Kavieris v Health Care Complaints Commission [2025] NSWSC 20

Supreme Court New South Wales

Medium Neutral Citation: Kavieris v Health Care Complaints Commission [2025] NSWSC 20 Hearing dates: 7 November 2024 Date of orders: 6 February 2025 Decision date: 06 February 2025 Jurisdiction: Common Law Before: Griffiths AJA Decision: (1) The plaintiff has leave to appeal in relation to that part of ground 1 which relates to NCAT's conflation of the exposure of B's pubic hair and the level of her pubic bone and how that conflation was applied by NCAT in assessing Dr Panagopoulos' evidence on perceived sensation. (2) Ground 1 is upheld in relation to that matter. (3) Refuse leave to appeal in respect of ground 2. (4) Ground 3 is upheld. (5) The parties have leave to contact the associate to Griffiths AJA with a view to having the matter relisted for hearing as to the terms of consequential orders, including the scope of the remitter to NCAT, the extent to which any particular order or finding should be set aside and costs. Catchwords: OCCUPATIONS — Medical practitioners — Health Practitioner Regulation National Law (NSW) — physiotherapist — employment of the Barral technique during treatment of a back injury — unsatisfactory professional conduct — where allegation made that patient's pubic bone was exposed inappropriately and without prior explanation — where finding made that practitioner inappropriately and without adequate explanation palpated and/or massaged on or around the patient's labia majora inappropriately — whether NCAT erroneously conflated two aspects of the plaintiff's expert evidence regarding whether the exposure of pubic hair alone amounted to an inappropriate use of the Barral technique — professional misconduct — where NCAT found that the plaintiff engaged in inappropriate conduct of a sexual nature that was sufficiently serious to justify the suspension or cancellation of his registration — whether NCAT made a sufficiently serious error in fact finding to warrant the grant of leave to appeal — whether NCAT's approach in determining that the impugned conduct was sexual in nature required consideration of the plaintiff's state of mind and the context of the conduct — whether NCAT's errors constituted jurisdictional errors or errors of law on the face of the record Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 29(4)(b) Health Practitioner Regulation National Law (NSW), s 139E Health Practitioner Regulation National Law (WA) Act 2010 (WA) (repealed) Cases Cited: Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Browne v Dunn (1893) 6 R 37 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Chiropractic Board of Australia v Ebtash [2020] WASAT 86 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 Health Care Complaints Commission v Jamnagarwalla [2022] NSWCATOD 61 Health Care Complaints Commission v Robinson (No 2) [2022] NSWCATOD 151 Health Care Complaints Commission v Robinson [2022] NSWCA 164 Health Care Complaints Commission v Sultan [2018] NSWCA 303 Health Care Complaints Commission v Yildirim [2021] NSWCATOD 146 King v Health Care Complaints Commission [2011] NSWCA 353 Medical Council of NSW v Mooney [2024] NSWCA 180 Texts Cited: Nil Category: Principal judgment Parties: Theodore Kavieris (Plaintiff) Health Care Complaints Commission (Defendant) Representation: Counsel: R Mathur SC / K Heath (Plaintiff) K Eastman SC / D Tang (Defendant)