Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ibrahim [2022] NSWCATOD 131 Hearing dates: 28 July 2022 Date of orders: 26 October 2022 Decision date: 26 October 2022 Jurisdiction: Occupational Division Before: R Lethbridge SC, Senior Member J Zwart, Professional Member B Scott, Professional Member M Christensen, General Member Decision: (1) That pursuant to s.64 of the Civil and Administrative Tribunal Act 2013, disclosure of the name of the person listed in the Schedule to the Health Care Complaints Commission's Application for Disciplinary Findings and Orders filed 24 March 2022 is prohibited. (2) That pursuant to s.149C(1)(c) of the National Law, the Practitioner's registration is cancelled. (3) That pursuant to s.149C(7) of the National Law, that an application for review of the order cancelling the Practitioner's registration under Division 8 may not be made for a period of 2 years from the date of these Orders. (4) That pursuant to Clause 13 of s.5D of the National Law, the Practitioner pay the costs of the Health Care Complaints Commission as agreed or assessed. Catchwords: PHARMACIST - criminal conviction - sexual intercourse with patient without consent - professional misconduct - Registration cancelled Legislation Cited: Crimes Act (NSW) 1900 Health Care Complaints Commission Act 1993 Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 366 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission [2017] NSWCA 1906 Gautam v HCCC [2021] NSWCA 85 HCCC v Mikhail [2021] NSWCATOD 103 HCCC v Wilcox [2020] NSWCATOD 10 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Russ [2021] NSWCATOD 5 Health Care Complaints Commission v Wood [2020] NSWCATOD 60 Pharmacy Council v Ibrahim [2020] NSWSC 708 Oshlack v Richmond River Council [1998] HCA 11 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Hany Samir Youssef Ibrahim (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (Self-represented) File Number(s): 2022/00084736 Publication restriction: Pursuant to s.64 of the Civil and Administrative Tribunal Act 2013, disclosure of the name of the person listed in the Schedule to the Health Care Complaints Commission's Application for Disciplinary Findings and Orders filed 24 March 2022 is prohibited. REASONS FOR DECISION Introduction 1. By Application and Complaint filed on 24 March 2022, the Health Care Complaints Commission (HCCC) commenced disciplinary proceedings in the Tribunal against Mr Hany Samir Youssef Ibrahim, a pharmacist (the Practitioner). The evidence before us established the Practitioner was first registered to practice in New South Wales on 28 June 2010. The HCCC complaint was brought in accordance with ss .39(2) and 90B(3) of the Health Care Complaints Commission Act 1993 (the Act) and s.145A of the Health Practitioner Regulation National Law (NSW) (the National Law). 2. That Complaint arises out of the conduct of the Practitioner, a 45 year old male, then a registered pharmacist who was on 11 May 2021 convicted of one (1) count of sexual intercourse without consent pursuant to s.61l of the Crimes Act 1900 (NSW). [1] It is not necessary for us to dwell on the detail of the offence. However, it is necessary to relate some of the facts relevant to the complaints before the Tribunal. The Victim was a female non-Australian national aged 19 years old at the time of the offence. She was present in Australia on a student visa and lived in an apartment building in close proximity to the pharmacy where the Practitioner then worked. 3. At approximately 8.30 pm on the date the offence was committed, the Victim attended the Practitioner's pharmacy to purchase a "morning after pill". The Practitioner engaged her in conversation and on the pretext of affording her privacy invited her to enter a small office within the pharmacy. If the door to the office was closed, the public could not see into it from the pharmacy. On entry into the office, the Practitioner closed the door. After several introductory questions, the Victim explained that her reason for wanting the pill was because she had engaged in unprotected sexual intercourse with her partner and was unsure whether he had "finished" inside her. The Practitioner then said, "Oh actually, I can check it out. I can tell if it happened or not." 4. The Offender took hold of the bottom of the Victim's loose blue jumper and lifted it up. As he did so, he knelt down to her left and looked up her jumper at her genital area. The Victim then felt the Offender put his finger into her vagina and move it backwards and forwards. The touching lasted for two minutes before the Victim stood up and pulled her jumper down. The Victim was shocked and confused and initially did not know what to do but then began to call her partner. She left the office and immediately started complaining to her partner and staff members that the Offender had "sexually touched me". The Practitioner initially denied the Victim's allegations but did not maintain that denial after DNA evidence taken by Police at the time became available. 5. The HCCC in its initial complaint referred to above relied upon two (2) complaints. At the hearing, the Tribunal was asked to grant leave and did grant leave to the HCCC to rely upon an amended complaint. Leave was granted in circumstances where the Practitioner who attended the hearing by AVL acknowledged that he had been served with, and had an opportunity to read and consider the amended complaint, and took no issue with it being relied upon by the HCCC. The Practitioner's agreement was sensible because the amendments did no more than remove particulars from Complaint 2 that were unnecessary in order for the complaint to be established pursuant to the National Law. We were therefore required to consider two complaints. 6. Complaint 1 was brought pursuant to s.144(a) of the National Law and alleged that the Practitioner had been convicted of a criminal offence in New South Wales leading to a sentence of imprisonment for two (2) years with a non-parole period of 9 months. Complaint 2 brought by the HCCC alleged that the Practitioner had engaged in unsatisfactory professional conduct within the meaning of s.139B(1)(b) of the National Law by failing to notify the National Board of a relevant event as defined under s.130 of the National Law. 7. The HCCC asked that the Tribunal make the following findings and orders: 1. A finding under s.149C(1)(c) of the National Law that the circumstances of the offence renders the Practitioner unfit in the public interest to practice pharmacy; 2. An order under s.149C(1)(c) of the National Law cancelling the Practitioner's registration; 3. An order under s.149C(7) of the National Law that an application for review of the order under Division 8 may not be made until after two (2) years; 4. A finding that the Practitioner is guilty of unsatisfactory professional conduct pursuant to s.139B(1)(b); and 5. An order under Clause 13 of Schedule 5D of the National Law that the Practitioner pay the HCCC's costs as agreed or assessed. 1. The Practitioner who, as we have said, appeared at the hearing by AVL had on 23 March 2022 sent to the HCCC a short submission with respect to the complaint brought under s.130 of the National Law together with three (3) references dated respectively, 15, 28 and 26 October 2022. [2] On 30 March 2022, the Practitioner sent by email a note addressed to the Tribunal and to counsel who appeared for the HCCC. [3] That note relevantly read as follows: In relation to the application and orders sought by the HCCC, I wish to respond as follows: (1) I consent fully that the identity of the Victim be suppressed. (2) I consent fully that the review of the cancellation of my registration remain for two (2) years. (3) I consent that there is a two (2) year prohibition of any review relating to me working in the health service field. (4) Regarding the Commission's costs, I disagree, each party to pay its own costs. Thank you very much. Regards Hany Ibrahim 1. On 31 March 2022, the Practitioner sent a further email addressed to counsel who appeared on behalf of the HCCC. [4] That email read as follows: Dear Mr Stephens, In relation to the application and orders sought by the HCCC, I will not defend the first, second and third orders before NCAT. I will represent myself before the Tribunal as I cannot afford legal costs. I have been almost six (6) weeks out of custody and have had many changes at the moment (finding a job, place to rent, divorce …). I kindly request that the HCCC remove the fourth order which is the Commission's costs as I do not have the financial capacity to pay any costs. 1. As Mr Stephens, counsel for the HCCC, quite properly acknowledged, the Practitioner's consent with the exception of a costs order did not automatically conclude the proceedings in relation to the complaints on which they were based. It remained necessary for us as the Tribunal to be satisfied independently that those complaints were on the evidence made out. Background 1. As Mr Stephens set out in his helpful submission, the Practitioner was first registered as a pharmacist on 28 June 2010. He had been initially registered as a pharmacist overseas and practiced as such for a period of 12 years prior to migrating to Australia. The Practitioner was employed at the Priceline Pharmacy in Mascot at the time of the offence. 2. On 29 July 2019, the Pharmacy Council of NSW made a notification to the HCCC. [5] 3. On 1 August 2019, the HCCC received a complaint from Dr Megali regarding the then alleged incident involving the Practitioner. [6] 4. On 2 August 2019, proceedings were convened pursuant to s.150 of the National Law and the delegates determined to suspend the Practitioner's registration. [7] 5. On 15 November 2019, the Tribunal heard an appeal brought by the Practitioner in relation to the decision to suspend his registration and the appeal was allowed. Following the appeal, conditions were placed on the Practitioner's registration including to be confined solely to work in the dispensary of any pharmacy. [8] 6. On 9 June 2020, Harrison AJ set aside the Orders of the Tribunal made on 15 November 2019 and remitted the matter to a differently constituted Tribunal to be determined according to law. [9] The Practitioner was suspended on 9 June 2020. [10] The evidence of the parties 1. The HCCC on 28 June 2022 filed a volume of evidence. At the hearing, by agreement, the HCCC added to that volume the Ahpra Evidentiary Certificate dated 21 July 2022 at Tab 1A and the Certificate of Registration Status from the Pharmacy Council of NSW dated 22 July 2022 at Tab 1B. Both documents had been filed with the Tribunal on 22 July 2022. 2. The Practitioner relied upon the documents he had filed with the Tribunal and referred to above together with an email dated 29 May 2022 which he had also sent to the Tribunal with the subject heading, "Costs Submission Letter". That email annexed a short submission said to be in relation to the costs order being sought by the HCCC in which he submitted that he relied upon the Civil and Administrative Tribunal Act 2013 – s.60 with respect to costs. When reliance upon that submission was raised, Mr Stephens advised the Tribunal that he had responded to that email on 31 May 2022 pointing out to the Practitioner that the section of the Civil and Administrative Tribunal Act 2013 to which he had referred was not relevant but rather informing him of the relevant provisions of the Nation Law with respect to costs being Clause 13 of Schedule 5D to the National Law. 3. Mr Stephens offered to tender that email. However, on enquiry from the Tribunal, the Practitioner acknowledged that he had received and understood its content. Therefore, we decided it was unnecessary formally to receive the email in evidence. 4. We did, however, receive an outline of submissions on behalf of the HCCC filed with the Tribunal on 26 July 2022. Those were accepted as an aide memoir. In answer to questions we directed to the Practitioner, he acknowledged that he had received those submissions and in light of them did not wish to add to his own written submissions and was comfortable therefore to continue with the hearing. The Tribunal thus finds that the Practitioner was directed to the relevant provisions of the National Law with respect to costs and that he received a copy of the outline of submissions to be made on behalf of the HCCC. We further find that the Practitioner in acknowledging receipt of each of the relevant documents, said he was satisfied he understood them and did not wish to add further to his own written documents. 5. Mr Stephens, on behalf of the HCCC, then briefly outlined the salient points of the HCCC's case and otherwise relied upon his written submissions. At the conclusion of submissions on behalf of the HCCC, we asked the Practitioner whether he wished to give additional evidence on oath or alternately address us by way of submission. The Practitioner chose to make unsworn submissions and in doing so referred to his recent release from prison and his removal from his family's home as a consequence of proceedings being commenced in the Federal Circuit and Family Court of Australia for divorce. He said he was residing in rented accommodation and unable to obtain steady employment. As these matters were put to the Tribunal by way of unsworn submission, Mr Stephens agreed that cross-examination was not open to him. However, the Tribunal did ask the Practitioner a number of questions and in answer the Practitioner agreed that the family home remained owned by he and his wife and that in addition the family owned two investment properties which continued to provide rental income sufficient to meet the mortgage commitments relevant to them. The Practitioner also agreed that he took no issue with the facts set out in the HCCC's case underpinning the complaints and the Tribunal so finds. Discussion 1. These are proceedings where the Practitioner has, with the exception of a costs order, consented to the orders sought by the HCCC. It is therefore a situation distinguishable from cases where the respondent takes no part in the Tribunal's hearing. That is because the consent of the Practitioner acknowledges on his part an acceptance of the validity of the complaints and the appropriateness of the protective orders sought. The relevance of the consent does not remove the obligation of the Tribunal to itself be satisfied that the complaints are made out and that the protective orders are appropriate, but it does considerably assist the Tribunal to be "comfortably satisfied that the allegations are made out on the balance of probabilities". [11] To paraphrase the submission made by Mr Stephens on behalf of the HCCC, a submission with which the Tribunal agrees, as follows: The Tribunal is not bound to adopt the approach set out in Briginshaw, [12] and s.140 of the Evidence Act 1995 does not directly apply to the Tribunal's decision-making. [13] The Briginshaw principles however relevant [14] and have been accepted by the Court of Appeal. [15] These principles are that the Tribunal must be mindful of the nature and seriousness of the allegation to be proved resulting in it being comfortably satisfied that those allegations have been made out. Complaint 1 1. Complaint 1 alleges as follows that: Pursuant to s.144(a) of the National Law, the Practitioner has been convicted of a criminal offence in NSW. 1. The Practitioner's acceptance of the facts set out in the HCCC written submission and the emails addressed by him to the HCCC [16] are sufficient to establish the complaint and each of the particulars, and the Tribunal finds the complaint and particulars established. However, in the absence of the Practitioner's consent, the evidence provided by the HCCC, particularly at Tabs 13, 14, 15, 16 and 17 of HCCC Exhibit 1, would in any event satisfy the Tribunal to the requisite standard that the complaint and particulars were made out. Complaint 2 1. Complaint 2 alleges as follows that, the Practitioner: Contravened s.130 of the National Law by failing to notify the National Board of Relevant Events within 7 days after becoming aware of them and is guilty of unsatisfactory professional conduct pursuant to ss.139B(1)(b) and 144(b) of the National Law. 1. The particulars provided for Complaint 2 allege that the Practitioner failed to notify the National Board within 7 days when charged on 24 July 2019 with one count of sexual intercourse without consent contrary to s.61l of the Crimes Act 1900 (NSW) and two counts of sexually touching another person without consent contrary to s.61KC(a) of the Crimes Act 1900 (NSW). Those offences are a relevant event as defined in the National Law, namely, "punishable by 12 months in prison or more" and require disclosure to the National Board within 7 days pursuant to ss.130(1) and 130(3)(a)(i) of the National Law. 2. The evidence relied upon by the HCCC comprised documents contained in Exhibit HCCC 1. Those documents comprised the following: 1. The documents at Tabs 2A and 12 each confirming the offences with which the Practitioner was charged; 2. The documents at Tabs 20 and 21 being correspondence passing between the HCCC and Ahpra National Release Unit which establishes that the only disclosure made by the Practitioner was on 5 February 2020; and 3. A letter at Tab 9A from the Practitioner received by the HCCC on 23 March 2022 setting out that he did not "wilfully and deliberately set out to mislead the Board" and that he "was not aware that this was a requirement of the law" and that it was "not a deceitful or dishonest act". 1. The Practitioner's admissions and in any event these documents establish the particulars and the Tribunal so finds. As a consequence the Tribunal is satisfied and finds that the Practitioner failed to notify the National Board of a relevant event within the time specified and to that extent Complaint 2 is established. The HCCC submits further as a consequence of the failure to notify we should find the Practitioner guilty of unsatisfactory professional conduct under s.139B(1)(b) of the National Law. 2. The HCCC submits and we agree that at the time the Practitioner was charged on 24 July 2019 with criminal offences punishable by 12 months imprisonment or more, he was a registered pharmacist; [17] the charges are relevant events; [18] there was a duty on the Practitioner to notify the National Board within 7 days of becoming aware of this relevant event and, as we have already found, he did not do so. On the basis of the evidence set out we find the Practitioner guilty of unsatisfactory professional conduct under s.139B(1)(b) of the National Law. Complaint 2 is therefore established and we so find. 3. Having found both complaints brought by the HCCC established, the Tribunal's power to make protective orders is enlivened. In determining the issue of appropriate protective orders, the Tribunal's paramount consideration is the protection of the health and safety of the public. 4. In addressing this aspect of the proceedings, counsel for the HCCC in his submissions at [19] referred to a number of decided authorities which he submitted and we agree set out the relevant provisions for us to consider. Of particular relevance in the particular circumstances of this case was his reference to Health Care Complaints Commission v Wood, [19] which he paraphrased to include the following relevant considerations: Whether a practitioner is unfit in the public interest to practice will consider both the direct risk to patients and the indirect risk to the public through damage to their trust in the profession. When health professionals are convicted of serious criminal offences and where there is a close nexus between the criminal conduct and the professional role and responsibilities, the public's ability to entrust their care to those health professionals may be imperilled if the convicted practitioner continues to practice. The serious nature of the offences and the length of time over which they occurred, may cause most reasonable members of the public to fear placing themselves, or their loved ones, in the care of a convicted practitioner lacking rehabilitation and insight. 1. The Tribunal, counsel submitted and we agree, recently identified in Health Care Complaints Commission v Russ [2021] NSWCATOD 5 at [37]-[39], the following relevant principles in considering whether the consequences of an offence renders a practitioner unfit in the public interest: 1. The term "public interest" is a broader concept than the protection of the health or safety of the public and encompasses wider community interests such as the standards to which human conduct is to be held (citing Pharmacy Council v Ibrahim [2020] NSWSC 708 at [35]); 2. An assessment of the practitioner's current fitness to practice is required and is not subject to a requirement of "probable permanent unfitness" (citing Chen v Health Care Complaints Commission [2017] NSWCA 1906 at [67]-[69]); and 3. The question is whether the circumstances surrounding the offence currently rendered the practitioner unfit to practice in the public interest. Those circumstances include not only the actions and intentions of the practitioner constituting the physical and mental elements of the offence, but also the context in which those circumstances developed; the character of the practitioner; and his or her subjective circumstances. 1. In the present case, the following are relevant factors for our consideration in determining the consequences which should properly flow from the offences which have been established. (i) The seriousness of the offence 1. The offence is, as counsel for the HCCC submits and we agree and find, intrinsically a serious offence, involving a serious sexual assault. It comprised an egregious breach of trust taking advantage of a vulnerable young patient. [20] As His Honour Judge Williams SC remarked: … the 43 year old pharmacist took a 19 year old victim into a private room and in the context of her seeking information about emergency contraception; he took advantage of her and sexually assaulted her. Once she indicated she was uncomfortable he asked her to keep it quiet … This involved a gross breach of trust on a vulnerable young woman, who was entitled to assume that a pharmacist could not act to her detriment when dealing with a particularly sensitive topic. The Practitioner was sexually aroused at the time of the offence and was "without any idea" of how it was that his boundaries had slipped. [21] (ii) The vulnerability of Patient A 1. Counsel for the HCCC submits and we agree and find that the offence renders the Practitioner unfit in the public interest to practice pharmacy because the Practitioner took advantage of vulnerable patient. Indeed, Patient A was particularly vulnerable because: 1. She was a young female (19 years old); 2. Alone and in an unfamiliar environment; 3. In a closed office with the door shut away from the public and other members of staff; 4. Wearing loose clothing and no underwear; 5. Seeking urgent contraceptive treatment; and 6. Under the Practitioner's care and entitled to expect to be afforded that care without interference. The Practitioner misused his position and role as a pharmacist to take advantage of this vulnerability to commit the crime to which the evidence appears to have compelled him to plead guilty, namely, sexual intercourse without consent. (iii) The conduct expected of pharmacists 1. Counsel for the HCCC submits and we agree and find that the offence renders the Practitioner unfit in the public interest to practice pharmacy. The offence he submits is inconsistent with the professional and ethical standards expected of pharmacists. Reference to relevant aspects of those standards with which the Practitioner's conduct was inconsistent is to be found in [27] of counsel's written submissions and we agree with those submissions. However, in the circumstances of this case we consider it worthwhile emphasising that a pharmacist's primary duties include a duty of care to ensure the safety of all their patients and in doing so to maintain appropriate professional boundaries. In these proceedings, the Practitioner's heinous disregard for his duty of care to the patient and failure to maintain a professional boundary in taking advantage of a vulnerable patient was particularly grievous and risks bringing the profession of pharmacy into disrepute in the eyes of the public. (iv) The nexus with the practice of pharmacy 1. The HCCC submits and we agree and find that the circumstances of the offence further renders the practitioner unfit in the public interest to practice pharmacy there being a direct nexus between the offence and the Practitioner's practice as a pharmacist. [22] The Practitioner committed the offence whilst working in a community pharmacy, a healthcare setting under the guise of providing advice to a patient requesting access to emergency oral contraceptive. (v) Reformation of character 1. In sentencing the Practitioner, His Honour Judge Williams SC made findings regarding the Practitioner's insight and remorse. There is no doubt that the offence has had serious ancillary consequences for the Practitioner including the breakdown of his marriage, his removal from the family home and, if we understood his evidence by way of oral submission, his alienation from his family. 2. While the Practitioner engaged with us in relation to the issue of the costs of the proceedings, he did not put before the Tribunal any evidence that demonstrated he had engaged in further counselling or training particularly around appropriate boundaries and sexual conduct. 3. As a consequence of the breaches referred to above, the Practitioner is guilty of professional misconduct and is unfit to practice as a pharmacist. These are proceedings where the factors leading to the Tribunal's findings of professional misconduct are such that this is a case where having regard to the particular considerations discussed in Prakash v Health Care Complaints Commission, [23] the only appropriate outcome is for the Practitioner's registration to be cancelled. The vulnerability of the patient, the nature of the offence and the gross breach of trust it involved lead us to be satisfied that a cancellation for a period of 2 years as sought by the HCCC is plainly appropriate. It is, however, at the lower end of the period which we would have been otherwise prepared to consider imposing. Costs 1. The HCCC seeks an order that the Practitioner pay its costs as assessed or agreed. This aspect of the HCCC's case was one with which the Practitioner took issue. As already indicated, he provided a short written submission and took the opportunity to address us orally in relation to his immediate financial circumstances. His financial position was not a matter he addressed in his written document in which he asked the Tribunal to note: (i) That there were no proceedings conducted unnecessarily that disadvantaged the Applicant; (ii) I did not prolong unreasonably the time to complete the proceedings; (iii) I did not make any claims that there was not tenable basis in fact or law; (iv) The proceedings before the Tribunal were not frivolous or vexatious, misconceived or lacking in substance; and (v) I did not refuse or fail to comply with the duty imposed by s.36(3). 1. In his oral submissions, the Practitioner informed us that since his release from prison and as a consequence of family law proceedings, he had removed himself from the family home. He was living in rented accommodation. In answer to a question from the Tribunal, however, he agreed that the family home remained owned by he and his wife and that in addition they maintained two rental properties. The evidence does not enable us to determine the value of the Practitioner's interest in these properties which, if we understood his evidence correctly, are all subject to mortgage. The absence of this evidence does not assist the Practitioner's case to be relieved of the HCCC's costs. 2. While we have a broad discretion in relation to ordering costs, the general rule is well established that costs will follow the event. [24] That "general rule" may be displaced where there is some disentitling conduct by the successful party. [25] The Practitioner does not allege any disentitling conduct by the HCCC nor on the basis of the material before us would it be possible to do so. These are proceedings where having considered the Practitioner's submissions and those of the HCCC, we find no basis to depart from the general rule. The Practitioner should pay the costs of the HCCC as agreed or assessed. Orders 1. That pursuant to s.64 of the Civil and Administrative Tribunal Act 2013, disclosure of the name of the person listed in the Schedule to the Health Care Complaints Commission's Application for Disciplinary Findings and Orders filed 24 March 2022 is prohibited. 2. That pursuant to s.149C(1)(c) of the National Law, the Practitioner's registration is cancelled. 3. That pursuant to s.149C(7) of the National Law, that an application for review of the order cancelling the Practitioner's registration under Division 8 may not be made for a period of 2 years from the date of these Orders. 4. That pursuant to Clause 13 of s.5D of the National Law, the Practitioner pay the costs of the Health Care Complaints Commission as agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar Endnotes 1. HCCC Exhibit 1 at Tab 17. 2. HCCC Exhibit 1 at Tab 9. 3. HCCC Exhibit 1 at Tab 10. 4. HCCC Exhibit 1 at Tab 11. 5. HCCC Exhibit 1 at Tab 2. 6. HCCC Exhibit 1 at Tab 2A. 7. HCCC Exhibit 1 at Tabs 3 and 4. 8. HCCC Exhibit 1 at Tab 18. 9. HCCC Exhibit 1 at Tab 2A. 10. HCCC Exhibit 1 at Tab 2A. 11. HCCC v Wilcox [2020] NSWCATOD 10 at [53]. 12. Briginshaw v Briginshaw (1938) 60 CLR 366. 13. Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]; HCCC v Wilcox (2020) NSWCATOD 10 at [54]. 14. HCCC v Mikhail [2021] NSWCATOD 103 at [25]-[26]. 15. Gautam v HCCC [2021] NSWCA 85 per Payne JA at [89]; Leeming JA at [1] and Simpson AJA at [118] (agreeing). 16. HCCC Exhibit 1 at Tabs 10 and 11. 17. Tab 1a. 18. Section 130(3)(a)(i). 19. [2020] NSWCATOD 60 at [17]-[23]. 20. HCCC Exhibit 1, Tab 16 at [132] and [138]. 21. HCCC Exhibit 1, Tab 22 at [183]. 22. Health Care Complaints Commission v Wood [2020] NSWCATOD 60 at [17]-[23]. 23. [2006] NSWCA 153 per Basten J at [91]. 24. Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. 25. Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40]. 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: 26 October 2022