Singh v Health Care Complaints Commission

[2024] NSWSC 1307

Supreme Court

New South Wales

Medium Neutral Citation:

Singh v Health Care Complaints Commission [2024] NSWSC 1307

Hearing dates:

9 October 2024

Date of orders:

18 October 2024

Decision date:

18 October 2024

Jurisdiction:

Common Law

Before:

Griffiths AJA

Decision:

At [112]-[114]

Catchwords:

OCCUPATIONS — health care professionals — medical practitioners — Health Practitioner Regulation National Law (NSW) — unsatisfactory professional conduct — professional misconduct — where NCAT made findings that the plaintiff engaged in inappropriate sexual communication and intimate physical touching during treatment of a patient — where the plaintiff’s registration as a chiropractor cancelled — whether NCAT erroneously reversed the normal onus of proof in disciplinary proceedings — whether NCAT erroneously treated disciplinary proceedings as sexual offence proceedings — whether NCAT erroneously considered adverse credit findings made against plaintiff when considering whether plaintiff was “dishonest” for the purpose of determining the appropriate sanction under the National Law

APPEALS — leave to appeal — whether leave required — where no question of law identified in amended summons — where further amended summons alleged several errors of law — whether grounds of appeal clearly identified a question of law

EVIDENCE — witness evidence — collusion — where NCAT made findings that the plaintiff had colluded with three witnesses — whether there was otherwise unexplained identical evidence of conversations from the relevant witnesses such that a finding of collusion was open to NCAT

Legislation Cited:

Civil and Administrative Tribunal Act2013 (NSW), Sch 5, cl 29

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8

Criminal Procedure Act 1986 (NSW), ss 292B, 292C, 292D, 293A, 294, 294AA

Health Practitioner Regulation National Law (NSW),

ss 139B, 139E, 149C, 150, 150H, 165L, 165M, Sch 5D, cl 2

Cases Cited:

Browne v Dunn (1893) 6 R 67

Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731; [2005] NSWCA 110

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Health Care Complaints Commission v Priyamanna [2015] NSWCATOD 138

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34

Jan v Health Care Complaints Commission [2021] NSWSC 350

King v Health Care Complaints Commission [2011] NSWCA 353

Kudrynski v Orange City Council [2024] NSWCA 33

Maughan v R [2020] NSWCCA 51

Medical Council of New South Wales v Mooney [2024] NSWCA 180

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17

Rao v R [2019] NSWCCA 290

Roads and Traffic Authority of New South Wales v Mosca [2006] NSWCA 159; (2006) 146 LGERA 335

Seamez v McLaughlin [1999] NSWSC 9

Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40

Xie & Ors v Qin & Anor; Qin v Taylor International Investment Pty Ltd [2023] NSWSC 254

Xu v R [2019] NSWCCA 178

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Atil Rivlesh Singh (Plaintiff)
Health Care Complaints Commission (Defendant)

Representation:

Counsel:
J R Young (Plaintiff)
A Petrie / K Sharma (Defendant)

Solicitors:
Shukla Law (Plaintiff)
Health Care Complaints Commission (Defendant)

File Number(s):

2024/178014

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and on the ground that it is necessary to prevent prejudice to the proper administration of justice, the disclosure of the following names, together with any information or material which could identify these persons, whether by itself or with other information and material, is prohibited:
(a) The names of Patient A and her sister-in-law;
(b) The names of the 387 patients who attended Camden Healthcare Centre on 22 June 2021, as recorded in “Annexure AS27” at pages 602 to 614 of the Court Book.

 Decision under appeal 

Court or tribunal:

New South Wales Civil and Administrative Tribunal

Jurisdiction:

Occupational Division

Citation:

[2023] NSWCATOD 124;

[2024] NSWCATOD 46

Date of Decision:

24 August 2023;
15 April 2024

Before:

G Blake AM SC, Senior Member
Dr R Engel, Senior Member
Dr D Kostur, Senior Member
R Kusuma, General Member

JUDGMENT

1. By a further amended summons filed with the leave of the Court, the plaintiff appeals pursuant to cl 29 of Sch 5 of the Civil and Administrative Tribunal Act2013 (NSW) (CAT Act) against two separate but related decisions of the Occupational Division of the New South Wales Civil and Administrative Tribunal (NCAT): Health Care Complaints Commission v Singh [2023] NSWCATOD 124 (Stage 1) and Health Care Complaints Commission v Singh (No 2) [2024] NSWCATOD 46 (Stage 2). NCAT was constituted by three Senior Members (two of whom are medical practitioners) and one General Member.

2. In Stage 1, NCAT found that Mr Singh, a chiropractor, had engaged in unsatisfactory professional conduct and professional misconduct within ss 139B and 139E respectively of the Health Practitioner Regulation National Law (NSW) (National Law) (Stage 1 [301], [305]). The findings were made in circumstances where Patient A had made two particularised complaints against Mr Singh that, in summary, he had engaged in inappropriate sexual communication and intimate physical touching (most of the particulars pertained to Mr Singh’s conduct during his treatment of Patient A on 22 June 2021 (Stage 1 [31])). I shall refer to the complainant as Patient A, which is consistent with a non-publication order made below and a further order made in the present proceeding.

3. In Stage 2, NCAT cancelled Mr Singh’s registration as a chiropractor pursuant to s 149C(1)(b) of the National Law (Stage 2 [53]). NCAT also made a prohibition order and fixed a non-renewal period of two years and six months (Stage 2 [55], [56]).

4. Under cl 29 of Sch 5 of the CAT Act, Mr Singh may appeal as of right on any question of law, or with the leave of the Court on any other ground. The importance of identifying one or more questions of law in this and other statutory contexts has repeatedly been emphasised (see, for example, Jan v Health Care Complaints Commission [2021] NSWSC 350 at [4] per Leeming JA; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71] per Leeming JA; Kudrynski v Orange City Council [2024] NSWCA 33 at [48] per Griffiths AJA; and Medical Council of New South Wales v Mooney [2024] NSWCA 180 at [96] per Leeming JA, to name but a few).

5. The plaintiff’s amended summons filed on 8 July 2024 did not clearly identify any question of law. Rather, it contained a series of claims that NCAT had erred in law in various ways, without identifying the question of law to which those errors were said to relate. The amended summons effectively passed the responsibility of identifying a question of law to the Court. This is reflected in order 1, in which the plaintiff sought:

1. Leave to appeal from the whole of the decision below (if necessary), or if necessary in relation to any ground which this Honourable Court does not consider raises a question of law.

6. At the Court’s urging, the plaintiff then provided a further amended summons dated 7 October 2024. Although the alleged errors of law were extensively rephrased in this document, the plaintiff persisted with an approach which involved asserting numerous errors of law on the part of NCAT, without clearly identifying any question of law to which the alleged errors relate. Order 1 was also maintained in identical terms to the amended summons.

7. There are at least two compelling reasons why the clear identification of a question of law is required. First, in a statutory context such as the present, the identified question(s) of law constitute the subject matter of the appeal and, in that sense, define the Court’s jurisdiction.

8. Secondly, in a case where there is a requirement to obtain leave in order to appeal on a matter which is not a question of law, it is important to be able to identify the matters for which leave is required in order to apply the relevant principles which guide the grant of leave.

9. As the Court said in Kudrynski at [50] (albeit in a different statutory context), the issue whether or not a question of law has been properly identified for the purposes of proceedings such as the present “should be approached as a matter of substance and not merely form”. A more lenient approach may be appropriate in the case of a litigant in person, but where an applicant/appellant is legally represented the Court requires that one or more questions of law will clearly be identified by the moving party. That is so notwithstanding that it has been said that a “relatively liberal approach” may be taken in disciplinary proceedings (see Jan at [4]).

10. In the present proceeding, the grounds of appeal in the further amended summons can be reduced to the following categories with reference to Stage 1 and Stage 2 respectively (noting that grounds 6, 6A, 10 and 11A were not pressed):

Stage 1

1. Did NCAT err in its finding that Mr Singh colluded with Messrs Nies, Salib and Wilson (grounds 1 - 4)?

2. Did NCAT erroneously reverse the normal onus of proof that applies to disciplinary cases (ground 5)?

3. Did NCAT treat the disciplinary proceedings as sexual offence proceedings and erroneously apply various jury directions under the Criminal Procedure Act 1986 (NSW) (CP Act) and authorities from the Court of Criminal Appeal (grounds 7 & 8, 9 & 9A)?

4. Did NCAT fail to provide details of its decision, as required by s 165M of the National Law (ground 11)?

Stage 2

1. Did NCAT erroneously consider the adverse credit findings made against Mr Singh in the Stage 1 decision when considering whether Mr Singh was “dishonest”, which finding created a greater need for specific and general deterrence in determining an appropriate sanction (ground 12)?

Factual background summarised

11. Mr Singh was a registered chiropractor working at Physical Health Pty Ltd (Physical Health) from a rented space at Camden Healthcare Centre.

12. The premises of Physical Health consist of three treatment rooms which are contiguous and face an open exercise area. Only treatment room 3 has a wash basin.

13. Patient A suffered various workplace injuries for which she was receiving treatment, summarised as follows: on 12 July 2016, a fractured pelvis and labral tear of the right hip (Stage 1 [10]), on 19 May 2019, a left knee injury (Stage 1 [50]), and on 7 March 2021, a subluxation of the right patella (Stage 1 [50]). Patient A became a patient at Camden Healthcare Centre from 15 April 2019, and a patient of Physical Health from 7 December 2020 (when she started receiving treatment from Mr Singh).

14. On 22 June 2021, Patient A had a consultation with Mr Singh. This consultation forms the basis of most of the allegations made against Mr Singh. Shortly after this consultation, Patient A communicated with her sister-in-law by text and telephone, and subsequently made detailed notes outlining the nature of the complaints she was later to make against Mr Singh.

15. On 15 August 2021, Patient A made a formal complaint to the Health Care Complaints Commission (HCCC).

16. On 17 September 2021, Mr Singh attended a hearing under s 150 of the National Law and gave written and oral evidence concerning the 15 August 2021 complaint.

17. Following an investigation, on 21 September 2021, acting under s 150(1)(b) of the National Law, the Chiropractic Council of NSW imposed various conditions on Mr Singh’s registration. Some of those conditions related to his treatment of female patients and required, for example, that an attending female person had to be physically present during any such treatment.

18. On 9 January 2023, the HCCC commenced proceedings in NCAT seeking disciplinary findings and orders against Mr Singh.

19. On 14 July 2023, the HCCC obtained leave to amend its complaints against Mr Singh. In brief, the amended complaints accused Mr Singh of both unsatisfactory professional conduct and professional misconduct under ss 139B(1)(a) or (l) and 139E of the National Law respectively.

20. Complaint 1 alleged that he had engaged in conduct which demonstrated that his knowledge, skill or judgement was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and that he had engaged in improper or unethical conduct as a chiropractor. This complaint was accompanied by multiple particulars which included allegations that Mr Singh had:

• inappropriately removed Patient A’s underwear without any proper clinical justification;

• made several inappropriate comments to Patient A, such as:

“You need a boyfriend, so they can touch you instead of me.”;

“Have you found a boyfriend yet?”;

“How’s your love life man?”;

“Are you touching yourself?”;

• at the consultation on 22 June 2021, Mr Singh inappropriately rubbed Patient A’s vaginal area and clitoris with his hand in circumstances where no prior consent was obtained, nor was there any proper clinical justification for the conduct;

• some of this alleged conduct was said to be contrary to obligations under s 9.2 of the Chiropractic Board of Australia’s Code of Conduct (2014); and

• it was also alleged that Mr Singh had inappropriately engaged in some of this conduct for his own sexual gratification.

21. The particulars of Complaint 1 were also relied upon in support of Complaint 2, which sought suspension or cancellation of Mr Singh’s registration as a chiropractor.

NCAT’s Stage 1 and Stage 2 decisions summarised

22. It is convenient to concentrate on those parts of NCAT’s reasons which are relevant to the various categories of grounds of appeal.

Mr Singh’s collusion with other witnesses

23. After citing Seamez v McLaughlin [1999] NSWSC 9 and Xie & Ors v Qin & Anor; Qin v Taylor International Investment Pty Ltd [2023] NSWSC 254, NCAT considered that a finding of collusion is open when a decision-maker is confronted with otherwise unexplained “identical evidence of conversations”. It then added at [235] of the Stage 1 decision that, not only could a finding be made that conversations are “untrue”, but “the collusion casts doubt upon the reliability of the evidence of the colluding persons generally on any controversial matter of importance”.

24. NCAT was not satisfied that Mr Singh was a credible and reliable witness, for several reasons which are set out at [246] of the Stage 1 decision. Those reasons include what NCAT described as the implausibility of Mr Singh’s detailed recollection of various events relating to Patient A; inconsistencies between his evidence and that of other witnesses as to whether treatment room doors were always open during treatment of a patient; and that his oral evidence was unresponsive and at times argumentative and evasive.

25. Significantly, however, NCAT also stated at [246(4)] that the following matter formed part of the basis for its adverse findings regarding Mr Singh’s reliability and credibility (emphasis added):

… we infer that he colluded with Mr Nies, Mr Salib and Mr Wilson in the preparation of the 9 May 2023 Nies statement, the 9 May 2023 Salib statement and the undated Wilson statement as explained in [251], [262(4)], [265(3)] and [266] below. This collusion casts doubt upon the credibility and reliability of his evidence generally on any controversial matter of importance;

26. It is well to set out the passages in the Stage 1 reasons to which those cross-references concerning collusion between Mr Singh and three of his witnesses (i.e. Mr Nies, Mr Salib and Mr Wilson) relate:

[251] We are satisfied that Mr Nies had no memory of the events involving Patient A in addition to those recorded in the 26 August 2021 Nies statement at [3] to [5]. We are not satisfied that he was a credible and reliable witness in circumstances where in cross-examination he resiled from the detailed account of conversations and other events in the 9 May 2023 Nies statement. Having regard to the principles in Seamez at [36] and Xie at [72]-[73], we infer from the substantial similarity between the conversation recorded in the 28 April 2023 Singh affidavit at [39] and the 9 May 2023 Nies statement at [13] as well as their friendship that he and the respondent colluded in the preparation of the 26 August 2021 Nies statement, and that this conversation is untrue. Further, this collusion casts doubt upon the credibility and reliability of his evidence generally on any controversial matter of importance.

…

[262] We are not satisfied that Mr Salib was a credible and reliable witness and had an actual recollection of his attendance at the clinic on 22 June 2021 for the following reasons:

…

(4) having regard to the principles in Seamez at [36], we infer from the substantial similarity between his evidence and that of the respondent in the 28 April 2023 Singh affidavit as well as their friendship that he and the respondent colluded together in the preparation of the 9 May 2023 Salib statement. This collusion casts doubt upon the credibility and reliability of his evidence generally on any controversial matter of importance.

…

[265] We are not satisfied that Mr Wilson was a credible and reliable witness and had an actual recollection of his appointment on 22 June 2021 for the following reasons:

…

(3) his explanation that he did not think that it was relevant to mention when he left there was still one patient waiting at the practice was unbelievable in circumstances where he had specifically referred to the number of patients waiting when he arrived. We accept that he gave this oral evidence because of information he had received from the respondent.

[266] Except in relation to his evidence that there was one patient waiting when he left the practice, we are not satisfied that the evidence of Mr Wilson was influenced by the respondent as this was never put to him in cross-examination. However, the fact that Mr Wilson received information from the respondent casts doubt upon the reliability of his evidence generally.

Reversal of onus of proof

27. At [244(6)] of the Stage 1 decision, NCAT found that:

[244] We are satisfied that Patient A was a materially credible and reliable witness for the following reasons:

…

(6) it is inherently implausible that Patient A would have made such a serious complaint about the conduct of the respondent in her telephone conversation with Patient A’s sister-in-law on 22 June 2021, the 22 June 2021 Patient A notes, the 15 August 2021 Patient A complaint, the 10 December 2021 Patient A statement, the 10 March 2023 Patient A statement, and her oral evidence, unless the respondent had engaged in that conduct.

28. Mr Singh contends that this reversed the normal onus of proof in disciplinary cases. In his written submissions, he contends that:

This is not some throwaway line, it is fundamental to the finding that Patient A was a materially credible and reliable witness. It cannot be excised from other findings about the credibility and reliability of Patient A, albeit that some of these are themselves flawed.

29. NCAT explained at [244] why it was satisfied that Patient A was a “materially credible and reliable witness” (see further at [34] below).

The relevance of jury directions and sexual touching principles in criminal cases

30. At the NCAT hearing, the HCCC made submissions as to the applicability of various provisions of the CP Act as well as to authorities of the NSW Court of Criminal Appeal “which have warned against stereotypical expectations about how a victim of sexual assault is ‘supposed’ or ‘expected’ to behave” (Stage 1 [201]). NCAT then referred to the following matters in its Stage 1 reasons:

1. relevant jury directions from the CP Act dealing with evidence in certain sexual offence proceedings (namely ss 292B, 292C, 292D, 293A, 294 and 294AA): [215]-[222];

2. the definition and offence provisions relating to “sexual touching” under the Crimes Act 1900 (NSW): [223]-[224]; and

1. the cases of Xu v R [2019] NSWCCA 178, Rao v R [2019] NSWCCA 290 and Maughan v R [2020] NSWCCA 51, which consider the relevance of victim behaviour to drawing conclusions regarding consent: [225]-[227].

31. NCAT relied on King v Health Care Complaints Commission [2011] NSWCA 353 and Health Care Complaints Commission v Priyamanna [2015] NSWCATOD 138 as authorities for the proposition that NCAT can seek guidance as to what constitutes sexual conduct from the criminal law.

32. At [232], NCAT concluded:

Having regard to the observations of Evatt J at 256 in Bott and the approach in Priyamanna at [179]-[183], we consider that it is appropriate to have regard to the observations of the New South Wales Court of Criminal Appeal in Xu at [92], Rao at [98], and Maughan at [2] and [99] in assessing the credibility and reliability of Patient A. Further, given that the impugned conduct of the respondent included conduct that could constitute the offence of sexual touching within s 61KC when read with s 61HB of the Crimes Act we consider that it is appropriate to have regard to the directions in ss 292B, 292C, 292D, 293A, 294 and 294AA of the CP Act to the extent that they are relevant in assessing the credibility and reliability of Patient A. We do not accept the respondent’s submissions that the principles contained within these directions are not relevant given the nature of particulars of the Amended Complaint to the extent that they involve sexual touching. Further, we do not accept the respondent’s submissions that the principles of criminal law authorities such as Xu at [92], Rao at [98], and Maughan at [2] and [99] which have warned against stereotypical expectations about how a victim of sexual assault is “supposed” or “expected” to behave are not relevant to the assessment of the credibility and reliability of Patient A.

33. Mr Singh submits that NCAT “was wrong to act on the basis of legally binding directions given to juries in criminal trials”. In particular, Mr Singh highlights that part of the second sentence at [232] where reference is made to the possibility that the impugned conduct could constitute a criminal offence.

The significance of the fact that Patient A had requested a further appointment with Mr Singh after her consultation on 22 June 2021

34. NCAT set out at some length at [244] of its Stage 1 reasons why it was satisfied that Patient A was a “materially credible and reliable witness”. They included NCAT’s finding that there was an “essential consistency” in her description of the relevant event in both her written and oral evidence; the promptness with which she reported her complaints to her sister-in-law; NCAT’s acceptance that the inconsistencies in Patient A’s evidence were explicable; a lack of any motive for Patient A to make an untruthful complaint; her demeanour and the inherent implausibility that Patient A would make up such a serious complaint about Mr Singh in her telephone conversation with her sister-in-law and in her various written material.

35. By grounds 9 and 9A Mr Singh challenges that part of NCAT’s reasoning in which it evaluated the significance of the fact that Patient A made a further appointment notwithstanding her complaints regarding what occurred on 22 June 2021. NCAT did not attach any particular significance to this matter, having regard “to the different ways in which a person reacts to a sexual assault”.

Adequacy of NCAT’s Stage 1 reasons

36. Mr Singh challenged the adequacy of that part of NCAT’s Stage 1 reasoning in which NCAT sought to explain why it found the individual particulars of Complaints 1 or 2 to be either established or not. NCAT found some, but not all, of the individual particulars to be established.

37. Rather than set out all the passages at [272]-[301] which are the subject of Mr Singh’s claim of inadequate reasoning and arbitrariness, it is sufficient to set out, by way of example, [272]-[275], which purport to explain why NCAT concluded that particulars 1 and 7 of Complaint 1 were established:

[272] We are satisfied that on 22 June 2021 the respondent removed the underwear of Patient A, did not obtain her informed consent or provide any explanation to her for the removal, and failed to provide adequate privacy and draping for her.

[273] While we are satisfied that more than once prior to 22 June 2021 Patient A removed her underwear at the request of the respondent or the respondent removed her underwear, we are not satisfied that the respondent removed the underwear on those occasions. Accordingly, we find that the applicant has not established the allegations in Particular 1 of Complaint One other than for 22 June 2021.

[274] We agree with Dr Uren in the 26 May 2022 Uren report that the respondent by his conduct on 22 June 2021 breached clauses 9.2.a) and 3.5 a) of the code of conduct.

[275] Accordingly, we find that the applicant has established the allegations in Particulars 7 and 1 so far as the treatment of Patient A on 22 June 2021 of Complaint One.

The significance of the collusion findings in Stage 1 to the sanctions imposed in Stage 2

38. In the Stage 2 decision at [25]-[26] NCAT referred to some authorities concerning the significance of a finding of dishonesty against a practitioner:

[25] In Lee at [67], Barrett JA (with Macfarlan JA at [1] and Tobias AJA at [80] agreeing) made the following observation as to the significance of a finding of dishonesty against a practitioner:

“[67] … Cases of dishonesty are very serious. Cases of recklessness are also serious. This is particularly so where the protection of the public is at stake and the default is one that leaves patients exposed to a risk against which the practitioner is required by law to provide protection.”

[26] In Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323; [2007] NSWCA 32 (Wingate) at [43], Basten JA (with McColl JA at [1] and Harrison J at [81] agreeing) referred to the duty of full and frank disclosure of misconduct which applies both to members and applicants for membership of professions such as law and medicine.

39. At [52] of the Stage 2 decision, NCAT identified eight matters which it had taken into account in determining what, if any, sanction it should apply. In brief, those matters are as follows:

1. its finding that the respondent had engaged in some of the conduct the subject of Complaint 1 for his own sexual gratification;

2. Patient A’s vulnerability due to her young age and naivety in not asking why her underwear needed to be removed;

3. Mr Singh was not a credible and reliable witness (about which more will be said shortly);

4. the lack of any insight by Mr Singh as to the reasons for his conduct;

5. some unsatisfactory aspects of the character evidence given by one of Mr Singh’s witnesses;

6. some unsatisfactory aspects of the character evidence given by another of Mr Singh’s witnesses;

7. HCCC’s failure to seek an interlocutory order under s 165L of the National Law was of no relevance; and

8. Mr Singh’s reliance on a particular legal authority was of no assistance.

40. The third of those matters is the subject of ground 12. It is well to set out [52(3)] of the Stage 2 decision in full:

… the respondent was not a credible and reliable witness: the stage 1 decision at [246]. Further, he sought to discredit Patient A by falsely contending that she owed money to Physical Health and was committing a fraud on WorkCover by not making a claim for the injury to her right knee on 7 March 2021: the stage 1 decision at [248]-[249]. In particular, he was persistently untruthful in his evidence about the conduct in Particulars 1 and 7, and 10 and 11 when read with Particulars 13 and 14 of Complaint One, and colluded with Mr Nies, Mr Salib and Mr Wilson in the preparation of their evidence. This dishonesty was an egregious breach of his duty of full and frank disclosure of misconduct referred to Wingate at [43]. Consistent with Lee at [67], we regard this dishonesty as being very serious. We consider that this dishonesty has created a greater need for specific and general deterrence;

Consideration and determination

Mr Singh’s collusion with other witnesses (grounds 1 – 4)

41. NCAT’s analysis and findings on collusion are summarised at [24]-[26] above. It is relevant to highlight the following matters at [235] of the Stage 1 reasons:

1. NCAT concluded that it was open to make a finding of collusion where there is “otherwise unexplained identical evidence of conversations”;

2. where there is a finding of collusion in respect of accounts given of conversations, it is open to find that the conversations are untrue; and

3. moreover, the collusion casts doubt upon the reliability of the evidence of the colluding witnesses generally on any controversial matter of importance (citing Xie at [72]-[73] per Kunc J).

42. With respect, there is a danger in stating these matters at such a high level of principle. Collusion can take many forms. For example, the collusion may involve an agreement to give the same account of a matter which in fact occurred. A more serious form of collusion is where witnesses agree to give the same account of an event which in fact they know did not occur, which would involve an agreement to give knowingly false evidence.

43. Each case is best approached with close attention to its own facts and circumstances while constantly bearing in mind the seriousness of a finding of collusion and the need for restraint before making such a grave and serious finding.

44. The danger is exemplified here by NCAT’s heavy reliance on Kunc J’s observations in Xie. Those observations were directed to the unusual facts of that case where two people purported to recall conversations in Chinese some four years after the conversations had occurred. They produced identical accounts not only in Chinese, but also in their respective English translations. His Honour’s observations in this case need to be read in that particular context. The circumstances in the present case are far less extreme.

45. As noted above, NCAT found that Mr Singh had colluded with three of his witnesses. These findings were largely based on NCAT’s view that there were substantial similarities between Mr Singh’s affidavit dated 28 April 2023 and the written statements of the three witnesses on particular issues. In the case of Mr Nies and Mr Salib, NCAT also relied on their friendship with Mr Singh as a factor in the collusion.

46. Although no allegation of collusion was included in any of the formal particulars to Complaints 1 and 2, Mr Singh did not complain in this Court of procedural unfairness in this regard. Rather, his complaint of procedural unfairness relates to the HCCC’s failure to put squarely to him in cross-examination its allegations of collusion, which allegations were upheld by NCAT. He also complains that NCAT erred in proceeding to find collusion based on its finding that there were substantial similarities in some relevant evidentiary statements.

47. I shall now explain why both those claims should be upheld. It is convenient to address them in reverse order.

Insufficient similarity in written statements

48. It is convenient first to address NCAT’s finding at [252] of the Stage 1 decision that there was a substantial similarity concerning a conversation which occurred between Mr Singh and Mr Nies on 22 June 2021 as recorded in Mr Singh’s affidavit dated 28 April 2023 and in Mr Nies’ statutory declaration dated 9 May 2023. The conversation was referred to by Patient A at [15] of her written statement dated 1 December 2021. She said that she had overheard Mr Nies say to Mr Singh as he left the premises on the evening of 22 June 2021: “Have fun big fella”. Patient A said she heard Mr Singh laugh at this comment but he did not make any verbal reply.

49. In response to this evidence by Patient A, Mr Singh deposed to the following in his affidavit (emphasis in original):

[38] In further answer to Paragraph 15 I say that while it is correct that Luke said: “Have fun big man”, he was referring to my Hunter Valley trip, which I was going on the following day. Please refer to Annexure Marked AS-12; Hunter Valley Trip; also provided in HCCC Brief of Evidence page 208.

[39] In further response to Paragraph 15 Patient A stated “Dr Singh laughed but did not make any reply”. This statement is incorrect. I said to Luke: “Thanks appreciate it, see you when I get back, would you like anything?”, Luke replied, “No thanks, I don’t drink wine”.

50. In his statutory declaration dated 9 May 2023, Mr Nies said the following about this conversation:

[12] As I was leaving, I waved at Dr Atil Singh and the last patient (Patient A) from outside the treatment room and told Dr Atil Singh to “have a [sic] fun big man” as he was leaving for a holiday the next day and I was not going to see him until the following Tuesday.

[13] Dr Singh replied in words to the effect of “Thanks Luke appreciate it, would you like any wine?”, to which I replied, “All good, I don’t drink wine”.

51. There are some similarities between these two accounts but that is not determinative of collusion. After all, the similarities may simply reflect two people having a similar recollection of what truthfully was said in a particular conversation. Strong similarities may well also reflect the fact that both people have independently strong recollections of a conversation. In some circumstances, however, strong similarities may highlight the need for a train of inquiry as to the circumstances in which the statements were created.

52. Before he swore his statutory declaration on 9 May 2023, Mr Nies had prepared, at Mr Singh’s request, a statement dated 26 August 2021. This earlier statement is relatively brief, totalling seven paragraphs. In the fourth paragraph, Mr Nies said that as he was leaving the premises, he “waved at [Mr Singh and Patient A] from outside the treatment room and told Mr Singh ‘to have fun big man’ as he was leaving for a holiday the next day and I was not going to see him until the following Tuesday”. Mr Nies said nothing in this earlier statement about the reference to wine.

53. As noted above, the issue of what was said (or not said) emerged in [15] of Patient A’s witness statement dated 10 December 2021, with particular reference to her claim that she heard Mr Singh laugh but otherwise make no verbal response to Mr Nies’ comment. It was this evidence which drew the responses from both Mr Singh in his 2023 affidavit and Mr Nies in his 2023 statutory declaration. Although it is clear that Mr Singh had a copy of Patient A’s original complaint when he participated in the s 150 hearing on 17 September 2021, Mr Nies said that he had never seen Patient A’s statement.

54. In his cross-examination, Mr Nies said that he typed his first statement and that Mr Singh provided him with the form which gave rise to his subsequent statutory declaration dated 9 May 2023. He expressly denied that Mr Singh helped him write the first statement. He could not recall whether or not he showed it to Mr Singh before he signed it.

55. As to the statutory declaration, Mr Nies acknowledged in cross-examination that he did show it to Mr Singh before he signed it, but added that Mr Singh made no changes to it. Mr Nies said that he never saw Mr Singh’s affidavit. He repeatedly said that he had drafted his statutory declaration.

56. It may also be noted that Mr Nies agreed that Mr Singh provided him with some (unidentified) records of the practice in preparing his statutory declaration. Access to those records apparently enabled Mr Nies to be quite precise about some dates in his second statement, but there is no evidence which clearly identifies the content of those records. The HCCC’s counsel acknowledged that there was no evidence that the records were those of Patient A personally.

57. NCAT did not base its findings of collusion relating to Mr Singh and the three other witnesses on the demeanour of those witnesses or any observations made by NCAT arising from the giving of their oral evidence. Accordingly, this is not a case which attracts the principles outlined by the High Court in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [29] per Gleeson CJ, Gummow and Kirby JJ regarding appellate restraint in a rehearing where the Court (or tribunal) below has had the advantage of observing witnesses give evidence and makes findings which rely on those observations. In the case of Mr Nies and Mr Salib, the basis for NCAT’s finding of collusion with Mr Singh were substantial similarities between parts of their written evidence, as well as their friendship (see Stage 1 reasons at [252] and [262(4)] respectively). The finding of collusion between Mr Singh and Mr Wilson was grounded on different considerations, but none of those considerations attract the principles in Fox v Percy.

58. I consider that there was an insufficient basis for NCAT to make such grave findings of collusion in respect of Mr Singh and these three witnesses. The similarities between the relevant written statements were insufficient to draw such a serious inference of collusion. Moreover, none of the evidence justified a finding of collusion merely because there was some degree of friendship between Mr Singh and Mr Nies (who was a former work colleague) and Mr Salib (who was a patient).

59. I will also explain below why the finding of collusion between Mr Singh and Mr Wilson was wrong and unwarranted on the material which was before NCAT.

60. There is another puzzling aspect of NCAT’s finding of collusion involving Mr Nies at [251] of the Stage 1 reasons (see at [26] above). This finding of collusion flowed from what NCAT viewed as substantial similarities between the written accounts of Mr Singh and Mr Nies regarding the conversation about “having fun”, as well as their friendship. This finding, which related to the similarities between Mr Singh’s 2023 affidavit and Mr Nies’ 2023 statutory declaration, was then used as the basis for finding that Mr Nies’ earlier statement dated 26 August 2021 was also the product of collusion. It is difficult to understand how any inference of collusion could be drawn in respect of the 26 August 2021 statement which predated Mr Singh’s affidavit by over 18 months. Moreover, no such inference can validly be drawn if NCAT’s finding that there were substantial similarities between the Singh affidavit and the Nies second statement is legally flawed, as I have found to be the case.

61. Turning now to NCAT’s finding at [262(4)] of the Stage 1 decision that there was a substantial similarity between Mr Singh’s affidavit dated 28 April 2023 and Mr Salib’s statutory declaration dated 9 May 2023, it is desirable to set out [32(j)-(q)] and [62] to Mr Singh’s affidavit and [9]-[15] of Mr Salib’s statutory declaration, which HCCC contends support NCAT’s finding of substantial similarity.

62. In response to [15] of Patient A’s witness statement dated 10 December 2021, Mr Singh responded as follows in his affidavit:

[32] In response to Paragraph 15, by way of a short chronology/timeline of movements within the clinic on 22 June 2021;

…

j. The doors of the treatment room 3 were open at all times. At this particular point in time my patient George Salib was on the bench press which was within 3-4 meters away of the door of treatment room 3.

k. For about 15 minutes, Patient A and I discussed WorkCover in treatment room 3 (discussed later) whilst I was treating her, I told her she had two weeks to resolve the outstanding payments and rebooked her for two weeks at 5pm. I then asked her to get changed and I left treatment room 3 and closed the treatment room door whilst she changed.

l. I walked to the reception desk past George Salib and made an appointment for Patient A.

m. Because Patient A was in the only room with a washing basin I had to leave the practice to wash my hands in the medical practice toilet across the hall from my practice. I requested George Salib to also leave the clinic because Patient A was changing and there was no one else in the clinic.

n. I released the door stopper as I left the practice so the door can be closed but not locked. I washed my hands and George walked outside to the council car park (to wait for me because the supplements I was providing him were in my car).

o. After I washed my hands I came back into the clinic, I packed up and had shopping in my both [sic] hands and my country road bag across my body. Patient A came out of treatment room 3 and I locked the main clinic door from the inside which is my usual practice (I am always able to open the door from the inside but it can be locked so as not to allow access from outside).

p. Patient A and I left the clinic and exited the building to where the walkway railing finishes. I saw my patient George Salib outside waiting for me at the entrance of the Oxley Street Carpark.

q. I said to Patient A “Goodbye” then she hugged me. She then left towards John street which is 10-15 metres away. I turned around and my patient George Salib came and helped me with my bags and we went my car [sic].

…

[62] In further response to Paragraph 19, I deny that at any stage Patient A’s gown was pushed up and her body exposed from the waist down, I always use towels when treating any region of the body as this creates a barrier. When treating any sensitive area such as the groin 2 towels are used, this is because when treating the quadriceps, or adductors the gown is pushed up and out of the way. I refer to Annexure Marked AS22; Draping barrier for hip/groin treatment, also provided in the HCCC Brief of Evidence page 226.

63. Mr Salib’s statutory declaration stated as follows:

[9] When I was inside the clinic all doors were open and lights were on. I could hear Dr Singh talking to a patient in the end room furthest from the entry door.

[10] I entered the rehabilitation area located outside the treatment rooms, I picked up warm-up dumbbells for shoulder exercises. I could see Dr Singh treating a patient in the end room. The patient was lying on her back, covered with towels.

[11] After approximately 15-20 minutes, I then heard Dr Singh say “You have 2 weeks or else I will contact Workcover and your employer” and then asked her to get changed, he then closed the door and walked out.

[12] I was startled because I have never heard him raise his voice. I could see that he was upset as he greeted me and walked to his laptop. I saw him type something on his laptop. He asked me to please come outside and he removed the wedge from the door.

[13] He apologised to me saying “Sorry George this is why I hate Workcover. I’m going to wash my hands”. I said to him: “I will wait outside.” I then walked outside near the carpark to have a cigarette.

[14] A few minutes later, I saw Dr Singh and a female patient exit. Dr Singh was holding bags of shopping and his work bag. I saw him walk the patient up to the handrail and saw the patient hug Dr Singh, who had his arms down holding the shopping.

[15] As he was walking down, I grabbed two shopping bags from Dr Singh not realising how heavy they were. He smiled and said, “It’s full of the best water in the world Fiji Water.” He then said to me: “I can’t believe people, I have helped this patient get work cover approvals for her past injury and showed her that we didn’t get paid correctly and she started crying when we said that we can’t treat her for a new injury until a new claim is filed. She agreed to file a claim or pay us once she gets a new job and now once she has a new job, is calling me greedy. I’m so pissed off that I told her if she doesn’t I will contact work cover and her employer to let them know”.

64. Before considering whether there are sufficient substantial similarities in this evidence it should be noted, as part of the context, that in evidence below there was a copy of a text which Mr Singh sent to Mr Salib on 21 June 2021 (ie, the day before the impugned conduct occurred) informing him that he could collect some vitamin supplements the following day because they were available for collection; that Mr Singh was “leaving on Wednesday” and that Mr Salib should pay cash in the amount of $150. This is why Mr Salib attended the practice during the evening of 22 June 2021, when Patient A was being treated by Mr Singh.

65. It is evident that there are some similarities between parts of Mr Singh’s affidavit and Mr Salib’s statutory declaration, but that is to be expected when each is giving their recollection of such events. But there are also many differences, including in the detail of their respective recollections. Mr Salib’s strong recollection of the events appears to have been prompted by the fact that Mr Singh raised his voice in talking to Patient A, which Mr Salib had never experienced before, and that he could see that Mr Singh was upset.

66. Objectively assessed, I consider that the similarities between this written evidence are not sufficiently strong to warrant the drawing of such a serious inference of collusion. That is all the more so in circumstances where, under cross-examination, Mr Salib consistently maintained that he typed his own statement (even though he acknowledged that the form was provided to him by Mr Singh) and that he did not show the statement to Mr Singh before he signed it. He also denied discussing his statement with Mr Singh on the day he signed it and said that Mr Singh had simply told him to write down what had happened on 22 June 2021. Although it was put to Mr Salib several times that he was “trying to help a friend out” by saying that he was at the clinic on 22 June and that he had made up his evidence about the times that he was there, he repeatedly denied those propositions.

67. I turn now to NCAT’s findings concerning Mr Singh and Mr Wilson’s evidence. As mentioned, at [246(4)], NCAT said that it inferred that Mr Singh had colluded with Mr Wilson in the preparation of Mr Wilson’s undated statement. NCAT cross-referred to [265(3)] in respect of this finding. It may be noted that there is in fact no explicit finding of collusion at [265(3)]. Rather, NCAT found that Mr Wilson’s evidence that there was still one patient waiting at the practice when he left was “unbelievable” and had been given by him in oral evidence “because of information he had received from Mr Singh”. In relation to Mr Wilson, NCAT then added:

[266] Except in relation to his evidence that there was one patient waiting when he left the practice, we are not satisfied that the evidence of Mr Wilson was influenced by the respondent as this was never put to him in cross-examination. However, the fact that Mr Wilson received information from the respondent casts doubt upon the reliability of his evidence generally.

[267] For these reasons, we have decided to place no weight on the evidence of Mr Wilson other than his evidence that the respondent closed the door to the treatment room when he was being treated.

68. There are real difficulties in following the logic of NCAT’s reasoning regarding Mr Wilson’s evidence. Having found that doubt was cast on the reliability of Mr Wilson’s evidence generally because NCAT found that he had received “information” from Mr Singh (which presumably harks back to NCAT’s finding at [265(3)] that Mr Singh told Mr Wilson to say that there was another patient waiting when Mr Wilson left the clinic), NCAT proceeded to place no weight on Mr Wilson’s evidence apart from carving out his evidence concerning closing the treatment room door. NCAT did not explain why that particular exception should be made to its overall finding that Mr Wilson’s evidence should be given no weight. Viewed objectively, it is difficult to understand any logical basis for drawing such an exception.

69. There is also a significant and serious illogicality in NCAT’s finding at [246(4)] that Mr Singh colluded with Mr Wilson in the preparation of Mr Wilson’s undated statement. In that statement, Mr Wilson said that when he arrived at the practice at around 5:20pm on 22 June 2021, he noticed that it was “quite busy” and that “there were few patients waiting in the outside waiting area”. He said nothing in that statement about whether or not he saw any patients waiting when he left the clinic at approximately 6:50-7:00pm.

70. It was during Mr Wilson’s cross-examination that Mr Wilson said, in answer to a question as to how many patients were being treated when he left the clinic, that he thought that “there was still one there, and there was one waiting to be treated”. When Mr Wilson was asked whether he was certain about that fact, he said that he did not know if the man was waiting for treatment, but that he recognised him from having been there before. When it was put to him that he had not said in his statement that someone was waiting, he said that he did not think that it was relevant. It was then put to Mr Wilson that he had been told by Mr Singh “to say that”, which Mr Wilson denied.

71. It is illogical and irrational for NCAT to find that Mr Singh colluded with Mr Wilson in the preparation of Mr Wilson’s undated statement by reference to evidence concerning the physical presence of another patient when Mr Wilson left the clinic, which evidence emerged for the first time during the course of Mr Wilson’s cross-examination and well after he provided his undated statement. Perhaps NCAT reasoned that, because it accepted that Mr Wilson had given in to Mr Singh’s direction that he say that there was another patient waiting at the clinic, it should be deduced that his undated statement equally reflected Mr Singh’s influence over him. But NCAT did not make this clear in its reasons and the proposition was never put squarely to either Mr Wilson or Mr Singh.

72. There are other troubling aspects of NCAT’s explanation as to why it found Mr Wilson not to be a credible and reliable witness. NCAT said at [265(2)] that a significant inconsistency between Mr Wilson’s undated written statement and his oral evidence was on the issue whether or not the door of the treatment room was open or closed when he was receiving treatment. In the written statement he said that the door was closed when he was receiving treatment, whereas in his oral evidence he said the doors to the treatment rooms were always open except when he was getting changed.

73. NCAT has not given a complete or accurate description of Mr Wilson’s oral evidence. His evidence that the door to the treatment room was “always open” was given in response to a question from one of the NCAT members. However, when Mr Wilson was asked further questions by another member of NCAT as to whether the doors to the treatment rooms were open, he said (emphasis added):

…The rooms were all – all the doors were always open in this practice. The only time they closed the doors were, like, when he brings me in the room and says, if you want to get – take your shirt off, get yourself prepared, and I’ll be back in a minute.

74. Viewed as a whole, Mr Wilson did not change his evidence.

Procedural unfairness

75. For the following reasons, I find that Mr Singh was denied procedural fairness because the HCCC’s serious allegations of collusion, which were accepted by NCAT, were never squarely put to him for his response. Indeed, nor were those allegations ever squarely put to the three relevant witnesses. The HCCC had every opportunity to put these serious allegations to Mr Singh because each of the three relevant witnesses was interposed during the course of Mr Singh’s lengthy cross-examination.

76. As to Mr Nies, although it was put to him several times in cross-examination that Mr Singh had helped or assisted him with the drafting of one or other of his written statements, it was never put to Mr Nies that he was involved in any collusion with Mr Singh. Helping or assisting a person with the drafting of a written statement can mean any number of things, including, for example, providing the person with a pro forma statutory declaration for the person to complete. Mr Nies acknowledged that Mr Singh had provided him with the statutory declaration form, the contents of which Mr Nies said he typed himself.

77. After it was put to Mr Nies in cross-examination that his comments about “Have fun, big man” related to the fact that Mr Nies was leaving Mr Singh alone with Patient A and treating an “intimate area”, Mr Nies strongly denied the intended innuendo. He said that his comments referred to the fact that Mr Singh was going on holidays. He said that he believed that Mr Singh responded by asking whether Mr Nies wanted any wine. When pressed by the cross-examiner as to whether he could remember this “with certainty now”, Mr Nies said “I can’t 100 per cent say, no”.

78. Mr Singh’s cross-examination resumed immediately after Mr Nies had given his oral evidence. Counsel had every opportunity to put squarely to Mr Singh the allegation that he had colluded with Mr Nies in giving their evidence about this matter. No allegation of such collusion was put to Mr Singh in cross-examination. Counsel for the HCCC asked Mr Singh whether he had “assisted” Mr Nies with the drafting of his statement, which Mr Singh denied. It was also put to Mr Singh that he had had “input” in that statement, which Mr Singh also denied. Neither question put Mr Singh on sufficient notice that he was being accused of collusion. NCAT proceeded, however, to make a grave finding of collusion, as it was urged to do so by the HCCC.

79. It is unnecessary to grapple with the question whether the rule in Browne v Dunn (1893) 6 R 67 applied to the NCAT hearing (noting that cl 2 of Sch 5D of the National Law provides that the rules of law regarding the admission of evidence do not apply). The obligations to put Mr Singh on notice of the serious allegation of collusion and provide an opportunity to respond are key aspects of procedural fairness, the requirements of which applied to NCAT. Those requirements were not fulfilled merely because the HCCC made clear in its submissions that it sought a finding of collusion. Those submissions were made after Mr Singh had given his evidence.

80. There was a clear denial of procedural fairness.

81. Turning now to Mr Salib, as noted above, no allegation of collusion was squarely put to Mr Salib. When Mr Singh’s cross-examination resumed after Mr Salib had been interposed, there was every opportunity for the HCCC to put that serious allegation to him and invite Mr Singh’s response, but this did not occur. Nevertheless, NCAT found, in accordance with the HCCC’s submission, that the serious allegation was made out.

82. Again, this constitutes a clear denial of procedural fairness to Mr Singh.

83. As to Mr Wilson, it was never squarely put to him that he had colluded with Mr Singh in the manner found by NCAT at [246(4)] of the Stage 1 decision with explicit reference to the preparation of his undated written statement. This serious finding of collusion was made at this part of the Stage 1 reasons, not withstanding that later at [266] NCAT acknowledged that it was never put to Mr Wilson in cross-examination that his evidence generally was influenced by Mr Singh (save for that part of his evidence that there was one patient waiting when Mr Wilson left the clinic).

84. More significantly, however, it was never squarely put to Mr Singh for comment that he had either colluded with Mr Wilson in the manner found by NCAT at [246(4)] (with reference to Mr Wilson’s undated statement) or that he had influenced Mr Wilson in relation to that part of his evidence concerning one patient waiting when Mr Wilson left the practice on 22 June 2021.

85. Again, this constitutes a clear denial of procedural fairness to Mr Singh.

86. The HCCC submitted that any flaw in NCAT’s findings of collusion would not constitute a material error because there are other stated reasons for finding that Mr Singh was not a credible or reliable witness. I reject that submission. As I have emphasised, a finding of collusion of the kind made by NCAT is a most serious one. It is plain that NCAT used the words “colluded” and “collusion” as meaning that there had been collusion between Mr Singh and the three relevant witnesses respectively, which involved an agreement that they would give false evidence on particular matters. This is not a case like Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731; [2005] NSWCA 110 where the “collusion” involved witnesses agreeing to “speak[ing] with one voice about events which had occurred, without intending to give false evidence”.

87. Accepting as I do that there were several reasons given by NCAT at [246] for its adverse credit finding concerning Mr Singh, it is clear on the face of NCAT’s Stage 1 reasons that the finding of collusion figured prominently in that reasoning. It is also significant that, while NCAT gave four reasons for that adverse credit finding, it was the specific finding of collusion which was singled out by NCAT at [246(4)] as underpinning its conclusion concerning Mr Singh’s credibility and reliability generally on any controversial matter of importance. The substantive and procedural errors which I have identified above concerning NCAT’s finding of collusion are plainly material errors in the sense described in Roads and Traffic Authority of New South Wales v Mosca [2006] NSWCA 159; (2006) 146 LGERA 335 at [22] per Handley JA, Mason P and Bryson JA agreeing and, by analogy, Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [46] and MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [27]ff per Kiefel CJ, Gageler, Keane and Gleeson JJ.

Reversal of onus of proof (ground 5)

88. Fairly read, and in accordance with the well-known statements in Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6, I do not consider that NCAT reversed the onus of proof because of what is stated in the Stage 1 reasons at [244(6)]. This statement at [244(6)] forms part of NCAT’s explanation for why it found Patient A to be a materially credible and reliable witness. Viewed in that context, it does not indicate a reversal of the onus of proof. Rather, NCAT reasoned, quite reasonably, that Patient A’s reliability and credibility was enhanced by the fact that she acted as she did in the immediate aftermath of the impugned conduct and then, subsequently, generally maintained her account of the relevant events in her notes and statements.

89. Whether or not NCAT reversed the onus of proof raises a question of law, but I am not persuaded to allow ground 5.

The relevance of jury directions and sexual touching principles in criminal cases (grounds 7 and 8)

90. I accept that the question whether or not a body such as NCAT has wrongly applied legal principles which are only applicable in criminal law may give rise to a question of law, but I am not persuaded that NCAT approached the matter in the way claimed by Mr Singh. Rather, I consider that NCAT viewed the relevant directions and authorities in a criminal law context as providing a principled and structured way to analyse the evidence in the NCAT proceeding. Such materials provided general guidance and a framework within which NCAT evaluated and assessed the relevant evidence. I do not consider that NCAT regarded those materials as binding on it as a matter of law. Accordingly, no error is demonstrated.

91. For these reasons, I reject grounds 7 and 8.

The significance of the fact that Patient A had requested a further appointment with Mr Singh after her consultation on 22 June 2021 (grounds 9 and 9A)

92. In the alternative to grounds 7 and 8, Mr Singh contended that NCAT erred in law in its Stage 1 reasons at [244(3)(g)] by dismissing the significance of Patient A’s evidence that she had requested a further appointment with Mr Singh after the consultation on 22 June 2021. Mr Singh contended that this behaviour was inconsistent with Patient A’s claims and was relevant to her credibility.

93. It is difficult to identify any question of law to which these grounds relate. Accordingly, Mr Singh requires leave to raise these grounds.

92. The issue of the weight which NCAT gave to the fact that Patient A had arranged a further appointment with Mr Singh immediately after the impugned conduct is alleged to have occurred was referred to by NCAT in the context of it explaining why it was satisfied that Patient A was a materially credible and reliable witness. NCAT reasoned that merely because Patient A made a further appointment this did not demonstrate that she had not been sexually assaulted, particularly having regard to “the different ways in which a person reacts to a sexual assault”.

93. This reasoning relates to NCAT’s findings of fact and analysis of Patient A as a reliable and credible witness. I discern no error in those findings or analysis.

94. I decline to grant leave in respect of grounds 9 and 9A.

Adequacy of NCAT’s Stage 1 reasons (ground 11)

97. With particular reference to the Stage 1 reasons at [272]-[301], Mr Singh contended that NCAT erred in law by failing to give adequate reasons as required by s 165M of the National Law and by unreasonably making findings in an arbitrary and conclusionary manner.

98. Section 165M of the National Law relevantly provides:

165M Tribunal to provide details of decisions [NSW]

(1) As soon as practicable after making a decision on an inquiry or an appeal under this Law (bearing in mind the public welfare and seriousness of the matter), the Tribunal must give a written statement of the decision to—

(a) the parties; and

(b) the Council for the health profession in which the practitioner or student is registered (regardless of whether it is a party).

(2) The statement of a decision must—

(a) set out any findings on material questions of fact; and

(b) refer to any evidence or other material on which the findings were based; and

(c) give the reasons for the decision.

…

99. Paragraphs [272]-[301] of NCAT’s Stage 1 reasons contain its findings and reasons in respect to the individual particulars of both Complaints 1 and 2 made by the HCCC against Mr Singh.

100. I accept that a question of law is raised by a contention that NCAT has failed to comply with its statutory duty under s 165M(1) and (2) of the National Law. The parties were agreed on that matter.

101. I am not persuaded, however, that the reasons are inadequate or non-compliant with the requirements of s 165M, nor that the findings are impermissibly arbitrary or conclusory.

102. NCAT’s reasons should be read as a whole. In general, the reasons are comprehensive and coherent. As noted above, detailed reasons were given by NCAT for its findings on credit and reliability of the various witnesses, which findings underpinned its determination of the individual particulars of the two complaints.

103. Viewed in isolation, there may be some force in Mr Singh’s criticisms of the adequacy of these particular paragraphs in NCAT’s reasons.

104. It may have been desirable for NCAT to have included more cross-references to earlier parts of its reasons in explaining why it concluded that individual particulars of the two complaints were established or not. On balance, however, reading the reasons as a whole I consider that NCAT’s path of reasoning is sufficiently revealed.

105. Accordingly, I reject ground 11.

The significance of the collusion findings in Stage 1 to the sanctions imposed in Stage 2 (ground 12)

106. Mr Singh challenges NCAT’s finding of dishonesty in its Stage 2 decision, which underpinned the sanctions imposed in that decision.

107. The HCCC submits that Mr Singh had adequate opportunity to be heard as to whether the findings of dishonesty should be taken into account in the Stage 2 decision in circumstances where:

1. the credit findings against Mr Singh in the Stage 1 decision were identified with particularity in the HCCC’s Stage 2 submissions;

2. Mr Singh chose not to engage with those submissions in either his written or oral submissions; and

3. Mr Singh had ample notice of the dishonesty findings.

108. I am satisfied that ground 12 raises a question of law. The question of law relates to the legal validity of the Stage 2 decision in circumstances where the reasoning underpinning that decision adopts and applies legally erroneous reasoning in the Stage 1 decision relating to collusion. Moreover, as I have explained, NCAT’s findings of collusion in its Stage 1 decision were made in circumstances where Mr Singh was denied procedural fairness.

109. In any event, even if no question of law is raised, I would grant leave to appeal in respect of ground 12 because of the importance of the issues it raises.

110. It is plain that NCAT’s finding that Mr Singh had colluded with various witnesses formed a central part of its reasoning on appropriate sanctions. This is reflected in part in NCAT’s unsurprising characterisation of the collusive conduct as constituting “dishonesty” and as representing “an egregious breach of [Mr Singh’s] duty of full and frank disclosure of misconduct”. NCAT described the dishonesty as “very serious” and as creating “a greater need for specific and general deterrence”. I reject the HCCC’s submission that the Court should conclude that any error in this part of NCAT’s reasoning was not material because NCAT could have arrived at the same outcome absent any such error.

111. I uphold ground 12.

Conclusion

112. For all these reasons, the following orders will be made:

1. Leave to appeal is refused in relation to grounds 9 and 9A.

2. The appeal is allowed.

3. The orders and/or findings of NCAT at [2(2)] and [2(3)] of the Stage 1 decision are set aside. Separately, the orders made by NCAT at [66] of the Stage 2 decision are set aside.

4. The matter be remitted to the Occupational Division of NCAT for rehearing according to law.

5. The defendant pay the plaintiff’s costs in this Court.

6. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and on the ground that it is necessary to prevent prejudice to the proper administration of justice, the disclosure of the following names, together with any information or material which could identify these persons, whether by itself or with other information and material, is prohibited:

1. The names of Patient A and her sister-in-law;

2. The names of the 387 patients who attended Camden Healthcare Centre on 22 June 2021, as recorded in “Annexure AS27” at pages 602 to 614 of the Court Book.

113. Finally, the question arises as to whether, pending the hearing and determination of the remitted proceeding, Mr Singh should be permitted to resume practice in accordance with the conditions imposed on his registration as at 21 September 2021 (see at [17] above). Those conditions were imposed by the Chiropractic Council of NSW, who are not a party to the present proceeding. When this issue was raised by the Court, both Mr Singh and the HCCC agreed that the Council’s decision dated 21 September 2021 would “spring back” (see s 150H(2) of the National Law) in the event that the Court set aside NCAT’s orders.

114. In these circumstances, and given that the Council is not a party to the proceeding, I consider that the Court should not make any formal order on this matter.

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Decision last updated: 18 October 2024