Tsolis v Health Care Complaints Commission - [2023] NSWSC 1599

Supreme Court

New South Wales

Medium Neutral Citation: Tsolis v Health Care Complaints Commission [2023] NSWSC 1599
Hearing dates: 9 June 2023
Date of orders: 15 December 2023
Decision date: 15 December 2023
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The amended summons dated 17 February 2023 is dismissed.
(2) The orders of the Tribunal dated 18 November 2022 are affirmed.
(3) The plaintiff is to pay the defendant’s costs.

Catchwords:
APPEAL – Tribunal decision – Unsatisfactory professional conduct – Professional misconduct – Psychologist – Patient.

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW) cl 29
Civil Procedure Act2005 (NSW) s 56
Health Practitioner Regulation National Law (NSW) ss 139, 139A, 139B, 139C, 139E, 144 and 150
Supreme Court Act 1970 (NSW) s 69

Cases Cited:
Briginshaw v Briginshaw (1983) 6 CLR 336
Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 197 ALR 389; [2003] HCA 2
Health Care Complaints Commission v Tsolis [2022] NSWCATOD 109
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 1
SZECD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 31

Category: Principal judgment
Parties: Sava Tsolis (Plaintiff)
Health Care Complaints Commission (Defendant)
Representation:
Counsel:
M. Jones (Plaintiff)
I. Chaterjee (Defendant)
Solicitors:
KPT Legal Defence Lawyers (Plaintiff)

File Number(s): 2022/378468

Contents

JUDGMENT

Background
The appeal
Extension of time to appeal
Materiality
Grounds of Appeal
The proper approach to judicial review
Appeal ground 1: My love
Appeal ground 10 – Excessive telephone contact
Appeal grounds 3 to 7 – Was alcohol consumed by the practitioner and/or Patient A at the restaurant
Appeal ground 5 – all of the alcohol had been consumed
Appeal ground 6 - the practitioner ordered alcohol at the dinner
Appeal ground 8 – Misleading the Psychology Council
Appeal ground 9 – Hugged and kissed Patient A – Complaint Two – Particular 5(d)
Appeal ground 11 – Conduct of a sexual nature
Ground 12 – was the dinner an exposure therapy session?
Result
Costs

JUDGMENT

This is an appeal from a decision of NCAT involving a psychologist who was found to be guilty of unsatisfactory professional conduct and professional misconduct.
The practitioner is Sava Tsolis (‘the practitioner’). He is a registered psychologist. The defendant is the Health Care Complaints Commission (‘HCCC’). The practitioner is seeking a judicial review of a previous decision made by the New South Wales Civil and Administrative Tribunal (‘the Tribunal’) that found him guilty of unsatisfactory professional conduct and professional misconduct.
The practitioner was represented by M. Jones of counsel. The defendant was represented by I. Chaterjee of counsel. The parties relied on a joint court book, separated into three volumes (Exs A1, A2 + A3).

Background

This appeal arises from a decision of the Tribunal in Health Care Complaints Commission v Tsolis [2022] NSWCATOD 109 (‘the Tribunal’s decision’). The decision arose from an application made by the Health Care Complaint Commission (‘HCCC’) to NCAT prosecuting a complaint made against the practitioner by Patient A.
On 4 January 2018 Patient A made a formal complaint against the practitioner to the Psychology Council of New South Wales.
On 22 January 2018 the practitioner was subject to an enquiry pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) (‘the National Law’). Findings and supporting reasons were made and published on 29 January 2018. The psychology board proceeded to impose conditions on the practitioner’s practising certificate.
On 4 June 2021 the HCCC made an application to NCAT to prosecute the complaint made by Patient A. The complaint was comprised of three complaints each broken into particulars.

Draft reasons

On 28 September 2022, the Tribunal comprising of R.C. Titterton OAM, W Roberts and C Allen, all Senior Members and R Kusuma, General Member (‘the Tribunal’) then issued draft reasons to the parties.
The parties wrote to the Tribunal indicating that there were some obvious typographical errors in the decision. The practitioner’s legal representatives indicated that there were perceived to be errors in the nature outlined in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 1.
The Tribunal sought submissions as to whether there were any parts of the decision that ought to be supressed or redacted from the published decision. The practitioner’s legal representatives submitted that, until the determination of the Stage Two decision, the practitioner’s identity ought to be redacted. The Tribunal sought further submissions on the matter but, ultimately the plaintiff did not press his application on the basis that the costs of further submissions were too costly.
On 25 November 2022 the Tribunal published its decision. The practitioner seeks relief from the whole decision and seeks that the decision be set aside and declared invalid. The practitioner relies on the affidavit of Paul Blake dated 21 April 2023 (‘Blake aff’) in Ex A.

The appeal

This appeal is brought pursuant to Sch 5, cl 29 of the Civil and Administrative Tribunal Act 2013 (NSW) (‘CAT Act’). Clause 29(2) provides that a party to proceedings in which a “profession decision” is made has a right to appeal against that decision to the Supreme Court. Clause 29(1)(d) defines a “profession decision” to include “a decision for the purposes of the Health Practitioner Regulation National Law (NSW)”.
Clause 29(4) of Sch 5 of the CAT Act provides that an appeal lies as of right on any question of law.
The practitioner seeks the following orders:

If necessary, the time for filing an appeal be extended.

The decision of the Tribunal be quashed or set aside.

In the alternative to (3) and (4) above, an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of the Tribunal.

An order in the nature of Mandamus remitting the matter back to the Civil and Administrative Tribunal for determination of the defendant’s complaint by a differently constituted Tribunal according to law and, if appropriate, in accordance with the instructions of this Court.

Extension of time to appeal

The first issue to be decided is whether the plaintiff requires an extension of time to lodge his appeal.
The face of the published record states that the orders were made and given on 28 September 2022. However, those reasons were subject to what were described as “errors”. Orders were not entered or published at that time. The Tribunal subsequently amended the decision. Those amended reasons and orders were entered and published on 18 November 2022 (‘the decision’). I will take it that the material date is 18 November 2022. Therefore, the appeal was lodged on 15 December 2022, which is in time.
If I am wrong and the material date is 28 September 2022, the practitioner requires an extension of time to pursue this appeal. The defendant makes no submission as to prejudice. Hence, I would grant an extension of time to file the amended summons up to and including 15 December 2022.

Background

The practitioner was Patient A’s treating psychologist for the period 22 April 2016 to August 2017, though the last time the practitioner actually saw Patient A would appear to be 17 July 2017.
In April 2016, Patient A, the practitioner’s initial assessment of her patient’s mental state was that she suffered from (probable) bipolar II disorder, substance and alcohol use disorders and social anxiety. She disclosed to the practitioner a significant history of sexual, emotional and physical abuse, commencing when she was a child and continuing through her teen years and as an adult. The abuse was from her older siblings and then various partners.
For the purposes of this appeal, the relevant factual matters underpinning the complaints made against the practitioner can be categorised into four main categories.
First were complaints about the manner in which therapy was conducted. This included the use of nicknames (with the practitioner calling Patient A ‘kid’ and ‘my love’, and, and Patient A calling the practitioner ‘boss’); the practitioner telling Patient A she was ‘beautiful’ and ‘intelligent’; and engaging in excessive, in the context of the ongoing therapeutic relationship, telephone and SMS contact with Patient A. These were the subject of Complaint One (Blake aff, Annexure 5 p 64) of the three complaints and all of the matters identified were admitted by the practitioner, albeit that the comments as ‘beautiful’ and ‘intelligent’ were apparently made to ‘instil some self-confidence at a time when she had a very negative view of herself’ (at [85]), and the excessive conduct was asserted to be ‘emergency correspondence’.
Second was complaints of inappropriate physical or sexualised conduct in the course of therapy including: allegations that the practitioner had inappropriately touched Patient A’s thighs and forehead; the practitioner had hugged her; and the practitioner had made inappropriate comments to her of a sexual nature. These were there subject of Complaint Two, and materially, the only element in this category found proven by the Tribunal was that the practitioner had hugged patient A on multiple occasions (at [224]).
Third were circumstances that led to the practitioner and Patient A having dinner at the restaurant on 9 July 2016, the dinner itself and the events immediately following. It is not in dispute that the dinner was arranged and paid for by the practitioner, and that Patient A had consumed alcohol at the dinner.
The practitioner accepted that Patient A had a problem with alcohol at the time. Approximately 3 weeks before the dinner, the practitioner referred Patient A to the depression clinic at Prince of Wales Hospital. He noted that Patient A was abusing cocaine, cannabis and alcohol on a daily basis (at [121]). The practitioner also accepted that on the day of the dinner, he believed that Patient A ‘likely had a drug disorder and alcohol disorder’ (at [122]) and asserted that he had a ‘background concern’ as to suicidality on her part (also at [122]).
In addition, it was alleged that the practitioner inappropriately touched and kissed Patient A at the dinner and in the Uber ride from the restaurant to her home. The Tribunal was not satisfied as to the former, but found (on the strength of evidence from the Uber driver Mr Vinod Rehaan) that the practitioner and Patient A had hugged and kissed on the ride to her place of residence.
Fourth is the allegation that the practitioner lied to the Psychology Council, in telling them that he had not consumed alcohol at the restaurant (Complaint 3, Particular 8)).
The defendant submitted that what is fatal to the practitioner’s appeal is that the Tribunal expressly identified three separate bases on which it was satisfied that the practitioner had engaged in professional misconduct. Only one of those was on the basis of findings it made with respect to disputed facts. The remaining two bases rested wholly on admissions made by the plaintiff.
The Tribunal was satisfied that the practitioner had engaged in both professional misconduct and unsatisfactory professional conduct. At [261]-[264], it stated:

[261] The Commission submitted that if the Tribunal was satisfied that if any of Particulars 1, 2, 3, 5 or 8 of Complaint Two are proved, this amounts to professional misconduct. The Commission submitted that, objectively viewed, boundary breaches of a sexual nature by a treating therapist are a gross abuse of power. The Commission submits that abuse of that power is particularly severe given Patient A's heightened vulnerability, and her significant history of emotional, physical and sexual abuse.
[262] The Commission submits that, even on the practitioner's version of events, the Tribunal should find Particular 5 of Complaint Two partially proven, specifically Particular 5(a) and part of Particular 5(b). The Commission notes that Prof Kenny's opinion on this was effectively uncontested, the practitioner having chosen not to lead any expert evidence on this issue and Prof Kenny not being seriously challenged in cross-examination.
[263] In addition, the Commission submits that the totality of other admitted conduct (being relevantly calling Patient A "kid" and allowing her to call him "boss"), the volume of out of session contact between the two, and the practitioner hugging Patient A in a number 1. See in this regard Health Care Complaints Commission v Robinson [2022] NSWCA per Simpson AJA at [54] - [56] of sessions are, in the particular context of this case, objectively serious enough to warrant suspension or cancellation.
[264] We agree.”

Materiality

The next issue to be addressed is one of materiality. The defendant submitted that the plaintiff's approach in these proceedings, and the timing of it, has the result that it is fundamentally flawed. In short, the defendant submitted that a judicial review should be lodged after both stages 1 and 2 of the hearing have been finalised. This judicial review relates to only Stage 1.
The Tribunal below was dealing with a disciplinary application brought by the defendant with respect to conduct the plaintiff, the practitioner was said to have engaged in with one of his patients. Patient A was in the decision below (the Tribunal’s decision) and in these submissions, referred to as "Patient A".
That application (which specified three separate Complaints) was brought pursuant to section 144(b) of the National Law which relevantly reads:

The following complaints may be made about a registered health practitioner-
...
(b) A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.

The complaint against the practitioner alleged that he had engaged in both unsatisfactory professional conduct (Complaints One and Two), and professional misconduct (Complaint Three, relying on certain particulars set out in Complaints One and Two, or alternatively all particulars in both Complaints taken cumulatively).
Relevantly, the National Law defines professional misconduct as being "unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration" (section 139E, National Law).
On satisfaction that conduct is either unsatisfactory professional conduct, or professional misconduct, under the National Law the Tribunal's discretion to impose disciplinary orders will be enlivened (see relevantly sections 149 - 149C). Stage 2, which is yet to take place (if this appeal fails) is the hearing as to the appropriate disciplinary orders to be imposed.
A number of the factual allegations contained in Complaints One and Two were admitted by the plaintiff, but he denied that conduct amounted to either unsatisfactory professional conduct or professional misconduct.
The statutory task that the Tribunal was required to undertake was: first, a resolution of the disputed facts; second, whether on the facts that it either found proved, or were admitted, or some combination, the practitioner had engaged in unsatisfactory professional conduct; and third, if so satisfied, whether such conduct amounted to professional misconduct.

Two-stage process

The recent decision of Health Care Complaints Commission v Robinson [2022] NSWCA 164 (‘Robinson’), Simpson AJA (Leeming and Kirk JJA agreeing) stated at paragraphs [54]-[56]:

“54. The orders and directions did not expressly identify what was and what was not included in “Stage 1”. It may be assumed that the parties understood that what was envisaged as “Stage 1” was determination of whether the respondent had engaged in the conduct alleged in the Application (or any of it), and, if so, whether that conduct constituted unsatisfactory professional conduct or professional misconduct. In EFA, in relation to proceedings under legislation governing the legal profession, this Court said:
“44. As is usual in disciplinary proceedings in the Tribunal, the hearing was conducted in two stages. The first is directed to factual determination of the allegations made, and to the proper characterisation of the conduct in question (professional misconduct, unsatisfactory professional conduct, or neither). The second stage (which only occurs if a finding of professional misconduct or unsatisfactory professional conduct is made) is concerned with consequential orders, and, particularly, what (if any) orders ought to be made under s 299 or s 302 of the [Legal Profession Uniform Law (NSW)].”

55. There has been no suggestion that, in this case, “Stage 1” was intended to be otherwise than as stated in [44] of EFA. What occurred in the Tribunal, and the Tribunal’s Reasons, support the conclusion that “Stage 1” of the proceedings was intended to deal with the resolution of any factual disputes, and, importantly, whether any conduct found to have been committed by the respondent constituted either unsatisfactory professional conduct or professional misconduct.
56. While the bifurcated two stage procedure has, it seems, been generally adopted in and by the Tribunal, and is plainly a convenient means by which the Tribunal deals with the disciplinary issues presented to it for determination, it is not a statutory requirement, nor does it have statutory recognition. As will be seen below, it is capable of giving rise to some complexity.”

The HCCC’s submissions

Here, none of the plaintiff's grounds of appeal address in any way the Tribunal's alternative paths of reasoning set out at [262]—[263] respectively, and which are based solely on facts admitted by the plaintiff.
Those separate paths of reasoning constitute "separate findings that independently led" to the Tribunal's ultimate conclusion (SZECD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 31 per Bennett J at [28]; see also [34] - [41]), which in itself is a basis to dismiss the appeal.
Further, as no disciplinary orders have been made yet, this appeal is purely hypothetical. That is, the Tribunal may ultimately decide to impose orders that it is satisfied could be made solely on the basis of the facts that are admitted (or that are not challenged).
Those two matters make it effectively impossible for the plaintiff, at this time, to demonstrate that any asserted errors are material in the sense contemplated by Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, and which the plaintiff must do as it asserts jurisdictional error in the decision.

The practitioner’s submissions

The HCCC erroneously contends that the practitioner’s appeal is fatal on the basis of materiality. With respect, that is a flawed contention that ignores or misunderstands the statutory task before the Tribunal. A finding of professional misconduct does not necessarily foreshadow cancellation or suspension rather, the stage one findings must be considered to decide an appropriate penalty to be imposed on the practitioner at Stage Two.
There is no requirement or statutory recognition of the bifurcated two-stage process. For the purposes of the National Law, Stage one and Stage Two are a convenient way of dealing with a singular statutory task. Stage one typically requires a determination of factual allegations against a practitioner and determination of whether that practitioner has engaged in unsatisfactory or professional misconduct. Stage Two typically requires a determination, having considered the findings at Stage one, of an appropriate penalty that considers the protection of the public, the profession and general deterrence from repeat behaviour.
The HCCC erroneously contend that the appeal is hypothetical. That contention is misguided in circumstances where the HCCC ought to be cognisant that lawful factual findings in Stage one are a fundamental basis for the proper exercise of the Tribunal’s jurisdiction in a penalty at the Stage Two hearing.

In substance, at Stage Two, the practitioner will be required to demonstrate, inter alia, insight and remorse into the allegations said to have been established against him in the stage one hearing. It can be readily accepted that a failure to make lawful determinations about the allegations made against the practitioner at stage one would frustrate the proper exercise of jurisdiction at Stage Two. This is especially true where the interest of the public, the profession and deterrence were critical sentencing factors. In this light, the impugned errors move beyond that of technical errors but will have a material impact on the proper exercise of the Tribunal’s statutory task.
It would be an absurd and prejudicial process to allow a Tribunal to proceed on unlawful findings when those findings are plainly material to the outcome of the Stage Two hearing. Such a path would depart from the objects of the CAT Act and s 56 of the Civil Procedure Act 2005 (NSW).
To impose a penalty against the practitioner that accords with the Tribunal’s obligations to, inter alia, protect the profession, the public and/or impose some level of deterrence, the Tribunal must necessarily consider and address each of the findings against the practitioner. Without doing so would be a constructive failure to exercise jurisdiction.
It follows that a failure to lawfully perform a primary statutory duty (Stage 1 factual determination of allegations) which, in turn, affects the subsequent statutory duty (stage 2), must be material for the purposes of this appeal. The invocation of judicial supervision at this time is necessary for the just and practical resolution of the proceedings.

The practitioner’s submissions in reply

The impugned findings are material to the outcome of the proceedings below and, even if there is an available alternative path of reasoning used to reach a finding of unsatisfactory or professional misconduct, the Tribunal is required to consider all the conduct alleged and purported to be established against the practitioner to properly exercise its jurisdiction at Stage 2. Where errors are established in stage 1, each of the errors are material to the proper exercise of the Tribunal’s statutory task.
It is common ground that the Court has inherent supervisory jurisdiction and jurisdiction conferred by section 69 of the Supreme Court Act 1970 (NSW).
All that is required for the practitioner to establish his case and so to enliven the Court's power to issue remedies is for the Court to find an error of law on the face of the record (the "record" is the written reasons - see, section 69(3) & (4) of the Supreme Court Act 1970 (NSW)). Errors of law on the face of the record need not be errors going to jurisdiction.
If the Court forms a view that determination of allegations made against the practitioner in medical disciplinary proceedings were not material, or do not enliven an avenue of appeal, on the basis that they do not challenge the finding of professional misconduct or unsatisfactory professional conduct, the practitioner contends that the supervisory jurisdiction of the Court is enlivened for purposes of addressing jurisdictional error and error on the face of the record having exhausted avenues of appeal and review.
The appeal mechanism is akin to a formal version of judicial review. This appeal relies on errors on the face of the record and jurisdictional error. The orders sought in the practitioner’s amended summons expressly identify a remedy typically sought in judicial review. In many respects, the avenue of appeal is a formal version of judicial review with leave available for grounds outside that of an error of law. The practitioner expressly relies upon the orders sought in the alternative in the amended summons and says that those orders sought are sought pursuant to the appeal mechanism concurrently with judicial review if such an appeal is not enlivened. If the appeal is not enlivened in not challenging the conclusion of unsatisfactory professional conduct or professional misconduct, the impugned findings are material to the discharge of the Tribunal’s statutory task and, having exhausted appeal avenue, warrants the invocation of judicial supervision in this matter.

Resolution

It is incorrect to say that the alternate paths of reasoning set out at [262]-[263] of the Tribunal’s decision are based solely on the facts admitted by the plaintiff. Some of the particulars of the complaints themselves were contested before the Tribunal, such as there were factual findings made in relation to the practitioner calling Patient A “my love” and particularly in relation to the night of the dinner at the restaurant and the consumption of alcohol. In Robinson, the New South Wales Court of Appeal was not critical of the approach of the NCAT Tribunal taking the two-stage approach. The Tribunal had already decided that the hearing was to proceed in “two stages”. In these circumstances, I would not interfere with its prior decision, that the hearing would take place in two stages.

Grounds of Appeal

The grounds of appeal are lengthy and, in some ways, repetitive. They have required careful analysis. I shall set them out in full here, but then group them into the main topics as outlined earlier in this judgment:

Ground 1: The Tribunal erred in finding that on more than one occasion, during consultations at the practice between 22 April 2016 and 18 July 2017 the practitioner referred to patient A as “Kid” and “My love”.

Ground 2: The Tribunal erred in finding in the decision at [6] and [269](3) that Complaint Two, Particulars 1(a)-(c) were satisfied. The error features both jurisdictional error and error on the record in that:

The Tribunal failed to provide lawful reasons for the finding;

The findings are internally inconsistent with the proposed reasons of the decision;

The findings are legally unreasonable;

The finding is based on no evidence;

The Tribunal erred in failing to apply the correct standard of proof.

Ground 3: The Tribunal erred in finding (decision at [6] and [269]) that Complaint Two, Particular 5(b) was established. This amounts to a jurisdictional error in that:

The finding is a constructive failure to exercise in failing to apply the correct standard or proof in the Tribunal’s satisfaction that the particular was established.

The Tribunal erred in finding (decision at [6], [182], [226] and [232]) that on 9 July 2016 alcohol was consumed by the practitioner (alcohol).

Ground 5: The Tribunal erred in finding (decision at [122], [113] and [182]) that “all of the alcohol had been consumed”.

Ground 6: The Tribunal erred in finding (decision at [182]) that the practitioner ordered the alcohol (‘consumption of alcohol’).

Ground 7: The errors in grounds [4], [5] and [6] are errors of law on the face of the record and jurisdictional errors in that:

The findings are based on no evidence;

The findings are legally unreasonable;

The findings are a constructive failure to exercise jurisdiction by way of a misunderstanding, or mistaken interpretation of, the evidence that was before the Tribunal which has affected the way in which the Tribunal has exercised its power;

The findings are a constructive failure of jurisdiction in the misapplication of the requisite standard of proof;

Further or in the alternative to the above, the Tribunal has not provided lawful reasons to explain the application of the requisite threshold of proof in relation to these findings;

The findings fail to provide lawful reasons in the tribunal’s satisfaction of proof.

Ground 8: The Tribunal erred in finding (decision at [6], [232] and [269]) that the practitioner misled the Psychology Council. This amounts to a jurisdictional error in the event that the practitioner is successful on ground 4.

Ground 9: The Tribunal erred in finding (decision at [6], [183], [233] and [269]) that Complaint Two, Particular 5(d) was established. The error amounts to jurisdictional error in that:

The finding is legally unreasonable;

The finding is based on no evidence;

Such a finding is a constructive failure to exercise jurisdiction in failing to apply the requisite standard of proof;

The Tribunal failed to engage with a substantial and clearly articulated argument that Mr Rehaan’s evidence was to be treated with caution and in doing so denied the practitioner procedural fairness and constructively failed to exercise its jurisdiction.

Ground 10: The Tribunal erred in finding (decision at [6], [218], [247] and [269]) that, in relation to Complaint One, Particular 2, that “Some of the communication was personal in nature”. The error amounts to error of law on the face of the record and jurisdictional error in that:

The Tribunal failed to provide lawful reasons for the finding;

The Tribunal failed to respond to a substantial and clearly articulated argument that the practitioner’s correspondence was not personal in nature and in doing so have denied the practitioner procedural fairness and constructively failed to exercise its jurisdiction;

The Tribunal erred in failing to apply the correct standard of proof.

Ground 11: The Tribunal erred in finding (decision [6], [257] and [269]) that the practitioner had engaged in conduct of a sexual nature toward Patient A. The error amounts to error on the face of the record and jurisdictional error in that:

The Tribunal did not provide lawful reasons;

The Tribunal has made a finding, based on no evidence, that the hug at the conclusion of a therapy session was sexual in nature;

The finding was legally unreasonable.

Ground 12: The Tribunal erred in finding (decision at [157]) that the dinner was never intended to be an exposure session (‘exposure’). Such an error amounts to jurisdictional error in that:

The finding is legally unreasonable;

The finding is based on no evidence;

The finding is a mistake of fact for which the practitioner seeks leave.

I shall deal with appeal grounds 1, 2 and 10 first as they related to Complaint One, followed by appeal grounds 3 to 7, the dinner, consumption of alcohol at the restaurant and misleading the Psychology Council (appeal ground 8), hugged and kissed Patient A (appeal ground 9), conduct of a sexual nature (appeal ground 11) and the exposure session (appeal ground 12), in seriatim. It is convenient to record here that the particulars of each of the three complaints are relied upon constituting unsatisfactory professional conduct either individually or only in combination with other particulars.

The proper approach to judicial review

I take into account that the reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. The reasons of an administrative decision maker are meant to inform, and not to be scrutinised upon by over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-2; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25]. The reasons under challenge must be read as a whole and must be fairly read: Cross v McHugh [1974] 1 NSWLR 500 at 503; Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291.

The Tribunal’s duty to give reasons

In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (‘Wingfoot’), the High Court emphasised the need for a written statement of reasons given by a medical panel under the Accident Compensation Act 1985 (Vic) to explain “the actual path of reasoning” (at [55]):

“The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.”

I also accept that the Tribunal has an obligation to provide lawful reasons, a failure to respond to a substantial and clearly articulated argument will amount to a denial of procedural fairness and a constructive failure to exercise jurisdiction.
In Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 (‘Cervantes’) at [19] - [22], Basten JA said:

[19] … In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; 197 ALR 389; 77 ALJR 1088; [2003] HCA 26 at [24] (Dranichnikov), Gummow and Callinan JJ stated:
[24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.

[20] A similar point was made by Kirby J at [86] referring to a passage in the judgment of Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 at [81] (Miah) where, after noting that it was not always easy to distinguish an error of law which is jurisdictional from one that is not, her Honour continued:
[81] However, the present case is, in my view, a clear case of constructive failure to exercise jurisdiction. That is because the delegate failed to consider the substance of Mr Miah's application and could only have failed to do so because he misunderstood what is involved in the Convention definition of “refugee”.

The underpinning of the plaintiff’s grounds of judicial review are the complaints one, two and three, including their specific particulars that I will reproduce in this judgment.

(1) Complaint One, Particulars 1 and 2

Complaint One is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that he engaged in conduct that demonstrates the judgement possessed, or care exercised, by the practitioner in the practice of psychology is significantly below standard reasonably expected of a practitioner on equivalent level of training or experience.
Particular 1 is relied upon as constituting unsatisfactory professional conduct either individually or in combination with other particulars.
The particulars of Complaint One, particular 1 is as follows:
On more than one occasion, during consultations at the practice between 22 April 2016 and 18 July 2017 the practitioner failed to maintain appropriate professional boundaries with Patient A in that he:

Referred to Patient A as “kid”/and “my love”.

Allowed Patient A to refer to him as “boss”;

Commented on Patient A’s physical appearance by calling her “beautiful”;

Commented on Patient A’s personal attributes by calling her “intelligent”;

So far as particular 1(a) is concerned, the practitioner admitted calling Patient A “Kid”, the Tribunal found that it was established.
The practitioner admitted particulars 1(c)—(d). He admitted to calling Patient A “beautiful” and “intelligent”. Particulars (1)(e)(f) were not established, because it did not accept the evidence of Patient A as being sufficiently established: Tribunal decision [6]. So it is only the findings as to particular 1(a) in relation to “my love” under challenge in this judicial review.

Appeal ground 1: My love

It is “my love” that is the only disputed particular in 1(a). As set out earlier, Complaint One, Particular 1(a) states:

“On more than one occasion, during consultations at the practice between 22 April 2016 and 18 July 2017 the practitioner failed to maintain appropriate professional boundaries with Patient A in that he:
(a) Referred to patient A as “Kid” and “My love””

On this topic of “my love” at [100] and [101], the Tribunal, after referring to the practitioner’s evidence, stated:

“100. [the practitioner] denies calling [Patient A] “my love”. Specifically, [the practitioner] states:
Q. Under the heading, “Particulars of complaint 1” at paragraph 1, on more than one occasion during consultations between 22 April 2016 and 18 July 2017, there’s an allegation that you referred to Patient A as “my love.” What, if anything, do you have to say about that allegation?
A. In regards to that, I don’t believe that I would’ve referred to [Patient A] as “my love.” If I did, it might’ve been on one occasion as the mind’s blank. It certainly was not a common occurrence and I, I don’t, you know, I did not refer to her as “my love” repeatedly. If it did happen, it might’ve been on one occasion, if that.
101. There is no documentary evidence or otherwise to say that [the practitioner] called [Patient A] “My love”. In the circumstances, the Tribunal could not be satisfied that [the practitioner] referred to [Patient A] as “My Love” and that allegation must be dismissed.”

The practitioner’s submissions

The practitioner submitted that the error amounts to a jurisdictional error in that the finding is based on no evidence, the finding is legally unreasonable, the Tribunal have erred in failing to apply the correct standard of proof, the Tribunal misunderstood the nature of the question that was required to be determined, the Tribunal misunderstood or mistakenly erroneously interpreted the evidence that was before the Tribunal which affected the way in which the tribunal’s power was exercised.
The Tribunal misunderstood or misstated the evidence that was before them, and as a direct consequence of that misunderstanding, the Tribunal was erroneously satisfied, at [4], [218] and [269] that Complaint One, Particular (1)(a) was established.
The Tribunal was firstly required to find that the Practitioner had referred to Patient A as “My love”. The practitioner then submitted that the Tribunal was then required to take the further step to determine whether the practitioner referred to Patient A as “my love” on multiple occasions.
The disclosed path of reasoning by the Tribunal illustrates a critical misunderstanding of the evidence that was before them. The practitioner had admitted to referring to Patient A as ‘kid’ on multiple occasions. It was therefore open to the Tribunal to have made a finding of partial satisfaction. However, the practitioner submitted that the Tribunal elected to find the whole particular was established.
In support of Tribunal’s finding that on more than one occasion the practitioner referred to Patient A as ‘Kid’ and ‘My Love’, it relied on the following reasons:

“[13] In his Reply, the practitioner:
(1) admitted Particular 1(a) in so far as he referred to Patient A as “kid”, However, during the course of the hearing the practitioner said that he did call Patient A “my love”, but on no more than one occasion.”

This passage above is repeated at [215] of the Tribunal’s decision. The practitioner made no such admission and that the Tribunal relied on a positive admission by the practitioner in reaching a reasonable satisfaction of the allegation. Without an express admission, the practitioner submitted that the finding lacks evidence and intelligible justification.
Further, the Tribunal went to considerable lengths to illustrate that they were unable to rely on uncorroborated evidence of Patient A. The Tribunal repeatedly express that they were unable to accept Patient A’s evidence unless it was independently and objectively corroborated. In this circumstance, it was critical to illustrate a lawful application of those principles in Briginshaw v Briginshaw (1983) 6 CLR 336 (‘Briginshaw’) in coming to their reasonable satisfaction. The Tribunal has not done that and instead, has purported to making a finding based on an objectively mistaken interpretation of the evidence before the Tribunal.

The HCCC’s submissions

That practitioner’s ‘Reply’ before the Tribunal is materially different to the points of defence that were actually not before the Tribunal, in that it does not deny that the practitioner referred to Patient A as "my love", but instead was silent as to the allegation.
The practitioner did admit to calling Patient A "my love" on one occasion. The practitioner’s oral evidence on this issue was to the effect that he might have called Patient A "my love" on one occasion but could not recall.
What is not set out is the exchange almost immediately following between the Tribunal and counsel for the practitioner (Evidence of the practitioner, Transcript 16 March 2022:

“SENIOR MEMBER TITTERTON: But on this particular point, I do value the evidence because the reply is silent as to the "my love" allegation and in fact, when Mr Jones has finished this component of the examination with Mr Blake, I'm going to ask him to formalise the reply. I think it's going to be, he's admitted "kid" and "boss" but if the reply is silent as to "my love," I think it's going to be a does not admit but we'll find out in a moment.
CHATTERJEE: Please the Tribunal.
…
SENIOR MEMBER TITTERTON: Are you finished with that, the "my love"?
JONES: With that question, yes.
SENIOR MEMBER TITTERTON: Well, in that case, sorry, can I - just so that I don't lose track of these things, as I said, the reply is silent as to "my love," do you need to speak to your client about what the reply should state?
JONES: No, we would say that we deny saying on more than one occasion.
WITNESS: I would - if I can speak, I would say my, my response to that would be, it was certainly not a common occurrence and I don't think it would've happened more than on one occasion if - so, but it certainly wasn't a common practice. Yes, nothing like that.

A denial that conduct had occurred on "more than one occasion" is necessarily an admission that it occurred on one occasion. That is how the Tribunal understood the practitioner's position:

[13] In his Reply, the practitioner:
(1) admitted Particular 1(a) in so far as he referred to Patient A as "kid". However, during the course of the hearing the practitioner said that he did call Patient A "my love", but on no more than one occasion;

In the Tribunal, the practitioner was recorded at [93]:

[93] In relation to Particular (1)(a) to Complaint One, that is that the practitioner referred to Patient A as "kid" and "my love", the respondent through his counsel said that he denied referring to Patient A as "my love" "on more than one occasion" but if so, "it certainly wasn't a common practice".

The Tribunal then proceeded to make a finding that the practitioner had called Patient A "kid" on multiple occasions, and "my love" on one occasion, with the latter based on the practitioner's admission.
The Tribunal was not required to (nor did it) find that the practitioner had referred to Patient A as "my love" on multiple occasions.
In any event, a different result would not have been reached. The use of the nickname "my love" formed part of one sub-particular to an allegation that the practitioner had engaged in unsatisfactory professional conduct by failing to maintain appropriate professional boundaries.
Neither the expert evidence on the issue nor the Tribunal's reasoning differentiated between the use of "kid" and "my love" as nicknames. Rather it was the use of nicknames per se that in the opinion of the HCCC’s expert, Professor Kenny, was problematic in that they "infantilised Patient A and exaggerated the power imbalance between therapist and patient" (at [248]). The practitioner admitted to using at least the nickname "kid" on multiple occasions. It cannot be argued that the Tribunal may have reached a different conclusion if it had not found that the practitioner had called Patient A "my love" on one occasion.

The practitioner’s submissions in reply

The transcript does not illustrate an admission that the practitioner had referred to Patient A as “My Love”. Simply, the transcript illustrates that the questions of the tribunal was answered in the same way that the allegation had been framed. Nothing further.
In matters as serious as these disciplinary proceedings, there is a substantial gap between an active and outward admission of conduct and silence on the matter or denying the allegation as it has been framed by the HCCC. Simply, a denial of an allegation on the same terms in which it was framed against the practitioner is not necessarily an admission as the HCCC would have it. If it were, then the Tribunal ought to have explained that as precisely their path of reasoning. Instead, the Tribunal merely state there was an admission but fail to point to the source or location of an express admission of the allegation.
There appears to be a dispute as to whether the Tribunal was required to find that the practitioner had referred to Patient A as “My Love” on more than one occasion. However, if it is the case that the Tribunal was only required to find that he had referred to Patient A as “my love” on a single occasion. That was never brought to the attention of the practitioner; it is contrary to the ordinary construction of the allegation against him and there is still no reasonable evidence of an admission that the practitioner did in fact refer to Patient A as “My Love” even on one occasion.
This error is demonstrably material in that the phrase “My love” has connotations of intimacy. Further, the practitioner will be required to show insight and remorse for a finding that was not available and based on a fundamental misunderstanding of the allegation and evidence before the Tribunal.

Resolution

In the practitioner’s reply, he admitted Particular 1(a) in so far as he referred to Patient A as “kid”. That is common ground. So far as “my love” is concerned, the practitioner denied that he called Patient A ‘my love’, but in evidence the practitioner admitted that it certainly did not happen on more than one occasion. His evidence aligns with the admission he made in his reply.
The practitioner here and throughout the grounds of appeal submitted that the Tribunal’s findings do not satisfy the “Briginshaw test”.
In Briginshaw, Dixon J stated at 361 – 362:

“when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.”

While these proceedings are heard on a civil standard, when the Briginshaw test applies is not whether a fact is more probable than not. It is whether the Tribunal, having considered the circumstances, is comfortably satisfied of the existence of a fact in issue. When the test is raised in the other grounds of appeal, this is the test that I have adopted throughout my reasoning.
I accept that the Tribunal was only partially satisfied that particular 1(a) had been established. While this is so, Complaint One, Particular 1(a) is to be considered either individually or in combination with other particulars. Additionally, there was evidence from the expert, Professor Kenny that it was the issue of nicknames per se that was problematic in the way they “infantilised Patient A and this exaggerated the power imbalance between Patient A and the practitioner. Put into context, the practitioner admitted he allowed Patient A to call him boss and he called her “my love on one occasion”. In circumstances where the particulars are to be individually and cumulatively considered [my emphasis], there is overwhelming evidence to establish that Complaint One has been established to the satisfaction of the Briginshaw test on a cumulative basis. No error of law or jurisdictional error has been made out. Appeal ground 1 fails.

Appeal ground 10 – Excessive telephone contact

Ground 10 is that the Tribunal erred in finding (decision at [6], [218]) that, in relation to Complaint One, Particular 2, that “Some of the communication was personal in nature”. The practitioner submitted that the findings of the Tribunal is an error of law on the face of the record and jurisdictional error in that:

The Tribunal failed to provide lawful reasons for the finding;

The Tribunal failed to respond to a substantial and clearly articulated argument that the practitioner’s correspondence was not personal in nature and in doing so have denied the practitioner procedural fairness and constructively failed to exercise its jurisdiction;

The Tribunal erred in failing to apply the correct standard of proof.

Complaint One, Particular 2 is that between 28 April 2016 and 23 May 2017, the practitioner failed to maintain appropriate professional boundaries in that he exchanged the following number of 'out-of-session' telephone calls and text messages with Patient A in circumstances where the amount of contact was excessive in the context of the therapeutic relationship and some of the communication was personal in nature:

122 telephone calls initiated by Patient A;

137 telephone calls initiated by the practitioner:

82 text messages sent by Patient A;

53 text messages sent by the practitioner.

These messages and phone calls are set out at CB 438-458.

The practitioner’s submissions

The Tribunal erred in finding that Complaint One, Particular 2, was wholly established, namely that “[s]ome of the communication was personal in nature”.
The practitioner had admitted to the allegation of the volume of calls and text. Specifically in the points of the defence the practitioner asserted responded to Complaint One, Particular 2, with the following:
In response to 2(a)–(d) of the particulars, the practitioner admitted the allegations contained in those paragraphs but says that the correspondence was in the nature of emergency correspondence or in maintenance of possible suicidal thoughts.
The practitioner had made a substantial and clearly articulated argument that the communications were not personal in nature and that the HCCC had not pointed to the communications with any particularity that could have satisfied the Tribunal that “[s]ome of the communication was personal in nature” pursuant to the HCCC complaint.
The Appeal Panel has not dealt with this substantial and clearly articulated argument. In fact the Tribunal appear to have overlooked the requirement of the allegation and were satisfied of the whole complaint on the admission of the volume of the communication alone. This is a failure to exercise jurisdiction and a denial of procedural fairness to the practitioner.
In failing to respond to the substantial and clearly articulated argument, the Tribunal have also failed to provide lawful reasons for their satisfaction that “some of the communication was personal in nature”.

The HCCC’s submissions

The practitioner's reply admitted the allegations set out in Complaint One, Particular 2.
The practitioner understood below that the HCCC's case concerned the frequency of contact and not the content of the messages - see for instance the practitioner's closing written submissions filed 20 May 2022 at Annexure P Blake at [132].
Expert opinion was relied upon by the HCCC that went solely to the volume of contact. Professor Kenny was of the view:

“The calls and texts are too frequent and should not have been permitted to continue in this way.
The frequency and appropriate usage of phone and text contact should have been discussed in session and the rules clearly stated as to when it was warranted for [Patient A] to call [the practitioner]. Discussion of other means of regulating herself rather than relying on phone calls or texts from [the practitioner] should have been part of the treatment formulation.
For a substantial part of the therapeutic contact, [Patient A] clearly viewed [the practitioner] as a secure attachment figure to whom she could turn for emotional regulation. However, her reliance on contact and [the practitioner’s] inability to properly curtail this expectation does fall below the standard reasonably expected of a practitioner of equivalent training and experience.”

The Tribunal, in an orthodox manner, considered the expert opinion relied on by both the HCCC and the practitioner (being a Mr Rolfe), and preferred Professor Kenny's opinion (decision at [248] - [256]) and that part of the decision is not being appealed.
It is also relevant to note that the practitioner never made good his case that the volume of communication "was in the nature of emergency correspondence or in maintenance of possible suicidal thoughts". His written referrals to other practitioner’s (see for instance to Dr McInnes dated 25 May 2016 – Tribunal Decision at [172]) identified Patient A as having "nil suicidal ideation".
The practitioner's progress notes identify that a suicide risk assessment was conducted on five occasions (22 April, 9 May, 23 May, 9 June 2016, and 2 March 2017), none of which disclosed any suicidal ideation.
None of the practitioner's four prior written statements refer to any suicidal ideation expressed by Patient A, or any concerns the practitioner had in that regard.
The only evidence led by the practitioner on the issue was in chief at the hearing, which was both general and brief in nature. Given the adverse credit findings made by the Tribunal in relation to the practitioner, and the fact that his evidence was contrary to the contemporaneous written records, his oral evidence was of little import.
For a failure to consider an argument to amount to jurisdictional error in the Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 197 ALR 389; [2003] HCA 26 (‘Dranichnikov’) sense, the argument must rest "upon established facts". None of the facts the argument rests on are identified by the practitioner in his submissions, nor were they identified below.
In Dranichnikov, Gummow and Callinan JJ stated at [24]:

“To fail to respond to a substantial, clearly articulated argument argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.”

Finally, it is relevant to note that this particular formed a relatively minor part of the complaint. Professor Kenny was not strongly critical of the practitioner’s conduct in this regard, and this particular was only relied on in concert with other particulars to establish unsatisfactory professional conduct and professional misconduct.

The practitioner’s submissions in reply

The finding is relevant and material to Stage Two as it will require the practitioner to respond, in some way, to a finding that the communication was personal in nature. If the allegation did not require that the communication was personal in nature, then that part of the allegation ought to have been withdrawn.
Further, the HCCC does not point to or illustrate anywhere in the decision that the Tribunal have responded to the substantial and clearly articulated argument.
The Tribunal has expressed its clear preference for the opinion of Professor Kenny over Mr Reed. In the context of Professor Kenny’s opinion, the personal nature of the communication was a minor point and can be read in the context of being joined with the complaint of excessive communication in the context of the practitioner and Patient A’s therapeutic relationship.
The practitioner has given an intelligible explanation to justify the excessive contact in the context of the therapeutic relationship between himself and Patient A. Patient A’s purported ‘suicidal ideation’ has not been proven on the facts. The Tribunal’s preference for Prof. Kenny’s reasons stated above is sufficient for it to validly make its finding. The Tribunal have not failed to consider the substance of the practitioner’s argument to an extent that they have misunderstood their task.

Resolution

The practitioner admitted that between 28 April to 23 May 2017, he failed to maintain appropriate professional boundaries in that he exchanged 122 telephone calls initiated by Patient A. That is 137 telephone calls initiated by the practitioner, 82 text messages sent by Patient A and 53 text messages sent by the practitioner and out of session telephone calls and messages with patient A in circumstances where the amount of contact was excessive in the context of a therapeutic relationship and some of the communication was personal in nature. In the light of the practitioner’s admission, the Tribunal’s reasons needed only to be brief.
The Tribunal stated in relation to the practitioner accepting a large number of out of session test and phone calls from Patient A, it was Prof. Kenny’s opinion that the telephone conversations between Patent A and the practitioner, the calls and texts were too frequent and should not have been permitted to continue in the way that they did and that for a substantial part of the therapeutic contact, Patient A viewed the practitioner as a secure attachment figure to whom she could turn to for emotional regulation. Her reliance on contact and the practitioner’s inability to properly curtail this expectation fell significantly below the standard reasonably expected a practitioner of equivalent training experience.
The Tribunal stated that Prof Kenny’s opinions were supported by logical and persuasive reasons, Mr Reed’s report prepared for the practitioner was asked to comment on the practitioner’s use of nicknames for Patient A, and the volume of text messages and phone calls between Patient A and the practitioner. The Tribunal found that part of the narrative report [Dr Reed’s Report] of 31 January 2022, to be unhelpful to our task and unpersuasive.
The practitioner argued that the Tribunal failed to properly express its opinion on whether the communication between the practitioner and Patient A was personal in nature and that Professor Kenny’s opinion formed a minor point. Read in context, it was not. None of the facts the practitioner’s argument rests on are “established facts” identified by the practitioner in his submissions or identified in the Tribunal’s hearing. It follows that the Tribunal has not failed to consider an argument that would amount to a jurisdictional error in the Dranichnikov sense. This ground of Appeal fails.

Complaint Two

Particulars 1(b), (6) and 7(d) were withdrawn during the hearing. Each of the Particulars 1(a), 1(b), (2), (3), (4), (5)(c) and (7) were not established. Each of Particulars (1)(a), (b), 5(a)(b) and (d), (8) and (9) were established.

Appeal Ground 2: Hugged Patient A

The Tribunal erred in finding (decision at [6] and [269](3)) that Complaint Two, Particulars 1(a) – (c) were satisfied.
Appeal ground 2 concerns particulars 1(a)-(c) of Complaint Two which alleges that at certain times, the practitioner failed to maintain appropriate professional boundaries in that (a) he touched Patient A’s thighs; (b) kissed Patient A’s forehead and (c) hugged Patient A. Only particular (1)(c), hugging the Patient A was established.
Each of particulars (1)(c), 5(a)(b) and (d), (8) and (9) were established. Particular (1)(b) of complaint was withdrawn.
Complaint Two is relevantly as follows:

Complaint Two
Complaint Two [is] that the practitioner was guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that he engaged in improper or unethical conduct relating to the practice or purported practice of psychology.

Particulars
1. At the end of a number of consultations at the practice between 22 April 2016 and 18 July 2017 the practitioner failed to maintain appropriate professional boundaries in that he:
(c) hugged Patient A.

The Tribunal stated at [223]—[224]:

“We do not find these Particulars 1(a) and (b) established, as we do not accept the uncorroborated evidence of Patient A on these matters as being sufficiently persuasive.
We find Particular 1(c) established, as the practitioner told the Council that “he probably did hug” Patient A at the end of a session, told us that that “on a couple of occasions there may have been a platonic hug at the end of the session”, and we have found that he had hugged her twice on the night of the dinner.”
[my emphasis]

The practitioner’s submissions

The practitioner referred to the Tribunal’s decision at [6] and [269][3]. They read for the following reasons, in relation to Complaint Two, we find each of Particulars (1)(a) to (c) are established. The Tribunal orders that each of Particulars (1)(a) to (d) is established. Only in relation to Complaint Two, Particular 1 and [269][3]. The Appeal Panel made findings that Complaint Two, particulars (1)(a) and (c) are established.
The practitioner submitted that the Tribunal have erred in finding, at [6], and making orders effecting the finding at [269](3), that Complaint Two, Particulars 1(a), (b) & (d) were satisfied. It is accepted that at both [6] and [293] of its decision, the Tribunal stated (incorrectly) that each of those particulars were found proved. Appeal Ground 2 focuses on the error contained in relation to Complaint Two, Particular (1)(c).
The Tribunal stated twice in their decision that the Tribunal was satisfied of the particulars 1(a)—(c). The Tribunal also made orders effecting those findings.
The practitioner submitted that the Tribunal’s findings are: based on no evidence; a lack of evident and intelligible reasoning, and are, accordingly, legally unreasonable; and finally, fail to illustrate an application of the lawful test of proof. It is submitted that the error is entangled with the orders, the reasons and the findings of the decision and therefore, it goes beyond a mere typographical or slip rule error. The practitioner seeks to render the decision null. The HCCC also noted that the findings and orders are material to the consideration of the Stage Two hearing where the practitioner will be expected to show, insight, education and remorse on professional findings. It is critical to those proceedings that the findings, reasons and orders be made in accordance with law.

The HCCC’s submissions

However even a cursory review of the Tribunal decision identifies that to be a typographical error. The Tribunal, in its reasons dealing with this conduct, was clear that it only found Complaint Two, Particular 1(c) (that is, as to hugging Patient A during sessions) was established.
Then, in considering whether the factual matters alleged in Complaint Two amounted to unsatisfactory professional misconduct, the Tribunal (correctly) only took into account (of the matters alleged in particular one (c)) its finding that the practitioner had hugged Patient A in sessions:
The Tribunal at [257] stated:

257 The conduct we have found established is as follows:
(1) at the end of a number of consultations at the practice between 22 April 2016 and 8 July 2017 the practitioner failed to maintain appropriate professional boundaries in that the practitioner hugged Patient A;
…
(3) by reason of Particulars 1(c) and 5(d) in combination, the practitioner engaged in inappropriate conduct of a sexual nature towards Patient A;

The Tribunal stated under the heading, ‘Are the Particulars of Complaint Two established?’ at [223]:

“We do not find these Particulars 1(a) and (b) established, as we do not accept the uncorroborated evidence of Patient A on these matters as being sufficiently persuasive.”

It is noted that various other typographical errors in the decision were identified by the HCCC, and a consent application made to correct those errors. The errors in [6] and [293] were never raised by the practitioner. Had they been, the Tribunal would have been able to identify, definitively, to the parties whether those matters were typographical errors on intended findings.
On balance, they are plainly inadvertent errors. Those errors are also not "entangled within the orders, the reasons and the findings of the decision" and beyond general assertion, no identification is made of why these errors are material or otherwise influenced the Tribunal's reasoning as to its ultimate conclusions.

The practitioner’s submissions in reply

The decision has been publicly published, without redaction of the practitioner’s name. The face of the record states that the Tribunal was satisfied, and made orders to the effect of the Tribunal’s satisfaction of Complaint Two, Particular (1)(a), (b) and (d).
In addition to the prejudice suffered in the publishing of an erroneous decision and the subsequent media reports, the practitioner will be prejudiced in the Stage Two hearing if the error is not set aside.
The correspondence of the HCCC, which was sent with the consent and agreement of the practitioner, expressly identifies that there are errors with findings of Complaint Two, Particulars (1)(a)–(c).
Specifically, the correspondence states:

“2. The findings in relation to Complaint Two on page 1 of the Decision; at [6] and [267] appear to have an error.
Complaint Two did not have Particulars 9(a) to (d) and Particulars 1(e) and (f).
This appears to be a duplication. Of findings in Complaint One”.

If these were simply typographical errors, they were brought to the attention of the Tribunal. The failure to amend this error goes beyond that of a typographical error.
The Tribunal was properly constituted by four members. Each of those four members read and approved those orders. Even when other errors had been brought to the attention of the Tribunal, the Tribunal saw fit to publish the decision containing those findings, orders and internally inconsistent reasons.
Further, the practitioner had written to the Tribunal and indicated that he considered that the Tribunal had made errors in the nature of Bhardwaj. The Tribunal failed to respond to that correspondence. Instead, it simply published the decision that is now subject to this appeal.
This error afflicts the whole published decision. The error reads at [3] in the preamble to the decision, then is repeated in findings at [6] of decision and then, ultimately orders effecting that error at [269]. It appears that the HCCC agree that there is an obvious internal inconsistency between the reasons provided, findings and the orders.
This is not the kind of error contemplated by the slip rule. There is a cavernous gap in the decision between the reasons provided and the orders of the Tribunal. Whether the error is in the reasons, incomplete reasons, or in the findings and orders themselves, the nature of the internal inconsistency between the reasons at [223] of the decision and the balance of the findings and orders render this error material and inextricable from the record.
Even if the HCCC’s contention was accepted that these were inadvertent errors, the decision was published publicly, the decision was then reported in the media and has resulted in irreparable damage to the reputation of the practitioner and his practice. The decision must be set aside.

Resolution

While the Tribunal incorrectly recorded at [269][3] that Complaint Two, (1)(a)(b) and (d) were satisfied, it only particular (1)(c) that was in fact established. There was no particular 1(d) in Complaint Two. I have focused on the substance in relation to Complaint Two contained in the Appeal Panel’s reasoning in its decision. At [223], the Tribunal reasoned that it did not find particulars 1(a) and (b) were established because the Tribunal did not accept the uncorroborated evidence of Patient A as being sufficiently persuasive. In relation to Complaint Two, Particular 1(c) at [224], the Tribunal stated:

“We find Particular 1(c) established, as the practitioner told the Council that "he probably did hug" Patient A at the end of a session, told us that that "on a couple of occasions there may have been a platonic hug at the end of the session", and we have found that he had hugged her twice on the night of the dinner.”

In my view it is clear that the Tribunal made a finding that only Particular (1)(c) that was established. In these circumstances, no error of law or jurisdictional error has been established. Appeal ground 2 fails.

Appeal grounds 3 to 7 – Was alcohol consumed by the practitioner and/or Patient A at the restaurant

Complaint Two, Particulars 5, 8 and 9

Particulars (5)(a)(b) and (d), 8 and 9 of Complaint Two:

5.      On 9 July 2016, the practitioner failed to maintain appropriate professional boundaries in that he inappropriately took Patient A to dinner at [the Restaurant] in Mosman in circumstances where:
(a)      the practitioner was Patient A’s treating psychologist;
(b)      alcohol was consumed by the practitioner and Patient A;
…
(d)      the practitioner inappropriately kissed and touched patient a in the Uber car ride back to her residence in Russell Lea.
…
8.      By reason of Particulars (1) to (5), individually or in any combination, the practitioner engaged in inappropriate conduct of a sexual nature towards Patient A.
9.      On 22 January 2018, the practitioner provided false and/or misleading information to the Psychology Council of New South Wales, namely he denied consuming alcohol at dinner with Patient A at [the restaurant] in Mosman on 9 July 2016 when he had consumed alcohol at dinner on that occasion.

Not surprisingly, the practitioner admitted particular 5(1)(a) that he was Patient A’s treating psychologist.
The Appeal Panel stated at [51]—[65] in its decision:

51. There was extensive cross-examination about the dinner at [the Restaurant]. Patient A was asked about their text communications at the time. She said that she did not want the dinner to go ahead. She denied that she “falsified visitors as a deterrence”.
Q. You just gave evidence to the Tribunal that you said you told [the practitioner] that there were people over because you didn't want the night to occur.
A. That's correct.
Q. Right. Now, do--
A. I thought it would deter him. I thought it would deter him if I wrote down that there were people there; that he would not - he would then leave. He wouldn't - he - it wouldn't have to happen.
…
Q. …, you gave evidence to the Tribunal to say that you falsified visitors to your house, your unit, because you thought it would be a deterrent to [the practitioner]; is that correct?
A. Yes it is.
Q. Then why did you tell him that your visitors were leaving shortly?
A. Because it was after the time - he didn't - the time was supposed to be earlier and I said 5pm and he arrived, obviously, earlier. And that's why he had said, "Shit". Excuse my French, but I'm just reading what he wrote. "Shit”. I had my phone on silent. I just got here", , which was at 4.30. So I thought that by, by me sending that message, he would then go.
Q. Okay. And then at - sorry, …. I say to you that that is a fabrication, isn't it?
A. No, it is not. Well, the, the fact that they weren't there, that's, that's, that's true. They weren't there. But what I said and what - the means behind that- what my - the point of what I said was to try and deter him.
Q. Okay. Don't be too upset. I understand this portion is going to be stressful, so just take your time. We'll move to the next message-
A. Yep.
Q. -because you say, "After they leave I'll have to get ready…so.…5pm".
A. Yeah, so they'll leave around 5 and then I'll be able to be - start to get ready around 5.
Q. Okay. So you agree that that's actually just confirming your plans again with [the practitioner], isn't it?
A. Well, basically saying, "After they leave l'll have to get ready, so it'll be about 5 until I start to get ready". Still trying to put him off. But yes, it was - it can be seen as that as well.
Q. Okay. Then he says, "I'll go for a walk".
A. Yep.
Q. And then you say - and then - okay. So, "l'Il go for a walk". There is nothing in this text chain that indicates that you wanted to cancel, is there?
A. Nothing specific, no.
Q. The fact that you wanted to cancel the date is a fabrication, isn't it?
A. No. I didn't want it to go ahead. I didn't want it to go ahead. …

52.    Patient A denied that the practitioner never drank at the dinner. She could not recall if she had ordered the drinks. When it was put to her that the practitioner did not order the alcohol, Patient A said that the practitioner asked her what he wanted to drink. The question was put again and Patient A said “I don’t understand. I don’t recall. To the best of my recollection he placed the orders”:
Q. The only thing I want to put to you here is that [the practitioner] never drank alcohol on that night, did he?
A. He did drink alcohol on that night.
Q. You ordered drinks at the bar, didn't you?
A. No, I did not.
Q. You were seated at the bar before you were—
A. Not to my recollection. I don't recall these things. All I know is that he bought the alcohol, he provided me with the alcohol. I didn't do any of that. I don't recall.
…
Q. … [the practitioner] didn't order the alcohol, did he?
A. He asked me what I liked - what I wanted to drink.
Q. That doesn't answer the question. He didn't order alcohol did he?
A. I don't understand the question. If he's asked me what I wanted to drink and it was ordered, then it was ordered. I don't recall who, who - I don't, I don't, I don't see myself as being - as doing that. I don't recall. To the best of my recollection, I - he was the person who placed all of the orders. He was the person who asked me what I wanted and all of this and that it was a fancy place and I should feel. (not transcribable)..
Q. So, just to clarify, you don't recall, or he ordered?
A. I can't answer that question as I do not recall to the best of my ability to be able to give you a yes or no answer.
Q. Okay. I'll just say this: I say to you that you ordered drinks at the bar and-- A. I don't recall that happening. I was on medication and I - go on, sir.
Q. Thank you. And then when you were seated at the table, you proceeded to order the drinks when possibly [the practitioner] was in the bathroom?
…
Q. While you were at [the restaurant], you ordered drinks while [the practitioner] was in the bathroom, didn't you?
A. Not to my knowledge, no, I did not, and I wouldn't have done that.
Q. And you didn't see [the practitioner] drink any alcohol that night, did you?
A. I did see him drink alcohol that night.
Q. So when you gave evidence just now when you say that you were on medication and that you don't recall the specifics of the night—
A. No. Sorry, you may have misconstrued what I said, sir. I said I was on—
…
Q. You never saw [the practitioner] consume alcohol that night, did you?
A. I did see [the practitioner] consume alcohol that night.
53.   As to the medication Patient A had taken that night:
Q. … Those prescription medications weren't the only substances you were using that night come up were you?
A. No they were not.
Q. You were you using other substances that night?
A. Yes I was.
Q. What substances were they?
A. I had cocaine.
54.    Patient A denied that the practitioner never kissed her. She denied that her claims of him kissing her and entering her house were a fabrication.
55.    Patient A denied that the practitioner had not kissed her, fondled her or gave her sexual attention in the Uber.
Q. … The Tribunal has heard from the Uber driver already in these proceedings, and what I say to you is that what occurred from the time that you got into the Uber from [the restaurant] to the time that you got home is that you sat in the middle seat and [the practitioner] sat to the side of you.
A.. We were both sitting in the back seat of the Uber.
Q. Yes, and what I say to you is that you sat in the middle seat.
A. Listen, I had been given alcohol and I was on medication. We were both sitting in the back seat and he was fondling me and I looked at - I can't, I can't, I can't say that I - I can't confirm or deny whatever the Uber driver said.
Q. Okay, but what's your recollection?
…
Q. I'll just ask you the - the question I want to ask is that do you deny that you were sitting in the middle seat?
A. I can't confirm or deny. I don't recall what seat I was sitting in. I was sitting next to him.
Q. That's sufficient. At no time in that Uber ride did [the practitioner] kiss you, did he?
A. He did
Q. At no time in that Uber ride did he fondle you?
A. He did.
Q. At no time in that Uber ride did he give you any sexual attention?
A. He did. He did.
…
Q. Your evidence to this Tribunal in relation to who ordered the alcohol was that you can't recall because you were on medication.
A. No, you said that I ordered it. I didn't order it from the bar. I can't recall who - that I ordered it from the bar.
Q. Yes, and you can't recall because you were on medication and-
A. No, it has—
Q. Is that right?
A. No, it is not correct. The medication has got nothing to impair what - I have blocked a lot of this out. Please. All I'm trying to let you know is that your client supplied me with alcohol. He ordered the alcohol and he also consumed the alcohol.
Q. Well, that's not what your evidence is. Your evidence was that you couldn't recall.
A. No, that's not--
A. Supplying somebody with alcohol and purchasing it for somebody is the same thing.
Q. Well, that's why I had to clarify the difference between who paid for the alcohol and who ordered the alcohol.
A. Well, he ordered the alcohol.
…

The following case note was made by another treating psychologist during her appointment with Patient A on 31 October 2017. It relevantly reads:

Case note of 31 October 2017
64.
… thinks reporting this event is going to fix/needs to be the think [sic – thing] that fixes her.
Case note of 5 December 2017
65. [Patient A] brought note pad where she had written down (haphazardly) the things she said [the Practitioner] has done which she has taken issue to [Patient A] said he has used "inappropriate phrases and labels" and had asked "inappropriate questions".
I asked [Patient A] to list the things he had done that were behaviours (rather than her responses to his actions). She listed:
Called me "kid" "my love"
Said I was beautiful and intelligent and spoke well
Said she was beautiful when she cried when other people were not
…
[Patient A] showed me text messages on her old phone to and from [the psychologist], including texts which showed he had arrived at her house to pick her up on 9/7/2016. There was every indication it was this psychologist, saved under his name and texts included ones confirming appointment times).
…
[Patient A] said she has taken photos of all these messages.
[Patient A] confirmed she has seen [the psychologist] from 2/5/2016. Said appts stopped around Sept 5^th. No appts in Dec and Feb. Said her father forced her to return to him for an appt in early 2017 after she had finished rehab at SPP [Patient A] confirmed she would like to finalise report before Christmas.

The practitioner challenges findings made by the Tribunal that he ordered and consumed alcohol with Patient A at the restaurant.
Grounds 5 and 6 were that the Tribunal erred in finding (decision at [113], [122], and [182]) that “all of the alcohol had been consumed” and the Tribunal erred in finding (decision at [182]) that the practitioner ordered the alcohol (‘consumption of alcohol’). I will focus on appeal grounds 5 and 6 of appeal before dealing with appeal Grounds 3, 4 and 7.

The practitioner’s submissions

The practitioner submitted that grounds [5]-[6] are central to the other grounds of appeal on this topic. That being so, I will address appeal grounds (5) and (6) first.
The Tribunal erred in finding that the practitioner on 9 July 2016, had consumed alcohol at a dinner with Patient A. The natural consequence is that the Tribunal was erroneously satisfied that Complaint Two, Particular (5)(b) was established.

Mr Rehaan was the first witness to give evidence. He did so as a witness for the HCCC. Following his evidence (and prior to any cross-examination of the practitioner), the allegation of sexual assault was withdrawn.
Given that the sexual assault allegation was withdrawn, and there is no appeal to the dismissal of the strike out application, or the complaints of misconduct alleged by the practitioner, it is unclear what probative relevance that material has or why that "context of the hearing is imperative".
The Tribunal heard and dismissed the practitioner's summary strike out application on the morning of the first day of hearing (Decision at [23]).
It is somewhat disingenuous of the practitioner to impugn one part of Mr Rehaan's evidence because the events took place 6 years ago, and wholly embrace other aspects of his testimony (noting that Mr Rehaan's entire involvement in the matter occurred over about 45 minutes on a single occasion) in contending that Patient A's evidence had to be wholly disregarded. Perhaps unsurprisingly, Mr Rehaan was only sparingly cross-examined.
As to the "two hugs (one before the Uber ride and one hug goodbye)", the practitioner's affidavit evidence was that he had never got out of the Uber. His prior written evidence never referred to hugging Patient A at any time before or after the dinner. In the section 150 hearing, he expressly denied hugging Patient A at the dinner:

“THE CHAIRMAN: [...] given your familiarity with her within the clinical settings, hugging her when she asks and so forth, could you comment on any inappropriate behaviour that she might have interpreted in terms of that evening?
From my perspective, I don't think there was, you know, in terms of any sexual or anything else like that, you know. You know, it was - it was a meal. It was - it was the wrong thing to do, but in terms of any other - anything else like that, you know, it was - it was definitely not.
THE CHAIRMAN: Okay. Could I put it to you that - and given her familiarity in the therapy session - that would have transferred to the social setting and that there would have been either some degree of hugging or kissing - - -
40 [THE PRACTITIONER]: No.
THE CHAIRMAN: - - - at the end?
[THE PRACTITIONER]: No.
THE CHAIRMAN: You deny that?
[THE PRACTITIONER]: I deny that”.

However, in cross-examination, he admitted getting out of the Uber and hugging Patient A. He also denied understanding the exchange set out above at [92] as being questioned specifically about hugging (in a non-sexual way) Patient A (at [142]).
It is simply wrong to contend that the Tribunal's finding that the practitioner and Patient A kissed in the Uber rested solely on "two hugs" and "Mr Rehaan's six-year-old assumption based on the actions of previous occupants of an Uber".
Firstly, Mr Rehaan gave clear evidence that he saw the practitioner and Patient A hugging and behaving in an intimate fashion before he picked them up from the restaurant and that he observed that behaviour to continue in the Uber ride; and that they hugged when the practitioner dropped off Patient A.
He acknowledged (unprompted and in chief, not cross-examination, judgment at [76]) that he did not see their "lips lock" but fairly read, his evidence was that based on their body language and the way they were behaving, they were kissing and hugging. There is nothing extraordinary about that evidence. That evidence directly corroborated Patient A's evidence as to those events.
Secondly, that was only one strand among several that placed the events of that night into context, and which were relevant to determine, on the balance of probabilities, what conduct occurred that night.

The practitioner’s submissions in reply

The HCCC unreasonably failed to summons the only material witness who had provided probative representations which were wholly exculpatory of the allegation of sexual assault.
The HCCC had, for a couple of years, possession of phone location data and an expert report that demonstrated the inherent improbability of the allegation of sexual assault against the practitioner. The HCCC then spoke with Mr Rehaan twice and made file notes containing the wholly exculpatory material. The practitioner had categorically denied the allegation. The allegation was extremely serious. The HCCC failed to call the only material witness. The HCCC proceeded to maintain the complaint until Mr Rehaan would cooperate.
It can be readily accepted that the HCCC did not want to withdraw the complaint against the practitioner unless the HCCC could obtain evidence that was adverse to the practitioner.
It is this conduct that has put the practitioner at a material disadvantage. There were directions and timetables for service of evidence. The practitioner was entitled to know the content of the case he was required to meet before it was heard before the Tribunal. The proceedings were serious, and the practitioner ought to have been able to prepare his case and be cross examined in accordance with those directions. Instead, on the day of the hearing, the practitioner was left to be surprised by what Mr Rehaan’s evidence might be.
From the time of the creation of the file notes, the HCCC ought to have withdrawn the complaint of sexual assault. Instead, in a bizarre reversal of onus the HCCC refused to withdraw a complaint without positive disproof of an allegation. In doing so, the HCCC departed from the objects of the CAT Act and abandoned of the requirements of a model litigant.
The Tribunal is of the view that the application was not heard or determined on a summary basis not dismissed:

“[23] After oral submissions from both parties, the Tribunal declined to hear and determine that application on a summary basis. However, during the course of the hearing, and after the evidence of Mr Rehaan had been given, the Commission withdrew Particular (6) of Complaint Two.”

The improperly maintained allegation of sexual assault is inherently relevant in circumstances where a core allegation against the practitioner, and a finding subject to challenge in these proceedings (Ground 11) was that he had engaged in conduct of a sexual nature toward Patient A.
It is of note that the HCCC do not point to where the Tribunal have responded to the substantial and clearly articulated argument.
The HCCC appear to contend that if a witness is reliable on one fact, then they should be wholly accepted as to the balance of their evidence. Such a position is inherently disingenuous. It can be readily accepted that the probity of a witness’ evidence depends largely on the facts, corroborating contemporaneous records and a myriad of other factors. Mr Rehaan had stated with certainty that the practitioner did not depart the vicinity of the Uber car, thereby providing exculpatory evidence for a sexual assault allegation that should never have been maintained. On other matters, Mr Rehaan relied on assumptions and was not nearly as authoritative. This is not surprising or unique. The practitioner was entitled to call into question Mr Rehaan’s evidence where: the allegation was serious, Mr Rehaan was the only material witness and Mr Rehaan’s evidence was that he never saw the practitioner or Patient A kiss; and was otherwise based on assumptions informed by historic occupants of his car not the conduct of Patient A and the practitioner.
The HCCC appear to substitute the practitioner’s inconsistencies (over a six-year period) as witness for probative reasoning on behalf of the Tribunal. The HCCC otherwise heavily rely on the evidence of Mr Rehaan, emphasising the importance of the Tribunal responding to the substantial and clearly articulated arguments in relation to his evidence. There is no escaping that Mr Rehaan was fundamental to the HCCC’s case on this allegation. It was a key battleground between the parties. The Tribunal simply fail to respond. The Tribunal have failed to exercise their jurisdiction and, in doing so have denied the practitioner procedural fairness.
No single paragraph in the HCCC’s submissions at [53] – [65] illustrates objective evidence that establishes the practitioner had kissed Patient A in the uber. The allegation is serious. The allegation is not simply that the practitioner kissed Patient A, but, on Patient A’s evidence, kissed her with ambiguity as to consent. The allegation was very serious. In place of objective evidence, the HCCC seek to rely on circumstance and an imputation of sexual conduct to other events. None of which establish to a requisite standard that the practitioner did in fact kiss Patient A in the Uber on that night.

Resolution

Firstly, while the practitioner criticised HCCC’s efforts to get Mr Rehaan to sign his statement and to give evidence, in my view that is unwarranted.
Both parties, with different views, have canvassed how the Uber driver came to give evidence and they are both selective as to the evidence he gave. The Tribunal considered his evidence and made factual findings. The Uber driver conceded that he did not see the practitioner and Patient A kissing in the Uber, but in cross-examination he gave evidence “I sort of heard from the sounds that they were hugging and kissing as a couple”. They were sitting together in the back seat. He saw them hugging outside the restaurant and when Patient A got out of the Uber, it was something more than “one hug before the Uber ride and one hug goodbye”. The practitioner admitted getting out of the Uber and giving Patient A a hug goodbye. In the light of this evidence, the Tribunal was entitled to reach its conclusion.
In these circumstances, it is my view there was no error of law or jurisdictional errors made by the Tribunal. Ground 9 of the Appeal fails.
[Ground 10 has been dealt with earlier in this judgment].

Appeal ground 11 – Conduct of a sexual nature

This ground of appeal is that the Tribunal have erred in finding, at [6], [257] and [269] that the practitioner had engaged in conduct of a sexual nature toward Patient A.

The practitioner’s submissions

This was a grave allegation. Especially in the context of the surrounding allegations which included a false allegation of sexual assault.
Particular 1(c) was an allegation that the practitioner Hugged Patient A at the conclusion of a number consultations. The practitioner had admitted to hugging Patient A on a couple of occasions in a human response to a distressed patient and this was not sexual in nature.
The Tribunal’s reasoning on this issue is at [257](3) of the decision where the Tribunal stated:

“(3) by reason of [Complaint Two] Particulars 1(c) and 5(d) in combination, the practitioner engaged in inappropriate conduct of a sexual nature towards Patient A.”

The Tribunal is unequivocal in their conclusion that it is the combination of the particulars that have supported a finding of sexual conduct toward Patient A. That is to say that the hug was a determinative factor in concluding that the practitioner had engaged in conduct of a sexual nature toward patient A.
The practitioner always maintained that the hugs were a human response to a distressed Patient. They were devoid of sexuality.
The Tribunal did not respond to that substantial and clearly articulated argument or provide a lawful path of reasoning as to their conclusion that the hugs at the conclusion of a consultation were sexual in nature. There is an unexplained leap in the Tribunal’s reasoning between providing a hug to a distressed patient and a conclusion that the hug was sexual in nature. The two are not the same and therein lies the unexplained gap in the Tribunal’s reasoning.
The Tribunal have failed to respond to a substantial and clearly articulated argument and accordingly, constructively failed to exercise their jurisdiction.
The Tribunal have failed to provide lawful reasons amounting to an error on the face of the record.
A finding that the hugs at the conclusion of the consultation were sexual in nature are legally unreasonable. The finding is unsupported by any more than the surrounding allegations in Complaint Two, Particular (1). The Tribunal has failed to provide evident and intelligible justification for their conclusion and the finding is legally unreasonable.

The HCCC’s submissions

The Tribunal's reasons are not "unequivocal ... that the hug was a determinative factor in concluding that the practitioner had engaged in conduct of a sexual nature towards Patient A".
The Tribunal made a finding that the practitioner had kissed and hugged Patient A after their dinner at the restaurant, and on the Uber ride home.
The Tribunal found that the hug was a determinative factor in concluding that the practitioner had engaged in conduct of a sexual nature towards Patient A".
That alone was plainly "conduct of a sexual nature" and not only was that characterisation open, but it likely would have been legally unreasonable to find otherwise.
Irrespective of any findings made by the Tribunal as to whether the practitioner had hugged Patient A in the course of therapy, it would almost necessarily had to have found that - by reason of his conduct as found at the restaurant - he had engaged in conduct of a sexual nature towards Patient A.
The Tribunal made a finding that the practitioner had hugged Patient A in a number of therapy sessions, in the context of other boundary crossing behaviour. Those sessions were close in time to the restaurant dinner (it having occurred less than three months after therapy had commenced) and provided an adequate basis on which to infer that the practitioner’s conduct in hugging Patient A was not "devoid of sexuality".
That finding is certainly not legally unreasonable. Even if it were though, no material difference arises unless the practitioner can also overturn the finding that the practitioner hugged and kissed Patient A after the dinner, and in the Uber ride home.
Finally, and rhetorically, what precisely a "platonic" hug is in the context of a treating psychologist and a patient with a history of sexual abuse is never (and was never) articulated by the practitioner.
The HCCC does not articulate where in the decision the Tribunal explain why or how the HCCC has concluded that hugging at the conclusion of a therapy session was sexual in nature. The Tribunal does not provide reasons for that conclusion.
There is a leap in the reasons that is unexplained. The finding in and of itself heightens the seriousness of accepting a hug at the end of a particularly trying therapy session. Rather than an incidental boundary violation, offering comfort in a human response, the Tribunal, without reason, has simply found that the hug(s) constitute conduct of a sexual nature.
Whilst the HCCC, no doubt, will go to some length to emphasise some context or circumstance, the Tribunal is very clear to say that the finding of sexual conduct rests upon 1(c) and 5(d) only.
If, as the practitioner contends, the findings at Ground 9 are established, then Ground 11 is successful. However, the practitioner maintains that the characterisation, without supporting reasons, that the hugs at 1(c) are incapable of characterisation of a sexual in nature and amount to no reasonable evidence findings, legally unreasonable findings and a failure to provide lawful reasons.

Resolution

The practitioner admitted hugging Patient A once when the Uber arrived to pick them up from the restaurant. After picking up his passengers, the Uber driver admitted that he did not see the practitioner and Patient A’s lips lock. His evidence was based only their body language and they were sitting in the back seat next to each other.
The Tribunal made a finding that the practitioner had kissed and hugged Patient A after their dinner at the restaurant, and on the Uber ride home.
The Tribunal was entitled to reach the conclusion it did on the Briginshaw test. In these circumstances, this ground of appeal fails.

Ground 12 – was the dinner an exposure therapy session?

Ground 12: The Tribunal erred in finding (decision at [157]) that the dinner was never intended to be an exposure session.
The practitioner’s submissions
The Tribunal erred in finding, at [157], that the dinner event was never intended to be an exposure session.
On 7 July 2016, (the day when the “exposure session” was to take place) the practitioner’s clinical notes read:

“… Accordingly dinner was agreed upon in an effort to give [Patient A] some confidence that she was worthy and also to use this as an opportunity to expose herself to anxiety situations in a public setting. Dinner scheduled for 9/7/16.

The practitioner’s progress notes had been reviewed by the HCCC’s expert witness who considered that the practitioner had kept reasonable notes. The progress notes were before the Tribunal and had been brought to the attention of the Tribunal in oral submissions. The validity of the file note is unchallenged.
The substance of the file note describes exposure to anxiety - the very description of an exposure session. That is the substantive core of the progress note. A description of an event to expose the patient to her anxieties in a public setting.
Despite this, the Tribunal rejected that evidence because the words “exposure session” were not used. Not because the event was, in substance, intended to expose a patient to anxiety. The determinative factor for the Tribunal’s finding was a delayed description of the event, not the substance of the intention behind the event.
In this light the Tribunal appear to accuse the practitioner of retrospectively identifying the dinner event as an exposure session when it is clear from the progress note prior to the event that the substance of the event was to introduce Patient A to her anxiety in a public setting.
The Tribunal then made an adverse finding against the practitioner for not referring to the event as an exposure session until 19 February 2020, which was over a year before the HCCC had brought its complaint against the practitioner.
The Tribunal’s reasons are irreconcilable with the available evidence. The finding is not open to the Tribunal on the available evidence. The finding is a no evidence finding. In the alternative the finding lacks evident and intelligible justification. Further the finding rests upon a mistaken interpretation of the evidence that has afflicted the exercise of their decision-making power, resulting in an erroneous finding. In any of those alternatives, the Tribunal has constructively failed to lawfully exercise their jurisdiction.

The HCCC’s submissions

Again, and similar to the challenges to findings as to the practitioner consuming alcohol, and kissing and hugging Patient A, it is highly artificial of the practitioner to treat the Tribunal's reasons setting out its conclusion (at [157]) as containing the whole of its reasoning on the issue.
The Tribunal in its reasons carefully sets out, in considerable detail, the evidence that it considered relevant. This was not done in some formulaic way, for instance by simply setting out the submissions of each side, but in a way that identifies that the Tribunal was engaged in an active, intellectual process of considering the evidence and submissions.
As to the practitioner’s clinical note of 7 July 2016, the Tribunal clearly considered it. It did so in the Tribunal’s decision at [157] which is impugned by the practitioner, but not extracted in his submissions:
In contrast the practitioner’s first written statement dated 17 January 2018 and which he adopted as being true in the course of cross-examination) said nothing about the evening being "exposure therapy" and instead said:

“I acknowledge that in the context of [Patient A] being my patient, it was inappropriate for me to have had a social engagement with her, and it is a matter that will not be repeated.”

His second statement dated 25 May 2018 also made no mention of the dinner being for the purposes of "exposure therapy" and instead stated:

“I mistakenly thought that taking [Patient A] out to dinner would be therapeutically beneficial as it would give her a vote of confidence and enable her to view herself as worthy of another person's time.”

No literature about exposure therapy being conducted in this manner was ever tendered (or identified) by the practitioner. His expert expressly did not comment on this aspect of the Complaint, which must be taken to be an intentional forensic choice.
No explanation was ever provided by the practitioner as to why he would choose to engage in exposure therapy in this manner for such a complex patient; nor did he lead evidence that he consulted with colleagues or undertook research before undertaking the "therapy". He was unable in cross-examination to plausibly explain why he had chosen a licensed venue, given Patient A's alcohol issues.
It is difficult to understand the practitioner's contention that there was "no evidence" to support the finding that the dinner was not an exposure therapy session when, in a practical sense, it was on the practitioner to prove that it was so. That was his case. It certainly does not automatically arise, and on its face has an inherent implausibility.
No compelling evidence to make out that case was ever led, apart from the practitioner’s own assertions, which were at various times inconsistent, implausible or unconvincing. The Tribunal, engaging in orthodox reasoning, rejected that evidence.

The practitioner’s submissions in reply

The file note plainly illustrates that the practitioner had intended, for therapeutic purposes, to expose Patient A to her anxieties. Whether or not the exposure was successful, unsuccessful or misguided is not the point. The finding that the dinner was never intended to expose Patient A to her anxieties, as an exposure session, amounts to a jurisdictional error.

Resolution

The practitioner failed to mention the exposure session in his first written statement. I accept that in his latter written statement that the practitioner referred to dinner being therapeutically beneficial, and he referred to exposure therapy in his file note the day before the dinner.
At [157], the Tribunal stated:

“As to the practitioner, we see considerable substance in the Commission's submissions about his evasiveness, and the recent invention of some of his evidence, in particular, we do not accept that the dinner at Bathers Pavilion was ever intended to be an exposure session. That is because:
the expression "exposure session" was never mentioned in the practitioner's Progress Notes before the dinner, although the practitioner's Progress Note for 7 June 2016 does state that the dinner would be used to "expose" Patient A to anxiety situations in a public setting;
the expression "exposure session" not mentioned in the practitioner's statement of 17 January 2018;
the dinner was not described as such in the practitioner's evidence to the Council on 22 January 2022;
the expression "exposure session" was not mentioned as such in the practitioner's statement of 25 May 2018 (although the practitioner did refer to the dinner as being "therapeutically beneficial");”

The Tribunal Member made a finding that both Patient A and the practitioner’s conduct were unsatisfactory and that the evidence of each of them must be approached with considerable caution. In addition it found that the practitioner did not always give responsive answers and gave examples at [160], such as at [160](4) and (5):

(4) we found particularly unpersuasive his explanation as to why he never mentioned "all this preparation" that the practitioner said he undertook for the exposure session (particularly as he was represented at all times):
Why would I put that in, in my affidavit? I don't see why that would be necessary to put in. There was no, there was no allegation that anything untoward happened prior to the dinner. There was false allegations that I went in there after the dinner, but prior, there was prior, there was no allegation that I'd done anything improper. So, I just put it in that I went into her house briefly, because that's what I did. Now, I didn't think that it was necessary for me to write, "We discussed relaxation strategies, PMR, grounding exercises," I don't see how that would be of any relevance to you or would be any relevance in this sort of setting. So that's why I didn't write it.

(5) we also found his evidence set out above at [137] that while he was prepared to spend $300 on the dinner, take Patient A out to a nice restaurant and willing to lie to his wife about it, but was not willing to have Patient A sit in his car, "in his 'personal space", wholly unconvincing, unpersuasive and simply not credible.

In summary, it is not to the point as the practitioner submitted that the Tribunal reached its decision on the basis that the practitioner did not refer to the dinner as an “exposure session”.
In contrast the practitioner’s first written statement dated 17 January 2018 and which he adopted as being true in the course of cross-examination) said nothing about the evening being "exposure therapy" and instead said:

“I acknowledge that in the context of [Patient A] being my patient, it was inappropriate for me to have had a social engagement with her, and it is a matter that will not be repeated.”

His second statement dated 25 May 2018 also made no mention of the dinner being for the purposes of "exposure therapy" and instead stated:

“I mistakenly thought that taking [Patient A] out to dinner would be therapeutically beneficial as it would give her a vote of confidence and enable her to view herself as worthy of another person's time.”

The Tribunal was, in the light of the events surrounding the dinner at the restaurant, entitled to reach the conclusion that the dinner was not an exposure session. There is no error of law or jurisdictional error. This ground of appeal fails.
As to Complaint Two, the Tribunal made the following findings at [257]-[260]:

Consideration of Complaint Two
257. The conduct we have found established is as follows:
(1)    at the end of a number of consultations at the practice between 22 April 2016 and 48 July 2017 the practitioner failed to maintain appropriate professional boundaries in that the practitioner hugged Patient A;
(2)    on 9 July 2016, the practitioner failed to maintain appropriate professional boundaries in that he inappropriately took Patent A to dinner at [the restaurant] in circumstances where:
(a)    he was Patient A’s treating psychologist;
(b)    alcohol was consumed by the practitioner and Patient A;
(c)    the practitioner inappropriately kissed and touched Patient A in the Uber car ride back to her residence in Russell Lea.
(3)    by reason of Particulars 1(c) and 5(d) in combination, the practitioner engaged in inappropriate conduct of a sexual nature towards Patient A;
(4)   on 22 January 2018, the practitioner provided false and/or misleading information to the Psychology Council of New South Wales, namely he denied consuming alcohol at dinner with Patient A at [the restaurant] on 9 July 2016 when he had consumed alcohol at dinner on that occasion.
258.    We have set out above Prof Kenny’s views that taking Patient A out to dinner and consuming alcohol at that dinner was a serious boundary violation, and was conduct that fell significantly below the standard expected of a practitioner of equivalent training and experience. Prof Kenny said that she was “strongly critical” of this conduct.
259.    We consider that her reasons justify her conclusion.
260. In the circumstances, we find Complaint Two established, that is that under s 139B(1)(l) of the National Law the practitioner engaged in conduct that was improper or unethical relating to the practice or purported practice of psychology.

For completeness, it is appropriate that I set out complaint Three here. It is:

COMPLAINT THREE

The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:
i.   Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration, and/or
ii.   Engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner’s registration.
PARTICULARS OF COMPLAINT THREE
1.   Complaint Two, Particulars 1, 2, 3, 5, 6, 7 and 8 are relied upon individually.
2.   Complaint One and Two and the Particulars thereof are relied upon cumulatively.

In dealing with Complaint Three (that the conduct also amounted to professional misconduct), the Tribunal accepted a submission that "if any of Particulars 1, 2, 3, 5 or 8 of Complaint Two are proved, this amounts to professional misconduct" (at [261]). The Tribunal had already found that particular 8 was established (at [231]), along with being satisfied that particulars 1 and 5 were partially established. The Tribunal did not take Particular 1(a) (kissing) or 1(b) (touching thighs) in its reasoning.
The HCCC submitted that the separate paths of reasoning constitute "separate findings that independently led" to the Tribunal's ultimate conclusion (SZECD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 31 per Bennett J at [28]; see also [34] - [41]), which in itself is a basis to dismiss the appeal.
In SZECD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 31, Bennett J stated at paragraphs [28] and [34]—[41]:

The independent basis for the decision
28.    In my opinion, it is clear from the second Tribunal decision that it also made findings on the assumption that the appellant’s claims, as made both to the first and second Tribunals, were accepted. That is, there were separate findings that independently led to a conclusion that the second Tribunal was not satisfied that the appellant is a person to whom Australia has protection obligations. These findings, in turn, were not dependent upon the findings of the first Tribunal or upon the rejection of the appellant’s claims by the first Tribunal and adopted by the second Tribunal.
…
The consequences of the denial of natural justice
34.    Mr Gormly submits that the denial of natural justice “infects” the whole of the second Tribunal decision.
35.    Mr Johnson, who appears for the Minister, submits that the alternative basis for the decision stands totally separate and uncontaminated, based as it was on acceptance of the appellant’s claims, contrary to the first Tribunal decision. He submits that the denial of the opportunity to make submissions about the first Tribunal decision made no difference to the outcome. The effect of his submissions is that, at the highest, the appellant would have convinced the second Tribunal to come to a different decision to that of the first Tribunal and accepted that, as at the date of the first Tribunal decision, he had a well-founded fear of persecution for a Convention reason. That, in effect, is what the second Tribunal accepted before turning to events that had occurred between the first and second Tribunal hearings.
36.    The alternative basis of the second Tribunal decision, which is not challenged, was not founded on any findings of credibility but on the changed political landscape in Bangladesh and the fact that the party of which the appellant claimed to be an active member had been elected to government since the first Tribunal decision. The alternative approach of the second Tribunal was to accept the appellant’s claims. The appellant’s claims, including his position with the BNP, the current governing political party, provided the basis for the second Tribunal’s conclusion that he had no well-founded fear of persecution by reason of false cases that had been brought against him by the Awami League. The claim that the appellant’s mother would not be in Bangladesh to protect him did not, even if accepted, support a Convention reason.
37.   Mr Gormly has not explained how the alternative basis was itself affected by the denial of procedural fairness. I cannot see how it is. This is not the case where additional evidence and submissions on the first Tribunal decision might have affected the outcome of the second Tribunal hearing. The two bases of the second Tribunal decision were founded on different issues of fact. It can be said that, had the second Tribunal informed the appellant of the possibility of its reliance on the first Tribunal decision and the appellant had made further submissions on the correctness of that decision, it could not possibly have produced a different result (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-6; Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [104]; Applicant NAFF of 2002 v Minister for Immigration and Multicultural Affairs (2004) 211 ALR 660 at [86]); Re Minister for Immigration & Multicultural & Indigenous Affairs, ex parte Lam (2003) 214 CLR 1 at [38], [122], [149] –[151 ; WALD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCR 571 at [58]).
38.   Mr Johnson submits that SAAPv Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009 and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 228 do not suggest that the whole decision is affected if there is any breach of natural justice, but only that part of the decision to which the denial of procedural fairness relates. The High Court was not in those cases considering a Tribunal decision which was based on two independent grounds.
39.   In SZCJH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1660, Sackville J at [23] adopted what was said by North J in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33], to the effect that SAAP does not stand for the proposition that a breach of s 424A (and therefore denial of procedural fairness) in relation to one ground, where there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls.
40.    In VEAL the High Court rejected the statement in the Tribunal’s decision that in reaching its findings it had given no weight to a confidential “dob-in” letter that it had received. The Tribunal’s conclusion that it would not have regard to the letter and that the decision could be reached on other bases or information was not sufficient to obviate the requirement that the appellant be given the opportunity to respond to the information. The High Court said at [18]: ‘Deciding that it could reach its conclusion on other bases did not discharge the Tribunal’s obligation to give the appellant procedural fairness’ and at [19]: ‘The relevant inquiry is: what procedures should have been followed? The relevant inquiry is neither what decision should the decision-maker have made, nor what reasons did the decision-maker give for the conclusion reached’.
41.   This is not a case where the outcome was determined by one core conclusion reached by the Tribunal. The “infected” conclusion was that, as at the date of the first Tribunal decision, the appellant did not have a well-founded fear of persecution. The second Tribunal based its independent ground on an assumption that the “infected” conclusion was wrong.

Resolution

Each particular of complaints one and two individually and cumulatively form the basis to find that complaint three is made out. Overall, the practitioner’s submissions were written minutely and finely with an eye keenly attuned to the perception of error.

Result

The result is that the plaintiff’s appeal has failed. The amended summons dated 17 February 2023 is dismissed. The orders of the Tribunal dated 18 November 2022 are affirmed.

Costs

Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs.

THE COURT ORDERS THAT:

The amended summons dated 17 February 2023 is dismissed.
The orders of the Tribunal dated 18 November 2022 are affirmed.
The plaintiff is to pay the defendant’s costs.

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Decision last updated: 15 December 2023

Medium Neutral Citation:	Tsolis v Health Care Complaints Commission [2023] NSWSC 1599
Hearing dates:	9 June 2023
Date of orders:	15 December 2023
Decision date:	15 December 2023
Jurisdiction:	Common Law
Before:	Harrison AsJ
Decision:	(1) The amended summons dated 17 February 2023 is dismissed. (2) The orders of the Tribunal dated 18 November 2022 are affirmed. (3) The plaintiff is to pay the defendant’s costs.
Catchwords:	APPEAL – Tribunal decision – Unsatisfactory professional conduct – Professional misconduct – Psychologist – Patient.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) cl 29 Civil Procedure Act2005 (NSW) s 56 Health Practitioner Regulation National Law (NSW) ss 139, 139A, 139B, 139C, 139E, 144 and 150 Supreme Court Act 1970 (NSW) s 69
Cases Cited:	Briginshaw v Briginshaw (1983) 6 CLR 336 Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 197 ALR 389; [2003] HCA 2 Health Care Complaints Commission v Tsolis [2022] NSWCATOD 109 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 1 SZECD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 31
Category:	Principal judgment
Parties:	Sava Tsolis (Plaintiff) Health Care Complaints Commission (Defendant)
Representation:	Counsel: M. Jones (Plaintiff) I. Chaterjee (Defendant) Solicitors: KPT Legal Defence Lawyers (Plaintiff)
File Number(s):	2022/378468