his phone’. Consistently with the broader pattern evident in the reasoning of the Tribunal, it is unsurprising that it rejected the former part of the respondent’s explanation but could not reach a conclusion concerning the latter.
It follows, in my view, that the reasoning of the Tribunal was both careful and clear: it did not accept W1’s contention that the respondent had sent the messages deliberately; nor did it accept every part of the respondent’s explanation. However, it did not follow that it could be ‘comfortably satisfied’ that the specific messages alleged were sent to W1 or had been sent deliberately by the respondent.
In all of this, it is evident that the Tribunal was mindful of the need to feel an ‘actual persuasion’ in respect of the facts alleged and, in failing to be so persuaded, was plainly influenced by the impressions made by W1 and the respondent as witnesses ‘in the hearing’. In my view, the Tribunal’s caution, having regard to the advantage which it enjoyed, was quite consistent with principle.[32]
[32]Briginshaw (n 12) 361, Fox v Percy (2003) 214 CLR 118, [23]-[31] and Warfe (n 16) [114]-[116].
Further, that the Tribunal would be cautious in the circumstances that I have described is quite understandable.
As the Tribunal noted repeatedly, the text messages concerned were not in evidence. In that sense, the Tribunal was unable to be assisted in its task by considering the relevant contemporaneous records, which had evidently been deleted by both W1 and the respondent.
There was, of course, the oral evidence of W1 and the respondent. In that, the respondent was unrepresented and the Tribunal witnessed an extensive exchange unfold directly between W1 and the respondent[33] and so was well placed to form impressions of them as witnesses and specifically in respect of the events concerned.
[33]T54-80 (CB162-188).
In that regard, it seems to me to be of some significance that the Tribunal was constituted by three members: in observing the exchange between the respondent and W1 to which I have referred, and considering the questions of fact presented, the Tribunal might be thought to have been in a position to call upon some of the advantages often thought to be available to juries.
As a consequence of, among other things, that not inconsiderable advantage, the Tribunal later explained that it had found W1 to have been an unimpressive witness, but also identified and explained that parts of the respondent’s evidence could not be accepted.
More generally, as the evidence unfolded, it was quite evidently not a case in which events were readily to be understood by broad invitations to consider the ‘ordinary course of things’ or what was described in argument as the improbable ‘counterfactual’ that despite some statements and actions that might be thought to be consistent with her claims, W1 was nonetheless ‘making it all up’.[34]
[34]T32-33. It should be noted that while counsel for the Board sought to emphasise the improbability of the so-called ‘counterfactual’, in the material before the Tribunal the respondent had sought to advance an explanation for the actions of W1 (CB75). The Tribunal did not ultimately need to determine that issue, and nothing more need be said about it. However, consideration of the issue underlines the point it was one of those cases in which the mere positing of the improbability of something tended to elicit a further and very often imperfect counter-explanation (or theory) that did not finally clarify or resolve matters.
It was simply not one of those cases in which such contemplations could reliably provide the correct answer. In that regard, for example, just as it was not self-explanatory how, after the occurrence of events as the respondent described them to have been on 17 January 2017, it could have been that he had agreed to attend W1’s home again on 20 January 2017; it was also not self-explanatory how it could have been that after her version of those same events W1 had saved the respondent’s number to her phone and then texted him only two days later suggesting that they ‘catch up’ (albeit that she later sought to posit an explanation).
In truth, the events concerned had a good deal of illogical human complexity to them, and simply considering the ‘ordinary course of things’ or other appeals to ‘logic’ could not readily stand to explain what had really happened and why.
Further, the various explanations and counter-explanations sought to be advanced by both W1 and the respondent, particularly in the course of the direct exchange to which I have referred, did not make the task of the Tribunal any easier.
In that connection, that any particular explanation or counter-explanation was advanced by either W1 or the respondent did not mean that any of it was required to be accepted by the Tribunal.
Further, that additional explanations or counter-explanations could have been ‘out there’ does not mean that the Tribunal erred in not endlessly inquiring of both W1 or the respondent. In the end, there are limits to these things, and it seems to me to have been highly unlikely that further inquiries would have clarified or finally resolved matters in a manner that would have simplified the task which confronted the Tribunal. If there was a simple explanation for any of it, I imagine that it would have been elicited in the course of evidence by counsel for the Board or volunteered by the respondent.
Overall, one gets the impression that the Tribunal considered there to have been the potential for there to have been something more to the events concerned than was meeting the eye. On the evidence, however, whether or not that was so was not at all clear and is unlikely to have got any clearer on further inquiry. Nonetheless, the Tribunal did not speculate or jump to any conclusions and proceeded with the caution which I have described and for reasons that seem to me amply to have been justified.
I should add that it is evident that the Tribunal appreciated the point made about the meeting on 20 January 2017 having been arranged during the exchange of text messages concerned. It made specific mention of that evidence at [73] and [74].
However, the fact that the arrangement had been made at some point in that exchange did not compel a conclusion that the sexualised text messages had been sent to W1 deliberately. In that regard –
(a) as the Tribunal repeatedly observed, the text messages were not before it;
(b) the Tribunal had the advantage of seeing W1 give oral evidence – including about the exchange of text messages – and was plainly not satisfied that she was a reliable witness;
(c) further, W1’s version of events concerning the arrangement to meet on 20 January 2017 – particularly her document entitled ‘my most embarrassing experience’[35] that was prepared shortly after the events concerned – was not inconsistent with the possibility that the arrangement to meet had been made in reply to W1’s suggestion and prior to a subsequent exchange of sexualised text messages which the respondent had said was accidental;[36]
[35]CB83-88.
[36]See, CB84: ‘On the Thursday afternoon I contacted him, perhaps we could catch up. He replied that he could see me that day after work, or Friday afternoon. I was busy Thursday evening, and I was working Friday afternoon, but should be home after 5pm. (This was the 20th January 2017.) It was arranged that he would come around then, (even though I knew what would probably happen).’ See also, CB81 (paragraph 13). The effect of the relevant oral evidence concerning the sexualised text messages is perhaps debateable, but seems to me to be more consistent with the arrangement to meet having preceded the exchange of sexualised messages: see, in particular, T63 (CB171) and T137-138 (CB248-249).
(d) in that sense, it was possible that the exchange of texts about the meeting and then about sex had happened at different times, albeit between the same people and with one exchange following another;
(e) in that event, it was possible that the first exchange was deliberately between W1 and the respondent but that the second exchange was accidentally so; and
(f) the Tribunal also had the advantage of seeing the respondent give oral evidence about the text messages and evaluating the nature of his various responses, including his concession that they had been sent.[37]
[37]T100-101 (CB211-212) and 137-146 (CB248-257).
Finally, counsel for the Board contended that the Tribunal had erred in finding that the allegation that the respondent had sent sexualised text messages was not substantiated because it could not be satisfied of the particular content of the text messages.[38]
[38]T23-24.
In my view, the Tribunal did no such thing. The Tribunal understood that the respondent conceded having sent sexualised text messages, and acknowledged as much at [84]. However, the Tribunal did not have copies of the messages and was plainly not satisfied that W1 was a reliable witness. It therefore did not accept that W1 had received messages in the precise terms that she had ultimately identified in her third document and which had come to be particularised in the Board’s allegations. As the Tribunal said at the end of [84], it did not find ‘this aspect’ of the Board’s allegation to be proved. However, the Tribunal did accept that sexualised text messages had been sent, and so much is evident from its reasons at [84] and [85] and, particularly, later at [126] and [132](d) and (e). In any event, as counsel for the Board correctly acknowledged in argument, the point is not a ‘large’ one.[39]
[39]T24.
For these reasons, I cannot accept that the Tribunal made any error of law in connection with its failure to be satisfied that the respondent sent the sexualised text messages deliberately, or that any question of law arises in connection with its disposition of the issue. In my view, the Tribunal appreciated the contentions and concessions variously made, noted that it did not have the text messages concerned, saw the witnesses (including a complicated exchange directly between W1 and the respondent in the course of the hearing), understood the complexity of the circumstances under consideration and its need to proceed cautiously, and was not actually persuaded that the respondent had sent the messages deliberately. It was not compelled to be satisfied of that which it could not find, for the reasons which it stated.
It follows that ground 1 must be rejected.
E Ground 2: Failing to have regard to material evidence corroborating W1’s account
By this ground, the applicant contends that the Tribunal failed to ‘have regard’ to evidence said to have been corroborative of W1’s account, namely –
(a) the sexually suggestive text messages sent by the respondent to W1 on 19 January 2017;
(b) the respondent’s visit to W1’s home on 20 January 2017 having been arranged by text messages between the respondent and W1 contemporaneously with the sexually suggestive messages; and
(c) W1’s attendance upon and complaint to her general practitioner together with the arrangement of testing for sexually transmitted diseases.[40]
[40]In oral argument, counsel for the Board referred in passing to the lunch with W2 – in which W1 had recounted a version of the events concerning the respondent – and might be thought to have included that within its complaint directed to ground 2 (see, in particular, T32-33). That element of the Tribunal’s reasoning is considered in some detail below in connection with Ground 3. To the extent that the Board might be taken to have submitted that the Tribunal also failed to have regard to the evidence concerning the lunch with W2, that contention must be rejected.
As I have earlier noted, argument in connection with this ground was advanced broadly in combination with the Board’s arguments directed to grounds 1, 4 and 5.
I have already addressed both the sending of the sexually suggestive text messages and the arrangement to meet. The contention that the Tribunal failed to have regard to those matters (or, as it was put in written submissions, ‘any regard’[41]) must be rejected.
[41]CB365.
That leaves the attendance by W1 on her general practitioner and the referral for testing.
That matter was not specifically identified in the particulars of the relevant allegation before the Tribunal, however the first of W1’s written documents – entitled ‘my most embarrassing experience’[42] – was provided to her general practitioner, W3, and that document was considered by the Tribunal carefully in the course of the Liability Reasons.
[42]CB83-88.
In that regard, the Tribunal referred specifically to both the provenance of that document and the associated evidence of W3 –
We note that W1’s January 2017 account [ie, the document entitled ‘my most embarrassing experience’] was written in the last week of January 2017, and was given by her on 31 January 2017 in a consultation with her general practitioner, Dr W3. We note that Dr W3 reported that W1 was visibly distressed on making the report to him, and he was satisfied that the allegations made in her January 2017 report were genuine. Dr W3 formed the view that Mr Robinson’s conduct should be report to the Board, and did so.[43]
[43]Liability Reasons (n 11) [64].
That passage implicitly referred to W3’s written and oral evidence to the Tribunal.
It may be acknowledged that the quoted passage did not specifically refer to the referral of W1 for testing for sexually transmitted diseases, however that event did not occur until a later consultation with W3 on 7 February 2017.[44] That consultation was more than two weeks after 20 January 2017 and three consultations after W1 had first complained to W3. By that time, W1 had already complained to W3 in terms that included the assertion that sexual intercourse had taken place on 20 January 2017. That complaint was plainly referred to and given consideration by the Tribunal, as was the opinion of W3 that W1 was genuine.[45]
[44]CB102.
[45]On the other hand, as W3 acknowledged in the course of his oral evidence, ‘it’s important to get both sides of the story to understand what happens’: T91 (CB199).
That said, the complexity of the circumstances involved in the events between W1 and the respondent – which quite clearly emerged in the evidence before the Tribunal, and to which I have already referred – meant that the Tribunal evidently did not regard either the opinions of W3 or the events involved in W1’s attendances upon him on or after 31 January 2017 as standing decisively to answer the question what had happened between W1 and the respondent in the period 17 to 20 January 2017.
In this context, I cannot accept that the Tribunal failed to have ‘any regard’ to the matter of the referral.[46] In the circumstances, and in the manner in which the Tribunal ultimately reasoned, it was a matter that was no more than peripheral to the issues to be considered and determined. In that regard, and as the plurality of the High Court observed in respect of a similar point in Whisprun Pty Ltd v Dixon –
It is not readily to be supposed that the various matters upon which the Court of Appeal placed so much weight would have induced Newman J to accept that Ms Dixon’s condition was as she testified in her evidence-in-chief and as she reported to the doctors. Further, it should not be accepted that Newman J failed, at least in a general way, to consider the matters to which the Court of Appeal referred. The fact that his Honour did not refer to these matters in his judgment is not decisive. A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.[47]
[46]CB365.
[47](2003) 200 ALR 447, [62].
For these reasons, ground 2 must be rejected.
F Ground 3: Procedural fairness
This ground is directed to the treatment by the Tribunal of aspects of the evidence of W1 and her friend, W2. In the notice of appeal it is said that the Board was denied procedural fairness in that it was given ‘no notice’ by the Tribunal of –
(a) the ‘alleged failure’ by W1 to refer to the detail of the text messages with the respondent until her third statement;
(b) the ‘alleged inconsistency’ between the evidence of W1 and that of her friend W2;
(c) the ‘alleged incongruity in tone’ between W1 saying that she had been distressed and embarrassed by the sexual encounter with the respondent and ‘being prepared with a condom’ and ‘doing what was expected of her’ at the time;
(d) the ‘alleged failure’ of W1 to explain how she recognised the respondent’s vehicle when she says that he visited her home again on 31 January 2017; and
(e) the ‘alleged failure’ by W1 to recall a ‘scar’ on the body of the respondent.
In this regard, in written argument, counsel for the Board drew attention to passages in the Liability Reasons at [69], [84], [86], [90], [93]-[94] and [114]-[116]. In oral argument, the overall contention was supplemented with argument directed to the Liability Reasons at [27] and [96]. In this sense, the overall procedural fairness argument was multifaceted in nature.
I should note that although the present complaint is formally one directed to alleged failures to afford procedural fairness to the Board, in written argument and to a lesser extent in the oral argument, the complaint tended to drift into the territory of suggesting that the Tribunal had been ‘unfair’ to W1 (in particular) and W2.
In any event, the premise in all of the complaints was that the Board had been deprived of an opportunity to elicit further evidence by way of explanation because, during the hearing, the Tribunal had not exposed elements of analysis later expressed in the paragraphs of the Liability Reasons to which I have referred.
The principles relating to procedural fairness in such circumstances are well-established.[48] The Tribunal has a duty to raise the critical issues with the applicant. That said, as counsel for the Board correctly identified in argument, the content of the obligation will depend upon the circumstances of the case.[49]
[48]Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, [101]; Steen v Worksafe Victoria [2014] VSCA 299 (‘Steen’).
[49]T5.
It follows that it will not always be necessary to put specific arguments or evidence in order to afford a party an opportunity to advance the contrary. That will especially be so when the point is or should be within the knowledge or contemplation of that party. In the end, the issue is one of fairness and that is necessarily a question of degree.
In this, however, care must be taken to avoid imposing an obligation of an unreasonable and impracticable kind. As Santamaria JA (with whom Tate and Kyrou JJA agreed) observed in Steen v Worksafe –
At one point, it seemed as if the appellant was contending that, before a judge proposes to reach any conclusion on the evidence that is adverse to a party, the judge should give notice to that party of the potential for that finding so that it can be specifically addressed by the party. The contention needs only to be stated as a proposition to demonstrate its sheer impracticability.[50]
[50][2014] VSCA 299, [85].
A cognate point, also made by Santamaria JA in Steen, is as follows –
Where a plaintiff knows that evidence is to be tendered that contains material adverse to the claim, the plaintiff cannot complain that there has been a breach of the rules of natural justice if the plaintiff does not address that material as part of his or her own case and the judge makes unfavourable findings based on it.[51]
[51]Ibid [83].
In the present instance, the Board drew the two allegations against the respondent by reference to the evidence which it had assembled, and it referred those allegations to the Tribunal under cover of a letter dated 19 March 2018.[52]
[52]CB16-23.
In so doing, it was obvious that W1’s version of events had evolved over time and via three different documents. In that regard –
(a) W1’s first written document – entitled ‘my most embarrassing experience’[53] – seems to have been drawn by W1 shortly after the events on and between 17 and 20 January 2017 and provided to her general practitioner, W3, on 31 January 2017;
(b) W1’s second written document was a signed statement seemingly taken by AHPRA on 7 August 2017;[54] and
(c) W1’s third written document was another signed statement dated 13 March 2018, seemingly prepared by the solicitors for the Board in order to supplement or explain parts of the second document.[55]
[53]CB83-88.
[54]CB80-82.
[55]CB77-78.
The three documents were not perfectly consistent – indeed, as I have noted, the third was an attempt by W1 to explain why it was that important details had been omitted from the second.
The material also included a written statement from W1’s friend, W2.[56] That version was also not perfectly consistent with W1’s account. In written argument, counsel for the Board described the inconsistencies as ‘minor’.[57]
[56]CB92-93. I do not overlook the fact that the material provided by the Board to the Tribunal also included a written statement of W3, together with clinical notes (CB95-106).
[57]CB367.
However the inconsistencies in the material proffered to the Tribunal might best be described, they were there for the Board to take account of (or not) prior to and at the hearing before the Tribunal.
In answer to the Board’s case, the respondent admitted certain allegations; indeed, he admitted that his conduct had been ‘grossly inappropriate’.[58] That said, the respondent specifically denied the allegations of having made sexual ‘moves’ on W1 on 17 January 2017 and having engaged in sexual intercourse with W1 on 20 January 2017. So much seems to have been plain well prior to the hearings in early 2019.
[58]CB303. See also, CB72-75.
I should add that one of the points made by the respondent prior to the hearing was that W1 had given different and inconsistent versions, including in respect of the version given by W2.[59]
[59]CB303.
It was therefore plain that parts of W1’s account were hotly contested and that in such a contest it would very likely be necessary to consider the reliability if not credibility of the central witnesses, particularly W1 and the respondent. As always, that risk had the potential to cut both ways.
In this context, the Board was represented at the hearing by counsel. That was a significant advantage – especially over the respondent who, as I have noted, appeared in person.
In the circumstances that I have described, and in light of the principles to which I have referred, I cannot accept the Board’s overall contention that the fact that the Tribunal came to emphasise particular features and inconsistencies in the material before it amounted to any unfairness to the Board. All of it, in my view, was relevant to the view that the Tribunal could take of the reliability of the central witnesses, and should have been well within the contemplation of the Board prior to and at the hearing before the Tribunal.
Dealing then with the specific criticisms advanced by the Board in the overall complaint directed to the topic of procedural fairness, it should be noted that the first, third, fourth and fifth of the points identified in the notice of appeal concern inconsistencies in the evidence of W1 and the second concerns an inconsistency between the evidence of W1 and her friend, W2.
In respect of the first criticism, counsel for the Board directed attention to the reasoning of the Tribunal at [84] (quoted above at [49]). In that regard, counsel submitted that it was unfair of the Tribunal to have criticised W1 for failing to raise the detail of the sexualised text messages until her third document when, it was said, such a criticism was ‘never raised’ when she gave oral evidence. It was also said that in so doing the Tribunal had overlooked W1’s second document and ‘the explanation’ later given in her third document. In this sense, the complaint presents as a mixture of alleged specific error and denial of procedural fairness.
As to the complaint of, in effect, specific error, the Board makes the point that W1’s second document had referred to W1 and the respondent having spoken in the text messages ‘about sex’[60] and that her third document had sought to explain why it was that the detail about the sexualised text messages had not been included in the second document.
[60]CB81.
It may be acknowledged that one sentence in the reasoning of the Tribunal at [84] – when read alone – tends to suggest that the Tribunal erroneously considered that the accounts given prior to W1’s third document had ‘simply referred to text messages, there was no indication that the texts were sexually suggestive’.
As I have earlier indicated, however, it is evident from the overall reasoning of the Tribunal, particularly that commencing at [73] and following, that the Tribunal was concerned both that the particular text messages had not been able to be produced in evidence and that neither of the first two documents of W1 had specified the precise content of those messages. The specification as to content, in fact, came only in the third document.
In that sense, it is evident that the Tribunal’s real concern was not that there was no mention of sex until W1’s third document, but that there was no mention of sexualised texts at all in W1’s first document, no ‘content’ given to the mention of sex in her second document and then specification of content only in her third document.
Further, the Tribunal identified the relevant dates in the sequence of W1’s three documents. It is, accordingly, evident that the Tribunal was also concerned that the ‘content’ had been specified more than a year after the events in question and long after the text messages had been said to have been deleted.
In addition, and as I have earlier noted, parts of that overall passage of reasoning refer to the evidence of both W1 and the respondent ‘in the hearing’, and so was plainly influenced by the impressions they gave as witnesses.
It follows that even if it might be said that the Tribunal erred in the single sentence at [84] to which I have referred, it is not an error that, in my view, was material to the overall passage of reasoning or the Tribunal’s ultimate determination of the issue.[61] So much is evident from the Tribunal’s final two sentences at [84] –
In the absence of evidence of the text messages, and, given that this detail was not provided by W1 until her third statement, we are not comfortably satisfied that Mr Robinson sent the specific sexually suggestive text messages to W1 as alleged in paragraphs (iv)(A), (B) and (C) of Allegation 2. We find that the Board has not proved this aspect of Allegation 2.
[61]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [45]-[48], Municipal Association of Victoria v Victorian WorkCover Authority [2021] VSC 128, [75] & [78] and MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590.
I should add, for completeness, that there is no substance in the contention that the Tribunal overlooked W1’s explanation in her third document – it was quoted by the Tribunal specifically at [77]. As I have earlier indicated, the fact that W1 gave such an ‘explanation’ did not require that the Tribunal accept it, or that it enquire further into the explanation if it was inclined not to accept it. In any event, the Tribunal had the benefit of W1’s oral explanation and could evaluate that for itself.[62]
[62]T23 (CB131).
The related complaint – that the Board was denied procedural fairness – is grounded in the contention that the Tribunal’s concerns about the manner in which the detail of the sexualised text messages had emerged were not raised with W1 in the course of her oral evidence and, it is said, the Board was therefore ‘deprived of the opportunity to call the investigator’ that had taken W1’s second document.
There is no evidence of what any such investigator might have said; it was rather assumed for the purposes of argument that it would have corroborated W1’s assertion that she had asked that the detail not be included in her second document.
In any event, the investigator could not explain why it was that no such detail had been included in W1’s first document; which, after all, had been written close to the time of the events concerned and provided to her general practitioner, W3.
Further, the Board had plainly been alive to the difficulty presented by the absence of detail concerning the text messages, as it had prepared W1’s third document as an attempted (but incomplete) explanation of earlier omissions. That W1’s explanation was incomplete remained obvious on the face of the sequence of documents.
In addition, the risks to the case of the Board presented by such infirmities would inevitably be magnified if, as transpired, W1 presented unimpressively in her oral evidence.
In this sense, there was no secret going into the hearing before the Tribunal that W1’s sequence of documents contained infirmities. Indeed, the Board must have appreciated them. At that point, it was either up to the Board to seek to elicit such further explanation as could be given or, alternatively, do nothing. Much would depend upon how W1 went in oral evidence, and it is likely that the Board knew prior to the hearing that the respondent would be unrepresented.
In this context, I cannot accept that it was any breach of procedural fairness for the Tribunal not to ask either the Board or W1 for any further explanation. The risk that the Tribunal might examine the evidence of W1 critically was created by the manner in which her evidence had been prepared and proffered to the Tribunal, and was well within the specific contemplation of the Board. In the sense explained by McHugh J in Re Refugee Review Tribunal; Ex parte Aala, it was a risk that necessarily inhered in the circumstances presented and the issues to be decided.[63]
[63](2000) 204 CLR 82, [101].
In my view, much the same may be said concerning the third, fourth and fifth of the Board’s claims to have been denied procedural fairness. Each also concerns paragraphs of the Tribunal’s reasoning concerning the evidence of W1.
The third complaint concerns the Board’s contention that it was given ‘no notice’ of the ‘alleged incongruity in tone’ identified by the Tribunal in connection with W1 saying that she had been distressed and embarrassed by the sexual encounter with the respondent and, at the same time, ‘being prepared with a condom’ and ‘doing what was expected of her’.
That complaint directs particular attention to the following passages in the reasons of the Tribunal –
[93]The Tribunal was also concerned about the inconsistencies in W1’s evidence. On the one hand, W1 was confident that she was a willing participant in arranging a sexual encounter, but she was unable to give a coherent oral account of how Mr Robinson behaved at her home. In her January account she recorded that she initiated contact with Mr Robinson, and made no mention of sexually suggestive texts from him. She described herself as knowing “what would happen”, being prepared with a condom, and then “did what was expected” of her.
[94]The heading to her January 2017 account: “My most embarrassing experience” and its tone, including phrases such as “I can’t believe I did this”, “even though I knew what would probably happen”, “not being worldly experienced”, and “merely a vessel to be used” struck as inconsistent with a factual narrative. Considered together, the lack of detail in W1’s oral evidence, the fact that her written statements evolved over a period of more than 12 months after the event, and the inconsistencies between the evidence of W1 and W2, suggest to the Tribunal that W1’s narrative is unreliable.
In the course of that reasoning, the Tribunal was plainly influenced by W1’s presentation in oral evidence.
In any event, as above, the inconsistencies and incongruities spoken of by the Tribunal in the course of those passages were available to be identified and addressed by the Board at the hearing. There can be no substance in any criticism of the Tribunal for identifying those features and considering them to be confirmatory of the unpersuasive impression given by W1 in her oral evidence when those features were equally available to be addressed by the Board should it have chosen to do so.
Further, in my view, that there were such inconsistencies and incongruities in W1’s evidence – which the Board must be taken to have chosen not to further address or explain during the hearing – tends more to suggest that there was no ready and persuasive explanation available than the Board’s present argument would tend to acknowledge.
In any event, it is exceedingly difficult to imagine that any explanation proffered by a witness in those circumstances, and who had presented so poorly in evidence, would somehow have miraculously changed the complexion of her evidence before the Tribunal.
In this context, the overwhelming likelihood is that the various infirmities in W1’s evidence were appreciated by the Board going into and especially during the hearing, but that a decision was taken to do nothing – which, forensically, is very often the right decision. However, it does not follow that the Tribunal denied procedural fairness to the Board when later critically examining those parts of the evidence which the Board had chosen not to attempt further to remedy (if they could be remedied). Indeed, the opposite is the case: properly understood, there was no denial of procedural fairness.
The Board’s fourth and fifth complaints – concerning W1’s purported recognition of the respondent’s vehicle, dealt with by the Tribunal at [114]-[116], and W1’s defensive assertions concerning her recollection in response to the respondent’s puttage about his alleged scar, dealt with by the Tribunal at [90] – were in a similar vein.
Each concerned a contrast between a written assertion of W1 and evidence proffered by her orally. In that sense, each was informed by the Tribunal’s impression of W1 as a witness.
To the extent that each arose out of W1’s documents and might be thought to have sat uncomfortably with evidence she gave orally, it was also open to counsel to have re-examined or otherwise sought to address the issue during the course of the hearing.
In any event, in the course of argument in the present proceeding counsel for the Board acknowledged (correctly) that the fourth and fifth complaints were unlikely to loom as significant if the Board’s other such complaints could not be accepted.[64]
[64]T35.
That leaves the Board’s second and final written complaint concerning what is described as an ‘alleged inconsistency’ between the evidence of W1 and that of her friend, W2.
The Board contended that W2’s evidence should have been considered by the Tribunal to corroborate the evidence of W1, should not have been considered ‘somehow’ to bear upon the credibility of W1 and that the Tribunal should ‘properly’ have raised such points during the hearing so that an explanation could be given by W1.
In that regard, counsel for the Board directed particular attention to the following reasoning of the Tribunal at [69] –
W2’s evidence also differs from W1’s evidence in her account of the timing of when, according to W1, Mr Robinson placed her hand on his crotch. W2 recalls W1 telling her this happened while Mr Robinson was setting up the video. We note that W1 did not refer to this detail in either of her first two statements, which were prepared before that of W2. In her March 2018 Addition, W1 stated that this occurred toward the end of his visit, as Mr Robinson was leaving. We note below that W1 said, in the March 2018 Addition, that she had omitted the details of alleged sexualised text messages because she was embarrassed, however she gave no explanation for omitting conduct as significant as placing her hand on his crotch. Ultimately, we did not find W2’s evidence sufficiently consistent with that of W1 to overcome the inconsistencies, opinions and inferences that coloured W1’s evidence.
In my view, there is nothing in any of these points. As above, the inconsistencies between the documents of W1 and W2 were evident going into the hearing. Indeed, as I have noted, other explanations had already sought to be given in W1’s third document, but no explanation had been advanced as between the documents of W1 and W2. The Board could have sought to further explain the position, if there was an explanation to be given, but evidently elected to do nothing. In so doing the Board took a risk, but for reasons earlier given, the fact that the Tribunal later turned its attention to inconsistencies that arose on the face of the evidence put before it does not give rise to any denial of procedural fairness.
Further, in the passage to which the Board directed attention in argument, the Tribunal in fact turned its attention to the extent to which the evidence of W2 could be taken to corroborate that of W1 and explained that it was not ‘sufficiently consistent’.
Finally, that the inconsistencies concerned might have been thought by the Tribunal ultimately to bear upon W1’s credit or reliability as a witness is hardly surprising. W1 was the source of the account that appeared in the evidence of W2.[65] To the extent that W2’s version sat incongruously with some or any part of W1’s own version was plainly a potential problem for W1. However, it was, again, a problem wholly or largely evident on the face of the documents going into the hearing. It was for the Board to seek to remedy the problem or not, as it saw fit. The Board ultimately took a risk in proffering such evidence to the Tribunal without seeking to elicit an explanation (if there was one). In such circumstances, however, that the Tribunal ultimately reasoned as it did was a consequence of the forensic risk taken by the Board, not a denial of procedural fairness.
[65]The provisions of the VCAT Act are sufficiently permissible as to allow such evidence to be received.
More generally, it should not be thought that those paragraphs are the only paragraphs in the reasoning of the Tribunal which go to the reliability of the witnesses to whom I have referred. In particular, it is apparent that the most significant issue with the evidence of W1 was the impression that she gave in giving evidence. In several paragraphs of reasoning, the Tribunal identified concerns based in its impressions of her as a witness. Those impressions were ‘also’ confirmed by an analysis of her sequence of written statements. It is hardly unusual for a Tribunal of fact, in such a case, to turn to such issues in order to evaluate either the reliability of particular witnesses or the likelihood or not of being persuaded that the events contended for by the Board had actually occurred. I cannot accept that such matters were not in the ready contemplation of the Board in the hearing before the Tribunal.
For completeness, I should address the Board’s further criticisms concerning the Tribunal’s reasons at [27] and [96]. As I have indicated, each criticism was developed by counsel for the Board in oral argument.
The reasoning at [27] again concerned the evidence of W2, in respect to which the Tribunal stated –
W2 gave evidence that, at some time after 20 January 2017, W1 told her that, when Mr Robinson discussed the YouTube video with her at the clinic, W1 told Mr Robinson “just send it to me”. That phrase suggests that W1 had already given her contact details to Mr Robinson. W2’s evidence suggests that W1 may already have given her mobile number to Mr Robinson at some time, as Mr Robinson asserts.
Unlike the other passages of reasoning considered under the umbrella complaint of denial of procedural fairness, however, this passage appeared within the reasoning of the Tribunal directed to the allegation that the respondent had obtained W1’s telephone number and/or address from clinical records.
In respect of that allegation, W1 essentially said that the respondent ‘must have’ obtained her number from her clinical records and the respondent said that W1 had given him her number on a previous occasion at the local shopping centre when inviting him for a meal (which W1 denied). As I have earlier noted, the Tribunal ultimately concluded that the evidence was inconclusive.
In the present context, in respect of the passage at [27], the Board submitted that the particular evidence of W2 – to the effect that W1 had said to the respondent ‘just send it to me’ – had not been raised with W1 at the hearing, which, it was submitted, carried the danger that relevant evidence would be overlooked. In that regard, counsel for the Board submitted that the true complexion of the evidence of W2 came to be misrepresented by the Tribunal at [27] as, in the balance of the relevant paragraph of her statement, W2 had stated –
[W1] told me that the nurse got her telephone number and address from her records at the Clinic and contacted her about the link and they agreed that he would come to her house to show her. [W1] said that she did not give him her telephone number.[66]
[66]CB92.
The point of the reasoning at [27] is that the phrase ‘just send it to me’, recalled by W2 as having been used by W1, was considered by the Tribunal to be suggestive of the possibility that W1 had earlier given her number to the respondent.
It is true that that possibility was denied by W1 in the account recorded in the balance of W2’s statement. However, the Tribunal did not overlook W1’s general denial of that proposition – which it referred to specifically at [25]. In this sense, it was unnecessary for the Tribunal to raise the form of W2’s version with W1 in order to confirm that she denied that she had given her number to the respondent: it was quite plain that she denied it.
However, the point made by the Tribunal at [27] concerned the use of the phrase ‘just send it to me’, which obviously struck the Tribunal as contributing to broader doubts about W1’s denial. That state of doubt must have been influenced, at least in part, by W1’s presentation in oral evidence. In that regard, the Tribunal was entitled to be doubtful about W1’s denial: the mere fact of her denial did not mean that the Tribunal was required to accept it.
Further, as earlier noted, that the Tribunal may have had such doubts did not mean that it was required to argue them out with either W1 or counsel for the Board. It was plain that W1’s denial was disputed by the respondent. That her denial might not be accepted was a risk that inhered in the determination of the issues.
I should add that it does not seem to me to have been impermissible for the Tribunal to treat the evidence as suggesting that W1 had used that phrase with W2, albeit that she had also denied sending her number to the respondent. The phrase was in W2’s statement, which was in the Board’s own material. As I have earlier noted, the Board was represented by counsel before the Tribunal and if the position was that W1 denied using the phrase concerned, that evidence could have been elicited from her, but was not.
In these circumstances, I do not accept that there was any denial of procedural fairness in connection with the reasoning of the Tribunal at [27].
Further, even if there was a such denial, in my view it could not realistically be considered to have been material to the Tribunal’s determination of allegation 1. The passage at [27] appears within more extensive reasoning of the Tribunal directed to that allegation. It is apparent that there were multiple reasons why, ultimately, the Tribunal considered allegation 1 not to have been sustained.[67] It was not suggested in argument that the ultimate disposition of allegation 1 was erroneous.
[67]Cf., Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26, [79].
The Board’s final criticism was directed to the Tribunal’s reasons at [96], which reads as follows –
In the hearing, when Mr Robinson’s interest in a property was put to her, W1 said “I really didn’t know about your family situation, except that I knew from 2015 that you had a son. I can’t say it would be something I would have done.” The Tribunal noted the qualification in the last sentence of W1’s response. It suggests an acknowledgement that she might have said this, or, alternatively, that she did not have a clear recollection of her conversations with Mr Robinson.
The Board submitted that in the passage of evidence to which the Tribunal referred, W1 had also said that she disagreed ‘whole heartedly’ with the suggestion that the respondent had told her that he was looking for a property.[68]
[68]T62 (CB170).
In my view, there is in nothing in the present point. The Tribunal understood that W1 denied that the respondent had said that he was interested in a property – it referred to that denial specifically at [22]. However, at [22], the Tribunal further observed –
In the hearing she did not seem very certain about this, saying only: “I can’t say it is something that I would have done”.
It could not be the case that in using the word ‘only’ the Tribunal was overlooking W1’s denial: her denial was noted earlier in the same paragraph. The word ‘only’ was a comment upon the tone in which the oral evidence had evidently been given.
In that regard, the evidence to which the Tribunal referred was given shortly after the ‘whole hearted’ denial by W1 and it was open to the Tribunal to consider the manner in which it was given as having the potential to qualify or shed a different light upon the certitude accompanying that which had preceded it.
In this sense, the Tribunal’s point at [22], and later at [96], was very largely grounded in the impression conveyed by W1 when giving evidence in respect of a hotly contested issue in dispute as between her and the respondent. That her reliability as a witness might come to be carefully considered, and the true complexion of her evidence considered in a manner different to that which would be desired by the Board, was a risk that inhered in the determination of the issues in the circumstances in which they were presented.
In my view, there was no denial of procedural fairness to the Board in any of the passages complained of. Ground 3 must be rejected.
G Ground 4: Unreasonableness
This ground sought to advance many of the complaints that I have earlier addressed, but essentially reformulated under the heading of ‘legal unreasonableness’.
As counsel acknowledged in the course of argument, ‘legal unreasonableness’ is ‘very hard’ to establish and if I did not accept the same arguments when advanced under the aegis of grounds 1 and 2, it was unlikely that I would be persuaded with respect to the same arguments re-packaged in connection with ground 4.[69]
[69]T35.
The concession was quite correctly made. I have rejected grounds 1 and 2 and, to me, it follows that ground 4 must also be rejected.
H Ground 5: Reasons
Counsel for the Board identified in argument that this ground also overlaps with earlier grounds.
Indeed, in connection with grounds 1 and 2, in particular, counsel supplemented his contentions to the effect that certain evidence was, he said, overlooked or not taken into account, with the allied proposition that if such evidence was, in fact, taken into account, there was a deficiency in the reasons of the Tribunal because an insufficient amount was said about it.
It will be evident that I have not accepted the contention that the evidence concerned was either overlooked or not taken into account. In a practical sense, it follows that there is no legal insufficiency in the reasons of the Tribunal.
I should add that the Liability Reasons of the Tribunal were very detailed and, in my view, more than adequate to discharge the function of allowing a supervising court to ascertain whether any legal error occurred. It will be evident that, in my view, there was no such error. It follows that ground 5 must be rejected.
Conclusion
The grounds sought to be relied upon by the Board must be rejected. While leave to appeal may be granted, the appeal must be dismissed.
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