Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Balafas (No 3) [2021] NSWCATOD 176 Hearing dates: On the papers after 22 October 2021 Date of orders: 04 November 2021 Decision date: 04 November 2021 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President Decision: (1) Dr Balafas's application to re-open the Stage One proceedings to allow new evidence to be tendered is granted. (2) Within 14 days of the date of this decision, Dr Balafas should provide any written submissions in response to the submissions of the Health Care Complaints Commission about the relevance and reliability of the new evidence. Catchwords: EVIDENCE – Course of evidence – Re-opening case – where respondent sought to re-open case to tender evidence from treating psychiatrist obtained after the hearing had concluded – whether Tribunal should exercise discretion to re-open case Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Cases Cited: BuildPlatinum Pty Limited v Micaleff [2021] NSWCATAP 129 Health Care Complaints Commission v Balafas [2021] NSWCATOD 153 Matson v Attorney-General (Cth) [2021] FCA 161 Category: Procedural rulings Parties: Health Care Complaints Commission (Applicant) John Balafas (Respondent) Representation: Counsel: R Mathur (Applicant) P Dwyer (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Unsworth Legal Pty Limited (Respondent) File Number(s): 2019/00246014 2020/00016868 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the names of addresses of Patient A and Patient B is prohibited. REASONS FOR DECISION Overview 1. The Health Care Complaints Commission (the Commission) has brought disciplinary proceedings against Dr Balafas which include allegations of sexual misconduct against two female patients in 2009. Dr Balafas denies any sexual misconduct. The Stage One disciplinary proceedings concluded on 14 May 2021. After written submissions were provided, the Tribunal reserved its decision on 21 May 2021. Dr Balafas applies for those proceedings to be re-opened. He has new evidence including two reports from his treating psychiatrist, Dr Atherton, which are said to be relevant to his demeanour and his cognition when giving evidence. The Commission opposes the application to re-open the proceedings saying that some aspects of the new evidence are not relevant, other aspects should not be admitted into evidence and the remainder, if admitted, should be given little or no weight. Background 1. After the hearing for the Stage one proceedings, Dr Balafas applied for the proceedings to be set aside for an irregularity. That application was made under s 53 of the Civil and Administrative Tribunal Act 2013 (NSW) (Tribunal Act). I will refer to it as the s 53 application. At the conclusion of oral argument on that application, counsel for Dr Balafas indicated that if the application was unsuccessful, Dr Balafas may make a separate application for the proceedings to be re-opened. The s 53 application was unsuccessful: Health Care Complaints Commission v Balafas [2021] NSWCATOD 153. 2. Below is background information I set out in that decision at [36] – [37]. I have added the words in brackets. "On Saturday 15 May 2021, the day after the five day hearing had finished, Dr Balafas had a telephone conversation with Mr Davey (Dr Balafas's solicitor). Mr Davey reported that during that conversation Dr Balafas was "upset, crying and speaking rapidly". Dr Balafas consulted his treating psychiatrist, Dr Atherton, the following Monday, 17 May 2021. Dr Atherton admitted Dr Balafas to a private hospital on 18 May 2021. He was discharged on 21 May 2021 and returned to work, part-time. At the request of Mr Davey, Dr Atherton prepared a report. Following a directions hearing and the obtaining of the audio recording of Dr Balafas' evidence at the hearing, Dr Atherton prepared a second report dated 16 June 2021. Dr Atherton had been treating Dr Balafas for two and a half years prior to the hearing and had started him on anti-depressants in January 2020." New evidence 1. The new evidence that Dr Balafas seeks to tender in the Stage One proceedings, as set out in the Respondent's submissions, is: "I. Report of Dr Michael Atherton 17 May 2021 (except for highlighted portions). II. Letter of Instruction to Dr Michael Atherton from Andrew Davey, Solicitor, 17 May 2021 (except for paragraph highlighted). III. Report of Dr Michael Atherton 14 June 2021 (except for highlighted portions). IV. Letter of Instruction to Dr Michael Atherton from Andrew Davey, Solicitor. V. Audio recording of the evidence of Dr Michael Atherton on s 53 application. VI. Portion of medical records of Dr Balafas relating to treatment by Dr Michael Atherton, tendered on s 53 application." Power to re-open proceedings 1. Under s 38(1) of the Tribunal Act: (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. 1. I am not aware of any express provision in the Tribunal Act or the procedural rules about proceedings being re-opened. The term "determine its own procedure" in s 38(1) includes deciding to re-open proceedings which have concluded but where the Tribunal has not made any orders or delivered the reasons for decision. Whether to re-open the proceedings is a procedural question about the course of the evidence. The Tribunal must exercise the discretion to re-open the proceedings keeping in mind the guiding principle in s 36(1) of the Tribunal Act: (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 1. In BuildPlatinum Pty Limited v Micaleff [2021] NSWCATAP 129 at [108] the Appeal Panel of the Tribunal quoted White J's non-exhaustive summary of the matters bearing on the interests of justice when deciding whether to re-open proceedings in Matson v Attorney-General (Cth) [2021] FCA 161 at [180]: "(a) the public interest (and the interests of the particular parties) in litigation being conducted efficiently and expeditiously; (b) the public interest in the finality of litigation, with the consequent expectation that litigants will present all their evidence and submissions at the one hearing; (c) the significance of the proposed new evidence and submissions in the context of the hearing; (d) the explanation for the evidence not having been led at the trial; (e) the likely prejudice to the opposing party if the application is allowed; (f) the potential detriment to the applying party if the application is refused; and (g) any delay by an applicant in seeking leave to reopen." 1. The Tribunal has discretion to re-open the proceedings to allow new evidence to be tendered. The considerations listed by White J are relevant to the exercise of that discretion. Should the proceedings be re-opened to take into account some or all of the new evidence? The issue 1. The Commission accepts that the Tribunal has power to re-open the Stage One proceedings. However, the Commission submits that the issue of whether to re-open proceedings does not arise unless the new evidence is relevant to the question of proof of the Complaint. While that proposition is undoubtedly correct, the Commission concedes that at least some aspects of the new evidence are relevant. As White J outlined in the passage quoted above, the Tribunal must weigh the significance of the proposed new evidence and the potential detriment to Dr Balafas of the application being refused, against other public and private considerations. Public and private considerations against re-opening 1. There is a strong public interest in the finality of litigation. Litigants are expected to present all their evidence and submissions at the one hearing. The Commission submits that if it was evident during the hearing that Dr Balafas's cognition had deteriorated, his representatives should have raised that issue and sought an adjournment. Dr Balafas submits that at the time his lawyers made submissions about the pressure of the proceedings, they were not aware of the severity or the way in which his condition was impacting on him when giving evidence. That evidence became available only after his acute medical ill health led him to see Dr Atherton and to be hospitalised post hearing. 2. The decision on the Stage 1 proceedings will be delayed if the proceedings are re-opened. Dr Balafas submits that there will be no undue delay because the evidence sought to be tendered is in written form and there will be no further oral hearing. Dr Balafas did not delay in seeking to reopen Stage 1 proceedings. When the decision relating to the s 53 application was published, Dr Balafas's legal representatives contacted the Commission and arrangements were made to relist this matter for a directions hearing to address the application to reopen Stage 1 proceedings. 3. Finally, the Commission is not prejudiced by the application given the transcript of the cross examination of Dr Atherton will also be admitted. The Commission has provided submissions on the relevance and reliability of that evidence. Significance of the new evidence and potential prejudice to Dr Balafas if the proceedings are not re-opened Submissions as to demeanour 1. The significance of the new evidence must first be viewed in the context of the Commission's submissions as to Dr Balafas's demeanour when giving evidence and his alleged lack of knowledge and skill in relation to obtaining informed consent from a patient. Dr Balafas gave the following summary of the parties' submissions on those topics during the Stage 1 hearing. "On the final day of the hearing, the Commission's counsel made the following submission: (Transcript, 15 May 2021, p530.4): His own evidence made clear his lack of clinical skills and his knowledge and his care, and in our submissions, his own evidence brought him to sharp focus, proof of unethical and improper conduct. His demeanour in our submission, his presentation in this Court, in giving leeway for the very stressful circumstances, he no doubt found himself in. His demeanour and presentation did not serve him well." 1. In its written submissions the Commission repeated its submission that Dr Balafas's demeanour is relevant when making findings of fact. At [5(iii)] of the submissions in reply dated 24 May 2021, the Commission wrote that: "His responses coupled with his demeanour in the witness box on this issue, must be assessed by the Tribunal. Individually and in combination, they would lead to a finding that he is not a witness of truth." 1. The Commission repeated the submissions about demeanour in its summary of why the Tribunal would find the complaints involving Patient A and Patient B proven. With respect to Patient A, it was submitted: "His demeanour, his presentation did not serve him well even giving full account to the stresses in giving evidence and the toll that any prosecution takes on a practitioner" (Commission's Submissions in Reply, 24 May 2021, p 17). With respect to Patient B, the Commission asserted that: "Cross examination of Balafas, his responses, his demeanour- strong probative evidence that Complaint One proved" (Commission's Submissions in Reply, 24 May 2021, p 18). 2. In addition to being relevant to demeanour, the Commission submitted that the Tribunal should take into account Dr Balafas' poor performance in the witness box, in assessing his level of knowledge and skill. The Commission submitted (Commission's Submissions in Reply, 24 May 2021, pars 13-14): "13. The respondent's various written responses never address the issue of what words were in fact used by him (usual practise or otherwise) in order to obtain informed consent for the three intimate examinations. In oral evidence he stumbled and had lengthy pauses before he ineptly outlined what words he used previously and what words he uses now. The respondent's oral evidence went beyond an assessment of demeanour and squarely highlighted a lack of knowledge and skill. 14. That lack of knowledge and skill fell significantly below the standards of a practitioner who had been in practise for 9 years at the relevant time. The process of obtaining informed consent for intimate examinations is not complicated or technically difficult, yet crucial to the practise of medicine. It requires a simple explanation as to how the examination is to be conducted, and why." 1. The issue was revisited by the Commission in the summary of why the Tribunal would find the complaint regarding Patient A proved, where it was stated: "His own evidence – made clear his lack of clinical skills, knowledge, care." (Commission's Submissions in Reply, 24 May 2021, p 17). With respect to Patient B, the Commission submitted that the long pauses and stumbling of Dr Balafas can be relied on for a finding that Dr Balafas lacked credibility. It was submitted (Commission's Submissions in Reply, 24 May 2021, p 18): "Given an opportunity in witness box- yesterday- re breast examination- stumbled. His pauses were exceedingly long- for someone who asserts he 'would have' adopted a 'usual practise', the words of which he could barely articulate- without prompting. He could barely speak to what words are used in his 'usual practise' of obtaining consent. Demonstrated a total lack of knowledge." 1. During oral submissions in reply, Counsel for Dr Balafas submitted that Dr Balafas's demeanour was not troubling, and that the Tribunal should consider a number of factors, that made it "particularly difficult for Dr Balafas" giving evidence. They were, in summary, the difficulty remembering events given the lengthy delay in bringing the proceedings, the stress of being cross examined when his livelihood was at stake; the extreme pressure of the proceedings, cross examination over a lengthy period of time and the nature of the allegations and the nature of cross examination itself (Transcript, 15 May 2021, p 537-539). Dr Atherton's evidence 1. In his submissions, Dr Balafas highlights the following aspects of Dr Atherton's reports: "There is no doubt that his mental condition would have had a severe impact on his ability to take part in the recent proceedings. When dealing with these matters he shows considerable anxiety and stress which interferes with his cognitive capacities. He panics easily and this would further deteriorate his ability to focus and concentrate (Report of 17 May 2021, p 2). It is not long into the questioning before he appears confused and struggles to follow the line of questioning and the directions of the Commission's Barrister (Report of 14 June 2021, p 3). There were numerous examples of challenging questions, but Dr Balafas appeared to lose his train of thought and he seemed unable to follow what the actual questions were, specifically in a number of the Barrister's questions. I accept that some of these were long and often compromised (sic) elements which Dr Balafas subsequently denies, but even so, he seemed unable to cope with the particular referencing directions and when challenged on some of the very distressing allegations he was mixing his words and used odd words out of place such as "defensive" compared to, one presumes, "defensible" (Report of 14 June 2021, p 3). He also admitted to feeling confused and unsure of where things were progressing. He took time to read information but even when reading it reported that "I am confused here, clearly I am confused here" when trying to interpret some of the information from a number of years ago at a Section 150 hearing (Report of 14 June 2021, p 3). Some of the questions appeared out of context and Dr Balafas easily got confused by this (Report of 14 June 2021, p 3). On some occasions, Dr Balafas struggled to read and there were lots of deep sighs and long breaths. His recall for events of 2017 appeared poor and when he is taken back over his record-keeping, he becomes defensiveness and there is agitation in his voice (Report of 14 June 2021, p 4). On the second day of the hearing he sounded extremely tired and again his memory appeared poor. He was sighing frequently and the tiredness was again evident from the sound of his voice in the recording. There was a tendency to go over material which he had already been questioned about and he was again confused about numbers and paragraphs and seemed to have difficulty staying on-track with numerous "can you repeat the question" requests (Report of 14 June 2021, p 4). It again appeared combative at times which from my understanding and knowledge of Dr Balafas, is out of character. He continued to sigh heavily and was unable to respond to the level of questioning or the complexity of some of the questions, in a manner I would have expected from his usual presentation (Report of 14 June 2021, p 4)." Relevance of new evidence 1. Dr Balafas seeks to tender the new evidence for two purposes. The first is to enable the Tribunal to properly assess Dr Balafas's demeanour and, in particular, to rebut the Commission's submission that his demeanour is suggestive of guilt. The second is to explain Dr Balafas's "apparent cognitive difficulties" when he gave evidence in the Stage One proceedings. The Commission submitted that his inability to articulate what he would tell a patient when seeking to obtain informed consent, is suggestive of a lack of knowledge and skill on that issue. Dr Atherton's opinion is that his considerable anxiety and stress interfered with his cognitive capacities when giving evidence. In short, Dr Balafas submits that Dr Atherton's reports are relevant to the issue of his demeanour because they provide an alternative explanation for his presentation during the hearing. Commission's submissions 1. The Commission submits that the quality of Dr Atherton's evidence overall, informed by what was elucidated in oral evidence, falls short of reaching the threshold test of relevance. We understand the Commission to be saying, firstly, that some of the new evidence is relevant but the significance of the proposed new evidence and the potential detriment to Dr Balafas of the application being refused does not outweigh the public and private considerations against re-opening the proceedings. Secondly, some of the new evidence is not relevant and should not be admitted into evidence even if the proceedings are re-opened. Finally, the Commission submitted that even if certain new evidence is admitted, it should be assessed together with other new evidence. 2. The Commission divided Dr Atherton's evidence into four categories: "i. Dr Atherton's diagnosis of Dr Balafas' 'adjustment disorder with depressed mood and anxiety depression' in January 2020, prior to the lead up to the Stage One Hearing. ii. Dr Atherton's opinion as to the exacerbation of the adjustment disorder with depressed mood and anxiety in the 4-5 weeks preceding the Stage One hearing and his retrospective diagnosis of a Major Depressive Disorder. iii. Dr Atherton's opinion that there exists a nexus between Dr Balafas' diagnosis of a Major Depressive Disorder during the week of the Stage One hearing and its impact on Dr Balafas' ability to answer questions and his demeanour; iv. Dr Atherton's review, assessment, diagnosis and treatment of Dr Balafas 3 days post the conclusion of the Stage One Hearing." Category One – Dr Atherton's 2020 diagnosis 1. The Commission concedes that the first category of evidence is relevant because Dr Atherton's opinion as to Dr Balafas's pre-existing diagnosis is consistent with the sworn evidence of Dr Balafas. The pre-existing diagnosis is relevant to the truthfulness and credibility of Dr Balafas's evidence that, among other stressors in his life, this case has left him feeling "very depressed and unwell". Category 2 – Dr Atherton's diagnosis of Major Depressive Disorder 1. As to category 2, apart from Dr Atherton's opinion as to Dr Balafas's cognitive function, the Commission concedes that those portions of Dr Atherton's evidence about a retrospective diagnosis of an evolving Major Depressive Disorder in the weeks preceding the Stage One hearing are relevant. Category 3 – nexus between diagnosis and impact on Dr Balafas' evidence 1. As to category 3, Dr Balafas's condition during the hearing, the Commission does not regard as relevant any opinion of Dr Atherton that his retrospective diagnosis of an evolving Major Depressive Disorder impaired Dr Balafas's ability to give reliable and credible evidence or affected his demeanour in the witness box. We understand the Commission's submission to be that while such evidence would be relevant, in this case the evidence is not reliable and the proceedings should not be re-opened to admit that evidence. The Commission gives five reasons for that submission. 2. First, Dr Atherton is Dr Balafas's treating psychiatrist and is not an "expert witness" as defined under the Expert Code of Conduct. His impartiality is compromised by his ongoing therapeutic relationship with Dr Balafas. An expert must bring an independent mind to the case no matter who requests their opinions. They are not advocates for one side or the other. 3. Secondly, for an expert witness's opinions to be admissible in evidence, the witness must be qualified in a field of specialised knowledge; their knowledge must be based on training, study or experience (or a combination of them); and their opinions must be based "wholly or substantially" on the expert's specialist knowledge: Evidence Act 1995 (NSW), s 79. While the Tribunal is not bound by the rules of evidence, only relevant and reliable expert evidence should be taken into account. Dr Atherton has limited experience with court proceedings and the need to test evidence, demonstrated best by his own query recorded in the clinical records -"why is cross examination so important?" His ability to make comment on 'demeanour' and its relationship to guilt or innocence is considerably more vexed than the courts, which Dr Balafas's counsel outlined in detail in written submissions of 18 May 2021 at pars 72-80. 4. Thirdly, the Commission argues that Dr Atherton's qualification as a psychiatrist does not make him better placed to assess Dr Balafas's demeanour. He has done so retrospectively and in circumstances where he was not present to observe Dr Balafas in court. Dr Atherton has never had or reviewed the material which underpins the allegations that Dr Balafas was being questioned on. 5. Fourthly, even if these issues are put to one side, Dr Atherton has given no clear evidence of any material impact the diagnosis of Major Depressive Disorder had on Dr Balafas's ability to answer questions reliably. The height of the evidence is that his depression, anxiety and stress are likely to have resulted in "poor performance". According to the Commission, such a finding is open in the absence of Dr Atherton's evidence based on Dr Balafas's own evidence in re-examination that "Giving evidence I feel very anxious and very upset…because of the allegations against me" and "The allegations of the sexual nature is extremely- is extremely troubling and very very depressing for me and it's made me very depressed and unwell". The Commission has already supplied written submissions regarding how the Tribunal may assess demeanour. Dr Atherton's evidence adds little if anything to the best evidence informing an assessment regarding Dr Balafas's demeanour - namely his own evidence. 6. Finally, the Commission does not agree with Dr Atherton's opinion that Dr Balafas presented with "apparent cognitive difficulties". Category 4: Condition after the hearing 1. As to category 4, the Commission does not regard Dr Atherton's evidence as to Dr Balafas' suicidal ideation and subsequent hospital admission as relevant. Dr Atherton's clinical records support the conclusion that Dr Balafas's deterioration was subsequent to, and in response to the proceedings. Evidence as to the deterioration has no bearing on the proof of the Complaints. I agree and do not admit that evidence. Weight to be accorded to admitted evidence 1. The Commission submits that if the all the evidence in category 2 and category 3 is admitted, it should be assessed taking into account Dr Atherton's oral evidence on the s 53 application. According to the Commission, a close analysis of Dr Atherton's oral evidence weakens large portions of the opinions he expresses in his written reports. 2. On 3 September 2021 Dr Atherton gave oral evidence regarding matters that influenced the opinions expressed in his two Reports of 17 May and 14 June 2021. The Commission's submissions are based on its notes of Dr Atherton's evidence. "i. That prior to listening to the audio recording of Dr Balafas' Stage One evidence Dr Atherton did not know the details of the allegations against Dr Balafas and they had not been discussed. He was aware that Dr Balafas was very distressed about the 'whole thing' [including HCCC investigation] and when he first saw Dr Balafas in early 2020, he diagnosed him with anxiety and prescribed an anti-depressant. ii. Contrary to Dr Balafas' assertion to Mr Davey in a phone call after the Stage One hearing, Dr Atherton had never diagnosed Dr Balafas with Post Traumatic Stress Disorder in relation to the IVF process he and his wife had undertaken nor in relation to Dr Balafas's reaction to the NCAT proceedings. Further he does not believe that he ever told Dr Balafas that he had diagnosed him with PTSD. iii. Dr Atherton said that the opinion that he expressed in his 17 May 2021 Report that "There is no doubt that this mental condition [Major Depressive Disorder] would have had a severe impact on his ability to take part in the recent HCCC proceedings" - was an opinion formed without having reviewed or listened to Dr Balafas' oral evidence on 13/14 May; without receiving any history from Dr Balafas post hearing of 'panic attacks' before giving evidence or during his evidence; and in circumstances where Dr Atherton agreed that the difference between a panic attack and experiencing panic is one of degree and presumably results in a sliding ability to focus. Dr Atherton gave evidence that when recording the word panic in his clinical records he was not intending to record a 'diagnostic assessment.' iv. In relation to the basis for Dr Atherton's opinion in his 1st Report that "I believe that the explanation of his behaviour during the proceedings is wholly explained by his current mental health issues" he said 'I was informed, …., that he didn't perform well. That was from his legal team. I was told that he performed out of character to someone who would normally be in these proceedings. Expertise comes from the legal team. He didn't perform well'. Dr Atherton said further that he would have taken into account the collateral history provided by Mr Davey that Dr Balafas was unable to follow questioning. Dr Atherton also gave evidence that this opinion was in part informed by Dr Balafas and his wife whose opinion it was that he 'didn't perform well', that he was 'panicking', and that he wasn't following things well. v. In relation to recordings in his clinical records of 17 May 2021, 3 days after the Stage One Hearing, Dr Atherton gave evidence that he was unsure whether the clinical record entry 'Brutal HCCC Complaint' was a history obtained from Dr Balafas, his family [wife] or Dr Balafas' legal team. The entries 'total flummox', 'panic', 'unable to follow the train of conversation' was a history he believed came from Dr Balafas' legal team. vi. Dr Atherton agreed that he could not categorically say what [if any] the impact of his mental illness (depression) had on his evidence." 18. In relation to Dr Atherton 14 June 2021 report (Second Report) which was written after listening to the audio recording of the evidence, he gave evidence that: i. His 'expertise' and ability to give an opinion on the audio recording 'I am not a linguistics expert and don't regularly listen to people giving evidence in Court - wasn't anything in the way he presented which made me feel that he wasn't depressed - the way that he interacted seemed odd to the way I knew him – seemed to interact in a way he had when he was stressed in the past.' Later in evidence Dr Atherton repeated that his comment regarding Dr Balafas appearing confused is 'based on limited linguistic experience.' ii. Dr Atherton went on to say that 'I would never claim to be able to diagnose someone on the basis of how they sound in an intensely stressful situation on an audio recording, which this was . . . but I felt that the tape didn't negate my findings and my assessment of 17 May. iii. Dr Atherton stated that his opinion in his report that Dr Balafas appeared 'combative' and 'out of character' was based on his limited knowledge of Dr Balafas through their doctor/patient relationship, a setting in which he acknowledged that he has never challenged Dr Balafas as to his truthfulness. iv. Dr Atherton agreed with the proposition that Dr Balafas' failure to give a yes or no answer to questions warranting no more, may not reflect confusion but rather reflect a witness who is evasive. v. Dr Atherton identified one of the "high points" in the transcript that lead to his opinion that Dr Balafas was mentally unwell during the hearing found on pages 312-314 of the Stage One transcript dealing with questions around clinical knowledge. Dr Atherton said in evidence that Dr Balafas 'interjects, a bit confused, could you repeat the question again please – and he doesn't appear to answer the questions he's being asked. I don't know how people normally answer these questions that are being put to them – you may be right that he was evading because he was manipulative and trying to delay proceedings – but having known how he normally converses, from that ….does not negate my previous opinion [re depression]'. Dr Atherton was then asked this question 'You cannot eliminate the possibility that his inability to answer the question is because there is a deficiency in his clinical acumen. Dr Atherton agreed. vi. Dr Atherton accepted that there are limitations to his ability to make a retrospective assessment of how a witness answers questions in light of Dr Atherton not having any of the evidence or written material in front of him with which to bring meaning to the responses made by Dr Balafas during questioning. Dr Atherton said he brought a 'non-expert assessment' to the recordings. vii. As to the opinion that Dr Balafas appeared at times confused with the questions being asked, he agreed with the proposition that the confusion could be as a result of being underprepared. 19. In relation to questions seeking clarity on a number of entries in Dr Atherton's clinical records, Dr Atherton gave evidence that in relation to the consultation on 31 May 2021 (a point in time when Dr Balafas was back working and medicated), the entry 'unable to defend himself,' 'no cross examination of the witness so as not to upset her'- were words said by Dr Balafas and they represented a position that the patient did attend for cross-examination but that the 'opportunity to cross examine the patient was not taken up by his legal team.' That appears to be inaccurate because Patient A did attend the hearing and was subject to cross-examination on two sperate days. It could not be said that the inaccuracy of Dr Balafas' account is influenced by a major Depressive Disorder, which was at that point in time being successfully medicated. 20. Contrary to Dr Atherton's 17 May Report where he opined that Dr Balafas is 'likely to remain in hospital for at least a week' based on his presentation in Dr Atherton's rooms on 17 May, Dr Balafas remained in hospital for 3 nights and on 24 May, one week after his initial presentation, Dr Balafas was 'keen to return to work', was assessed as well enough to do so on reduced hours/half days and returned to full time work on 7 June, 3 weeks after his initial presentation. 21. The Commission submits that Dr Atherton's opinion in his 17 May Report that Dr Balafas' illness had a 'severe impact' on Dr Balafas' ability to take part in the proceedings, has simply not been established on the evidence. The concessions made by Dr Atherton in his oral evidence make this plain. Likewise Dr Atherton's opinion that the 'anxiety and stress 'interferes' with his cognitive capacity' is amorphous and as a result does not assist with informing considerations of demeanour or reliability of Dr Balafas's evidence. In Dr Atherton's oral evidence, he conceded that there may be other explanations for Dr Balafas's presentation in the witness box which are entirely unrelated to his depression. He also conceded his lay, non-expert ability to interpret Dr Balafas's answers in light of his inexperience in analysing court questioning." 1. In addition to Dr Atherton's oral evidence, the Commission submits that when assessing the potential weight of the evidence to which it has objected, the Tribunal should consider the following paragraphs of Mr Davey's 30 August 2021 affidavit: "[4] Since receiving instructions to act for Dr Balafas [23 June 2020] I have conferred with him on several occasions. My observation of him was that whilst he was anxious about the proceedings, he was nonetheless articulate and composed. At no time did I form the view that he was unable to provide instructions. … [10] During the first three days of the hearing he [Dr Balafas] became increasingly fidgety and appeared teary. Whilst he engaged appropriately with me in those circumstances, I was unable to ascertain whether and when he had reviewed the material tendered in the proceedings. [11] I was present when Dr Balafas gave evidence on 13 and 14 May 2021. His presentation was at odds with the way I had previously observed him." 1. Similarly, aspects of the affidavit of Ms Bayley dated 2 September 2021 are said to be relevant to the weight to be given to Dr Atherton's evidence. Ms Bayley attests to the following steps occurring in the days preceding the hearing, presumably on instructions from Dr Balafas to his solicitor, Mr Davey: 1. on 21 April 2021, 19 days prior to hearing Dr Balafas's solicitor confirmed that he did not require Patient A's husband for cross examination: see Ms Bayley's affidavit, par 56. 2. on 28 April 2021, 12 days prior to hearing Dr Balafas's solicitor served replies to both Amended Complaints: see Ms Bayley's affidavit, par 57. 3. on 28 April 2021, 12 days prior to hearing Dr Balafas's solicitor confirmed his agreement to the filing at NCAT of an Agreed Statement of Facts, several amendments having been made that day in order to reach that agreement: see Ms Bayley's affidavit, pars 58-61. 1. The evidence of the instructing solicitors is said to be relevant to an assessment of the weight, if any, that should be given to Dr Atherton's opinion as to the impact of Dr Balafas's depression and anxiety on his cognition or reliability as a witness in the weeks preceding the Stage One hearing and during the Stage One hearing. Dr Atherton's opinion as to how Dr Balafas's cognitive function on 17 May 2021 informs an understanding of his cognitive function at the time of his evidence is said to be cursory and somewhat equivocal: "Unfortunately, as the Hearing proceeded, it is my opinion, that his Mental Health deteriorated significantly to the point where he was performing extremely poorly on cognitive testing at the time of my assessment on the 17th May 2021, and this would have surely have been evident during the trial also." Conclusion 1. The decision as to whether to exercise the discretion to re-open these proceedings is finely balanced. There is a strong public interest in the finality of litigation and of litigation being conducted efficiently and expeditiously. Those considerations must be balanced against other considerations including the significance of the proposed new evidence, the reason it was not led at the substantive hearing and the potential detriment to Dr Balafas if the application is refused. 2. Parts of Dr Atherton's evidence are summarised above at [19]. One critical opinion is that Dr Balafas's mental condition would have had a severe impact on his ability to take part in the substantive proceedings. On its face, that opinion is significant because Dr Balafas's credibility is a central issue. If we find Dr Balafas has engaged in professional misconduct, we have power to suspend or cancel his registration as a medical practitioner. If we decide on cancellation, that will have a substantial effect on Dr Balafas's reputation and his livelihood. The Stage 1 proceedings should be re-opened and the evidence listed above at [4], should be admitted into evidence. 3. The parties have agreed that if the proceedings are re-opened, each panel member should review the new evidence without the need for a further hearing. The Tribunal will then make findings having regard to that evidence as well as to the evidence that is already before it. The Commission has provided detailed submissions as to why aspects of Dr Atherton's evidence are either not reliable or not relevant. Those submissions should be before the Tribunal constituted as a four member panel. In fairness, if Dr Balafas wishes to provide submissions in response to the issues as to the relevance or reliability of Dr Atherton's evidence provided by the Commission, he should do so within 14 days of the date of these reasons for decision. Orders 1. Dr Balafas's application to re-open the Stage One proceedings to allow new evidence to be tendered is granted. 2. Within 14 days of the date of this decision, Dr Balafas should provide any written submissions in response to the submissions of the Health Care Complaints Commission about the relevance and reliability of the new evidence. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2021