Tsoi v Savransky - [2008] FMCA 385

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TSOI v SAVRANSKY & ANOR

[2008] FMCA 385

HUMAN RIGHTS – Sexual harassment – alleged sexual advances and assault in the course of providing dental services – applicant disbelieved – application dismissed.

Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PO, 46PO(2)

Sex Discrimination Act 1984 (Cth), s.28A, 28G, 106

Applicant:

NATALIA TSOI

First Respondent:

IVAN SAVRANSKY

Second Respondent:

SHIPTRON PTY LTD TRADING AS ISBJ DENTURE CLINIC

File Number:

SYG2290 of 2003

Judgment of:

Smith FM

Hearing dates:

3, 4, 5, 6 & 7 March 2008

Delivered at:

Sydney

Delivered on:

10 April 2008

REPRESENTATION

Counsel for the Applicant:

Mr R G Hanrahan

Solicitors for the Applicant:

Malouf Solicitors

Counsel for the Respondents:

Mr M J Hogg

ORDERS

The application is dismissed.
The applicant must pay the respondents’ costs as agreed or taxed under Federal Court Rules O.62, including any reserved costs not previously awarded and their costs of and incidental to the hearing on 28 February 2005. Pursuant to r.21.02(2)(c), refer those costs for taxation by a Registrar under O.62.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2290 of 2003

NATALIA TSOI

Applicant

And

IVAN SAVRANSKY

First Respondent

SHIPTRON PTY LTD TRADING AS ISBJ DENTURE CLINIC

Second Respondent

REASONS FOR JUDGMENT

Ms Tsoi applies for compensation and other relief under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) against Mr Savransky and his company, Shiptron Pty Ltd. He is a dental prosthetist who operates a denture clinic in Bondi Junction with a dental surgeon, Dr Zorbas. In August 2001, Ms Tsoi engaged Dr Zorbas to replace crowns and a bridge in relation to six of her upper right teeth. Mr Savransky made the initial appointment, acted as Dr Zorbas’ assistant during a series of treatment sessions, and made the crowns and bridge. In January 2002, Ms Tsoi alleged that the dental work was defective, and demanded a refund. She later also alleged that she had been sexually harassed by Mr Savransky during the course of treatment. It is this allegation of unwelcome sexual advances contrary to ss.28A, 28G, and 106 of the Sex Discrimination Act 1984 (Cth), which I must determine in this proceeding.
Ms Tsoi’s allegations were fully developed in her affidavit sworn on 8 May 2007 (“her 2007 affidavit”). She maintained them in her oral evidence under cross‑examination. She claims:
a)She located the denture clinic from a Russian language advertisement in a newspaper, and made a telephone appointment for a consultation with Mr Savransky “in early August 2001”.
b)On the first consultation, she saw Mr Savransky, was examined by him, and discussed replacement of her bridge and crowns. He told her that “he worked with a dentist, Dr Zorbas”.
c)“After this appointment I obtained a referral” for an X‑ray to be taken in Bondi Junction, and the “results were provided to the Denture Clinic”.
d)She then attended 14 further appointments, which she said occurred on “24 August, 31 August, 7 September, late September/early October, two appointments in October for measurements, 22 October, 26 October, 27 October, three appointments in November for measurements, early December, and, following a telephone call from Mr Savransky in mid December, on or around 15 to 18 December”.
e)She gave details of the course of treatment on these occasions by adopting a written statement made on 13 October 2004 in Local Court proceedings against Mr Savransky and Dr Zorbas (“her 2004 statement”). In this, she claimed that Dr Zorbas “took the impression” “to make my new bridge” at the second appointment (i.e. on 24 August 2001), and removed the old bridge “and did some other work on my crowns” on 31 August. A new bridge was not fitted until 7 September, but “it was no good”, and was not installed until 22 October. She was dissatisfied with it, and attended again on 26 October. On that date, Dr Zorbas attempted improvements, but told her that he would have to remove the bridge. In “mid November 2001” the bridge and crowns of two teeth were removed. A new bridge was then fitted “in early December 2001”. She was then called back by Mr Savransky for an appointment on 15 December 2001 at about 12 pm, “to check my work to make sure that everything is OK”. This was her last visit for treatment, and was the occasion of a serious assault by Mr Savransky.
f)Her only records of any attendances, were a receipt for $600 dated 31 August 2001; a Memorandum of Fees due to Dr Zorbas for $3,600, and a receipt for that sum, both dated 22 October 2001; and a Denture Clinic business card with “29.09.01, 10.30am” written on the back.
g)Mr Savransky’s conduct was of concern to her from the second appointment, because he “made a number of inquiries which I considered unnecessary” and “the manner in which he asked made me feel uncomfortable”. She considered that he attempted to engage her in conversation of a personal nature, by asking her whether she was married, how she felt, and how was her family.
h)At the third and fourth appointment Mr Savransky “touched and stroked my hair in a manner which I considered overly familiar in the course of putting the dental apron around me”. He did this “as he lifted my long hair to tie the two ends of the tape which were on the dental apron together … while he was standing behind me”. She objected, and insisted on herself putting on the dental apron, and untying it at the end of treatment.
i)She said that “there were other occasions when Mr Savransky would take the opportunity to touch or connect with my shoulder in an inappropriate manner”. This happened when he was standing to the left and behind her while she was “in a low position” on the dental chair. She said: “I could feel Mr Savransky pressing his groin area up and down and around on my shoulder”.
j)At other appointments, he “would take the opportunity to carry out aspects of the treatment in an inappropriate manner”. He “would caress my outer cheeks”, and “would place a finger from his ungloved hand in my mouth” and ask her to suck on his finger.
k)At two other appointments “around the end of October”, he made personal approaches to her, including by saying “you are really pretty”, saying “I’d like to spend time with you”, offering to drive her home “on three or four occasions”, and offering to take her for a drive on a Saturday.
l)On the last visit “in or around the middle of December 2001”, Dr Zorbas greeted her when she arrived, but left the surgery without checking her teeth. While she was sitting in the dental chair, she heard “the very distinct sound of the door being locked” (i.e. the front door of the clinic), and saw Mr Savransky putting keys in his trouser pocket. He “barred my way” when she stood up to leave, and “put both his hands on my shoulders and brought me toward him”. She wriggled around him, and escaped into the waiting room. However, Mr Savransky “grabbed me from behind by my hair with one hand and grabbed me by the shoulder with his other hand”. He pushed her onto the lounge, and “landed on top of me”. He “kept pressing his body against me and down on me”, and also held her down with his right arm. Ms Tsoi struggled, but “he pulled my top up and pulled my pants down to the extent that he was able to”. Ms Tsoi “kneed him in the area of his groin”, and managed to sit up. Mr Savransky “grabbed me very hard by the shoulder”, and “by the hair with his left hand”. He “was undoing fly on his trousers and taking his penis out of his underpants with his right hand … trying to force me to perform oral sex on him”. Ms Tsoi “yelled out ‘Help me, help me’, and ‘You’d better let me go, right now’, and ‘I am going to Court about what has happened’”. Mr Savransky then let go of her, unlocked the door, and said: “You don’t need to talk to a lawyer or tell the Court. It will only make matters worse for you if you do that. You don’t know the laws. You don’t know who to turn to. Who do you think you are anyway. You have only been in the country for a short time. If you get a lawyer you have a problem”.
m)In her 2004 statement, she said: “After Mr Savransky attacked me, I began to suffer depression with periodic panic attacks” (see paragraph 23). In her 2007 affidavit, she said:
84.Since this incident, I have experienced mental health problems. I have been told by my doctors and counsellor that I have had major depression, panic attacks, anxiety, withdrawal and post‑traumatic stress disorder. Prior to the incident with Mr Savransky, I had not experienced these disorders.
n)She said that she went to see her general practitioner, Dr Trosman, in January 2002, who “prescribed me a course of anti‑depressants”, and referred her for treatment by a psychiatrist, Dr Grosman. She ceased to consult Dr Trosman in late 2002, because he did not support her allegation of sexual assault by Mr Savransky, of which she first told him in September 2002. She also ceased to consult Dr Grosman around that time, because “I felt she was not supportive of me”. Ms Tsoi had first told Dr Grosman on 5 March 2002 “that her dentist Mr. Savransky attempted to assault her sexually”, but “it was only on 30.10.02 when she disclosed the details of what exactly happened” (see Dr Grosman’s letter to HCCC dated 29.11.03).From December 2002, she came under the care of her present psychiatrist, Dr Sokolovic, and from that time was also assisted in 183 “interventions” by Mr Gasanov, a “bilingual counsellor in mental health” employed by the South Eastern Sydney Area Health Service.
o)She claims that her relationship with her husband began to deteriorate after the incident with Mr Savransky, since she became distressed when her husband shut the door, touched her hair, or was behind her, and “I could no longer have sexual relations with my husband”. They were divorced “in or around November 2002”, upon the basis of a false statement that they had separated in July 2001.
p)In relation to her subsequent dental history, Ms Tsoi said that she experienced problems with the crowns and bridge installed by Dr Zorbas at Christmas 2001 and in early January 2002. She then consulted a Russian speaking dentist, Dr Tveshor, who advised her to go back to Dr Zorbas for rectification, and told her that she could complain to the Australian Dental Association. She telephoned Mr Savransky and demanded her money back. She attended the clinic at his invitation on 5 January 2002, “and saw both Mr Savransky and Dr Zorbas”. She declined their offer to re‑make the bridge and crowns, and asked for a refund. Mr Savransky told her “we will let you know when you can get the money”. She had a further appointment with Dr Tveshor on 15 January 2002, and also saw another Russian speaking dentist, Dr Krutik on 22 January 2002, but neither of them would help her. She consulted Dr Goswell on 24 January 2002. During the examination, “the bridge fell out”, and was re‑cemented by Dr Goswell. “On or around 27 January 2002”, she accepted a telephone invitation from Mr Savransky “to come into the clinic and sign a letter from the Dental Association and get the money”. At the clinic, both Mr Savransky and Dr Zorbas were present, and asked her to sign a release prepared by the Dental Association before being given a full refund of $3,600. She refused to do this, and left the surgery. Between 30 January 2002 and 10 April 2002, she received dental treatment from Dr Kebriti which did satisfy her. Most of these events are corroborated by contemporaneous records. She later brought an action against Mr Savransky and Dr Zorbas in relation to their dental work, which was settled on their behalf by their professional insurers, upon terms which are not in evidence before me.
q)On around 17 October 2002, Ms Tsoi made a complaint to the Human Rights and Equal Opportunity Commission of sexual harassment by Mr Savransky “in the middle of December 2001”. This was terminated by notice dated 30 September 2003, and the present application to this Court was commenced on 28 October 2003 within the period required by s.46PO(2) of the HREOC Act.
r)She also made complaints of sexual assault to the NSW Health Care Complaints Commission, and a statement was taken from her on 23 December 2002. On 17 December 2003, she made a complaint to the NSW Police of “a sexual assault which had occurred 2 years ago”, and on 19 December 2003 she applied for compensation to the NSW Victims Compensation Tribunal for acts of violence by Mr Savransky which were said to have happened on “12‑18/12/01”. Details of the course and outcomes of these complaints are not in evidence before me.
In their evidence, Mr Savransky and Dr Zorbas deny that any element of sexual harassment by Mr Savransky occurred in the course of their treatment of Ms Tsoi. They claim that her allegations are based upon a history of treatment which did not, in fact, occur. Central to their case, is their claim that a patient record card of Dr Zorbas presents a true, complete, and contemporaneous record of her dental treatment. If I accept this, then it becomes very difficult for me to accept the history of dental treatment and sexual assault presented to the Court by Ms Tsoi.
All the handwriting on the patient card was identified by Dr Zorbas as his, and I accept this evidence. The card has Ms Tsoi’s name, address, and telephone number inserted. It describes the work undertaken as “6 unit VMK Bridge”, which Dr Zorbas identified as a quality porcelain and gold unit. It records a quoted fee of “$3,600‑00 (incl 600 removal of old bridge)”. With expanded abbreviations, the card records the following attendances by Ms Tsoi:
24.8.01Examination – Bridge preparation – viewed OPG [i.e. the X‑ray]. 12, 13, 17 prepared [i.e. the teeth whose crowns supported the bridge over missing teeth 14, 15, and 16] – old bridge removed. – temporaries placed 12 + 13.
31.8.01Bridge 6 unit – try in – slight deficiency – decide to remake. (credit) 600 (balance) 3000.
7.9.01VMK bridge cemented. (debit) 3000 (credit) 3000 (balance) nil.
15.01.02Patient returned with “loose” bridge. She had already consulted another dentist & wanted monies to be returned – patient wants to retain bridge.
22.01.02Contacted ADA [i.e. Australian Dental Association] re release (deed of). Marika ADA.
In the course of her 2003 proceedings alleging negligent dental treatment against Mr Savransky and Dr Zorbas, Ms Tsoi’s solicitors obtained two reports from a specialist prosthodontist, Dr Sykes.

I received his reports into evidence on her tender, although he was not available for cross‑examination and his opinions are untested. His reports show a careful review of the dental evidence available to him concerning Ms Tsoi’s dental treatments in 2001 and 2002, including Dr Zorbas’ patient card, in the light of a history given to him by Ms Tsoi’s solicitor in a letter and by her at one consultation on 1 April 2003.
The history given to Dr Sykes suggested that Mr Savransky was a dental surgeon who examined her on a first visit, and removed the old bridge on the second visit, but did not construct or fit a temporary bridge on that occasion. She told Dr Sykes that she attended several trial fittings by Mr Savransky between August and October, leaving her teeth uncovered for all of that period. A bridge was first fitted by him on 22 October. She returned on 27 October, when she was examined by both Mr Savransky and Dr Zorbas, and Dr Zorbas made repairs. She returned on the next day, and Dr Zorbas removed the bridge entirely. She returned for fitting appointments before a second bridge was cemented in mid‑November. She attended for 1‑2 review appointments, but “at the end of December, she started noticing a bad smell and a feeling that the bridge crowns were loose”. She told Dr Sykes that she had not wanted to return to the practice because “she had been sexually assaulted by Dr Savransky at the last visit in which the final bridge was cemented”.
In his first report, dated 22 April 2003, Dr Sykes noted that the clinical notes suggested that only one clinician was involved, and that it would be unusual for the first examination, X‑ray, and bridge preparation to be carried out on the one day, although “this scenario is possible”. He noted X‑rays dated 24 August 2001 ordered by Dr Zorbas, and X‑rays dated 19 January 2002 ordered by Dr Tveshor. He said:
This shows the bridge constructed by Dr Zorbas but does not confirm that it was either loose or fractured. The fit of the bridge appears to be adequate. There is no endodontic post reinforcement in the abutment teeth and the pre‑existing endodontic treatment has not been disturbed.
Dr Sykes observed that there were “significant discrepancies between the history presented and the clinical notes of Drs Savransky/Zorbas”. He said: “Mrs Tsoi appeared confused over the year of treatment and the dates of treatment; especially when the bridge was fitted”. He noted a discrepancy between her claim that Dr Savransky was the initial treating clinician, and the name of the clinician shown on the X‑ray. He also noted that she did not mention her attendance on Dr Tveshor, until this was put to her. He said: “Thus, I cannot confirm much of the history reported by Mrs Tsoi”.
In later reports, after he was informed that Mr Savransky was a dental prosthetist, he pointed out that he would have been practising illegally “if Mr Savransky undertook any treatment as suggested by Mrs Tsoi in her history”. He also said:
It is common and often desirable to schedule additional appointments subsequent to fitting a bridge to check that the bridge is comfortable and successful. Fine tuning can be carried out at these appointments. It is not a sign of poor treatment if they are not scheduled”. (emphasis added).
He said in his 2007 report: “it would be more usual and likely that a bridge such as Dr Zorbas apparently provided would be fitted in more appointments than he has recorded”. He also found it “most unusual that Mr Savransky, who purports to being a Prosthetist carrying out clinical treatment, would not have any clinical notes, even if he only saw the patient once as is claimed”.
The points raised by Dr Sykes’ reports were vigorously presented to Mr Savransky and Dr Zorbas, in cross‑examination by Ms Tsoi’s counsel. In my opinion, the content and demeanour of their responses to this cross‑examination, and generally when giving evidence, was credible, even convincing. As well as supporting the history of treatment shown in the patient card, their evidence also presented significant implausibilities in the claims presented to the Court in Ms Tsoi’s 2007 affidavit. Generally, I found nothing in their evidence which I could not believe, and do not disbelieve either of them in relation to any material fact. Indeed, they both impressed me as honest and responsible professional people.
On my assessment of their evidence, I find it unbelievable that Dr Zorbas would have tolerated, let alone condoned, the acts of misconduct by Mr Savransky occurring in his presence or subsequently coming to his attention, as is now alleged by Ms Tsoi. Both of them responded vigorously to cross‑examination at times, and Mr Savransky became emotional at the end of his cross‑examination. However, I did not feel that this was feigned nor discordant with his veracity. Rather, their emotions appeared understandable if, as is Mr Savransky’s case, he has been the innocent victim of unfounded complaints of sexual assault, against which he has been defending himself in this Court and other places for more than five years.

Mr Savransky gave evidence explaining the establishment of his clinic in 1998, and his arrangement with Dr Zorbas to attend there on Tuesdays and Fridays for consultations with patients requiring the services of a fully qualified dental surgeon. For such patients, he acted as the dental assistant at the surgery appointments, and as dental technician to prepare any prostheses in accordance with Dr Zorbas’ directions. He showed a proper appreciation of the limits allowed by his registration, and denied all suggestions that he might have performed impermissible dental treatments on Ms Tsoi. I found his responses credible, and consider it unlikely that he would have risked his registration by personally undertaking the dental services which Ms Tsoi suggested to Dr Sykes, and less clearly to the Court, were performed by him.
I was not persuaded to the contrary by an extensive cross‑examination of Mr Savransky, which was directed at showing that his Russian language advertisement left obscure whether all practitioners at the denture clinic had full dentistry qualifications. I do not consider that any misrepresentation was established. Moreover, even if the advertisement was capable of being misleading in this respect, I think it unlikely that Mr Savransky would have performed illegal services for clients such as Ms Tsoi, who plainly required the services of a dental surgeon for repairs to a bridge. It was clear to me that there was, and still is, a long‑standing relationship of professional trust and confidence between Mr Savransky and Dr Zorbas, which was built upon an appreciation by both of them of the limits of Mr Savransky’s registration. On my assessment of Dr Zorbas’ character, I consider it improbable that he would have risked his own registration, by associating with a dental prosthetist who gave impermissible services to Dr Zorbas’ own patients.
Mr Savransky explained that his clinic operated in a competitive location at Bondi Junction, providing services mainly to Russian émigré clients with limited means. The professional services provided by him and Dr Zorbas were appropriate for such people, and were provided at rates significantly lower than could be charged in denture practices with clients in better financial circumstances. The professional practice of a specialist prosthodontist, such as Dr Sykes, could not be replicated in their clinic, including in relation to the number of consultations and the treatments which clients could afford. In this situation, Ms Tsoi’s patient card revealed a course of treatment for the replacement of a dental bridge with crowns which was normal for Dr Zorbas’ practice at the Bondi Junction clinic. Dr Zorbas’ evidence was to the same effect, and I accept it.
Mr Savransky explained his first meeting with Ms Tsoi, in which she presented herself at the clinic without appointment “some time in mid‑August 2001”. A brief examination revealed that the cause of her complaint was an old bridge, and that she needed an appointment with Dr Zorbas. He made that appointment for 24 August 2001, and gave her a referral for X‑ray signed by Dr Zorbas, in accordance with Dr Zorbas’ usual requirements. This meant that when she attended her first appointment with Dr Zorbas, he had the benefit of the X‑ray, and could immediately initiate treatment. This occurred, and Dr Zorbas’ treatment proceeded and was completed as recorded in the patient card, over three consecutive Friday appointments with Dr Zorbas. It was a common practice when installing a bridge such as Ms Tsoi’s, that the patient was given a further appointment several weeks later, and was told to attend if any problem emerged. In Ms Tsoi’s case she was probably given such an appointment for late October, but she did not attend. He therefore assumed that the dental work was not causing problems, and a claim to the contrary was not made by her until she telephoned, and attended the clinic, demanding a refund in January 2002.
Dr Zorbas’ evidence confirmed this history, and was unshaken. He explained how it was practicable in his first session to examine Ms Tsoi, remove the bridge, take impressions, and place temporary crowns on the front teeth. As he pointed out, and as is confirmed in the X‑rays seen by Dr Sykes, it was not necessary to undertake any significant preparation of the teeth whose crowns were to be replaced. He also explained how it was appropriate to install temporary crowns on only the front teeth during a one week interval before fitting the bridge, and that it would be improbable that a patient would be left with no temporary measures over an interval of many weeks.
Other points made by Dr Zorbas pointed to other implausibilities in Ms Tsoi’s claimed history of treatment, and of sexual advances during consultations in which Mr Savransky acted as his dental assistant. These included his confirming the evidence of Mr Savransky that, in fact, the dental bib used in the clinic did not have tapes tied at the back, but was fitted around the back of the head, including any long hair, with a chain clipped at the front with an alligator clip. He also demonstrated how Mr Savransky would not have had any occasion to bring his groin into contact with the patient’s shoulder. I was left in no doubt that all the dental treatment in Ms Tsoi’s mouth was performed by Dr Zorbas and not Mr Savransky.
Dr Zorbas claimed to have an actual recollection of Ms Tsoi sitting in the dental chair at the commencement of his treatment. He said this was memorable because of later events when she claimed a refund, but also because her behaviour was abnormal for patients at the surgery, including Russian speaking patients. He recalled that at the start of the consultation she was agitated and anxious, and he recalled her as a difficult or distrustful patient. He communicated with her through Mr Savransky as interpreter, and could not recall any major trouble with the treatment during the course of the consultation, apart from his decision to re‑make the first bridge to ensure a better fit. When she returned in January 2002 demanding a refund, he was prepared to do this, to avoid further trouble, but only after taking advice from the Dental Association. It had advised the need to obtain a release, which it had drafted.
Both Mr Savransky and Dr Zorbas gave reasons for being unable to produce more records of Ms Tsoi’s attendances and treatments. Mr Savransky said it was his practice to destroy the clinic’s appointment book when it was replaced at the end of each year. He had done so in relation to the 2001 book, before he had notice of any complaints by Ms Tsoi. It was also his practice to destroy his technical notes relating to the construction of bridges for Dr Zorbas, at the end of that work. Dr Zorbas said that he could not produce the original of the patient card, since he had given this to his professional insurers when he was sued by Ms Tsoi. Both witnesses suggested that the dating of 22 October 2001 of the memorandum of fees and receipt for the final payment showed that it was given to Ms Tsoi after the final fitting, either by post or personally. I accept their evidence as to their records, and do not consider that it diminishes their credibility.
My above consideration of the evidence of Mr Savransky and Dr Zorbas has pointed to several reasons why I found it convincing, and prefer it to that of Ms Tsoi. However, my conclusion that their evidence should be accepted, and that Ms Tsoi’s evidence of sexual harassment should not be accepted, rests also upon further significant reasons for finding her evidence to be unreliable.
There is in evidence numerous accounts of the history of her assault given by Ms Tsoi after she first gave an account to Dr Grosman in October 2002. A close examination of these reveals some discrepancies of details, but these in themselves might not require her to be disbelieved. Nor does the fact that her claimed history became much more elaborate in the version presented in her 2007 affidavit, which for the first time alleged sexual harassment by Mr Savransky preceding his December assault.
However, reading her various recorded complaints of an assault, I was left with a concern that these may have been constructed and embellished over time, rather than that they were the product of actual recall. Her oral evidence did not dispel this concern. It gains strength, because it appears to be clear that her history of dental treatment originally given to Dr Sykes in 2003 has undergone significant changes to accommodate the dental records, including Dr Zorbas’ patient card, and the points which Dr Sykes made in his first report.
Ms Tsoi’s significant delay in making any complaint of a serious assault also is a matter which reflects equivocally upon her credibility. She has sought to explain it by saying that she was too upset and embarrassed to mention it to anyone at the time. She claims that these feelings were only overcome in the course of treatment by Dr Grosman, and thereafter she was encouraged to voice her complaint to a range of relevant authorities.
This explanation cannot be lightly dismissed, and I have given very careful consideration to it, attempting to understand her probable state of mind during 2002 and in later years. However, the explanation is difficult to accept, in circumstances where she felt able personally to approach Mr Savransky within weeks of the alleged shocking assault, demanding a refund of the money she had paid for her dental treatment. Her uncontested actions during January 2002 appear much more focused upon making complaints of faulty dentistry, than of serious sexual assault. It is then difficult to disregard the fact that her elaboration of an allegation of sexual assault from late 2002, and her decision to take the allegation beyond the confidentiality of her psychiatric treatment, was concurrent with her efforts to extract compensation for all her dental expenses and ill‑health from Mr Savransky and Dr Zorbas.
I also found very significant when rejecting Ms Tsoi’s credibility, her failure to inform both the Court and her later treating and reporting specialists, that, in fact, she had been diagnosed with, and was being treated for, significant mental health problems at the time of her dental treatment by Dr Zorbas. There are contemporaneous records of this, which disprove her claim in paragraph 84 of her 2007 affidavit, that “prior to the incident with Mr Savransky, I had not experienced these disorders”, referring to “major depression, panic attacks, anxiety, withdrawal and post‑traumatic stress disorder”. They are also inconsistent with her assertion to the HCCC in a letter dated 10 May 2006, apparently written with the assistance of a legal advisor, that “I suffered a mental illness or psychiatric disorder as a consequence of the incident and assault by Mr. Savransky. I did not have a psychiatric disorder before that”.
When cross‑examined on these records, Ms Tsoi gave unconvincing responses, avoiding the questions or seeking to disclaim or minimise her ill‑health at that time. However, in my opinion, her failures to disclose the true picture of her mental health during 2001 reveals her to be a witness who should not be believed in her allegations against Mr Savransky. The discovered medical history also raises a cloud of uncertainty as to her perceptions of truth and reality in relation to this critical period.
The records were produced on subpoena by Ms Tsoi’s treating general practitioner during 2001, Dr Trosman. Among his records, is a report to him dated 11 December 2000 from Ms Beata Meshel “psychotherapist – counsellor”. It is described as a “psycho‑social assessment”, and was prepared for presentation to the Refugee Review Tribunal in support of expediting its consideration of Ms Tsoi’s application for a protection visa. Ms Meshel’s qualifications to make a psychological diagnosis are unclear, but were substantially accepted by the expert witnesses called for Ms Tsoi. Certainly, there is no reason to doubt her record of “presenting signs and symptoms” and “mental state examination”.
Ms Meshel recorded Ms Tsoi’s symptoms in December 2000, as:
PRESENTING SIGNS AND SYMPTOMS
§Severe headaches
§Difficulty breathing
§Lack of energy
§Giddiness and dizziness
§Often numbness around her mouth
§Lump in her throat
§Lack of appetite/loss of weight
§Not able to sleep
§Feeling of dying/going crazy
§Feelings of humiliation
§Feelings of insecurity
§Irritability and restlessness
§Introverted
§Constant fear and horror hopelessness
§Helplessness
§Tearful and/or crying most of the time
§Lost interest of external life
§Detachment from others
§Difficulty in concentrating
§Constant recollection of the traumatic events/physically, verbally, emotionally assaulted both her and her son (who is still in Russia)
§Recurrent dreams and nightmares
§Avoiding Russian Community and Russians due to being persecuted and discriminated by them as a Korean
§Delusions of persecution
§Feeling people are “after me” watching me in order to abuse me
§People want to “get me and my son”
§Constant recollection of sentences from Police and Government authorities “but you not death yet”, “you don’t’ like you can leave”, “Korean bitch”, “Korean scum” etc.
§Feels trapped – no future, no help, worries her son will be killed soon if he stays there.
§Feels if she goes there not only this is suicidal but she kills her son whom as his mother she won’t be able to rescue.
§Suicidal thoughts on a daily basis often with plan coming from fear for her son and her life.
§Paranoid thoughts based on realistic fear of persecution and discrimination in Russia and hopelessness to fight against.
§Fear to seek professional help – as psychiatrist based on again realistic fear and experience in Russia where her and her son experience institutionalisation classified as “mental disorder”. Any diagnosis and medical “help” was given always after Mrs Tsoi and/or her son were previously physically and mentally assaulted and Police dismissed their complaints and refused help – due to discrimination.
She recorded a “mental state examination”:
MENTAL STATE EXAMINATION
47 years old woman looking younger than her age, dressed casual no make up.
§Sensorium clear
§Mood depressed/not always reactive
§Affect/appropriate
§Speech/quite sometime fluctuating from elevated to slow
§No formal thoughts disorder
§No good eye contact
§Irritability/restless
§Tearful crying all the time
§Hopeless
§Helpless
§Unable to sleep
§Lost weight
§Suicidal thoughts/not active as feels she need to save her only son
§Guilty feelings for not being able to rescue her own son
§No other psychotic phenomena during interview
She took a history of trauma in Russia, arising from numerous incidents of racial discrimination and abuse suffered by her and her son, and current state of being “under severe pressure, she can’t sleep, can’t eat and lost interest in life”. Ms Meshel diagnosed “major depression” and “post traumatic stress disorder”, and recommended medical treatment by Dr Trosman. She also recommended referral to a psychiatrist, but noted that Ms Tsoi had refused to see a psychiatrist.
Dr Trosman’s clinical notes record that Ms Tsoi had presented in June 2000 with emotional stress, instability, and severe depression, with symptoms of insomnia, headaches, dizzy turns and anxiety. He treated her repeatedly with “Serzone”, increasing the dose from 50mg or 100mg to 200mg per day at the end of June 2000, and again in January 2001. Further prescriptions for this medication were given between 6 August 2001 and 4 October 2001, over a period which covers her recorded attendances at the denture clinic. Dr Trosman’s notes at this time record her suffering from recurrent anxiety and tightness in the chest, sudden deteriorations of vision, hearing disturbance, panic attacks, and depressed mood.
According to Ms Tsoi’s current psychiatrist who gave evidence, Dr Sokolovic, Serzone is an anti‑depressant and anti‑psychotic medication, which can cause reactions of visual disturbances, hallucinations, delusions and hypersensitivity to touch and smell. His evidence was unclear as to the long‑term effects on memory of a sufferer from such delusions.
On 2 November 2001, Ms Tsoi attended upon Dr Trosman with feelings of suffocation and dizziness, for which he prescribed a different medication. On 18 January 2002, she again presented with visual hallucinations and panic attack, and Dr Trosman referred her to a psychiatrist, Dr Grosman. His referral said:
I would appreciate your opinion management of Mrs Natalia Tsoi, [D.O.B.] – who has been suffering from severe phobias, anxiety, paranoid thoughts. She was on Serzone 50mg mane & 100mg nocte + Xanax, 0.5mg. However, she is getting worse & evidence of visual hallucinations, & panic attacks. I decided to start on Aropax 10mg > to 40mg daily.
May be she is a candidate for antipsychotic medication?
In my opinion, these medical records from the critical period disprove Ms Tsoi’s claim to the Court that she first suffered serious mental illness after a sexual assault occurring in the middle of December 2001. They also cast into doubt the reliability of opinions formed by the experts whose reports are relied upon by her in this proceeding, and, in particular, their opinions as to the likelihood of such an assault having occurred. They also are inconsistent with the evidence of her former husband.
Ms Tsoi sought to gain corroboration for her allegations in an affidavit by her former husband, Mr Fitkovski. In this, he claimed that “it was towards the end of 2001, that I first noticed a change in Natalia’s behaviour. It was after she had her teeth fixed. … Early in 2002, I recall that Natalia began to behave very strangely. Natalia commenced taking tablets …”. He claimed that his sexual and marital relationship with Ms Tsoi then deteriorated, and “our marriage did not persist long after the breakdown of our sexual relationship”. However, this evidence is inconsistent with Dr Trosman’s medical records. I find it unbelievable that, if in fact he was living with Ms Tsoi during the second half of 2001, he would not have observed her taking medication and suffering at least some of the symptoms reported to Dr Trosman. I therefore do not accept that he is a witness who can be believed. His demeanour and evidence under cross‑examination was far from impressive, since he gave surly or unresponsive answers to most questions. I note that both he, and Ms Tsoi, admit to having signed divorce papers which claimed a separation in July 2001, and that they both now say that this was untrue.
Mr Fitkovski admitted that he was told about the alleged sexual harassment and assault only after Ms Tsoi started to tell her psychiatrists about it, and that he did not at first believe her. Evidence was led from him that he took some telephone calls from someone speaking Russian concerning dental appointments. However, this was unclear as to time, and whether it related to attendances at Mr Savransky’s clinic or on the other Russian speaking dentists whom she consulted. I do not consider that Mr Fitkovski’s evidence advanced the credibility of Ms Tsoi’s allegations.
Dr Sokolovic first saw Ms Tsoi on 17 December 2002 after an admission to hospital for self harm. His reports written for her legal advisors on 26 May 2005, 5 February 2006, and 8 May 2007, contain no suggestion that she gave him her history of treatment by Dr Trosman during 2000 and 2001. Rather, she gave him a history of onset of illness after an alleged sexual assault, whose details were first given to him by way of a copy of her 2004 statement to the Local Court. In his 2005 report, he concluded:
Unfortunately, the alleged sex assault, as documented by Natalia, resulted in her profound personal change and dramatic health deterioration. Consequently, Natalia developed a condition of a severe form of PTSD, compounded with a reactive syndrome of anxiety and depression, including personality change, which in turn led to her profound psychosocial maladjustment, including the loss of her employment and the breakdown of her marriage.

In his later reports, Dr Sokolovic gave further opinions supportive of Ms Tsoi’s allegations of assault, which continued to rely upon the unreliable medical and dental history which he was given. Thus, he opined in his 2006 report:
From a psychiatric point of view, the described syndrome of PTSD including reactive anxiety and depression, manifested at the date of the alleged rape incident and developed subsequently from there. This is supportive of the likelihood of these events happening.
and in his 2007 report:
Regarding the question of the cause of the consequences of the damage occurred and resulted in Post‑Traumatic Stress Disorder and Reactive Anxiety and Depression, they are obviously emanated from the traumatic event. There is no doubt that her condition is a consequence of the alleged sexual assault which she demonstrated by her specific sensitivity in the form of affective incontinence when attempt is made to discuss the incident in question.
Mr Gasanov, her ‘bilingual counsellor’, formed similar opinions, after being given the same history and documents. So also did Mr Borenstein, a clinical psychologist, who interviewed her in June 2005 with the assistance of Mr Gasanov. As did Dr Sokolovic, they found confirmation of the sexual assault in Ms Tsoi’s reported symptoms including hypersensitivity, sexual phobias, and avoidance of discussing the alleged incident. However, I consider that their opinions on these matters are unreliable as probative of the occurrence of the acts of sexual harassment claimed by Ms Tsoi, due to the defective medical, dental and personal histories with which they were presented. I was unpersuaded to form a different conclusion by their oral evidence led by counsel for Ms Tsoi, in which they gave unqualified affirmations of their previously expressed opinions, after being shown Ms Meshel’s report.
Ultimately, I consider that the Court has been in a far better position than these experts to form an opinion as to the truth of the allegations made by Ms Tsoi against Mr Savransky. There is no doubt that Ms Tsoi has, both before coming to Australia and in the subsequent years, been suffering mental illness which has fluctuated in its severity and symptoms. The extent to which this has, in truth, been affected by actual or perceived sexual harassment by persons in Russia or Australia is unclear on the evidence before me. However, on the evidence presented in the present proceeding directed at her allegations of harassment by Mr Savransky, I would conclude confidently that none of his alleged actions occurred.
For all the above reasons, I am not satisfied that Ms Tsoi has established the acts of unlawful sexual harassment which she has presented in this application. The application must therefore be dismissed.
In relation to costs, the respondents submit that an order for costs should follow the outcome of the case, according to normal principles applied to litigation in this Court. There is no legislative indication that this should not occur in matters brought under the HREOC Act. However, counsel for the applicant submitted that no costs should be awarded against his client, because this would be contrary to the beneficial objects of the jurisdiction, and might discourage complaints of unlawful conduct under anti‑discrimination legislation.
I have reached a firm conclusion in the present case, in the light of my conclusions explained above, that it is appropriate and just that the respondents should receive an award of costs. The litigation has been protracted, and the extent of legal costs incurred by the respondents are unclear. The application made allegations of great seriousness for a professional person, which I have affirmatively rejected. I consider that the respondents’ costs should be referred for taxation under the Federal Court Rules.
No reason was suggested to me for confining a costs order, and I would expressly extend it to the respondents’ costs incurred in relation to the whole of the present proceeding, including reserved costs arising in relation to the proceeding before its remitter by Wilcox J on 12 May 2005, to the extent that they are not already addressed by orders of Raphael FM. I note that Wilcox J set aside the costs order made by Raphael FM on 28 February 2005, and “returned” that issue to this Court. Those costs concern a hearing which did not proceed due to Ms Tsoi’s inability to obtain legal assistance at that time. In the light of the outcome of the proceeding, I can see no reason why the respondents should not now be awarded their costs relating to that listing.

I certify that the preceding forty‑five (45) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 10 April 2008