Director of Proceedings on behalf of the Health Ombudsman v XD [2024] QCA 215

SUPREME COURT OF QUEENSLAND CITATION: Director of Proceedings on behalf of the Health Ombudsman v XD [2024] QCA 215 PARTIES: DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN (applicant) v XD (respondent) FILE NO/S: Appeal No 12814 of 2023 QCAT No 121 of 2020 QCAT No 288 of 2021 DIVISION: Court of Appeal PROCEEDING: Application for Leave Queensland Civil and Administrative Tribunal Act ORIGINATING COURT: Queensland Civil and Administrative Tribunal – [2023] QCAT 340 (Judicial Member Dick SC) DELIVERED ON: 8 November 2024 DELIVERED AT: Brisbane HEARING DATE: 7 March 2024 JUDGES: Dalton JA and Fraser AJA and Brown J ORDERS: 1. Leave is granted to bring the appeal filed on 11 October 2023. 2. The appeal is allowed. 3. The orders made below on 14 September 2023 are set aside. 4. In substitution it is ordered that the referral filed 30 April 2020 (OCR121-20) is permanently stayed except insofar as it relies upon a complaint made by BC and DE and the referral filed on 5 October 2021 (OCR288-21) is permanently stayed except insofar as it relates to the complaint made by HI and IJ. 5. If the parties intend that there should be any costs order other than that costs follow the event, they should file written submissions on costs not exceeding five pages, the respondent within seven days of the date of delivery of this judgment, and the appellant within seven days thereafter. 6. Otherwise, costs follow the event. CATCHWORDS: QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – STAY OF PROCEEDINGS – DELAY – where -- 1 of 72 -- 2 the respondent is a dermatologist who has practised for over 30 years – where multiple male complainants have made allegations of the respondent molesting them when they were either young boys or young men, which span from the 1980s to the late 2010s – where all but one of the allegations were made many years after the alleged conduct occurred – where the allegations ranged in seriousness between each of the complainants, from gentle cupping of the scrotum to flagrant sexual assault (for example, masturbation) – where, in accordance with standard industry practice, the respondent disposed of his patient notes and medical records within 7 years after ceasing to consult his patients – where, given the lapse of time since the alleged offending occurred, the respondent no longer has access to his patient notes or medical records in respect of all but one of the complainants – where the respondent denies that he engaged in sexual misconduct with respect to any of the complainants, and argues that he only ever engaged in conduct which was reasonably necessary and appropriate in accordance with legitimate medical treatments or procedures – where the appellant brought disciplinary proceedings against the respondent alleging professional misconduct – where the respondent contends that it was correct to order a permanent stay of the proceedings, as the delay meant that the respondent had no relevant recollection of the consultations, and he had disposed of his patient notes and medical records in relation to all but one of the complainants – where, following the primary decision but prior to the appeal, the High Court published its decision in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857, which held that, in the context of specific New South Wales legislation, the mere effluxion of time is not, by itself, sufficient to warrant the grant of a permanent stay – whether the decision in GLJ applies to the present case – whether, having regard to the consequences of the delay in the circumstances of the case, the respondent’s right to a fair trial had been irreparably prejudiced, such that it was appropriate to order a permanent stay of the proceedings QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – STAY OF PROCEEDINGS – ABUSE OF PROCESS – INCONSISTENCY BRINGING THE ADMINSTRATION OF JUSTICE INTO DISREPUTE – where the respondent is a dermatologist who has practised for over 30 years –where multiple male complainants have made allegations of the respondent molesting them when they were either young boys or young men – where, in response to allegations between 2014 to 2017 by six of the nine complainants, the respondent was charged with 10 criminal offences – where, following an application by the respondent, a District Court judge permanently stayed the criminal proceedings in respect of 9 of the 10 counts – where the matter proceeded to trial on the remaining count, and the respondent -- 2 of 72 -- 3 was acquitted – where, after the conclusion of the criminal proceedings, allegations were made by three complainants but no further criminal charges were brought in response – where the appellant subsequently brought disciplinary proceedings against the respondent, alleging professional misconduct in relation to all nine complainants – where the primary judge approached the question of whether to order a stay by putting the nine complainants into 3 categories – where, in respect of the complainants in categories 1 and 2, the primary judge concluded that a stay of proceedings should be ordered because she was not persuaded that there was not a true threat to the integrity of the court arising from systemic incoherence if the disciplinary proceedings were to proceed – whether, when deciding if it was appropriate to order a permanent stay, the primary judge failed to have sufficient regard to the distinctions between criminal proceedings and disciplinary proceedings QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – STAY OF PROCEEDINGS – ABUSE OF PROCESS – PROCEDURE – WITNESSES – CROSS-EXAMINATION – where the respondent is a dermatologist who has practised for over 30 years – where multiple male complainants have made allegations of the respondent molesting them when they were either young boys or young men – where the appellant refuses to call four of the complainants as witnesses or make them available for cross-examination in the disciplinary proceedings, and instead relies on their written evidence as exhibits to other persons’ affidavits – where the appellant does not offer any explanation as to why this is the case – where the primary judge ordered a stay of proceedings in respect of one of the complainants on the ground that he would not be called as a witness or made available for cross-examination – whether, in respect of all the complainants who will not be called as witnesses or made available for cross-examination, the trial will necessarily be so unfair as to amount to an abuse of process, such that it is appropriate to order a stay in respect of those complainants Evidence Act 1977 (Qld), s 92, s 93B Health Ombudsman Act 2013 (Qld), s 3, s 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28, s 47, s 95 Australian Securities & Investments Commission v Australian Investors Forum Pty Ltd [2003] NSWSC 618, cited Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27, considered Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, cited CM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWCA 313, applied Davis v Medical Board (ACT) (1994) 52 FCR 279; [1994] -- 3 of 72 -- 4 FCA 1302, considered GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32, considered House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46, considered Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60, considered Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102, distinguished Palmer v Magistrates Court of Queensland [2024] QCA 8, cited R v Davis (1995) 57 FCR 512; [1995] FCA 1321, distinguished R v Edwards (2009) 83 ALJR 717; [2009] HCA 20, distinguished R v Noyes [2005] 1 Qd R 169; [2003] QCA 564, cited R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7, distinguished R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1935) 50 CLR 228; [1933] HCA 30, considered Star Aged Living Limited v Lee [2024] QCA 1, applied Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325; [2018] HCA 53, considered Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77, applied Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, cited COUNSEL: J R Hunter KC, with S J Cartledge, for the applicant G W Diehm KC, with C D Templeton, for the respondent SOLICITORS: Office of the Health Ombudsman for the applicant K&L Gates for the respondent [1] DALTON JA: Although no application for leave to appeal was filed, this should be treated as an application for leave to appeal from a decision of a judicial member of the Queensland Civil and Administrative Tribunal (the tribunal). As I would grant the necessary leave, I will refer to the Ombudsman as the appellant, not applicant in my reasons. [2] XD is a medical doctor who is the subject of 10 disciplinary complaints to the tribunal. It is alleged that he engaged in professional misconduct involving sexual offending against nine complainants between 1986 and 2013. All the complainants were adolescent boys or young men at the time of the alleged offending. The disciplinary charges against XD are put on the basis that he physically assaulted each of the nine complainants by touching their genitals in circumstances where there was no medical reason to do so. There is no complaint that he committed lesser breaches of his professional code, such as not asking permission from the patient to examine and -- 4 of 72 -- 5 touch their genitals, or not explaining the reason for the examination. A tenth complaint is different in that it alleges a professional boundary violation, namely that XD had sexual relations with a young adult male patient (the second set of complaints made by FG, see below). The judicial member permanently stayed all the disciplinary complaints in the tribunal. [3] The judicial member grouped the 10 complaints before her into three categories. Although she did not explain the reason for the grouping, it appears to be based upon the extent to which the subject matter of the 10 complaints had been dealt with in the criminal justice system. Her category 1 dealt with complaints made by AB, BC, CD and EF. Criminal charges had been brought against XD on the basis of the factual matters alleged in their complaints, and, in 2018, those charges had been permanently stayed in the District Court. The judicial member’s category 2 comprised four complainants: DE, GH, HI and IJ. There had been no criminal charges in respect of those complainants. The judicial member’s third category was in relation to two complaints brought by FG. The subject matter of his first complaint (2005) had been the subject matter of an indictment in the District Court. There had been a trial and XD had been acquitted. The subject of his second complaint had not been the subject of criminal charges. Grounds of Appeal [4] The grounds of the proposed appeal in this Court were nearly the same in relation to categories 1 and 2. They are that the judicial member erred: “1. … a. In concluding that the loss of medical records occasioned special prejudice, or alternatively giving excessive weight to the consideration of the loss of records; b. In relying on R v Davis (1995) 57 FCR 512, in circumstances where that practitioner had unsuccessfully sought a stay of disciplinary proceedings in respect of the same allegations on the basis of the loss of records: Davis v ACT Medical Board (1994) 52 FCR 279; c. In giving excessive weight to the consideration that two of the four complainants in this category would not be available for cross-examination by the respondent; d. In giving excessive weight to the consideration that witnesses who might have assisted the respondent in his defence of the disciplinary proceedings were either dead or unavailable; e. In concluding that the disciplinary proceedings posed a true threat to the integrity of the court arising from systemic incoherence; And therefore that a permanent stay of proceedings was required. 2. … -- 5 of 72 -- 6 a. In concluding that the loss of medical records occasioned special prejudice, or alternatively giving excessive weight to the consideration of the loss of records; b. In relying on R v Davis (1995) 57 FCR 512 in circumstances where that practitioner had unsuccessfully sought a stay of disciplinary proceedings in respect of the same allegations on the basis of the loss of records: Davis v ACT Medical Board (1994) 52 FCR 279; c. In giving excessive weight to the consideration that witnesses who might have assisted the respondent in his defence of the disciplinary proceedings were either dead or unavailable; d. In concluding that the disciplinary proceedings posed a true threat to the integrity of the court arising from systemic incoherence; e. In concluding that, had the matters in Category 2 been before the District Court, they would also have been stayed, and that there were therefore concerns about the integrity of the justice system; And therefore that a permanent stay of proceedings was required.” [5] In respect of the judicial member’s third category, the ground of appeal proposed was that the judicial member erred: “3. … a. In giving excessive weight to the consideration that the complainant in this category would not be available for cross-examination by the respondent; b. In concluding that a hearing in which the complainant was not available for cross-examination would be ‘unfair and opaque’, and that to proceed on the basis of statements or affidavits would disadvantage the respondent to an unacceptable degree and be irremediably unfair. And therefore that a permanent stay of proceedings was required.” [6] There were two further grounds of appeal proposed in relation to all three of the judicial member’s categories. They were: “4. With respect to all of the matters in each of the three categories: a. In failing to have proper regard to the public interest in disciplinary proceedings continuing before the specialist tribunal established by law to discharge the protective function of adjudicating allegations of improper conduct by medical practitioners; b. In failing to give proper regard to the differences in nature, procedure and purpose as between criminal and disciplinary proceedings; -- 6 of 72 -- 7 c. In considering the matter by breaking the disciplinary proceedings against the respondent into separate categories and thereby failing to have proper regard to the whole of the disciplinary proceedings. 5. The learned judicial member was wrong in law to conclude that the proceedings should be permanently stayed.” [7] The last of these grounds (ground 5) was added with leave at the hearing. It was apparently thought necessary or desirable because of the decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore.1 [8] The orders sought by the Health Ombudsman in its proposed appeal were that the judicial member’s decision be set aside, and in lieu thereof this Court order that XD’s application to stay the referrals brought against him be dismissed. Leave to Appeal [9] Section 149 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCATA) is the relevant section governing appeal rights from decisions of the tribunal in this case. It provides: “149 Party may appeal—decisions of tribunal (1) ... (2) A party to a proceeding … may appeal to the Court of Appeal against another decision of the tribunal in the proceeding if a judicial member constituted the tribunal in the proceeding. (3) However— (a) … (b) an appeal under subsection (2) on a question of fact, or a question of mixed law and fact, may be made only if the party has obtained the court’s leave to appeal. ...” [10] Plainly enough, all the appeal grounds here, with the possible exception of ground 1(b), were appeals against questions of fact or, mixed fact and law. The appellant submitted that, because there were no factual disputes before the judicial member, leave was not required. This is a misunderstanding of s 149(3)(b). The questions which the appellant asks this Court to determine are questions of fact, and/or mixed questions of fact and law. Leave is required. In my view leave ought to be granted in this case because the reasons given by the judicial member are erroneous and do not satisfactorily explain eight of the decisions she reached; in my view, two of the complaints should not be stayed, and because the proposed appeal concerns matters of public interest. [11] The relevant section of QCATA governing the hearing of this appeal is s 154, it provides: 1 [2023] HCA 32; (2023) 97 ALJR 857. -- 7 of 72 -- 8 “154 Deciding appeal on question of fact or mixed law and fact (1) This section applies to an appeal before the Court of Appeal against a decision of the tribunal on a question of fact only or a question of mixed law and fact. (2) The appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the Court of Appeal. (3) In deciding the appeal, the Court of Appeal may— (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision.” Nature of Decision to Grant Permanent Stay [12] In GLJ the High Court decided that the decision of a court on an application to permanently stay a civil proceeding was not one made as a matter of discretion; instead, the question posed on such an application was one susceptible of only one correct answer. That means that on appeal against such a decision, the appeal court must look to see whether or not the court below arrived at the correct decision, rather than simply looking to see whether or not the court below took into account all proper considerations and arrived at a decision which did not offend the rule in House v The King.2 [13] In Koschier v R3 the Court of Criminal Appeal in New South Wales accepted that that test should apply when appeal is made against a decision to permanently stay criminal proceedings. I cannot see that Koschier is plainly wrong, and I accept that the consequence of that decision is that the GLJ approach ought to apply here in an appeal from a decision permanently staying a disciplinary proceeding against a medical practitioner. [14] At paragraphs [35]–[42] of Koschier, the New South Wales Court of Criminal Appeal discussed the effect of this new approach in hearing an appeal from a decision to permanently stay a criminal proceeding. It was said that the appeal would be by way of rehearing, but not amount to an appeal de novo, [42]. Happily, that coincides with s 154 of the QCATA, above. [15] Questions as to the advantages enjoyed by the primary judge4 have always been relevant when a court of appeal conducts a rehearing. I cannot see that there is any logical reason why they would be more or less relevant where that rehearing is into the correctness of a decision to permanently stay a proceeding, and I do not understand that the New South Wales Court of Criminal Appeal in Koschier thought that to be the case. [16] In this case there was no real advantage enjoyed by the judicial member: there was no factual contest below; there was no examination or cross-examination of witnesses below. The errors asserted by the Ombudsman are nearly all errors in evaluating and 2 (1936) 55 CLR 499. 3 [2024] NSWCCA 24, [33]. 4 Warren v Coombes (1979) 142 CLR 531 and Fox v Percy (2003) 214 CLR 118. -- 8 of 72 -- 9 weighing the facts presented below. As recognised in Koschier,5 this Court’s function in dealing with such appeal grounds is different after the decision in GLJ. After GLJ an appellate court needs to make “requisite evaluative judgments” itself and it is in that sense that the evaluative judgments or reasoning of the primary judge will “recede in importance”, compared to a case where the appellate court simply looks to discover whether there has been a House v The King-type error.6 [17] None of this means that an appellant from a decision to permanently stay a proceeding does not need to identify error in the decision below. Appeals by way of rehearing are based on the identification of error.7 It is not, in my view, sufficient to assert, as the appellant did here by its additional fifth ground of appeal, that the judicial member below was wrong to conclude that the proceedings should be permanently stayed. The appeal court does not simply hear the matter as if it were the court at first instance.8 The ground of appeal which the appellant added with leave at the commencement of this appeal was very similar to the fifth ground of appeal in Koschier. The Court of Criminal Appeal there dealt with the specific grounds of appeal and then said of ground 5, “Proposed Ground 5 is simply conclusory and adds nothing to the other proposed grounds of appeal” – [74]. I deal with ground 5 of the present appeal in the same way. Granting of Permanent Stay Extraordinary Remedy [18] The judicial member found that she had power to stay a disciplinary proceeding which was an abuse of process, vexatious or unfair. That proposition was not challenged before us. The member also recognised that XD bore the onus of showing that a permanent stay was appropriate, and that that was a weighty matter: a permanent stay should only be ordered in exceptional circumstances.9 [19] In Koschier the New South Wales Court of Criminal Appeal relied upon “the summary of principles relevant to the grant of a permanent stay of criminal proceedings in La Rocca v R: “(i) the remedy is an extraordinary one, only to be given in exceptional or extreme circumstances: R v Glennon (1992) 173 CLR 592 at 605; [1992] HCA 16 (Glennon); Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [33]-[35] (Dupas); Strickland at [166]; (ii) such a description recognises the powerful social imperative for those who are charged with criminal offences to be brought to trial: Strickland at [106], see also at [166]-[167], [262]; (iii) notwithstanding this, the categories or circumstances in which the exceptional remedy of a permanent stay of criminal proceedings may be granted are not and should not be closed: Strickland at [99]; 5 Above, [41]. 6 Rogerson v The Queen [2021] NSWCCA 160, [551] cited in Koschier at [40]. 7 An appeal by way of rehearing is “error-based”; an appeal de novo is not: Engelbrecht v DPP (NSW) [2016] NSWCA 290, [60] and the authority cited there. Engelbrecht was cited in the dissenting judgment of Jagot J in Stanley v DPP (2023) 407 ALR 222, [144]. 8 Koschier, [42]. 9 Walton v Gardiner (1993) 177 CLR 378, 395–396. -- 9 of 72 -- 10 (iv) there is no “definitive category” of extreme cases: Dupas at [35]; (v) each case accordingly must be decided according to its own facts: Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 (Moti) at [60]; Strickland at [99], [246], [261]; (vi) a permanent stay of criminal proceedings may be appropriate where to refuse such a remedy would bring the administration of justice into disrepute: Rogers v The Queen (1994) 181 CLR 251 at 286; [1994] HCA 42; Moti at [10]; (vii) the administration of justice may be brought into disrepute in a number of different ways; (viii) one example which may warrant a permanent stay is the toleration of an unfair trial where there is a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”: Barton v The Queen (1980) 147 CLR 75 at 111; [1980] HCA 48; Jago v District Court (NSW) (1989) 168 CLR 23 at 34; [1989] HCA 46; Glennon at 605-606; Dupas at [35] ...’”.10 [20] In Davis v Medical Board of the Australian Capital Territory,11 Gallop J cited the High Court decision in Walton v Gardiner12 to the effect that “whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings …”. The following passage from Walton v Gardiner, set out by Gallop J, is applicable here: “In its application to the Tribunal, the concept of abuse of process requires some adjustment to reflect the fact that the jurisdiction of the Tribunal, which is not a court in the strict sense, is essentially protective – ie protective of the public – in character. Nonetheless, the legal principles and the decided cases bearing upon the circumstances which will give rise to the inherent power of a superior court to stay its proceedings on the grounds of abuse of process provide guidance in determining whether, assuming jurisdiction to do so, the circumstances of a particular case are such as to warrant an order being made by the Supreme Court staying proceedings in the Tribunal on abuse of process grounds. In particular, in a context where the disciplinary power of the Tribunal extends both to the making of an order permanently removing a medical practitioner from the Register with consequent loss of entitlement to practise and to the imposition of a fine of up to $25,000 (See Medical Practitioners Act 1938 (NSW), s 32R(l)(g) and (h)), there is plainly an analogy between the concept of abuse of a court’s process in relation to criminal proceedings and the concept of abuse of the Tribunal’s process in relation to disciplinary proceedings. In that regard, it is relevant to mention that 10 La Rocca v R [2023] NSWCCA 45, [34]; Koschier, above, [52]. 11 (1994) 52 FCR 279, 282–283. 12 (1993) 177 CLR 378, 396. -- 10 of 72 -- 11 we do not read any of the provisions of the Act as expressly or impliedly cutting down the scope of the general supervisory jurisdiction of the Court of Appeal to stay proceedings in the Tribunal on abuse of process grounds. As we pointed out in Jago v District Court (NSW) (1989) 168 CLR 23 (See, in particular, at 30-34, per Mason CJ; 59-61, per Deane J; 72, per Toohey J; 76-78, per Gaudron J), the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings (in the Tribunal) should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners.”13 [21] Bearing those matters in mind, I turn to the appeal grounds in this case. Some of the grounds of appeal apply to several, or all, of the complaints which the Ombudsman wishes to prosecute in the tribunal. I will deal with those grounds first, then I will deal with grounds which can only be dealt with against the context of the factual circumstances thrown up by each of the individual complaints. Ground 4(c): Categories [22] The ground is that the judicial member erred in considering the matters before her in categories. This ground applies to all of the complaints which the Ombudsman wishes to prosecute. I think this ground should succeed in relation to all the complaints. Although it is not determinative of the appeal in respect of any particular complaint, I consider it first, as the result of that ground of appeal means that I structure the rest of my reasons without reference to those categories. [23] There are numerous factual matters to be weighed in coming to a decision about the application to stay in this case. The judicial member dealt with the 10 complaints in three categories. The categories seem to be based upon the complainants’ interactions with the criminal law system. I cannot see that this provided a logical basis to categorise the complainants for the purpose of analysis. To begin with, only six of the complainants had interacted with the criminal law system. XD relied upon the same factual matters in this litigation as he did when applying for a stay of four of the criminal matters which were brought against him. However, the stay of those matters was only one factor to be considered in relation to those four complaints. Each of 13 Walton v Gardiner, above, at 395–396, cited, as it was extracted, in Davis, above, at 282–283. -- 11 of 72 -- 12 those four complaints differed otherwise as to the factual matters bearing on the question of whether it should be stayed. Next, having dealt first with the four matters where there had been a stay in the criminal proceedings, the judicial member did not consider different matters in relation to her next category; she simply reasoned that, had there been criminal proceedings on the basis of their complaints, those would also have been stayed in the criminal courts. That is, her reasoning betrayed that there was no logical basis for the first two categories she adopted. [24] As to the third category adopted by the judicial member, there were discrete issues to be considered in relation to FG. However, his two separate complaints were different from each other. One was that he had been sexually abused on numerous occasions as a child patient of XD; this was subject matter which at least overlapped with the subject matter of a trial in the District Court where XD was acquitted. FG’s second complaint was that as an adult he had engaged in sexual activity with XD; questions as to consent, and violation of patient/doctor boundaries arose. [25] On analysis, none of the complaints which the Ombudsman wishes to prosecute in the tribunal are the same. The judicial member should have separately considered the factors relevant to each of the individual complaints which the Ombudsman wished to prosecute, not analysed them in the categories adopted. [26] Some facts are common to all the matters, and in that respect I adopt the general facts outlined by Fraser AJA at paragraphs [114]–[138] of his judgment, including his incorporation of the table handed to us during the hearing of the appeal by way of submissions; it helpfully summarises much of the relevant factual content in a very accessible way. Grounds 1(b), 1(e), 2(b), 2(d) and 2(e): Systematic Incoherence of the Justice System [27] These grounds of appeal applied to the four complainants whose complaints had been the subject matter of criminal proceedings in the District Court, but which proceedings were stayed (AB, BC, CD and EF). By the extension of reasoning described at [22] above, they also applied to the complaints made by DE, GH, HI and IJ. [28] In relation to offences against AB, BC, CD and EF, XD was charged in the District Court on indictment, but the charges were permanently stayed in the District Court on 6 February 2018. There is no question of any estoppel or res judicata arising. Further, the District Court did not consider the merits of the claims which were subject of the indictments, so there is no question of inconsistent factual determinations. It was, however, submitted that it would create incoherence in the justice system, or damage the integrity of the justice system, to allow the Ombudsman to prosecute complaints in the tribunal in circumstances where a prosecution based on the same facts had been permanently stayed in the District Court. The member below found this argument so persuasive that it was the basis for her staying the proceedings in the tribunal, so far as they related to AB, BC, CD and EF – [55] below. By the member’s extension of reasoning – [62] below – this factor was also a persuasive reason for her staying all the cases based on complaints by DE, GH, HI and IJ. I think the judicial member’s reasoning was incorrect in respect of all eight matters. -- 12 of 72 -- 13 [29] The arguments XD relied upon for a permanent stay in the tribunal are similar to those he relied upon in the District Court criminal proceedings. However, there are significant differences between the District Court criminal proceedings and the proceedings in the tribunal. District Court trials would have taken place before juries, on a standard of proof beyond reasonable doubt. Had XD been found guilty, he likely would have been jailed. In the tribunal, a referral would be heard by a member applying a civil standard of proof, albeit on a Briginshaw basis. Should XD be found to have acted in the way alleged, it is likely he will be disqualified from practice. The rules of evidence do not apply in the tribunal, although, it would be hoped that a tribunal member hearing a disciplinary proceeding would not depart substantially from them: they were formulated over time in order to ensure fairness and reliability, which must necessarily be important in disciplinary proceedings. However, the strict necessity to comply with the rules of evidence, and the absence of a jury, means that the member conducting a hearing in the tribunal might have more flexibility to adopt measures likely to produce a fair hearing for both XD and the complainants than would be available in a jury trial. [30] The judicial member relied heavily on a passage from Moubarak v Holt.14 In that case the New South Wales Court of Appeal stayed a civil action seeking damages for sexual assault said to have occurred some 42 years earlier. The defendant had dementia and his disease was so severe that he could no longer understand what was said to him. Police had investigated, including by trying to interview the defendant, and had informed the plaintiff that they were unable to proceed because the defendant was not fit for trial. The New South Wales Court of Appeal dealt with an argument that nonetheless, there could be a civil trial because fitness for trial, while necessary for a defendant in criminal proceedings, was not necessary for a defendant in civil proceedings. It is in this context that Bell P made the comments relied upon by the judicial member at [31]: “[108] Coherence is a quality that the common law values. An incoherent legal system is one that is apt to undermine respect for the rule of law and bring the administration of justice into disrepute. It would, in my opinion, tend towards incoherence to maintain that what constitutes a fair trial should differ in cases involving identical factual allegations. If the defendant was not fit to face criminal charges in respect of the plaintiff’s complaint to police because ‘the minimum requirements for a fair trial’ (see Rivkin at [97] above) would not be present, it would, in my opinion, offend commonsense simultaneously to maintain that the defendant could secure a fair civil trial in relation to identical factual allegations. [109] In my opinion, the primary judge erred in dismissing the relevance of Presser out of hand. It provides powerful insight into matters going to the very essence of a fair trial, including the ability to give instructions, to decide what defence will be relied on, and to make the defendant’s version of facts known to the court and his counsel.” [31] In Moubarak there had been no criminal proceedings, and no stay of any criminal proceedings. The defendant could not have understood either civil or criminal proceedings. This fact was of such magnitude that it overwhelmed any other considerations. There is no one overwhelming matter in any of the cases which the 14 (2019) 100 NSWLR 218. -- 13 of 72 -- 14 Ombudsman seeks to prosecute. The case is no doubt correctly decided but it is not of much assistance or application here. [32] In fact, a second case concerning Dr Davis provides a relevant and helpful precedent. In September 1994, the Full Court of the Supreme Court of the ACT dismissed an appeal from a refusal to permanently stay disciplinary proceedings brought against Dr Davis. It is the report of that case to which I have referred above. The next year, the Full Court of the Federal Court of Australia dismissed an appeal from a decision permanently staying criminal proceedings based upon the identical factual allegations.15 It is these two cases which are referred to at grounds of appeal 1(b) and 2(b). In the second case the Federal Court said: “We do not accept this submission. It is true that both proceedings arise out of the same set of allegations. If there will be difficulties in Dr Davis answering the criminal charges because of the lapse of time and the destruction of his medical records, there will also be difficulties for him in dealing with the Medical Board investigation. But that does not mean that the result, in terms of a stay, must be the same in each proceeding. There are important differences between the two proceedings. The Medical Board proceedings are not punitive in character. Although an order striking a practitioner’s name from the register ordinarily has serious consequences for the practitioner, such an order is made to protect the public, not to punish the practitioner. Consistently with this distinction, a different standard of proof applies. An allegation of professional misconduct need be proved only to the civil standard of proof, a balance of probabilities. Charges of indecent assault, like other criminal charges, must be proved beyond reasonable doubt. The difference in the standard of proof reflects a view that it may be acceptable, as an act of public protection, to exclude from practice a person against whom it is impossible to prove the facts beyond reasonable doubt. The point was made by Mason CJ, Deane J and Dawson J in Walton v Gardiner (1993) 177 CLR 378 at 396: ‘The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners.’ There being different elements involved in the weighing process, we think Gallop J was correct in declining to determine the application for a stay of the criminal proceedings by reference to the outcome of the Medical Board case.” [33] Together the two cases concerning Dr Davis are strong support for the Ombudsman. I think the member below failed to recognise that, and grounds of appeal (1(b) and 15 R v Davis (1995) 57 FCR 512, 519. -- 14 of 72 -- 15 2(b)) must succeed. It is common enough that the same facts are the subject of criminal law charges and then (almost invariably subsequently) the subject of civil proceedings. The difference in trial procedure, standard of proof and purpose of proceedings means that different results as between the two different types of proceedings can be accommodated without damaging the coherence of the legal system. The two cases concerning Dr Davis illustrate this point. [34] In relation to complaints made by AB, BC, CD and EF, the member’s incorrect reasoning about this point was determinative of her decision. In relation to all other complaints except those two concerning FG, the member’s reasoning was to say that if criminal prosecutions had been brought against XD in relation to these four complainants, those charges would likely have been stayed, “Therefore, concerns about the integrity of the justice system are engaged” – [62]. This reasoning is faulty. There were no criminal charges in relation to these complainants. There could be no considerations about integrity of the justice system in relation to them. As a consequence the Ombudsman’s grounds of appeal 1(b), 1(e), 2(b), 2(d) and 2(e) must succeed. While that success is enough to mean that the decisions of the judicial member in relation to all eight complaints just discussed must be set aside; it does not mean that there should be no stay with respect to these complaints. Whether there is a stay must depend upon this Court’s evaluation of all the relevant matters bearing on the prosecution of each of the complaints. Grounds 4(a) and 4(b): Purpose of Disciplinary Proceedings [35] The purpose of a criminal proceeding is largely punitive, while the purpose of a disciplinary proceeding is largely protective of the public. The ACT Court decision in Davis is valuable in the context of this case because it considers that in deciding whether or not to stay disciplinary proceedings against a medical practitioner, the purpose of those proceedings: protecting the public from a medical practitioner who is a sexual predator, assumes considerable significance. In that case, by the time of the Court hearing, the practitioner had retired from medical practice. Gallop J (dissenting in the result) in particular found this a compelling reason in favour of a stay of disciplinary proceedings. [36] In this case XD has given an undertaking not to treat male patients who are less than 18 years old. The complainants other than FG say they were between 10 and 17 years old when they were sexually abused by him. FG makes complaints about behaviour after he turned 18, albeit as a continuation of behaviour when he was a child patient. I do not find XD’s undertaking persuasive in XD’s favour. First, I am not persuaded that patients who may have turned 18, but are still young, are protected by the undertaking. Secondly, as the Ombudsman submitted, there is more than one statutory purpose outlined at s 3(1) of the Health Ombudsman Act 2013 (Qld). The Ombudsman is to protect the health and safety of the public and to maintain public confidence in the management of complaints and other matters relating to the provision of health services. The second limb of that statutory purpose means that a prosecution by the Ombudsman might still have a statutory purpose even if (whether by undertaking or retirement) a medical practitioner posed no future risk to the safety of patients. The fact that nine men have complained of misconduct by XD, which occurred when they were children, does underscore the strong public interest in the Ombudsman taking proceedings. -- 15 of 72 -- 16 [37] There are strong reasons relating to the purpose of the proceedings which the Ombudsman wishes to prosecute favouring the Ombudsman in relation to the question of whether the proceedings should be stayed. I do not think the member below accorded them sufficient weight. In that respect, I think the appellant has made out grounds 4(a) and (b) of the notice of appeal in relation to all the complainants. That success does not determine the ultimate issue of whether there should be a stay in any of the matters; it does mean that the consideration I give to the weight of this matter is greater than that given by the member below. Grounds 1(d) and 2(c): Lost Witnesses [38] The evidence before the judicial member was that, although XD had made searches for receptionist staff who might have had relevant knowledge as to his practice of leaving his consulting room door open when examining patients, he had been unable to find them. There was a relevant prejudice to XD in this regard, and I cannot see that the judicial member erred in taking it into account. [39] The loss of ability for XD to call his reception staff applied to all the complaints which the Ombudsman wishes to prosecute in the tribunal. In one or two instances there is specific evidence that another possible witness is unable to be called. I will discuss those missing witnesses as I deal with the individual complaints below. In no case do I find that this is a determinative factor. Similar Fact Evidence [40] Although it was not the subject matter of a discrete ground of appeal, an argument was advanced by the Ombudsman which applied to all the complaints. It was that there was a striking similarity to be observed in relation to all the complaints made and that each case against XD was strengthened as a result. To be admissible and probative in a criminal trial, similar fact evidence must be strikingly similar – Pfennig v The Queen.16 To be used as probative evidence in a disciplinary hearing, evidence should meet, or come close to, this standard. The reason is the same as that which underlies the rule in criminal cases, the necessity for a sound factual basis to prove serious factual allegations. I do not think the Ombudsman makes out its submission at a factual level. Three of the complainants say that what took place between themselves and XD was frankly sexual – masturbation to ejaculation. Others describe something which is far short of that, and might have been part of a medical examination. Some complainants say that the conduct occurred on numerous occasions; others say it occurred only once. Two complainants say that the conduct took place on the first appointment they had with XD (which is significant in terms of its medical legitimacy, see below); the others say that it took place on subsequent occasions. [41] Furthermore, where only five of eight complainants are proposed as witnesses in the tribunal, I think this point is further weakened. [42] Lastly, at this preliminary stage of the proceedings in the tribunal, before there has been any hearing, I think it would be dangerous to use similarities apparent in the complainants’ statements as strengthening all the cases. At this point in time, when considering whether or not the prosecutions in the tribunal ought to be stayed, I think each complaint should be assessed by reference to its individual merits, rather than being bolstered by untested potential evidence in another complaint. 16 (1995) 182 CLR 461. -- 16 of 72 -- 17 [43] Having said all that, as recognised in paragraph [36] above, I do accept that the fact that there are nine complaints against XD for broadly similar behaviour in relation to young men of a broadly similar age is a reason to be weighed in the Ombudsman’s favour when considering the public purpose is prosecuting XD in the tribunal. Individual Complaints in the Tribunal [44] The remaining grounds of appeal: 1(a), (c), (d); 2(a), (c) and 3, cannot be dealt with as matters of generality, but must be dealt with as part of a consideration of each individual complaint. AB [45] AB said that he had been abused in the first half of 1986 when he was about 16 years old. Every time he went to see XD, his mother went too, but she waited outside the consultation room. His first appointment lasted about an hour and nothing untoward happened. He had an appointment monthly after that. From the second consultation onwards, XD would examine his genitals and would play with his penis until he obtained an erection and then XD would masturbate him. He could feel XD’s erect penis against his arm. This happened at least three times. [46] He told his mother he did not want to go back to XD. He made an excuse, but the real reason was because of XD’s sexual abuse of him. [47] He began suffering mental health problems which he attributes to XD’s assaulting him. These have apparently continued, as he has been on a disability pension since 2001. He gave a statement to police in 2015. His partner gave a statement to police in 2016 which included that AB made a preliminary complaint to him in 2014. His sister made a statement to police in 2015 in which she records that AB made a preliminary complaint to her in about 1982 when he was about 13, (sic), and that she heard him make a preliminary complaint to his mother at that time. [48] The Ombudsman will not call AB, his partner, or his sister at the hearing it proposes in the tribunal. The Ombudsman does not explain why these witnesses will not be called. It cannot call his mother, as she has passed away. The Ombudsman proposes a hearing at which it will simply tender the statements of AB, his partner and sister. Those statements themselves are nearly 10 years old. [49] AB made allegations against XD to the Medical Board of Queensland17 in 2009. Even at the time when this earlier complaint was made, XD had disposed of his records in relation to AB. XD has sworn that the Medical Board discontinued these allegations because there was insufficient basis on which to proceed. This must be a hearsay statement. At committal proceedings, AB gave evidence that the Medical Board discontinued the 2009 proceedings because it lost contact with him because he moved about so much at that time. This also must be hearsay. The Ombudsman does not intend to put any material as to the 2009 allegations before the tribunal. It does not explain that decision. There would presumably be material both as to the substance of the 2009 allegations, and as to why they did not proceed. The Ombudsman has, in making complaints before the tribunal, a prosecutor’s duty of fairness to disclose and place before the tribunal relevant evidence, even though it may tend against the Ombudsman’s overall case. 17 This body was a predecessor to the Health Ombudsman. -- 17 of 72 -- 18 [50] XD does not have any medical records in relation to this patient. He cannot recall this patient. XD relies upon the complainant’s mother having passed away to say he is prejudiced, but I cannot place much weight on this assertion where he provides no details as to how her evidence might have assisted him. [51] There are some medical records which the Ombudsman has obtained from other sources. Medicare records show that XD treated AB on 12 occasion in a period of just over 12 months, spanning 1986 and 1987. This is contrary to AB’s evidence at the committal. There he swore both that at every examination but the first XD masturbated him, and that he stopped attending XD after about four consultations because of the sexual assaults. Medical records from another doctor show that AB complained to another doctor of soreness of testes in January 1995. [52] The loss of medical records must be assumed to be a very significant prejudice to any fair hearing in the tribunal.18 XD cannot remind himself of the patient, his medical condition, or the course of treatment undertaken. Particularly here, XD cannot ascertain whether or not AB is recorded as suffering from any of the conditions which the Ombudsman’s expert would regard as prompting a legitimate examination of genitals. In this regard, AB’s statement includes that XD told him he was checking for discharge, and his sister’s statement records that XD had told AB he was checking his glands. There is the note in other medical records that AB complained of sore testicles. That is, there are indications that an examination of AB’s genitals may have been warranted on medical grounds. [53] As XD has no recollection of AB it is not possible for him to point to specific ways in which he is prejudiced by the delay. As McHugh J said in Brisbane South Regional Health Authority v Taylor,19 “…the whole quality of justice deteriorates …” where there is substantial delay. [54] The Ombudsman submitted that the loss of XD’s records was of less significance in AB’s case, for there could be no possible medical reason for XD to treat AB as AB alleges, and his sexual assaults of AB are unlikely to be recorded in the medical notes. A similar argument was recognised by the Full Federal Court in Davis, but discounted.20 While it is superficially attractive, I think that there are difficulties with the submission in relation to AB. First, it assumes the truth of the complainant’s allegations. Secondly, as the partial evidence from other sources shows, in AB’s case the records might shed significant light on the reliability of the complainant’s recollections and raise several possibilities as to legitimate reasons for examination of AB’s genitals. [55] The reference in respect of AB was made in 2020, 34 years after the behaviour complained of. That delay is not expressly explained on the Ombudsman’s material. This lack of explanation is particularly pertinent where there was a complaint to the Medical Board of Queensland in 2009. [56] I think this Court can take judicial notice of the fact that there often is substantial delay in making complaints of a sexual nature, and that that may be particularly so where the complainant is a child at the time of the alleged abuse.21 AB’s police 18 Davis, in the Full Court of the Federal Court, above, 520-521, cited in Moubarak, above, [94]. 19 (1996) 186 CLR 541, 551, quoting R v Lawrence [1982] AC 510, 517. 20 Above, pp 520-521. 21 The Queen v Lane, FCFCA, 19 June 1995. -- 18 of 72 -- 19 statement says that almost immediately after what he says was abuse at the hands of XD, he suffered significant mental health problems. In cross-examination at the committal hearing an answer was given by AB which blamed his mental health problems and feelings of shame for the delay. In these circumstances it would be unfair to regard the delay in making the complaint as totally unexplained. [57] On the scant contemporary material which is available, real questions as to AB’s reliability arise. That brings into sharp focus the Ombudsman’s proposed conduct of the referral concerning AB. The Ombudsman does not propose to call witnesses, and this is not explained. The cases have recognised that cross-examination is a fundamental part of a hearing because it gives one party the opportunity of testing the allegations made against them.22 The member cited Lee v The Queen23 to the effect that “confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial”. [58] In my opinion, a hearing in the tribunal would be unfair because of the loss of XD’s medical notes; his lack of recollection of AB, and the Ombudsman’s intention to run a case before the tribunal which provides no opportunity for XD to cross-examine AB, and to a lesser extent, those to whom he has complained in the past, as well as the Ombudsman’s decision not to explain or put material before the tribunal as to the 2009 complaint by AB, and the reason it was not pursued. Ultimately the appeal must be dismissed so far as it concerns the complaint made by AB. That is, the Ombudsman’s grounds of appeal at 1(a), 1(c) and 1(d) fail. BC [59] BC swore an affidavit for use in the tribunal by the Ombudsman. His evidence was that in 1986 when he was a 17 year old university student he attended once on XD. He suffered from acne. He said that XD “rigorously” examined his genital region for much longer than any other part of his body. He pulled BC’s penis and scrotum in different directions, apparently looking at them. BC felt very uncomfortable about the examination and did not return to XD. However, he said it was not until about two years later that he started to reflect more maturely on the consultation and why he did not behave more assertively in it. He read an article in the newspaper in August 2016 about other people making complaints against XD, and that provided the impetus for him to make a complaint to the police, which he did that year. [60] Considerations as to delay and its effects are somewhat different from those discussed in AB’s case. Unlike AB’s case, there is no unexplained independent delay by the Ombudsman or its predecessor, the Medical Board. Further, BC does explain his delay in complaining about XD. The flavour of his statement in the tribunal proceedings is that, while he remained offended and annoyed about what had happened at the consultation, these feelings were not sufficient to motivate him to take any action. It was only when he read the newspaper article in 2016 and thought that others had also been treated as he had, that he felt he “should do something about it”. That motivation is consonant with considerations as to the purpose of disciplinary proceedings by the Ombudsman. [61] From the perspective of XD, delay has meant that he has no records and no recollection of BC. As discussed above, this must be significantly prejudicial to him. 22 Allen v Allen [1894] P 248; Lee v The Queen (1998) 195 CLR 594, [32]. 23 Above, [32]. -- 19 of 72 -- 20 BC describes something which might have been part of a medical examination (in contrast to what AB described). However, for the Ombudsman it was said that, according to its unchallenged expert evidence, genital examination would not be warranted on the first consultation, in the absence of symptoms. It would perhaps be warranted on subsequent consultations to see if there was evidence of side effects from the use of the drug Roaccutane. In this respect, the Medicare history relating to BC does show only one attendance on XD, and that is described as “initial specialist attendance”. [62] BC has made an affidavit in the tribunal proceedings and will be available for cross-examination. BC’s police statement says that he made a preliminary complaint to his wife, and while there is a police statement from her annexed to material the Ombudsman wishes to use in the tribunal, it is not planned that she be called as a witness. This must be a point weighing against the Ombudsman, but not so heavily as in those cases where the complainant themselves will not give evidence. [63] In my view, no stay was warranted in the case of the referral of BC’s complaint. It must be recognised that there is significant prejudice caused to XD because of the delay. However, in circumstances where Medicare records support BC’s recollection that he only ever consulted XD once, and XD does not challenge the expert evidence that genital examination would not be warranted on a first consultation, I am not persuaded that this prejudice is so overwhelming as to make a fair prosecution by the Ombudsman in the tribunal impossible. The tribunal member will no doubt have regard to the disadvantages caused by delay in determining whether or not to make a finding against XD.24 In relation to the complaint by BC, the appeal should be allowed. In this respect I think the appellant succeeds on its grounds 1(a) and 1(d). CD [64] CD complains that he was sexually assaulted by XD on five occasions in 1987 when he was 16 or 17 years old. He says his first consultation with XD passed without incident. He had acne. XD looked at his face and prescribed him Roaccutane. At the second consultation XD examined him and looked at his penis, lifting it up and turning it from side to side. He said XD did not touch his testicles. He did not understand what XD was doing. The examination lasted for about 10 seconds. He felt uncomfortable. The same thing happened on another four or five occasions. [65] CD gave a statement to police in 2017, some 30 years after the events in question. So did his wife, recording a preliminary complaint in 2016. CD’s mother gave a statement to police in 2017 which recorded that CD complained that he was uncomfortable because XD asked him to pull his pants down during consultations. She was not sure whether these complaints occurred during the course of treatment or were “well after the consultations”. CD thought that he disclosed his discomfort to his mother within a year or two of being treated by XD. His mother recalled a second preliminary complaint in 2016. [66] The Ombudsman will not call CD, his wife or his mother at the proceedings it proposes to run in the tribunal. No explanation is provided for that decision. [67] While general matters going to delay in cases of sexual abuse are relevant, [56] above, no specific or express explanation is provided for CD’s delay in making a complaint either to the Medical Board or the police about the alleged behaviour of XD. 24 Cf Dr SS v Health Care Complaints Commission [2002] NSWCA 391, [32]. -- 20 of 72 -- 21 [68] Delay has prejudiced XD because he has disposed of his medical notes and he has no recollection of CD. This is particularly important where what CD describes could have been part of a medical examination. Furthermore, what CD described occurred not on the first consultation, but only on subsequent consultations. The expert evidence as to side effects of Roaccutane provides some support for the idea that what CD describes may have been part of a medical examination. In fact, in telling his wife about the conduct complained of, CD said that at the time it felt “odd but was probably necessary to do as to monitor any possible side effects from the medication …”. [69] It seems to me that a tribunal hearing could not be fair to XD. XD could not use his notes to explain what he did at consultations with CD, and why. He could not consider whether to call expert evidence of his own, based on his notes. Nor could he test CD’s evidence in cross-examination. He could not put a version of events supported by his medical notes to CD. Even allowing for the extraordinary nature of the remedy of a permanent stay, and taking into account those matters which do favour the Ombudsman, it seems to me that the disciplinary prosecution proposed by the Ombudsman in the tribunal could not be fair to XD and that a permanent stay was warranted. In this respect the Ombudsman fails on its grounds 1(a), (c) and (d). DE [70] DE alleges that he was assaulted by XD as a 15-year-old in 1991. DE does not describe anything untoward at the first consultation, when he was accompanied by his mother. He had acne. He was examined by XD and prescribed Roaccutane. DE says that on the second consultation XD examined his genitals and describes a prolonged examination, which does not sound particularly medical, although DE says that during the examination XD explained that he was looking for dry skin on DE’s penis which can, having regard to the Ombudsman’s evidence, be a side effect of Roaccutane, and thus perhaps a legitimate reason for genital examination. There were subsequent consultations but the conduct was not repeated. [71] DE made comments about XD’s conduct to a school friend at the time which are capable of being regarded as a preliminary complaint. He later made complaints to a girlfriend and, later again, to his wife. [72] DE made a statement to police in November 2017. While general considerations as to delay in cases of sexual abuse are relevant, [56] above, DE does not expressly explain why he delayed in making the statement to police. [73] DE has sworn an affidavit in the tribunal which the Ombudsman proposes to rely upon in the tribunal. Further, the school friend to whom DE complained has also sworn an affidavit in that proceeding. Both the wife and former girlfriend of DE gave police statements, but the Ombudsman does not propose to use affidavits or evidence from either of them in the tribunal, and does not explain that decision. This must be against the Ombudsman in considering a permanent stay, but less so than where it has made unexplained decisions not to call the complainants. [74] XD was charged by police with a sexual offence on the complaint of DE but no indictment was presented. The Ombudsman does not put any material before either the tribunal or this Court to explain that. Considerations as to the Ombudsman’s duty -- 21 of 72 -- 22 of fairness apply to this lack of explanation and evidence. These matters weigh against the Ombudsman. [75] Delay has caused prejudice to XD. He has no recollection of DE and no notes or other records. [76] Although the matters are finely balanced, I do not think that there can be a fair hearing in the tribunal in relation to the complaint made by DE. DE does not describe something which (like, say, AB) is flagrant sexual assault. What he describes might have been part of a legitimate medical examination, misinterpreted by a 15 year old boy. In those circumstances where XD does not have his notes and is not able to use them to make a defence (see [69] above), I cannot see that there can be a fair hearing in the tribunal. That is, the Ombudsman has failed in relation to grounds 1(a), (c) and (d) of its notice of appeal. EF [77] EF said that he had been sexually assaulted by XD in the last quarter of 1999 when he was 13 or 14 years old. The Ombudsman has a police statement from him dating to 2016 and a police statement from his mother in 2016. [78] Delay has caused prejudice to XD. He has no recollection of EF or no notes or other records relating to him. The Health Ombudsman has located a one page letter from XD to EF’s GP. The letter shows that XD was treating EF for acne and had decided to prescribe Roaccutane. That is, it might give some support to XD’s case, but cannot be said to give him any great assistance as to his recollection, or treatment, of this patient. [79] The allegations made by EF are not consistent with a medical examination necessitated by Roaccutane use. First, XD’s attention to his genitals occurred on the only consultation he had with XD, so according to the uncontradicted evidence sought to be led in the tribunal proceedings, there could have been no occasion to check for side effects of Roaccutane at that consultation. Further, EF describes that XD cupped and squeezed his testicles. EF says he did not have any symptoms relating to his genitals and XD did not explain why he conducted a genital examination. I work on the basis that if the conduct alleged by EF did occur, it is unlikely to appear in the medical notes made by XD of the consultation. That to some extent diminishes the importance of the loss of the medical notes. [80] EF’s mother says that he made a complaint to her the day of his appointment with XD. This is potentially powerful evidence in support of EF’s credit. As well, there are police statements from three other people, including his de facto wife, who received preliminary complaints from him. [81] Allowing for general considerations about the delay in making sexual complaints, [56] above, EF does not explain the delay in making a complaint to the Ombudsman. I note that this is in the context where his mother says that on the very day of the assault he alleges, he complained to her about it. This factor is not decisive against EF, but it does weigh in my exercise of discretion against him. [82] Neither EF, nor any of the people to whom he made preliminary complaint, will be called by the Ombudsman in the tribunal proceedings. This is unexplained by the Ombudsman. In my view, this determines the appeal against the Ombudsman insofar -- 22 of 72 -- 23 as the referral to the tribunal rests on the complaint of EF. Delay significantly prejudices XD. To the extent that is mitigated by the unlikelihood that a sexual assault would be recorded in XD’s notes, focus is thrown very much upon the reliability and veracity of EF’s account and, on the facts of this complaint, EF’s mother. That cannot be tested in the proceeding which the Ombudsman proposes. The appeal must be dismissed so far as it relates to the part of the referral which relies on EF’s complaint. That is, I think that the Ombudsman’s grounds of appeal at 1(a), (c) and (d) fail, and this is decisive against this part of the appeal. FG [83] FG makes two different types of allegations against XD. The first relates to the time when he was a child patient of XD. He was in Year 11 and aged 16. He attended XD’s surgery with his father. His father was present for the first part of the consultation, but then left the consultation room. After this, XD instructed him to remove all his clothes, which he did, and lie face upwards on the examination table. FG said that XD examined his body including his penis, but then at some stage removed his gloves, placed oil on his penis and then began masturbating him. He said XD made sexual comments to him as he did this. FG said that subsequent consultations would begin with a medical examination of his skin conditions, which involved him removing his shirt. However, after that XD would ask him to pull down his pants and lie on the examination table. During these interactions FG said that XD would press on certain parts of his abdomen and would masturbate him regularly, sometimes performing oral sex on him. FG said he ejaculated as a result of these assaults. [84] The second set of allegations FG makes against XD concerned behaviour at times when FG was a young adult, aged 18–23 years old. The second set of allegations against XD were accurately described by the judicial member as spanning many years and being vague as to dates and other matters – [72] below. [85] On one occasion XD drove to pick him up for an appointment which XD (rather than FG) had made. XD drove him to his professional rooms, but it was out of hours and the building was empty. He had sexual contact with FG in his rooms. [86] XD gave FG his mobile phone number and they contacted each other outside consultation times. XD bulk-billed FG and once gave him $50 in cash. XD asked FG for anal sex but he refused. FG would masturbate XD through his pants, although he said he had seen XD’s penis and described it. On one occasion XD lay down naked on the consultation table next to him. Once XD gave FG a t-shirt. [87] XD would book appointments with FG himself, rather than FG making appointments with reception staff. The appointments would be at 4.30 or 5.30 in the afternoon, after the reception staff had left for the day. XD took photos of his penis for XD’s own sexual gratification, rather than any legitimate medical purpose. [88] FG asked XD to fund an expensive operation he wanted. XD refused, and FG made statements that may have been an attempt to blackmail XD. His police statement is not clear as to when this occurred. [89] This second set of allegations is in respect of conduct alleged by FG to be “more consensual” and by the Ombudsman to be in breach of the Medical Board’s guidelines on sexual boundaries.25 25 Paras 46–48 of the Ombudsman’s application for referral in the tribunal. -- 23 of 72 -- 24 [90] XD does have his medical records in relation to FG. This does not mean XD is not prejudiced by delay and loss of recollection, but it must ameliorate that prejudice. The records disclose that XD treated him for penile warts in April 2011, genital warts in December 2011 and managed him for anal warts in 2012. [91] The Ombudsman has police statements from FG’s mother and father. The Ombudsman does not intend to call FG or his parents as witnesses in the tribunal proceedings. This decision is unexplained. [92] FG complained to police about what he said happened to him on his first consultation with XD. There was a trial concerning these matters before a jury in the District Court in 2018. The jury acquitted XD. The jury must at least have had a reasonable doubt as to the reliability of FG’s evidence. In those circumstances it weighs very heavily against the Ombudsman that it will not call FG (or his parents) in the tribunal proceeding. I would add that there are matters on the face of FG’s police statement that sound unsatisfactory, and sound as if cross-examination is likely to produce matters adversely affecting FG’s credit. To some extent this appears to have been demonstrated during cross-examination at committal proceedings. The transcript of the committal proceeding, but not the jury trial, is in the material which the Ombudsman intends to place before the tribunal, and is not before this Court. This is not explained. [93] The judicial member below thought that in circumstances where the Ombudsman was not making FG available for cross-examination, the proceedings should be stayed because they would disadvantage XD “to an unacceptable degree and would be irremediably unfair” – [75] below. I think that the decision of the member below was correct, and correct for the reasons which she stated. In all the circumstances just discussed, it could not be fair to have a hearing in the tribunal where the Ombudsman did not call FG to give evidence. In this regard the Ombudsman fails to make out appeal ground 3. GH [94] GH gave a statement to the Health Ombudsman in 2022. He was 38 years old at that time. He said that he attended on XD when he was in Grade 9 or 10 for the treatment of acne. This was in 1998 or 1999. He was prescribed Roaccutane and had treatment with XD for 12 to 18 months. He usually attended appointments with XD by himself; that is, without a parent. He recalled that on two or three occasions XD asked him to lie on the treatment bed and remove his pants. XD then inspected his penis. GH thought this was odd at the time. He had discussed this with three other boys who were treated by XD and they said the same thing had happened to them. Two of those other boys were complainants to the Health Ombudsman.26 [95] Delay has prejudiced XD. He has destroyed his records in relation to GH in the ordinary course of administering his practice. He has no recollection of GH. Given the expert evidence the Ombudsman plans to lead in the tribunal, it is hard to see that GH’s description of XD inspecting his penis on two or three times in the course of 26 GH says things about these other patients of XD, but these allegations are hearsay, and I cannot imagine that the tribunal member hearing the Ombudsman’s complaints against XD would allow them into evidence. While there are no rules of evidence in the tribunal, where allegations are as grave as the ones made against XD, a tribunal acting properly would be astute to ensure that any departure from the rules of evidence which would apply in a court could not result in unfairness to XD. -- 24 of 72 -- 25 a 12 to 18 month course of treatment with Roaccutane is necessarily anything other than medical treatment. Therefore, in this case XD is particularly disadvantaged by the fact that he has no notes. The Ombudsman has located one letter in relation to this patient. It is written by XD to GH’s GP. It says that XD is treating GH for acne and has decided to prescribe Roaccutane. While it may generally assist XD, it could not be of much assistance to his recollection of GH, or his treatment of him. [96] While I bear in mind general matters as to delay in making complaint about sexual matters, [56] above, there is no explanation of delay by GH in complaining to the Health Ombudsman about this matter. [97] The Ombudsman intends to call GH as a witness before the tribunal so that he will be available for cross-examination. In this regard, there will be more procedural fairness available to XD than in those cases where the Ombudsman does not propose to call the complainant before the tribunal. However, in this particular case it is hard to see that making GH available for cross-examination will make the tribunal proceeding any fairer to XD. GH’s proposed evidence-in-chief is limited and, on its face, does not describe anything which is necessarily outside the bounds of acceptable medical practice. It might well be in XD’s best interests not to cross-examine GH. [98] Weighing all the matters relevant to the complaint made by GH, it seems to me that XD could not receive a fair hearing in the tribunal and that the Ombudsman’s proceeding should be stayed so far as it related to this complaint. In that regard, I think that the Ombudsman has failed to make out grounds 2(a) and (c) of its appeal grounds. HI [99] HI gave the Ombudsman a statement in relation to XD in 2022 when he was 35 years old. He said he had attended on XD when he was about 14 years old for treatment of acne. He was prescribed Roaccutane. He thought that he remained under the treatment of XD until he was 16, possibly even 17. He thought that his mother attended consultations with him on occasion, but said that when XD conducted physical examinations of him, his mother was either not there, or a curtain was pulled so she could not see. HI recalled that on at least two occasions XD examined him and felt around his penis and testicles. He did not recall XD asking permission or giving any explanation for these examinations. He said those events made him dread going to see XD. HI said that the examination of his genitals took “a maximum of maybe 10 seconds” and that XD felt each testicle and examined his penis with his hand. [100] HI said that he did suffer side effects from Roaccutane, including “dry skin and cracked lips. I had dry skin for the whole of my body, but especially on my face was very dry. … The dry skin was mostly on exposed parts like my hands, sometimes my knuckles would crack because of the dryness and my face and lips. I would have to apply lip balm all the time because it would soak it all up quicky. The dryness was more limited to my face and my hands.”27 HI said he did not have any “issue in my genital area or mention any issues in my genital area that would have [given XD] any reason to do such an inspection”.28 I suppose the obvious point to make about that 27 Witness statement of HI. 28 Above. -- 25 of 72 -- 26 statement is that where the patient did otherwise have dry and cracked skin as a side effect of Roaccutane, examination of his genital area might have been warranted. [101] Apart from general considerations as to delay in sexual complaints, [56] above, there is nothing express on the material to explain why HI did not complain to the Health Ombudsman earlier. This must be a factor which weighs against the Ombudsman on this appeal, although it is not of decisive weight by itself. [102] HI will be made available for cross-examination during proceedings in the tribunal. However, although the comments I have made in relation to GH, [97], apply here too; the availability of HI for cross-examination may not make the tribunal proceedings any fairer to XD. [103] XD has destroyed his medical records in relation to HI. The Ombudsman has obtained two letters written by XD to HI’s GP, one dated June 2001, and the other January 2003. These record that HI has severe cystic and scarring acne on the face and upper trunk. XD decided to prescribe Roaccutane and other drugs in June 2001. He records that he has advised HI of “possible side effects from his medication, including photosensitivity”. The 2003 letter describes a “bad recurrence” and another course of Roaccutane is prescribed. In a very general way, these letters do support XD, including showing that he had prescribed Roaccutane and had a concern with side effects. However, they are not a substitute for XD’s complete medical notes and the destruction of these is still a significant disadvantage to XD. [104] Weighing all the matters relevant to whether there ought to be a permanent stay of the Ombudsman’s proceedings in the tribunal, so far as they concern HI, my view is that there should be a stay. In all the circumstances, I cannot see that the tribunal proceedings would be fair to XD. In that regard my view is that the Ombudsman has failed to make out grounds 2(a) and (c) of its notice of appeal. IJ [105] IJ gave a statement to the Ombudsman in 2022 when he was 34 years old. It was to the effect that he attended upon XD in 2002 or 2003 when he was 14 or 15 years of age. He said that on the first consultation he had with XD he was directed to a bed in the room and XD drew the curtain closed while his mother waited on a chair on the other side of the curtain. IJ said that XD initially inspected the skin on his face, chest and neck, but then began tapping his abdomen until he reached his pants. He said that he pushed his pants down and then eventually asked IJ to take his pants and underpants off. IJ complied. He said that XD then “intently” inspected his penis. XD then looked at his testicles and massaged them. IJ was confused and embarrassed. [106] He said during the second consultation with XD he was again made to lie on the bed and XD performed the same checks to his lower abdomen, then pulled his pants down and had a long look at his penis before rubbing it and making sexual comments and asking IJ sexual questions. He said that XD played with his scrotum and cupped it in his hand. XD told him he was looking for signs of ringworm. Then he began to masturbate IJ, which he continued to do until IJ ejaculated. [107] IJ said that he made a preliminary complaint to someone in his church who was not helpful. That person has not made a statement to the Ombudsman. -- 26 of 72 -- 27 [108] IJ outlines psychological symptoms which he attributes to the abuse by XD and says that a doctor has diagnosed him with post-traumatic stress disorder as a result of the abuse. He attributes difficulties with his workplaces and social relations over the years to the abuse, and much of his statement deals in depth with these matters. There are statements from family members which are generally corroborative of some of the dysfunction in his life. [109] There have never been any criminal proceedings based upon the subject matter of the complaint which IJ makes, so that questions of coherence of the justice system do not arise. There is a relevant and important purpose in the Ombudsman’s bringing disciplinary proceedings against XD. [110] The Ombudsman intends to call IJ and some of his family members as witnesses in the proceedings before the tribunal so that XD will have a chance to cross-examine these people. [111] XD has no records in relation to his treatment of IJ and says he has no recollection of him. The Ombudsman has obtained two letters written by XD in relation to his treatment of IJ. The letters are to IJ’s GP and are dated February 2002 and April 2003. The first records that IJ has cystic acne on the face and trunk and that XD has decided to prescribe Roaccutane. The 2003 letter describes a recurrence and another course of Roaccutane is prescribed. I cannot see that these letters assist XD except in a general way. I accept that he is at a significant disadvantage because he does not have his medical notes. That being said, the abuse alleged by IJ could not possibly have been part of a medical examination, so that it is most unlikely that the notes would have recorded the events described by IJ. In the circumstances of this case, the loss of IJ’s notes is less of a difficulty in considering whether or not there can be a fair hearing. The Ombudsman will make IJ available for cross-examination so that credit issues about what he alleges XD did can be explored. [112] Weighing all the circumstances in relation to IJ, I think that the Ombudsman has succeeded in establishing that a sufficiently fair hearing could be held in the tribunal in relation to IJ’s complaint. In that respect, I think the Ombudsman succeeds on grounds 2 and 4 of its notice of appeal. [113] This Court should order: 1. Leave is granted to bring the appeal filed on 11 October 2023. 2. The appeal is allowed. 3. The orders made below on 14 September 2023 are set aside. 4. In substitution it is ordered that the referral filed 30 April 2020 (OCR121-20) is permanently stayed except insofar as it relies upon a complaint made by BC and the referral filed on 5 October 2021 (OCR288-21) is permanently stayed except insofar as it relates to the complaint made by IJ. 5. If the parties intend that there should be any costs order other than that costs follow the event, they should file written submissions on costs not exceeding five pages, the respondent within seven days of the date of delivery of this judgment, and the appellant within seven days thereafter. 6. Otherwise, costs follow the event. -- 27 of 72 -- 28 [114] FRASER AJA: The Director of Proceedings on behalf of the Health Ombudsman (the Director) appointed under the Health Ombudsman Act 2013 (Qld) appeals against an order made by the Queensland Civil and Administrative Tribunal (the Tribunal) permanently staying disciplinary proceedings alleging professional misconduct against (XD). XD is a medical practitioner who has practised as a consultant dermatologist in private practice and as a visiting medical officer at public hospitals since 1986. [115] The Director made two referrals to the Tribunal, filed on 30 April 2020 (OCR121- 20) and 5 October 2021 (OCR288-21), seeking disciplinary orders against XD. Each referral alleges that, by reason of the totality of the conduct alleged in it, XD engaged in professional misconduct as defined by the Health Practitioner Regulation National Law (Queensland) (Qld). In all, there are ten allegations arising from complaints made by nine patients. Nine of the allegations are of conduct XD allegedly engaged in during consultations with the nine complainants at specified times between 1986 and 2005, when the complainants were variously aged between 13 and 18. The Director alleges that, when there was no medical reason to engage in the alleged conduct, XD inspected the genitals of one complainant and touched the genitals of each of the other eight complainants in different ways, including by masturbating the penis of three of them. The tenth allegation is of the alleged “boundary transgression” that, in the period between 2008 and 2013 during which one of the complainants consulted XD, XD repeatedly engaged in sexual conduct with that complainant after he had turned 18. [116] Six of the complainants complained to police between 2014 and 2017 and XD was charged with having committed criminal offences against them. No indictment was presented in relation to the allegations made by one of those complainants. On 6 February 2018, a District Court judge acceded to XD’s application for an order permanently staying proceedings upon an indictment which alleged that XD had committed offences against four of the complainants. In relation to the sixth complainant, in June 2018 XD was acquitted after a trial upon an indictment which alleged one count of indecent assault. The remaining three of the nine complainants in the disciplinary proceedings first complained to the Health Ombudsman after that trial had concluded. No criminal charges were brought in respect of the allegations by those three complainants. The disciplinary allegations relating to them are contained in the second referral to the Tribunal. [117] XD brought his application in the Tribunal for a permanent stay or dismissal of the referrals on 12 May 2023. The application contends that the disciplinary proceedings are an abuse of process. In the Tribunal, XD argued that those proceedings are an abuse of process upon three grounds: (a) First, the use of the Tribunal’s procedures is unjustifiably oppressive to XD because a fair hearing of the disciplinary proceedings is not possible.29 XD’s most substantial arguments in support of this ground rely upon two matters: (i) By the time XD was notified of the allegations made by eight of the complainants, he had no relevant recollection of the consultations with those complainants and in the ordinary course of his practice he had disposed of the patient records he had created in relation to them at the time of each consultation. 29 XD’s written submissions in the Tribunal, 15 June 2023, at paras 1 and 9. -- 28 of 72 -- 29 (ii) XD will have no opportunity to cross-examine four of the complainants because the affidavits they have made are exhibited to the affidavit of a different person who the Director will call as a witness, and the Director will not call those complainants as witnesses. (XD relies upon these circumstances in a different way in support of the ground described in subparagraph (c) below). (b) Secondly, in relation to four allegations which correspond with counts on the indictment permanently stayed in the District Court, a hearing of the allegations in the Tribunal after the prosecution of corresponding allegations in the criminal proceedings had been permanently stayed would bring the administration of justice into disrepute.30 (c) Thirdly, in relation to five of the allegations, because the Director will not call as witnesses in the disciplinary proceedings the four complainants from whose statements those allegations are derived, XD will have no opportunity to cross-examine those complainants upon their affidavits, for that reason their affidavits should not be admitted in evidence, and the disciplinary proceedings with respect to those allegations should be permanently stayed or dismissed on the ground that they have no prospects of succeeding and are vexatious.31 [118] The table below identifies the dates upon which the complainants are alleged to have consulted XD, the allegations corresponding with counts on the indictment permanently stayed in the District Court, the complainants whose medical records are not available, and the complainants the Director will not call as witnesses at the hearing in the Tribunal. Allegation Complainant Date/s Criminal charge outcome XD’s medical records available ? Complainant to be called in disciplinary proceedings? Referral OCR121-20 1 AB • 17 April 1986 • 15 May 1985 Permanent stay No No 2 BC • 24 October 1986 Permanent stay No Yes 3 CD • 12 May 1987 • 16 June 1987 • 28 July 1987 • 30 September 1987 • 22 October 1987 Permanent stay No No 4 DE • 1991 Charge but no No Yes 30 XD’s written submissions in the Tribunal, 15 June 2023, at paras 2 and 9. 31 XD’s written submissions in the Tribunal, 15 June 2023, at para 37. -- 29 of 72 -- 30 indictment presented 5 EF • A date unknown between 2 August 1999 – 1 January 2000 Permanent stay No**32 No 6 FG • 14 December 2005 Acquitted33 Yes No 7 FG • Boundary transgression 2008 – 2013 No charge Yes No Referral OCR288-21 1 GH • 2 or 3 occasions in 1999 No charge No**34 Yes 2 HI • Several occasions in 2001 - 2003 No charge No**35 Yes 3 IJ • 5 February 2002 • Another occasion during the 2nd or 3rd consultation (between 5 February 2002 and 1 November 2004) No charge No**36 Yes XD’s responses to the referrals [119] For each referral, XD filed a “Response of Respondent to Allegations in the Referral”. In those responses, in relation to the allegations in both referrals except allegations 6 and 7 in the first referral which concern FG: (a) XD admits that details alleged by the Director (the complainants’ dates of birth and age at the relevant time, the referrals of the complainants to XD for acne treatment, and the dates of treatment by XD) are consistent with Medicare Records, but XD otherwise cannot admit the allegations because: (i) (in relation to all complainants except EF, GH, HI and IJ) he does not have any medical or business records of the consultation. 32 **Except for a one-page unsigned letter. 33 It is not suggested that the acquittal is relevant. 34 **Except for one letter. 35 **Except for two letters. 36 **Except for two letters. -- 30 of 72 -- 31 (ii) (in relation to EF, GH, HI and IJ) he does not have any records, except for a letter or two letters, as indicated in the table above. (b) XD denies the allegations in respect of the consultations on the ground that XD did not engage in conduct of the nature alleged by the Director. XD alleges that when consulting with patients and practising dermatology, he only engaged in conduct which was reasonably necessary and appropriate as part of and in accordance with legitimate medical treatments or procedures. [120] In relation to allegations 6 and 7 concerning FG, in respect of whom XD has medical records: (a) XD admits the details about FG’s date of birth, age, referral to XD for acne treatment, and the dates of treatment. (b) As to allegation 6, XD admits FG was accompanied by his father at the consultation on 14 December 2005, denies that FG’s father had left the consultation, and otherwise denies the allegations on the grounds that he did not engage in the alleged conduct and only engaged in conduct which was reasonably necessary and appropriate in accordance with legitimate medical treatments or procedures. (c) As to allegation 7, XD denies the allegations of sexual conduct on the ground that he did not engage in such conduct. He admits that he contacted FG on a weekend and drove him to his clinic, but alleges he treated FG for genital warts. XD admits that on one occasion he took photographs of FG’s penile lesions. He alleges that he took those photographs with FG’s consent for legitimate reasons relating to medical treatment. XD’s affidavit evidence [121] XD swore an affidavit in support of his application for a stay of the referrals, in which he makes statements to the following effect. He did not engage in any of the professional misconduct alleged against him in the disciplinary proceeding. He had never sexually assaulted or indecently dealt with any patient. Since XD commenced practice as a consultant dermatologist in 1986, he had in the vicinity of 200,000 consultations and he had seen many thousands of patients. He created patient records for all of his patients. He always recorded at least the reason for the consultation, the symptoms of the patient as relayed by the patient (or, where the patient was a minor accompanied by a parent or guardian, the symptoms relayed by the parent or guardian as well as the symptoms relayed by the patient), any examination or procedure undertaken, and any proposed course of treatment. Without access to his patient records, it is impossible for XD to identify and recall details for each of his patients over the years with any specificity. For each patient, XD also retained items such as referral letters from other health practitioners, letters sent to other health practitioners, and pathology results. [122] XD’s letters to other health practitioners do not include the same level of detail as recorded in his clinical notes. The primary purpose of writing to another health practitioner was to acknowledge the issue in the referral, raise an issue which required further attention, or record significant treatment such as medication prescribed or a procedure undertaken. The notes would have contained a more detailed record of what occurred during the consultation. The letter to the referring practitioner was a high-level summary. If issues were reviewed, examined or discussed during -- 31 of 72 -- 32 a consultation but did not require treatment or follow up, those issues might not be included in the letter. [123] Applying what XD understood to be a standard practice across the health industry and what was in accordance with guidance by his professional indemnity insurers over time, XD’s practice was to retain medical records either for a period of seven years from the date of the patient’s last consultation with him, or from the time the patient reached adult status, whichever was the latter. (The Judicial Member noted in her reasons37 that it was not contested by either party that this was standard practice for medical practitioners at the time.) [124] XD conducted a review of his records when the complaints were first brought to his attention. He identified relevant material available to him, either being that he held no records in relation to the complainants or that he had some correspondence in relation to the complainant on his computer system. Putting aside FG, in relation to whom XD did retain some records, the allegations against XD concerned consultations and treatments which occurred between 1986 and 2004. This was between about 20 and 37 years before XD swore his affidavit on 14 June 2023. XD had no reason to retain the medical records of any of AB, BC, CD, DE, EF, GH, HI or IJ beyond the seven-year protocol (except for the letters mentioned in the footnotes to the table above). XD does not have copies of those records. [125] The Medicare Records, to which XD was able to refer, at their highest contain details such as the date of consultation, an item number corresponding with a brief description of the nature of the consultation (e.g., initial attendance), the fee charged, the payment method and the provider name and location. At the time of swearing his affidavit, XD had seen medical records of other health practitioners and institutions relating to FG (for whom XD retained his own records), GW (which XD addressed separately), and IJ. In respect of IJ, the records post-dated the occasions on which IJ allegedly saw XD and therefore did not assist XD in disproving the allegations made by IJ. XD did not have any other independent recollection of the consultations to which the proceedings related. The absence of other records materially impacted upon his ability to recall any of the specific details about the complainants, including any symptoms of which the patients complained, the details of the consultation, and what (if any) examinations were performed. Because of the absence of his records, XD was not able to point to any record indicating the presence of a parent, the details of examinations, treatments or discussions had during consultations. Nor was he able to say whether or not there had been any examination at any time of any patient’s groin, torso or upper thigh area and, if so, the medical reason for such an examination. It was XD’s practice to have a parent or guardian present when he had a consultation with a minor, and a proposed course of treatment of a minor would be discussed with the parent or guardian. [126] In the mid-1980s, Roaccutane was used in the treatment of patients with a particular form of acne. It was then relatively new to Australia. Its known side effects include impaired liver function, irritation or rashes on the skin similar to eczema, cracked lips, bloody nose, and painful red areas that changed to large blisters and end with peeling layers of skin on the lips, mouth, eyes, nose and genitals. A rarer side-effect is drying out of the skin. In some cases this can lead to a cracked or bleeding penis. Roaccutane can only be prescribed by a dermatologist. XD was always very careful 37 [2023] QCAT 340 at [13]. -- 32 of 72 -- 33 to fully explain and discuss the medication with the parent of a child, often more than once. [127] It was also not uncommon for minors to complain of chafing between the thighs as a result of underwear rubbing while playing sports or from shaving pubic hairs. Such side effects would require examination and recommendation as to further treatment options. XD’s patient records would assist him in understanding whether or not there was a medical basis for examining the patient’s torso, upper thigh and/or groin areas. Such medical bases may include, for example, advice from the patient or their parent that they had observed something about the skin in that area – for example, a lump, mole, or tenderness or irritation on areas of the patient’s body (which might legitimately include their testes). Alternatively, given the potential effects of Roaccutane, sometimes it would be appropriate to examine a patient’s torso and groin to determine whether there were noticeable side effects. [128] In March 2010, XD first became aware that AB had made allegations of impropriety against him to the Medical Board of Queensland. XD denied those allegations. Medicare Records showed that XD treated AB on 12 occasions between 20 March 1986 and 14 July 1987. In March 2010, XD had no recollection of AB as a patient and had not retained any of his patient records. Those records had been destroyed in the ordinary course of practice. In about 2014 or 2015, the Medical Board provided XD with some medical records of other health practitioners. Those records revealed that AB was treated for soreness of the testes in February 1987. If a patient mentioned they were experiencing soreness or tenderness in the testes, it was standard practice to discuss this with the patient (and their parent/s as appropriate), after which they might agree that XD should examine the patient further. XD would then ask the patient to lie on a table in his rooms and remove his trousers, so XD could conduct an examination. [129] At one of the XD’s clinics, he had a receptionist who was able to enter his consulting room during his consultations with patients if the receptionist needed to ask XD something. XD had made efforts, including retaining a private investigator, to locate the receptionist, but had not been able to do so. XD had also lost the opportunity of calling other administrative staff who might have been able to give evidence corroborating any testimony by XD about the improbability that the offending occurred. [130] XD was not cross-examined at the hearing of the application for a permanent stay of the disciplinary proceedings. Permanent stay of criminal proceedings [131] The order made by the District Court judge permanently stayed proceedings on counts 1-9 on an indictment which charged XD with nine counts of indecent assault, which correspond with allegations 1-3 in the first referral to the Tribunal, and one count of indecent treatment of a child under 16, which correspond with allegation 5 in the first referral. The judge’s reasons for granting the stay refer to various circumstances to which XD deposed in an affidavit upon which XD relied in his application for a stay of the criminal proceedings: the criminal proceedings were brought a very long time after the relevant events were alleged to have occurred; XD had no recollection or (in relation to AB) only a vague recollection of the complainants; XD had no recollection of the details of or the reasons for the -- 33 of 72 -- 34 consultations, the treatments prescribed, or any procedures carried out; the circumstance that CD was alleged to have attended XD’s clinic with his mother who had since died, meant that XD had lost the opportunity to cross-examine her; XD was unable to locate a receptionist who had worked at one of his clinics and had been able to enter his consulting room during his consultations with patients if the receptionist needed to ask XD something; and XD had lost the opportunity of calling other administrative staff who might have been able to give evidence corroborating any testimony by XD about the improbability that the offending occurred. The judge also recorded that the Crown did not adduce expert evidence to disprove XD’s evidence about possible legitimate medical bases for examining a complainant’s groin area. [132] In addition to applying principles derived from Jago v District Court (NSW)38 and Walton v Gardiner,39 concerning a permanent stay of proceedings upon the ground that there could not be a fair trial, the judge referred to the observations by Holmes J in R v Noyes40 that, when deciding whether a prosecution was an abuse of process, it was relevant to consider whether the prosecution had a “real prospect of success”, and that “in considering whether proceedings would be oppressive it is relevant to consider whether they are viable.” The judge did not decide in respect of any individual complainant that the prosecution did not have a real prospect of success or was not viable, but the judge took into account that there was a weakness in the Crown case in relation to each complainant.41 [133] The judge accepted that each count on the indictment alleged “an egregious breach of trust by a medical practitioner against a patient who was vulnerable on account of his age”,42 discussed R v Edwards,43 and observed that, unlike in Edwards, XD did not have any recollection of the events. That fact, together with the loss of a potential opportunity to lead evidence about the contents of the medical records, meant that XD could not make any positive assertions about them. He was denied an opportunity to present evidence that might call into question the credibility or reliability of the complainants with respect to the reason for the consultation, the symptoms of the patient, any examination undertaken, any procedure undertaken, and any resulting proposed course of treatment. The judge considered that the loss of records hampered XD’s opportunity to show there was a medical reason for the touching of the complainants’ genitals which, in turn, would either raise an issue about whether the touching was indecent or raise a defence for the jury’s consideration. [134] The judge rejected arguments that XD’s loss of the opportunity to refer to his patient records could be cured by directions or the use of other discretionary powers available to the court. The argument that patient records would not likely record matters such as masturbation did not redress the loss of XD’s ability to cross-examine a complainant about the reasons for the consultation, their symptoms, the examination, the procedure undertaken, and the resulting course of treatment. Arguments that the reliability of a complainant’s recollections could be tested in other ways, such as by reference to Medicare Records, did not address the prejudice suffered by XD resulting from his inability to test matters going to the core of the 38 (1989) 168 CLR 23. 39 (1993) 177 CLR 378. 40 [2005] 1 Qd R 169 at [24]. 41 [2018] QDCPR 2 at [58], [71], [82] and [92]. 42 [2018] QDCPR 2 at [94]. 43 (2009) 83 ALJR 717 at [31]. -- 34 of 72 -- 35 allegations. Whilst XD could lead evidence about the conditions treated by dermatologists which might require examinations of the kind alleged to have been conducted by XD, generalised questioning of that kind was unlikely to be sufficient to put a defence in issue. Without his medical records, it was impossible for XD to check whether he had made a genital examination of the complainants and, if so, why he did so and how he carried it out. Nor could he give instructions to his lawyers of a kind which might portray the alleged incidents in a different light. [135] Nor would a Longman44 direction address the special prejudice suffered by XD resulting from his inability to refer to his patient records. The judge observed that the nature of the prejudice suffered by XD was similar to the prejudice considered by the Full Federal Court in R v Davis,45 a case which is discussed below. Additional evidence adduced by the Director in the disciplinary proceedings [136] The affidavit evidence in XD’s application for a stay of the criminal proceedings in the District Court is substantially replicated in affidavit evidence in his application for a stay of the disciplinary proceedings in the Tribunal. In addition, in the Tribunal the Director relies upon affidavits by complainants who were not complainants for the counts in the District Court indictment and affidavits by some other persons, including persons to whom the complainants are said to have made disclosures about the conduct alleged against XD. [137] The Director also proposes to rely upon expert evidence of a kind which was not in evidence in the application for a stay of the criminal proceedings. In two documents headed “Clinical Advice”, dated 6 September 2018 and 6 March 2019 respectively, a dermatologist, Dr McCormack, expresses opinions in response to questions about statements made by AB, BC, EF and FG concerning XD’s alleged conduct. The most relevant of those opinions are to the following effect: (a) Roaccutane (isotretinoin) is primarily used for the treatment of acne vulgaris. It was indicated for use in patients with severe nodulocystic acne with scarring, where they had failed other therapies. There are numerous side effects, the major ones being dry skin, dry lips and increased sensitivity of the sun. Dr McCormack attached a list of side effects, which include side effects described by XD. Roaccutane can cause skin irritation and eczema, which could affect any sites including the genitals. In those cases, the patient would have symptoms to suggest this, and a visual inspection of the affected region may be warranted. There would be no need to examine a patient’s genital region during Roaccutane therapy unless the patient was complaining of specific symptoms in that region. (b) If a patient had a rash or lesion(s) on the genital region which concerned them, or had symptoms to suggest anal fissures, then it would be appropriate to examine the patient once consent had been obtained. The doctor would need both to gain the patient’s permission to undertake the examination and to document the history, the indication for the examination, and the findings of the examination. Most practitioners would ask a male patient to move his own genitals around in order to expose any rash, thus keeping physical handling of the genitals to a minimum. 44 Longman v The Queen (1989) 168 CLR 79, 86–87, 91 and 108. 45 (1995) 57 FCR 512. -- 35 of 72 -- 36 (c) The statements attributed to AB, BC, EF and FG describe a sexual act, not a medical examination. There was no need to stroke or masturbate the penis. Inflammation of the testicles had rarely been reported, any such inflammation would only be symptomatic, and it would not justify routine examination or cupping of the testicles. The Director’s decision not to call some of the complainants as witnesses [138] Another difference between the criminal proceedings and the Tribunal proceedings is that in the Tribunal the Director will not call four of the complainants as witnesses. The Director proposes to prove the five allegations which are based upon those complainants’ evidence by exhibiting their affidavits to an affidavit by a different person, who the Director will call as a witness but who has no personal knowledge of the conduct alleged against XD. The apparently intended result of that approach is that those complainants’ statements about XD’s alleged conduct will be in evidence but XD will not have any opportunity to cross-examine those complainants. The Director adopts the same course in relation to some other persons who have sworn affidavits. The Director does not explain why those complainants and other persons will not be called as witnesses and made available for cross-examination. The Tribunal’s Decision [139] Judicial Member Dick SC (a former judge of the District Court), who constituted the Tribunal, observed that it was widely accepted that the Tribunal has an implied power to order a permanent stay of a disciplinary proceedings where it amounts to an abuse of process. The Judicial Member recorded XD’s contention that s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) expressly conferred that power. No issue arises in this appeal about the Tribunal’s power to stay the disciplinary proceedings. [140] The Judicial Member extracted from XD’s written submissions Bell P’s articulation in Moubarak by his tutor Coorey v Holt46 of nine propositions derived from the High Court’s decisions in Jago v District Court (NSW), Williams v Spautz,47 Walton v Gardiner, and Batistatos v Roads and Traffic Authority of New South Wales:48 “(1) the onus of proving that a permanent stay of proceedings should be granted lies squarely on a defendant: Spautz at 529 (Mason CJ, Dawson, Toohey and McHugh JJ) (2) a permanent stay should only be ordered in exceptional circumstances: Jago at 31 (Mason CJ), 76 (Gaudron J); Spautz at 529 (Mason CJ, Dawson, Toohey and McHugh JJ); Walton at 388 (Mason CJ, Deane and Dawson JJ) (3) a permanent stay should be granted when the interests of the administration of justice so demand: Jago at 30 (Mason CJ), 74 (Gaudron J); Spautz at 520 (Mason CJ, Dawson, Toohey and McHugh JJ); Batistatos at [12] (Gleeson J, Gummow, Hayne and Crennan JJ) 46 (2019) 100 NSWLR 218 at 233–234 [71]. 47 (1992) 174 CLR 509. 48 (2006) 226 CLR 256. -- 36 of 72 -- 37 (4) the categories of cases in which a permanent stay may be ordered are not closed: Jago at 74 (Gaudron J); Batistatos at [9] (Gleeson CJ, Gummow, Hayne and Crennan JJ) (5) one category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive: Jago at 74 (Gaudron J); Walton at 393 (Mason CJ, Deane and Dawson JJ) (6) the continuation of proceedings may be oppressive if that is their objective effect: Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 247 (Deane J); [1988] HCA 32 cited in Jago at 74 (Gaudron J); Batistatos at [70] (Gleeson CJ, Gummow, Hayne and Crennan JJ) (7) proceedings may be oppressive where their effect is “seriously and unfairly burdensome, prejudicial or damaging”: Jago at 74 (Gaudron J); at [70] (Gleeson CJ, Gummow, Hayne and Crennan JJ) (8) proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party: Walton at 393 (Mason CJ, Deane and Dawson JJ); Batistatos at [6] (Gleeson CJ, Gummow, Hayne and Crennan JJ), and (9) proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people; Walton at 393 (Mason CJ, Deane and Dawson JJ); Batistatos at [6] (Gleeson CJ, Gummow, Hayne and Crennan JJ).” [141] The Judicial Member acknowledged that it was necessary to examine each allegation individually but divided the allegations into three categories for the purposes of considering the stay application. The first category discussed by the Judicial Member comprises allegations 1 (AB), 2 (BC), 3 (CD) and 5 (EF) in the first referral. Those allegations correspond with some of the counts in the indictment against XD which was permanently stayed. After discussing aspects of those criminal proceedings, including the District Court judge’s reasons for ordering the stay of them, and the evidence and arguments in the Tribunal, the Judicial Member concluded:49 “Here, [the Director] pursues a case against [XD] which is based on the same facts as those which were the subject of the successful stay application in the District Court. The fact that there are more complainants, the different standard of proof, the composition of the Tribunal, the different rules of evidence and the evidence of Dr McCormack do not persuade me that there is not a true threat to the integrity of the court arising from a systemic incoherence if the charges here were to proceed. None of those facts satisfy me that the hearing would not be unfair.” [142] It should be noted here that the second sentence does not record a conclusion that the Judicial Member was persuaded that there was a true threat to the integrity of the 49 [2023] QCAT 340 at [55]. -- 37 of 72 -- 38 court, and the third sentence does not record a conclusion that the Judicial Member was satisfied that a hearing would be unfair. [143] The second category discussed by the Judicial Member comprised the four allegations in relation to which no criminal charge proceeded against XD: allegation 4 (DE) in the first referral, and allegations 1 (GH), 2 (HI), and 3 (IJ) in the second referral. The Judicial Member’s reasons described the substance of the evidence in each complainant’s affidavit, adverted to the parties’ arguments relating to those complainants, and concluded:50 “It is difficult to see how, if the charges arising from the complaints of these complainants had have been the subject of the application for the stay [of the criminal proceedings], they would have not suffered the same outcome, that is, they would have been stayed. Therefore, concerns about the integrity of the justice system are engaged. In any event, the same issues arise with these allegations as those that were stayed (absent the evidence of a medical practitioner which has been dealt with under heading, Dr McCormack).” [144] The third category of allegations discussed by the Judicial Member comprised allegations 6 and 7 in the first referral, each of which concerned FG. The Judicial Member concluded that “without the opportunity for the respondent to cross-examine FG, the hearing would be unfair and opaque”;51 “[t]he credibility of FG is a central issue in the trial of the allegations in these proceedings”;52 and “[t]o proceed on the basis of statements (or even affidavits) would necessarily disadvantage the respondent to an unacceptable degree and would be irremediably unfair.”53 [145] The Judicial Member’s reasons for concluding that the absence of an opportunity for XD to cross-examine FG (the only complainant in category 3) would render the hearing unfair were as follows: “[65] … In Count 6, FG alleges that [XD] assaulted him on the first consultation on 14 December 2005. He said his father attended for part of that consultation. FG was then aged 16. There was a trial in the District Court in June 2018 concerning this allegation. [XD] was acquitted. There is no issue of estoppel raised. [66] In the trial he agreed that one of the reasons he was referred to [XD] was to do a full skin check. He was asked ‘And you said there was a couple of moles on your penis?’ He answered ‘Yes, I’m not entirely certain but there might have been a few. I have little freckles and moles all over my body.’ [67] He said he was torn as to whether what happened was intentional or just part of the normal procedure. [XD] says there are inconsistencies in his account. 50 [2023] QCAT 340 at [62], [63]. 51 [2023] QCAT 340 at [73]. 52 [2023] QCAT 340 at [74]. 53 [2023] QCAT 340 at [75]. -- 38 of 72 -- 39 (a) The unlikelihood of the event the offence occurring on the first consultation when his father was in the vicinity; (b) The improbability of him being masturbated for four to five minutes when that consultation lasted for about 15 minutes. [68] Records are available for FG. The major complaint by [XD] is that FG is not to be called as a witness, nor has it been suggested that the transcript of the trial will be produced. It is submitted therefore that [XD] is left without the opportunity to cross- examine FG in the Tribunal. [69] Allegation 7 has been described as ‘boundary transgressions’ having occurred after FG reached adulthood. No criminal charges have been laid. [70] The transgressions have not been particularised but are contained in a 60-paragraph witness statement. The statement is very imprecise as to dates (sometimes even the year) of the events alleged. [XD] will be denied any opportunity to narrow the dates by cross-examination and then to produce any available contrary evidence, including possible alibi evidence. [71] FG alleges regular masturbation and oral sex during consultations. He alleges that [XD] picked him up one day and drove him to a certain location. [XD] says that he did pick FG up one day, but they disagree as to the circumstances and where he was taken. FG says on one occasion [XD] photographed FG’s penis. He says ‘there was nothing wrong with my penis ... I did have lesions but not on my penis they were inside my anus.’ [72] The medical records are available and disclose that the respondent treated FG for penile warts in April 2011, genital warts in December 2011 and managed him for anal warts in 2012. Otherwise, the allegations, which span many years, are vague or non-existent as to dates and other peripheral matters. [73] I am ineluctably drawn to the conclusion that without the opportunity for [XD] to cross-examine FG, the hearing would be unfair and opaque. [74] In Lee v The Queen (1998) 195 CLR 594, the Court unanimously said that ‘[c]onfrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial.’ There have been many statements to the same effect. The credibility of FG is a central issue in the trial of the allegations in these proceedings. [75] The Tribunal which would hear these charges is not bound by rules of evidence but is required to act fairly. To proceed on the basis of statements (or even affidavits) would necessarily disadvantage [XD] to an unacceptable degree and would be irremediably unfair.” -- 39 of 72 -- 40 Leave to appeal [146] The grounds of the Director’s appeal contend that the Judicial Member erred in law in ways described in four paragraphs. The first to third paragraphs relate to the three categories described by the Judicial Member; each paragraph contends for specified errors in the Judicial Member’s conclusions. At least some of those contentions (including that the Judicial Member gave excessive weight to specified considerations) assert errors of fact or of mixed fact and law. The fourth paragraph contends for specified errors with respect to all of the categories. This paragraph is also not confined to pure questions of law. The Director was given leave to file an amended notice of appeal, the only amendment being the addition of a ground that the Judicial Member was wrong in law to conclude that the proceedings should be permanently stayed. [147] XD questioned whether the appeal raises only a question of law but accepted that this is an appropriate case for a grant of leave to appeal. If leave to appeal is granted, the appeal will not be confined to errors of law; it will also comprehend errors of fact and of mixed fact and law.54 In that event, the appeal will be an appeal by way of rehearing.55 If leave to appeal is not granted, the appeal will not comprehend questions of fact or mixed law and fact, and the appeal will not be by way of rehearing.56 Leave to appeal is not granted as of course, even where it is not opposed. It is appropriate to grant leave to appeal in this case because the appeal raises a question of law about the application of the High Court’s decision in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore57 in the disciplinary proceedings, the appeal is reasonably arguable, the impact of the permanent stay is very significant, and leave is not opposed. The standard of appellate review [148] In Batistatos v Roads and Traffic Authority (NSW),58 Gleeson CJ, Gummow, Hayne and Crennan JJ cited with approval the statement by Gaudron and Gummow JJ in R v Carroll59 that appellate review of the exercise of the power to permanently stay proceedings as an abuse of process “looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration”. That statement describes the grounds articulated in House v The King60 upon which an appeal against a discretionary decision might succeed. [149] After the Director commenced the appeal in this Court, the High Court published the decision in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore,61 in which the High Court held that the applicable standard of appellate review with respect to an order permanently staying proceedings as an abuse of 54 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 149(3). 55 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 154(2)–(3), and Uniform Civil Procedure Rules 1999 (Qld), r 766(1). 56 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 154(1) and Uniform Civil Procedure Rules 1999 (Qld), r 745(2). 57 (2023) 97 ALJR 857. 58 (2006) 226 CLR 256 at [7]. 58 (1936) 55 CLR 499. 59 (2002) 213 CLR 635 at [73]. 60 (1936) 55 CLR 499. 61 (2023) 97 ALJR 857 at [15], [24], [26], [95] and [161]. -- 40 of 72 -- 41 process is instead the “correctness standard”; the question for the appeal court is whether or not it was correct to order a permanent stay.62 The majority in GLJ (Kiefel CJ, Gageler and Jagot JJ) observed that in an appeal by way of re-hearing under s 101 of the Supreme Court Act 1970 (NSW), if a trial judge enjoys a significant advantage over an appellate court in making findings and of fact or drawing inferences, including with reference to the credibility of witnesses, then due allowance must be made for the advantage available to the trial judge.63 If, as I propose, leave to appeal is granted, the provisions regulating the appeal will be to the same effect as the legislation considered in GLJ. In this appeal, the evidence before the Tribunal was wholly documentary and the Judicial Member did not enjoy any advantage which is not available to this Court. Accordingly, these reasons proceed upon the basis that this Court’s duty is to decide the whole case itself.64 For that reason, whilst it remains necessary for the Director to persuade the Court that the Tribunal’s decision was wrong, the challenges to the reasoning of the Tribunal in the original grounds of the appeal have little, if any, significance in the disposition of the appeal.65 Consideration: category 1 allegations [150] XD bore the onus of proving upon the balance of probabilities that the prosecution of the disciplinary proceedings would be an abuse of process. The negative form of the Judicial Member’s conclusions about the “category 1” allegations is consistent with the onus of proof having been reversed. Putting that aside, I would uphold the contention in ground 1(e) of the notice of appeal that the judicial member erred in concluding that the disciplinary proceedings posed a true threat to the integrity of the court arising from systemic incoherence. [151] The Judicial Member reproduced an extract from the judgment of Edelman J in Strickland (a pseudonym) v Director of Public Prosecutions (Cth)66 about terms, including “abuse of process”, each of which “attempts to capture a concern for the systemic protection of the integrity of the court within an integrated system of justice”. That dicta about legal taxonomy does not assist in determining whether the refusal of a stay in this matter would be incoherent with the order granting a stay of the criminal proceedings in the District Court. [152] The Judicial Member also set out the following extract from Bell P’s judgment in Moubarak:67 “Coherence is a quality that the common law values. An incoherent legal system is one that is apt to undermine respect for the rule of law and bring the administration of justice into disrepute. It would, in my opinion, tend towards incoherence to maintain that what constitutes a fair trial should differ in cases involving identical factual allegations. If the defendant was not fit to face criminal charges in respect of the plaintiff’s complaint to police because ‘the minimum requirements for a fair trial’ (see Rivkin at [97] above) would not be present, it would, 62 See Warren v Coombes (1979) 142 CLR 531 at 552. 63 GLJ at [27], citing Fox v Percy (2003) 214 CLR 118 at [29]. 64 See GLJ at [28], quoting from Warren v Coombes (1979) 142 CLR 531 at 552. 65 See Koschier v R [2024] NSWCCA 24 at [40]–[42]. 66 (2018) 266 CLR 325 at [249]. 67 (2019) 100 NSWLR 218 at [108]. -- 41 of 72 -- 42 in my opinion, offend commonsense simultaneously to maintain that the defendant could secure a fair civil trial in relation to identical factual allegations.” [153] XD contends that Bell P’s observations support the proposition that “it would offend commonsense simultaneously to maintain that [XD] could secure a fair disciplinary trial in fundamentally the same adversarial system where, in respect of AB, BC, CD and EF, it has been held that he cannot.”68 The observation in R v Rivkin69 quoted by Bell P concerned the minimum mental capacities required of a person accused in criminal proceedings before he could be tried “without unfairness or injustice”70 to that person. The point was relevant in Moubarak because, by the time the plaintiff had brought civil proceedings against the defendant for damages in relation to his sexual assaults upon her when she was 12 years old, he had severe dementia and was incapable of giving evidence or instructing counsel. Bell P’s opinion that it would “offend commonsense” to draw a distinction between a civil trial and a criminal trial concerned only the extreme case of a defendant who lacked capacity to participate in any meaningful way in a trial. This matter is very far removed from such a case. [154] Furthermore, the error found by Bell P was not that the primary judge erred by failing to apply the test applied in criminal proceedings (the “Presser Test”), but that the primary judge erred in dismissing the relevance of that test “out of hand”.71 That the test is not necessarily the same in civil proceedings as it is in criminal proceedings was reflected both in Bell P’s agreement with the observations of Campbell J in Australian Securities & Investments Commission v Australian Investors Forum Pty Ltd72 that the test “cannot be transposed directly to the circumstances of civil proceedings” and Bell P’s agreement with Mason CJ’s observation in Jago73 that “the criteria for determining what amounts to injustice in a civil case will necessarily differ from those appropriate to answering the question in a criminal context”. [155] The Judicial Member referred to the Director’s submissions that the purpose of the disciplinary proceedings in the Tribunal was materially different from the purpose of a criminal trial, the disciplinary proceedings having been brought to secure the protection of the public, and that the standard of proof in the disciplinary proceedings was lower than in criminal proceedings. XD relied upon the following passage in the judgment of Mason CJ, Deane J and Dawson J in Walton v Gardiner,74 which the Judicial Member set out: “As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the 68 XD’s amended Outline of Argument, 4 March 2024, para 19. 69 (2004) 59 NSWLR 284. 70 R v Presser [1958] VR 45 at 48. 71 (2019) 100 NSWLR 218 at [109]. 72 [2003] NSWSC 618 at [33]. 73 (1989) 168 CLR 23 at 26. 74 (1993) 177 CLR 378 at 395–396. -- 42 of 72 -- 43 administration of justice. The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse or process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners …” [156] XD argues that this passage supports the proposition that the principles from the criminal cases are a useful guide as to the circumstances in which the power to stay proceedings should be exercised. XD also argues that, whilst the disciplinary jurisdiction is protective rather than punitive, the consequences to the practitioner are akin to punitive consequences; and that, bearing in mind the “Briginshaw test”,75 not much tempering of the test for a stay in criminal proceedings is required to allow for its use in the civil jurisdiction. As the reasons of the majority in Walton v Gardiner explain, however, the process adopted to determine whether the disciplinary proceedings in the Tribunal should be stayed on abuse of process grounds must be “adapted to take account of the differences between the two kinds of proceedings”, particularly by consideration being “given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners”.76 [157] A similar point was made in relation to differences between civil and criminal proceedings in the judgment of Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos;77 the power to permanently stay proceedings is to be applied “with somewhat different emphases attending its exercise”. After referring to policy considerations affecting abuse of process grounds in criminal proceedings, the joint judgment explains that “[t]hese considerations are not present with the same force in civil litigation where the moving party is not the State enforcing the criminal law”.78 This part of the joint judgment concludes with an approval of the observation by Mason CJ in Jago v District Court (NSW) to which Bell P referred in Moubarak. [158] XD relies upon an undertaking he gave to the Medical Board in 2017, which will continue in effect until XD and the Board agree to end it, that XD will not have contact with male patients under 18. At the hearing in the Tribunal, and again in this appeal, XD argued that the undertaking provided relevant protection to the public if that were needed. The Director argues that the undertaking and the long period in which no complaint has been made about XD do not render the disciplinary proceedings inutile; the protective purpose of disciplinary proceedings may be served by the general deterrent effect of a disciplinary order made against a health practitioner who is found to have engaged in professional misconduct. [159] XD did not advance as a ground of his application for a permanent stay that there is no prospect that the Tribunal will impose a disciplinary order because the purpose of 75 Briginshaw v Briginshaw (1938) 60 CLR 336. 76 (1993) 177 CLR 378; [1938] HCA 77 at 396. 77 (2006) 226 CLR 256 at [8]. 78 (2006) 226 CLR 256 at [8]. -- 43 of 72 -- 44 the disciplinary proceedings has been fulfilled. The strength or weakness of the Director’s case against XD in that respect is not relevant to the question whether the proceedings should be struck out upon any of the grounds upon which the application was advanced. On the other hand, I would accept that the absence of recent complaints and the undertaking have a bearing upon the difference between the nature of the subject disciplinary proceedings in the Tribunal and the nature of the criminal proceedings in the District Court. According to the Director’s arguments, the main significance of any penalty imposed in these disciplinary proceedings would be to deter other health practitioners from engaging in professional misconduct of the kind alleged against XD. Such a deterrent effect is one of the purposes of sentencing for criminal offences of the kind that were charged against XD in the indictment. For that reason, the difference between the criminal proceedings in the District Court and the disciplinary proceedings in this case is not as extensive as it might be in another case. [160] It remains true, however, that protection of the public is the purpose of any deterrent effect of a penalty that might be imposed after a hearing of the disciplinary proceedings. In the criminal jurisdiction, there is nothing analogous to the provision in s 4 of the Health Ombudsman Act that “the health and safety of the public is the main consideration for … [the Tribunal], when deciding a matter referred to it under this Act.” Despite XD’s undertaking and the absence of any recent complaint, the protective purpose of disciplinary proceedings must remain important in a case such as this one, in which there are serious allegations that a specialist medical practitioner sexually assaulted children during their consultations with him. Furthermore, the circumstances upon which XD relies do not detract from the marked difference between these disciplinary proceedings and criminal proceedings in which imprisonment is an available penalty for the alleged offence; in that respect, the majority judgment in GLJ refers to the nature of “a criminal trial affected by long delay where the power of the State operates against an individual at the potential price of the individual’s liberty”.79 [161] There is a strong public interest in the disciplinary proceedings in this case continuing to a hearing and determination, just as there was a strong, public interest in the criminal proceedings continuing to a hearing and determination. It is not feasible or appropriate to attempt to quantify those different public interests. The point is that they are different. Whilst the same general principles apply to the exercise of the power to stay different kinds of proceedings as an abuse of process, differences in the nature and purpose of proceedings may result in different decisions upon applications for stays of different kinds of proceedings being coherent decisions, even where the factual substratum of the different proceedings is materially identical. Accordingly, the mere fact that a permanent stay is granted (or refused) in relation to one kind of proceeding cannot justify the grant (or refusal) of a permanent stay of a different kind of proceeding. [162] The only case cited by the parties which directly bears upon this issue supports those conclusions. In R v Davis (to which the Judicial Member referred80), the Director of Public Prosecutions appealed against an order staying criminal proceedings against a medical practitioner. An earlier application to stay disciplinary charges before the Medical Board had been refused. That refusal was not disturbed on appeal to the Full 79 (2023) 97 ALJR 857 at [48], [49]. 80 Reasons at [27], [40]–[41]. -- 44 of 72 -- 45 Court of the Federal Court in Davis v Medical Board of the Australian Capital Territory.81 In R v Davis, the Director of Public Prosecutions argued that the primary judge failed to have sufficient regard to the result of the litigation between Dr Davis and the Medical Board. It was submitted that the primary judge should have given weight to the refusal to stay that litigation in the application to stay the criminal proceedings, “if only in the interests of comity.”82 The Full Court explained why that submission was not accepted:83 “It is true that both proceedings arise out of the same set of allegations. If there will be difficulties in Dr Davis answering the criminal charges because of the lapse of time and the destruction of his medical records, there will also be difficulties for him in dealing with the Medical Board investigation. But that does not mean that the result, in terms of a stay, must be the same in each proceeding. There are important differences between the two proceedings. The Medical Board proceedings are not punitive in character. Although an order striking a practitioners’ name from the register ordinarily has serious consequences for the practitioner, such an order is made to protect the public, not to punish the practitioner. Consistently with this distinction, a different standard of proof applies. An allegation of professional misconduct need be proved only to the civil standard of proof, a balance of probabilities. Charges of indecent assault, like other criminal charges, must be proved beyond reasonable doubt. The difference in the standard of proof reflects a view that it may be acceptable, as an act of public protection, to exclude from practice a person against whom it is impossible to prove the facts beyond reasonable doubt. The point was made by Mason CJ, Deane J and Dawson J in Walton v Gardiner (1993) 177 CLR 378 at 396: ‘The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners.’ There being different elements involved in the weighing process,84 we think Gallop J was correct in declining to determine the application for a stay of the criminal proceedings by reference to the outcome of the Medical Board case.” 81 (1994) 52 FCR 279. 82 (1995) 57 FCR 512 at 518–519. 83 (1995) 57 FCR 512 at 519. 84 This reference, and the reference in the passage quoted from Walton v Gardiner, to a “weighing process” should not now be understood to authorise a balancing exercise of the kind deprecated by the majority judgment in GLJ: see the reasons below at [203]. -- 45 of 72 -- 46 [163] My conclusion is that the refusal of the application for a stay in relation to the category 1 allegations would not pose a threat to the integrity of the system of justice. It is therefore necessary to consider other bases of XD’s application for a permanent stay of the proceedings in relation to allegations 1, 2, 3, and 5 in the first referral. Consideration: category 2 allegations [164] A ground of the Judicial Member’s decision to stay the first referral, insofar as it concerns allegation 4, and the second referral (in relation to all of the allegations in it), is that “concerns about the integrity of the justice system are engaged” because, if charges arising from those allegations had been the subject of the application for the stay of the criminal proceedings, they too would have been stayed. In addition to the reasons given under the preceding heading, a conclusion that there is no ground for concern about the integrity of the system of justice is required by the fact that the indictment in the District Court did not include any allegation corresponding with any of the category 2 allegations. The contention in ground 2(e) of the notice of appeal that the Judicial Member erred in that respect should be upheld, with the consequence that it is also necessary to consider other bases of XD’s application for a permanent stay of the proceedings in relation to allegation 4 in the first referral and allegations 1–3 in the second referral. Consideration: category 3 allegations and other allegations in relation to which the complainant will not be available for cross-examination [165] In relation to the category 3 allegations (allegations 6 and 7 in the first referral, concerning FG), the Judicial Member held that in circumstances in which the Director will not call FG as a witness, with the result that he will not be available for cross-examination by XD, to proceed upon the basis of statements or even affidavits would be irremediably unfair. The appeal record reveals that, in addition to FG, the Director will not make available for cross-examination any of the complainants whose evidence is relied upon for category 1 allegations 1, 3 and 5 in the first referral. In relation to all four complainants, XD relied upon the ground that, because XD will have no opportunity to cross-examine the complainants, their affidavits should not be admitted in evidence and the continuation of the first referral with respect to their allegations should be permanently stayed or dismissed on the ground that they are vexatious because they have no prospects of succeeding. Because the Judicial Member decided that the Director’s case upon the first referral, so far as it related to allegations 1, 3 and 5, was an abuse of process upon the basis of her conclusion about category 1 allegations, she did not find it necessary to consider whether her conclusion concerning allegations 6 and 7 was also applicable in relation to allegations 1, 3 and 5. It is therefore necessary to consider the grounds of the stay application described in [117](a)(ii) and (c) of these reasons in relation to each of allegations 1, 3, 5, 6 and 7 in the first referral. [166] The genesis of the issue was a direction by the Tribunal on 9 February 2023 that the Director provide to XD a list of witnesses to be called by the Director who will be available for cross-examination at the final hearing of the proceedings. The Director’s responsive email on 2 March 2023 listed 10 persons the Director will call as witnesses. That list did not include AB, CD, EF and FG. The list did include the remaining five complainants. It also included the names of deponents of affidavits to which affidavits and statements by many potential witnesses, including AB, CD, EF and FG, are attached as exhibits. -- 46 of 72 -- 47 [167] The effect of the Director’s response to the Tribunal’s direction is that the Director intends to rely upon the affidavits of AB, CD, EF, FG, which are exhibits to affidavits by a deponent who has no personal knowledge of the subject matter of those exhibits, but those complainants will not be made available for cross-examination. When that response was circulated, it remained open to the Director to revise the list of witnesses, subject to any exercise of the Tribunal’s procedural powers. The Director subsequently made it crystal clear, however, that the decision not to call any of those four complainants was irrevocable. [168] At the hearing of the application for a stay in the Tribunal: (a) XD submitted that, whilst the Tribunal was not bound by the rules of evidence, it must act fairly, and to deprive XD of an opportunity to cross-examine complainants (and the other witnesses not being called) was unfair. XD submitted that the “natural remedy” was to exclude the evidence of the absent complainant witnesses and, once that was done, continuation of the proceedings with respect to allegations 1 (AB), 3 (CD), 5 (EF), and 6 and 7 (FG) “would be tantamount to an abuse of process because they have no prospect of succeeding, with the consequence that they should be permanently stayed or dismissed …on the basis that they are vexatious…”. (b) XD acknowledged that the proceedings, insofar as they concerned the other complainant witnesses (BC, DE, GH, HI, and IJ), did not suffer from that same “fundamental defect” and that unfairness caused by the absence of non- complainant witnesses could, on its own, be cured by the exclusion of the evidence of those witnesses, an application for which could be brought if the proceedings in respect of those allegations were not stayed.85 [169] XD advanced other arguments to the effect that the unavailability for cross-examination of the identified complainants, and of some of the other persons who were not to be called, created or contributed to such a degree of unfairness as to render a hearing of the referrals unfair. One such submission identified Dr McCormack as a person who was not be called as a witness, but whose statements were annexed to an affidavit by a person who was to be called as a witness. The Director subsequently added Dr McCormack as a person who would be called and made available for cross-examination. The Director did not revise the decision not to call the four complainants. [170] The Director’s written submissions in response in the Tribunal were as follows:86 (a) The Director “relies on the sworn/affirmed affidavits of 10 witnesses, this includes five of the nine complainants who will be called in these proceedings”. (b) The rules of evidence do not apply in the Tribunal. (c) The evidence is “capable of establishing the sexual interest that we say is relevant in all of these cases”. The evidence of the five complainants who would be called, together with the sworn statements from the additional four complainants and the expert opinion of Dr McCormack, entitle the Tribunal to accept the evidence of all nine complainants “because taken as a whole, their 85 XD’s written submissions,15 June 2023, paragraphs 37 and 38, and footnote 48. 86 Director’s written submissions, 29 June 2023, paragraphs 23–26. -- 47 of 72 -- 48 evidence is either strikingly similar and/or shows a pattern of behaviour that is inexplicable other than by the respondent’s responsibility for this misconduct”. (d) In relation to FG, it is relevant that FG was cross-examined at the criminal trial about the initial sexual assault (of which he was acquitted) as well as other matters relevant to his credit, and the transcript of the cross-examination will be in evidence. [171] It is apparent that the stay application was litigated in the Tribunal upon the basis that at the hearing of the referrals the affidavit evidence of the complainants AB, CD, EF, and FG, would be adduced in evidence as exhibits to an affidavit by a deponent who had no personal knowledge of the matters, but those four complainants would not be called as witnesses and made available for cross-examination. Notwithstanding the arguments by XD that this circumstance of itself justified the summary stay or dismissal of the referrals so far as they were based upon allegations by those four complainants, the Director did not seek to resile from the decision not to call those complainants or adduce evidence to explain why they would not be called as witnesses and made available for cross-examination. [172] At the hearing of the appeal, senior counsel for the Director submitted that the Director was flexible about the calling of the non-complainant witnesses. That submission is consistent with the submission for XD in the Tribunal to the effect that unfairness caused by the absence of the non-complainant witnesses did not create a “fundamental defect”. Both parties have proceeded upon the basis that the Director’s inflexibility about not calling witnesses is confined to the complainant witnesses AB, CD, EF, and FG. In relation to those complainants, senior counsel for the Director frankly informed the Court that, consistently with the Director’s position in the Tribunal, “there was no intention to call the nominated complainants”.87 Similarly, the Director’s outline of argument in this appeal acknowledges that the Director will not call any of those complainants.88 [173] The appeal therefore must be decided upon the footing that in circumstances in which the Director does not explain the decision, the Director will not call any of AB, CD, EF, and FG as witnesses at the hearing of the disciplinary proceedings, with the consequence that XD will have no opportunity to cross-examine any of them. [174] The proceedings might have taken a different course if the Director’s decision not to call any of the four complainants as witnesses was said to have been informed by some relevant consideration, such as a concern that there might be an adverse impact upon a complainant who is required to give oral evidence. Any such concern might be overcome or ameliorated by the exercise of the Tribunal’s extensive procedural powers, which include the powers given by s 95(2)(b) of the QCAT Act. In this case, the Director did not disclose to the Tribunal or the Court any explanation for the decision not to make the complainants available for cross-examination. The following reasons must be understood in that context. [175] XD argues on appeal, as he did in the Tribunal, that a hearing of the first referral in which the four complainants’ versions of the events are in evidence will necessarily be unfair in circumstances in which the Director will not call them as witnesses and 87 Transcript 7 March 2024, 1–40. 88 See the Director’s amended outline of argument on behalf of the appellant, 5 March 2024, paras 6(a), 54–56; see also XD’s amended outline of argument, 4 March 2024, paras 5(c), 7(d)(i), 20–26. -- 48 of 72 -- 49 does not offer any explanation for not calling them as witnesses. The essence of the Director’s response to that argument is that the rules of evidence do not apply in the Tribunal and the Director has a strong case. [176] The relevant jurisdiction is conferred by the Health Ombudsman Act 2013 (Qld), the main objects of which are expressed in s 3(1) as being to protect the health and safety of the public; to promote professional, safe and competent practice by health practitioners, and high standards of service delivery by health service organisations; and to maintain public confidence in the management of complaints and other matters relating to the provision of health services. Section 3(2) provides that those objects are to be achieved mainly by establishing a transparent, accountable, and fair system for effectively and expeditiously dealing with the complaints and other matters relating to the provision of health services. The Health Ombudsman Act requires the Tribunal, when deciding a matter referred to it under that Act, to treat the health and safety of the public as “the main consideration”; in that respect, s 4 provides: “(1) The main principle for administering this Act is that the health and safety of the public are paramount. (2) Without limiting subsection (1), the health and safety of the public is the main consideration for – (a) the health ombudsman when deciding what relevant action to take to deal with a complaint or other matter; and (b) the director of proceedings, when deciding whether to refer a matter to QCAT: and (c) QCAT, when deciding a matter referred to it under this Act.” [177] The obligation imposed by s 4 applies to the Tribunal when it is deciding a matter referred to it under that Act. That obligation is not inconsistent or incongruent with the expressed object of establishing a system for dealing with complaints which has the qualities described in s 3(2), including that it is fair. Fairness in proceedings in the Tribunal is also mandated by provisions of the QCAT Act. Section 3 of that Act sets out its objects. They include having the Tribunal deal with matters “in a way that is accessible, fair, just, economical, informal and quick”. The obligation of fairness is imposed by s 28, which provides: “(1) The procedure for a proceeding is at the discretion of the tribunal, subject to this Act, an enabling Act and the rules. (2) In all proceedings, the tribunal must act fairly and according to the substantial merits of the case. (3) In conducting a proceeding, the tribunal— (a) must observe the rules of natural justice; and (b) is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and -- 49 of 72 -- 50 (c) may inform itself in any way it considers appropriate; and (d) must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and (e) must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts. (4) Without limiting subsection (3)(b), the tribunal may admit into evidence the contents of any document despite the noncompliance with any time limit or other requirement under this Act, an enabling Act or the rules relating to the document or the service of it.” [178] The topic of cross-examination is specifically addressed in s 95, which provides: “(1) The tribunal must allow a party to a proceeding a reasonable opportunity to— (a) call or give evidence; and (b) examine, cross-examine and re-examine witnesses; and (c) make submissions to the tribunal. (2) Despite subsection (1)— (a) the tribunal may refuse to allow a party to a proceeding to call evidence on a matter if the tribunal considers there is already sufficient evidence about the matter before the tribunal; and (b) the tribunal may refuse to allow a party to a proceeding to cross-examine a witness about a matter if the tribunal considers— (i) there is sufficient evidence about the matter before the tribunal; and (ii) the evidence has been sufficiently tested by cross- examination; and (c) for an expedited hearing under section 94, cross- examination or re-examination of witnesses is at the discretion of the tribunal, subject to the rules. (3) Also, the tribunal may place time limits on the giving of evidence and on the examination, cross-examination and re- examination of witnesses. (4) Evidence in a hearing— (a) may be given orally or in writing; and (b) if the tribunal requires, must be given on oath or by affidavit.” -- 50 of 72 -- 51 [179] Subject to any direction the Tribunal may be empowered to make in this respect, the right to cross-examine which s 95 creates appears to provide XD only with the worthless opportunity to cross-examine the deponent of the affidavit to which the four complainants’ affidavits are exhibited. The parties’ arguments appear to have assumed that this is the correct construction of s 95. In the absence of argument about that point, these reasons proceed upon the same assumption. [180] Upon that construction of s 95, it remains significant for its recognition of the general importance of cross-examination in hearings at the Tribunal. There are many judicial observations about the importance of cross-examination in the adversarial system of justice, but it is not necessary to add to the observation by the High Court in Lee v The Queen,89 which the Judicial Member quoted: “Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial.” [181] Putting aside any possible application of the exceptions and qualifications in s 95(1)(b) and ss 95(2) and (3) of the QCAT Act, which are not submitted to be relevant for present purposes, the Tribunal should exercise the discretion in s 28(3)(b) to exclude the admission of a hearsay statement which is adverse to the interests of a party if the hearing would be rendered unfair by the opposing party being permitted to rely upon the statement to prove the truth of its content in circumstances in which the maker of that statement is not available for cross-examination. [182] Whether the hearing would be rendered unfair by the absence of an opportunity to cross-examine a person whose evidence is admitted at the hearing depends upon the content of natural justice, which varies according to the nature and circumstances of the adjudication in which it falls to be applied.90 The required content of natural justice in the Tribunal is also influenced by the prima facie position that the rules of evidence are inapplicable, the relative informality and speed required by s 28(3), and the powers which s 95 confers upon the Tribunal to limit or refuse to permit cross- examination in particular circumstances. Furthermore, given the generally accepted utility of cross-examination as a mechanism for eliciting material that bears upon contested issues, in many adversarial hearings s 28(3)(e) might be thought to favour a conclusion that cross - examination is an incident of natural justice. [183] Some guidance about the effect of s 28 may be derived from Evatt J’s often cited observations in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott91 about a broadly similar statutory provision which obliged a tribunal to act “according to substantial justice”: “Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, ‘bound by any rules of evidence’. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on 89 (1998) 195 CLR 594 (Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ). 90 National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311-312 (Gibbs CJ), 319-320 (Mason, Wilson and Dawson JJ), and 326 (Brennan J). 91 (1933) 50 CLR 228 at 256. I have added the emphasis. -- 51 of 72 -- 52 one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer ‘substantial justice’.” Those observations apply with greater force at an adversarial hearing in the Tribunal which, unlike the administrative tribunal discussed by Evatt J, is declared by s 164(1) of the QCAT Act to be a court of record. [184] Even so, upon what I have assumed is the correct construction of s 95, XD could become entitled to cross-examine the complainants only upon the Tribunal exercising its discretionary power under s 28 to apply the hearsay rule of evidence. Subject to any exceptions or qualifications of the kind to which s 95 refers, in an adversarial hearing it seems likely that the Tribunal generally would exercise its discretion in a way that requires the relevant party to call as a witness any person whose evidence is controversial and significant for the Tribunal’s decision; but because the exercise of a discretion is involved, there can be no binding rule upon the topic. [185] The Tribunal hears a vast array of matters of various kinds with differing degrees of complexity and seriousness. As is indicated above, the circumstances of the case in which the question arises must be considered in the resolution of the question whether a right of cross-examination is an incident of natural justice, such that the Tribunal should exercise its discretion to apply the hearsay rule of evidence. The combination of the following circumstances very strongly favours the conclusion that, in this case, XD has right to cross-examine the complainants as an incident of his entitlement to natural justice: (a) The referrals are to be resolved by adversarial proceedings in a court of record. (b) The allegations in the referrals that a medical practitioner sexually abused patients, including children, during consultations characterise these proceedings as being amongst the most serious kinds of proceedings that fall within the Tribunal’s jurisdiction. (c) The complainants are sources of relevant evidence for the determination of the referrals and their complaints are the reason for the proceedings against XD. (d) The charges of professional misconduct against XD depend upon the Tribunal finding that the complainants are credible and that their evidence is reliable. (e) XD has sworn an affidavit in which he maintains that he is innocent of the wrongdoing alleged against him. (f) Acceptance of any of the complainants’ allegations would have immediate and seriously adverse reputational, professional and financial consequences for XD. (g) The Director has not explained why the complainants will not be made available for cross-examination. (h) The Director does not suggest that there might be any change in the material circumstances between now and the final hearing in the Tribunal. [186] The argument that the Director has an overwhelming case supplies no ground for denying XD an opportunity to test the accuracy of the evidence upon which that -- 52 of 72 -- 53 argument is based. Nor does it assist the Director to invoke reasoning which is analogous to that which justifies the admission of similar fact evidence or coincidence evidence in criminal trials. The Director’s arguments are all founded upon an assumption that the evidence of the allegations in the complainants’ affidavits is accurate, but XD’s affidavit is to the contrary effect. The issues can be resolved only after a hearing. [187] Section 93B of the Evidence Act 1977 (Qld) allows the admission in certain criminal proceedings of hearsay evidence of statements by persons who have since died or become mentally or physically incapable of giving evidence. The Director relies upon that provision for a submission that, whilst XD’s inability to cross-examine puts him at a disadvantage, that is not remarkable, the Tribunal would have to approach the untested evidence of the complainants with considerable caution, it is common in historical sexual offending cases to find that witnesses are dead or cannot be found, and the mere fact that the four complainants cannot be cross-examined does not render the proceedings unfair. The relevance of s 93B in this case is obscure, given that it does not apply in a civil proceeding and the conditions upon which it applies would not be satisfied if this were a criminal proceeding in which the rules of evidence applied. In civil proceedings, s 92 of the same Act would allow the admission in evidence of the complainants’ affidavits upon the condition that the complainants were called as witnesses, subject to the provision that the condition need not be satisfied in the circumstances described in s 92(2). Those circumstances – none of which is submitted to exist in this matter – include cases in which the maker of the statement is dead or unfit, by reason of bodily or mental condition, to attend as a witness. [188] The very limited scope of the exceptions allowed by the Evidence Act for hearsay statements of potential witnesses to be admitted in evidence reflects the general importance of cross-examination in the adversarial system of justice. The Director’s arguments fail to acknowledge the importance of cross-examination for the fairness of a hearing in the adversarial system. They also fail to acknowledge the significance of the fact that the Court, like the Tribunal, must resolve this issue in circumstances in which it is not suggested that there is any relevant reason why XD should be deprived of the opportunity to cross-examine those who accuse him of gravely serious professional misconduct. [189] The only conclusion that is reasonably open in these circumstances is that the right to cross-examine the complainants is an incident of XD’s entitlement to natural justice. If that right were denied to XD, the hearing would be manifestly unfair. There are of course differences in the evidence relating to each allegation upon which the Director relies in the referrals. Consequently, the apparent strength of the Director’s case may differ from allegation to allegation. Differences of those kinds do not bear upon the nature or degree of the unfairness of a hearing that would result from a complainant’s evidence being admitted without XD being afforded an opportunity to cross-examine the complainant. XD’s case in that respect is so overpowering that it would be perverse to exercise the discretion under s 28(3)(b) in a way that did not allow him an opportunity to cross-examine the complainants. [190] XD’s written submissions in the Tribunal identify various points which might inform cross-examination: arguable inconsistency between the evidence of each of the four complainants and other evidence, improbability, incongruity, weakness, or another -- 53 of 72 -- 54 basis for challenging the accuracy of evidence given by the complainant.92 Examples of points of that kind may be seen in the Judicial Member’s reasons concerning FG, which are set out above. In circumstances in which the Director does not contend in relation to any complainant either that cross-examination would be harmful to a complainant or that there is nothing of substance about which XD legitimately could cross-examine, the conclusion that XD’s entitlement to natural justice includes a right to challenge by cross-examination the evidence of the complainants does not depend upon the identification by XD of the way in which that right might be exercised. [191] It remains necessary to discuss an issue concerning FG. The observation in [68] of the Judicial Member’s reasons that it was not suggested that the transcript of the criminal trial in relation to FG would be produced at the hearing before the Tribunal is incorrect.93 The fact (which may be assumed for present purposes) that the transcript will be admitted in evidence at the hearing might be relevant for the exercise of a power given by s 95(2)(b), but it is not a sufficient basis for admitting FG’s affidavit as evidence without affording XD an opportunity to cross-examine FG. The cross-examination upon count 6 at the criminal trial was presumably informed by the burden imposed upon the Crown to prove guilt beyond reasonable doubt. From the cross-examiner’s perspective, it was sufficient if – as occurred – the jury were left with a reasonable doubt about the defendant’s guilt. At the disciplinary hearing, the lower standard of proof is apt to require a very different approach to cross-examination. Furthermore, FG was not cross-examined about allegation 7 in the criminal proceedings, as this allegation was not reflected in any criminal charge against XD. It must be a condition of the admission in evidence of FG’s evidence about that allegation that he be available for cross-examination with respect to it. It would be impractical to cross-examine FG upon that allegation in a way which excludes reference to allegation 6. The Director’s inflexible stance in the litigation is also inconsistent with a compromise under which FG is available for cross-examination upon only one of the two allegations. [192] For these reasons, a hearing in which the evidence of any of AB, CD, EF, and FG is admitted without XD having an opportunity to cross-examine them must necessarily be unfair. That conclusion justifies and requires the grant of a permanent stay of the proceedings, so far as they are sourced in those complainants’ allegations. There is also substance in XD’s related contention to the effect that the relevant allegations are doomed to fail; having regard to the manifest unfairness of proceeding in the way the Director has inflexibly adopted, the discretion under s 28(3)(b) inevitably must be exercised to adopt the rule which renders inadmissible the hearsay evidence of those complainants. The permanent stay ordered by the Judicial Member, so far as it relates to the allegations concerning those complainants, may therefore be justified on the alternative basis that those allegations are vexatious because the Director has no prospect of proving them at a hearing. [193] I would affirm the order made in the Tribunal insofar as it stays the prosecution of allegations 1, 3, 5, 6 and 7 in the first referral. 92 XD’s written submissions, 15 June 2023: (JW) paragraphs 77, 78–79, 81,84; (CD) 97, 99; (EF) 113; (FG) 119–121. 93 The transcript is exhibited to the affidavit of Ms Pike, whose name is on the list of witnesses (Exhibit CAM-2 to the affidavit of Mr McCormack) to be called by the Director at the hearing in the Tribunal. -- 54 of 72 -- 55 In relation to allegations 2 and 4 in the first referral and allegations 1-3 in the second referral, will a hearing of the allegations necessarily be unfair? [194] That conclusion leaves for consideration allegations 2 and 4 in the first referral and the three allegations in the second referral. The Judicial Member’s reasons for ordering a stay in relation to those allegations are expressed in what I have found to be erroneous conclusions concerning category 1 (BC) and category 2 (DE, GH, HI and IJ). The Judicial Member referred to evidence, arguments by the parties, and conclusions reached by the judge who ordered the stay of the criminal proceedings which are relevant to the question raised by the stay application94 whether XD satisfied his onus of proving that a hearing of the disciplinary proceedings would be unfair, but the Judicial Member did not express any conclusion to that effect. The Court must decide the question for itself. Does the new principle described in paragraph [52] of GLJ apply in this case? [195] In GLJ, the High Court affirmed earlier decisions that a permanent stay should only be ordered in exceptional circumstances.95 The majority judgment in GLJ observes: that the doctrine of abuse of process “is to be understood as a measure of last resort to be exercised only in exceptional circumstances”;96 that “[i]t is insufficient to demonstrate merely a risk that a trial might be unfair”; that the applicant for a stay must prove that the trial “will be unfair”; and that, although the onus is the balance of probabilities, “the onus has rightly been described as a heavy one, and the power rightly said to be exercised only in an exceptional case”.97 [196] During the decades that have elapsed since XD had the consultations with the complainants, there has been a significant impoverishment of the evidence that is relevant to a determination of the disciplinary proceedings. The issue is whether the impact of the impoverishment of the evidence makes this case exceptional, such as to require a stay of the disciplinary proceedings upon the ground that a hearing of them will be unfair. The Director’s argument raises the question whether an effect of the decision in GLJ is that the inevitable impoverishment of evidence over time in this case should not be regarded as constituting an exceptional case. [197] In GLJ, the High Court (Kiefel CJ, Gageler and Jagot JJ; Steward and Gleeson JJ dissenting) allowed an appeal against a decision of the New South Wales Court of Appeal, which reversed a first instance decision to dismiss a motion for a stay of a claim for damages for personal injury. The claim arose out of the sexual abuse of the appellant when she was 14 years old. The appellant brought her claim 52 years after the abuse was alleged to have occurred, in reliance upon the abolition of all limitation periods for claims arising from historic child abuse effected by s 6A of the Limitation Act 1969 (NSW). That section has a counterpart in s 11A of the Limitation of Actions Act 1974 (Qld) and in enactments in other jurisdictions throughout Australia. The majority expressed the following conclusion of relevance in this matter: “[52] Nor, in this class of case, can any inevitable impoverishment of the evidence which the passing of time occasions be characterised as involving ‘exceptional circumstances’…The 94 See [117](a)(i) of these reasons. 95 See, for example, paragraph 2 of Bell P’s summary in Moubarak set out above. 96 (2023) 97 ALJR 857 at [18]. 97 (2023) 97 ALJR 857 at [21]. -- 55 of 72 -- 56 requirement of ‘exceptional circumstances’ involves a qualitative, not quantitative, assessment. But that qualitative assessment is one now undertaken in the context set by s 6A which abolished any limitation period. In the face of s 6A, the mere effluxion of time and the inevitable impoverishment of the evidence which the passing of time engenders cannot attract the quality of exceptionality which is required to justify the extreme remedy of the grant of a permanent stay. If that were so, public confidence in the administration of justice in accordance with the law as enacted by Parliament would itself be undermined.” [198] It is not submitted that the mere effluxion of time supports a conclusion that this is an exceptional case such as to justify a stay. The presently relevant conclusion is that “the inevitable impoverishment of the evidence which the passing of time engenders cannot attract the quality of exceptionality which is required to justify the extreme remedy of the grant of a permanent stay”. The Director submits that the same or a similar approach should be adopted in this case because, as in GLJ, no limitation period applies in relation to the bringing of disciplinary referrals against medical practitioners. The majority judgment does not, however, attribute the relevant conclusion to the mere absence of an applicable limitation period. Nor is it sufficient that the Director’s case relies upon the evidence of complainants that they were sexually assaulted by XD when they were children. The majority judgment confines the application of the presently relevant conclusion to a claim for damages by “a person within the relevant class created by s 6A of the [New South Wales] Limitation Act”,98 and focuses upon the change the enactment of that section wrought in a claim for damages resulting from child abuse, in respect of which previous limitation periods were abolished.99 Those passages reflect the rationale for the new principle articulated in the majority judgment, which lies in what the majority judgment concludes is a statutory correction of an injustice perceived by the legislature to have arisen from the application of limitation periods under the pre-existing law to claims for damages for child abuse. That rationale has no application in the context of disciplinary proceedings regulated under the Health Ombudsman Act, which are referred to the Tribunal and prosecuted in the Tribunal by a public official in the interests of public health and safety. [199] Consistently with that conclusion, in Star Aged Living Limited v Lee100 this Court (Bowskill CJ; Bond and Flanagan JJA agreeing) considered that the majority in GLJ “were clear, in limiting their observations to the particular circumstances of the case before them”. Similarly, in CM v Trustees of the Roman Catholic Church for the Diocese of Armidale,101 Leeming JA, with whose reasons Payne JA and Harrison CJ at CL agreed, observed that “[i]t would seem that the changed principles only apply to civil litigation to which s 6A applies”. It is submitted by the Director that this Court decided the point in the Director’s favour earlier this year in Palmer v Magistrates Court of Queensland.102 The submission relies upon Dalton JA’s endorsement of “the underlying principles recognised in GLJ”, but her Honour’s 98 (2023) 97 ALJR 857 at [50], [51] and [52] (referring to “in this class of case” and to the “qualitative assessment … undertaken in the context set by s 6A”). 99 (2023) 97 ALJR 857 at [41], [42], [47], [49]. 100 [2024] QCA 1 at [85]. The High Court refused special leave to appeal from that judgment: [2024] HCASL 167. 101 [2023] NSWCA 313 at [69]. 102 [2024] QCA 8. -- 56 of 72 -- 57 immediately following statement makes it clear that this was a reference to the proposition that “a stay will not be granted except in exceptional circumstances, because to stay the proceeding deprives the plaintiff of a determination of their claim in accordance with law”.103 The point agitated by the Director in this case was neither argued nor decided in Palmer. [200] Accordingly, this Court should hold that the principle expressed in the majority judgment in GLJ – that “the inevitable impoverishment of the evidence which the passing of time engenders cannot attract the quality of exceptionality which is required to justify the extreme remedy of the grant of a permanent stay” – applies in Queensland only in an action for damages to which s 11A of the Limitation of Actions Act 1974 (Qld) (or a materially indistinguishable statutory provision) applies. [201] Authoritative decisions which pre-date the decision in GLJ establish that the fact that there is no limitation period for the bringing of a claim does not justify disregard in a stay application of the impacts of the passage of time upon the fairness of a hearing. The absence of a limitation period is commonplace in cases in which a permanent stay of an indictment or of disciplinary proceedings as an abuse of process is sought. It also occasionally occurs in other kinds of case. The relevant law in such cases may be illustrated by reference to the High Court’s decision in Batistatos.104 In that case, the High Court upheld a decision of the New South Wales Court of Appeal which overturned a decision at first instance refusing to dismiss or permanently stay an action brought by the driver of a car some 29 years after an accident. One basis for the applications to stay the proceeding was that a fair trial was not possible in consequence of the impact upon the available evidence of the effluxion of time since the accident. In affirming the Court of Appeal’s decision, the High Court (Gleeson CJ, Gummow, Hayne and Crennan JJ; Kirby, Callinan and Heydon JJ dissenting) found it unnecessary to decide whether there was a limitation period of 30 years (in which case the claim was brought shortly before the expiration of the limitation period) or whether (as in the present case) there was no applicable limitation period.105 The majority judgment referred with approval to the judgment of Bryson JA in the New South Wales Court of Appeal, in which his Honour referred to the marked effect of the impoverishment of the evidence over time as a justification for the stay,106 and explicitly rejected the appellant’s argument that any exercise of power to stay proceedings commenced within a statutory limitation period “could not be supported merely by prejudice which might be expected to flow from the effluxion of time within the limitation period”.107 [202] Other decisions pre-dating GLJ which treat the impoverishment over time of the evidence available to determine a claim as a factor supporting the grant of a stay of proceedings (including upon the basis that a fair trial is not possible) are cited by Bell P in Moubarak by His Tutor Coorey.108 The parties did not cite any decision which treats the mere absence of a limitation period as a ground for disregarding the inevitable impoverishment of evidence over time as a factor which may tend to support a permanent stay. 103 [2024] QCA 8 at [89]. 104 (2006) 226 CLR 256. 105 (2006) 226 CLR 256 at 271 [28] – [30]. 106 (2006) 226 CLR 256 at 277–278 [54] – [55]. 107 (2006) 226 CLR 256 at 279 [61]. 108 (2019) 100 NSWLR 218 at [77]–[96]. -- 57 of 72 -- 58 The evaluative process [203] The majority judgment in GLJ describes the nature of the evaluative process involved in the disposition of an application for a permanent stay on the ground that a fair trial cannot be held. The relevant principles refer to the concept of “necessary unfairness” (meaning a trial being necessarily unfair) and “such unfairness to or oppression of a defendant as to constitute an abuse process”.109 Both concepts “ultimately concern the congruence of the holding of a trial and rendering of a verdict with the fundamental norms underlying our legal system in the circumstances as they exist at the time of the application for the permanent stay”;110 a trial characterised by reference to either concept “cannot yield a legitimate verdict within [the normative structure of the Australian legal system] and thereby the holding of the trial and rendering of a verdict will bring the administration of justice into disrepute”.111 The necessary evaluation does not involve a question whether unfairness to the applicant for a stay outweighs unfairness to the respondent by reason of the continuation of the proceeding; the “real issue” is instead “the congruence or otherwise of the holding of a trial and rendering of a verdict with the fundamental norms underlying our legal system”.112 The majority judgment hold that “[i]f a trial will be necessarily unfair…a court must not permit the trial to be held”.113 [204] As is mentioned above, in GLJ, the High Court affirmed earlier decisions that a permanent stay should only be ordered in exceptional circumstances and that the applicant for a stay must satisfy a heavy onus to prove that the trial will be unfair. The majority judgment refers to Mason CJ’s observation in Jago that “no stay of a criminal trial is to be granted, unless there is ‘nothing that a trial judge can do in the conduct of a trial [to] relieve against its unfair consequences’” such that, by the effects of the lapse of time, any conviction of the accused would be “necessarily unfair” and “would bring the administration of justice into disrepute”.114 The majority judgment quoted with approval the statement by the High Court in R v Edwards115 that: “Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the Tribunal in fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.” [205] The majority judgment also refers with approval to authorities which identify techniques developed to ensure that trials are not necessarily rendered unfair by the death or illness of potential witnesses, the erosion of their memories, or the loss of relevant documents.116 They include: the requirement upon the plaintiff to prove its case upon the balance of probabilities; the circumstances that “the gravity of the fact sought to be proved is relevant to ‘the degree of persuasion of the mind according to 109 The latter concept is not relevant in this appeal, in which the only relevant ground upon which the application was pursued relies upon oppression arising “because a fair hearing of the allegations is not possible”: XD’s written submissions in the Tribunal, 15 June 2023, at paras 1 and 9. 110 (2023) 97 ALJR 857 at [18]. 111 (2023) 97 ALJR 857 at [18]. 112 (2023) 97 ALJR 857 at [22]. 113 (2023) 97 ALJR 857 at [23]. 114 At [48], quoting from Jago at 34. 115 (2009) 83 ALJR 717 at [31]. 116 (2023) 97 ALJR 857 at [54]–[61]. -- 58 of 72 -- 59 the balance of probabilities’”117 and that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”118; Longman v The Queen119 warnings in criminal trials concerning events which occurred long in the past; and an acknowledgment of the fact of fallibility of human memory and that “the degree of fallibility increases with the passage of time”.120 Impoverishment of evidence over time: allegations 2 and 4 in the first referral and allegations 1–3 in the second referral [206] The Judicial Member referred to a variety of ways in which relevant evidence has been lost or become unreliable over time. They include the death of some potential witnesses and by XD’s inability to locate other potential witnesses, including a former receptionist who sometimes walked into his room without warning. At the hearing of this appeal, senior counsel for XD made it clear, however, that XD’s case for a stay upon the ground that a hearing will not be fair turns upon his inability to access his patient records and the erosion of his memory of the alleged consultations. Those related matters are the only features of the case which might be capable of justifying a permanent stay of the disciplinary proceedings upon the ground that a hearing will be unfair. [207] XD’s patient records included reference to the patients’ symptoms (as relayed by the patient and by any parent or guardian for a minor), any examination undertaken by XD, and the presence of any adult at the consultation. The Director does not suggest that XD could be criticised for the disposal of his records. Nor does the Director challenge XD upon the accuracy of his evidence of the content of those records or his evidence that he has no memory of the consultations. There being no challenge to XD’s evidence about those effects of the passage of time upon the evidence available to XD to defend the referrals, the appeal must be determined upon that the basis that XD has no memory of the alleged consultations and no ability to refresh his memory from patient records. There also appears to be no material dispute upon the evidence in the application for a stay that side effects of Roaccutane are a potential cause, but not the only potential cause, of symptoms which might constitute a medical justification for an examination of a patient’s genital area. Most importantly for present purposes, the erosion of XD’s memory over time and the disposal of his patient records has deprived XD of the opportunity of using his patient records – if they contained relevant entries upon this topic – to challenge the Director’s case that there was no medical reason for him to examine the complainant’s genitals. [208] As is explained below, however, it is necessary to identify what the evidence proves about both the kind of examination that might be justified by the possible symptoms described in the evidence and about the kind of examination recorded in XD’s patient records. Allegation 1 in the second referral [209] The erosion of XD’s memory and the loss of access to his patient records has a substantial impact upon the fairness of a hearing in relation to allegation 1 in the 117 (2023) 97 ALJR 857 at [57], quoting from Rejfek v McElroy (1965) 112 CLR 517 at 521. 118 (2023) 97 ALJR 857 at [58], quoting from Blatch v Archer (1974) 1 Cowp 63 at 65. 119 (1989) 168 CLR 79. 120 (2023) 97 ALJR 857 at [59], quoting from Watson v Foxman (1995) 49 NSWLR 315 to 319. -- 59 of 72 -- 60 second referral, concerning the complainant GH. Although the allegation is headed “Allegation One – Sexual Assault of GH”, unlike the allegations made in relation to the other complainants, the professional misconduct charged against XD does not include any allegation that he touched GH’s genitals. In relation to GH, the substance of the Director’s case is that XD examined GH’s penis when there was no medical reason to do so. The conduct alleged is that, on two or three occasions during consultations between 13 January and 6 September 1999, XD asked GH to lie down on the treatment table and remove his pants, then “inspected GH’s penis”. That is an accurate description of a statement by GH in an affidavit he swore in August 2022 which, GH deposes, repeats the contents of his statutory declaration signed in June 2019. [210] Some other evidence in that affidavit should be mentioned. GH believes he was in grade 9 and/or 10 when he started consulting XD in around 1998 and/or 1999. GH could not recall the details of all his consultations with XD. GH thought XD’s conduct was odd because the acne was mainly on his face but, given XD was a specialist and GH was a teenager, GH assumed that the inspection was a normal part of the process. GH also elaborates upon XD’s conduct in a way that is consistent with it being confined to visual inspections of GH’s penis: with reference to an occasion when the complainant was in his early twenties and a friend of his asked him whether XD had “looked at” GH’s penis, GH deposes that he and the friend had both had the experience of XD inspecting their penis. [211] XD deposes that he has no medical records for GH, save for a letter to GH’s referring general practitioner dated 14 January 1999 which, on the evidence, refers to the first of four consultations involving GH. The letter refers to GH having presented with cystic acne (the location of which is not stated in the letter) and records that XD commenced him on Roaccutane therapy in conjunction with another drug to reduce the inflammatory response. The letter concludes that XD would review GH again in a couple of months to check on his progress. XD also refers to exhibited Medicare Records which record that XD treated GH on four occasions in 1999. XD deposes that he has no recollection of those alleged attendances due to the time which has passed. GH’s affidavit does not reveal whether the conduct to which he deposes occurred at the first consultation or at the subsequent consultations, after GH had embarked upon Roaccutane therapy. [212] It is in not in dispute upon the evidence that a known side effect of Roaccutane therapy (and possible symptoms, such as a rash, caused by other events) might amount to a medical reason for conducting a visual inspection of a patient’s penis. The evidence thus leaves open the possibility that if XD did conduct the alleged visual inspections, he might have done so only after GH disclosed to XD symptoms associated with Roaccutane therapy (or symptoms arising from a different event) which amounted to a medical reason for conducting such examinations. Similarly, the Court should proceed upon the basis that XD would have recorded any such visual inspections as “examinations” in his patient records. [213] It follows, given XD’s inability to refer to his patient record for GH, that as a result of the effluxion of time since the relevant events, XD now cannot give instructions to counsel to put a case in cross-examination or make positive submissions upon the centrally important issues of liability in relation to this allegation: whether XD did or did not visually inspect GH’s genitals and whether any, and if so what, symptom from -- 60 of 72 -- 61 which GH might have suffered might amount to a medical reason for such an examination. [214] For the Director to succeed in this allegation, the Director will have to overcome various hurdles. The Director must satisfy the onus of proving the allegations upon the balance of probabilities. The seriousness of the allegation will make it more difficult than it otherwise would be for the Director to persuade the Tribunal of the alleged professional misconduct. The Tribunal necessarily would give weight to the circumstances that, over the years which have passed since the consultations occurred, GH’s memory of the consultation has deteriorated (as his affidavit itself reveals) and the memories of other witnesses called to satisfy the Director’s onus of proof are likely to have deteriorated. Applying the principle that all evidence is to be weighed according to the ability of a party to adduce it, the Tribunal also would attribute weight to the evidence that XD has no memory of the consultations and does not have access to his patient records. [215] Whatever difficulties matters of that kind might pose for the Director’s case, however, they could not adequately remedy the unfairness created by the loss of an opportunity for XD to impugn the essence of the Director’s case and to advance a positive case by cross-examining GH with reference to, and adducing evidence of, entries in his patient records which, so far as can be known now, might bear directly upon the central issues in allegation 1 in the second referral. In the context of an evaluation of the fairness of a hearing, the fact that it cannot be known what, if any, significant entry was in those records, does not diminish the strength of this consideration. [216] There is no public interest in holding an irremediably unfair hearing of any allegation. A determination after such a hearing could not reasonably be regarded as settling the dispute or otherwise serving the interests of justice. Notwithstanding the public interest in the prosecution of disciplinary referrals, and despite the techniques the Tribunal might deploy in an attempt to ameliorate the erosion or loss over a lengthy period of time of the evidence available to XD, the nature and extent of the unfairness that would be involved in a hearing of the second referral, so far as it concerns allegation 1, justifies and requires the stay ordered by the Tribunal in that respect. Allegations 2 and 4 in the first referral and allegations 2–3 in the second referral [217] Allegations 2 and 4 in the first referral and allegations 2–3 in the second referral allege that XD sexually assaulted the complainants by touching their genitals in various ways which are described in detail in the allegations. [218] Allegation 2 in the first referral is that: “On the one occasion BC received treatment by XD, XD examined BC’s face fleetingly before asking BC to partially remove his clothing, including taking his pants down. XD used both hands to examine BC’s genitals, holding BC’s penis in one hand pulling his scrotum in different directions.” [219] BC affirmed an affidavit in August 2022, which largely repeats a witness statement he gave in December 2016 and signed in January 2017. He stated that in 1986 (when he was 17), he suffered from bad acne, located primarily on his face, back and chest. A general practitioner referred him to a skin specialist. He attended at the specialist’s clinic, which was at Spring Hill or Wickham Terrace. (XD deposes in his affidavit -- 61 of 72 -- 62 that in 1986, in addition to predominately practising at rooms at Garden City, he regularly practised for half a day per week at six other locations, including Wickham Terrace.) BC spoke to a receptionist. He could not recall her being present when he left. BC’s description of the relevant events is reflected in allegation 2. BC stated that the doctor put latex gloves on, came up close and examined BC, leant down in front of BC (who remained standing), and “began rigorously examining [his] genital region”, and pulling his penis and scrotum in different directions to look at them. BC was concerned and uncomfortable about that. He didn’t question what happened as it was a doctor who did it. At the end of the examination, the doctor asked BC to pull his pants up and told him that he was going to put him on Roaccutane. [220] About two years later, BC started to reflect on what had happened during that consultation. He was annoyed with himself for not having questioned why the doctor was examining his genitals for facial acne and for not having asked for anyone else to be present. The first person who BC told about the event was BC’s now wife, which would have been in 1992 when they started to see each other. In August 2016, BC read an article in a newspaper and formed the view that the doctor mentioned in the article, who had some charges against him, was the doctor who had treated BC. Some days later, BC attended a police station to report the matter. In January 2017, BC’s now wife signed a witness statement which records statements to her by BC to the same or similar effect as those in his statement. [221] XD deposes that he first became aware of the complaint by BC when he was charged with offences in 2016. By that time he had (and still has) no recollection of BC, and his medical records in respect of him had been destroyed in the ordinary course of his business. XD refers to exhibited Medicare Records which refer to BC attending an Initial Specialist Attendance on 24 October 1986. XD states he has no recollection of that alleged attendance due to the time which has passed. [222] Allegation 4 in the first referral is that: “DE was treated by XD on multiple occasions in 1991. DE attended his second consultation with XD alone. XD requested DE to get on the bed and remove his shirt. XD, not wearing gloves at the time, began pushing down DE’s body and flicked open his belt. XD pulled down DE’s pants and underpants open and down, exposing his penis and scrotum, and poked below the tip of DE’s circumcised penis. XD commented he was looking for dryness. DE had not made any complaint about dryness on his penis, nor had XD previously mentioned it as a concern.” [223] DE affirmed an affidavit in August 2022, which largely repeats a witness statement he signed in November 2017. He stated that in 1991 (the year in which DE turned 15) he, with his mother, attended a consultation with XD in Sunnybank. XD prescribed Roaccutane for DE’s acne, which was mainly on his face but also on his back. DE’s mother did not accompany him at the second consultation, which was about 6–8 weeks later. DE’s description of the relevant events is reflected in allegation 4. It felt weird and DE felt violated, but he was confused about whether it was an appropriate treatment. It never felt right. On the day after that consultation, DE told a friend what had happened, and they both laughed it off. That friend signed a witness statement in October 2017 in which he described such a conversation. The friend, who also suffered from acne, also consulted XD. DE attended a few more -- 62 of 72 -- 63 consultations with XD and could not remember any incident like that which happened in the second consultation. DE told a former partner (MLG) and subsequently his wife (ER) about the incident and, in October 2022 and November 2017 respectively, they signed statements referring to such a conversation having occurred in 2011 and 2013 respectively. [224] XD deposes that he has no medical records for DE. He had seen medical records which appeared to show that there were no records of medical services relating to DE in 1991, that DE consulted XD on three occasions in 1992, and that XD ordered for DE to undergo some blood tests. Otherwise, XD has no recollection of the alleged attendances with DE due to the time which has passed. [225] Allegation 2 in the second referral is that: “HI was treated by XD on six occasions between 12 June 2001 and 3 July 2003. On two or three occasions XD pulled down HI’s pants to around his thighs without warning, then inspected and felt around HI’s genitals. On another occasion, XD instructed HI to pull down his pants before inspecting and feeling HI’s genitals. XD would feel each testicle and examine HI’s penis with his hand for a maximum of 10 seconds.” [226] HI affirmed an affidavit in August 2022, part of which, HI states, repeats the contents of a statutory declaration he signed in June 2019. HI was about 14 years old when he attended upon XD for acne treatment. HI’s mother may have come with HI on some occasions, but when XD conducted the inspections, his mother was either not there or the curtain was pulled shut so she could not see in. She could not hear anything because she is deaf. HI refers to XD having checked his genitals. HI states that another part of his affidavit repeats the contents of an addendum statement of witness that he signed in June 2021, with further information for clarification. XD treated HI for acne between 2001 and 2003. The acne was to his face, upper back and chest. XD prescribed a course of Roaccutane. HI could not remember if XD asked him on subsequent appointments if he had experienced side effects from the medication. HI did not have any issue in his genital area or mention any issues in his genital area, and XD did not explain why he inspected that area. HI’s description of the relevant events is reflected in allegation 2. [227] XD deposes that he has no medical records for HI, save for two letters to the referring general practitioner which indicate that XD consulted with HI on or about 13 June 2001 and 29 January 2003. Exhibited Medicare Records showed that XD treated HI on six occasions between 2001 and 2003. XD deposes that he has no recollection of those attendances due to the time which has passed. [228] Allegation 3 in the second referral is that: “IJ was treated by XD on five occasions between 5 February 2002 and 1 November 2004. IJ attended the first consultation on 5 February 2002 with his mother. XD directed IJ to take off his pants and underpants, and then inspected his penis. XD allegedly picked up IJ’s penis, felt down the shaft, and then up and down the shaft. XD looked at IJ’s testicles, massaged them, looked around the base of IJ’s scrotum, and made his way back up to IJ’s penis again. XD then told IJ to get dressed. On either the second or third consultation with XD, -- 63 of 72 -- 64 IJ attended alone. XD directed IJ to take off his shirt and pants and lie on the bed. XD pulled IJ’s underpants down very slowly without asking, grabbed IJ’s penis, and looked around it. XD held IJ’s penis in his hand, rubbed his thumb up and down, and commented, ‘you’re a big boy’, ‘your penis is large for your age’, and ‘it’s beautiful’. XD asked IJ whether he masturbated in the shower, his bedroom or the toilet. XD starting to play with IJ’s scrotum. XD inspected the skin, cupped IJ’s scrotum with his hand, and manipulated it with his fingers, while looking at the base of the penis at the same time. XD also masturbated IJ until ejaculation. XD then cleaned IJ up and told him to get dressed.” [229] IJ affirmed an affidavit in August 2022 which, IJ states, repeats the contents of a statutory declaration he signed in October 2018. He suffered from acne when was 14 and/or 15 in 2002 and/or 2003. During the first consultation in 2002, XD directed IJ to lie on a bed, XD drew a curtain, and IJ’s mother waited on a chair on the other side of the curtain while XD examined IJ. IJ’s description of the relevant events at that consultation and a subsequent consultation, which IJ attended alone, is reflected in allegation 3. [230] XD deposes that he has no medical records for IJ except for two letters to IJ’s referring general practitioner, dated in February 2002 and April 2003. The first letter refers to IJ having cystic acne on his face and upper trunk, to XD commencing him on a course of Roaccutane in conjunction with another drug, and to the need to bring IJ back for a review in a couple of months to check on his progress. The second letter refers to IJ having developed a recurrence of cystic acne on his face and to recommencing him on Roaccutane and reviewing him in three months to see his progress. XD also refers to Medicare Records showing that he treated IJ on five dates between February 2002 and November 2004. XD deposes he has no recollection of the alleged attendances due to the time which has passed. XD’s evidence about the conduct alleged in allegations 2 and 4 in the first referral and allegations 2–3 in the second referral [231] XD’s affidavit includes statements that he did not engage “in any of the professional misconduct alleged against me”, that he denied “all allegations of wrongdoing”, and that he had “never sexually assaulted or indecently dealt with any patient”. Furthermore, in XD’s response to each of allegations 2 and 4 of the first referral and allegations 2–3 of the second referral, XD both denies the Director’s allegation that he had engaged in the described conduct and alleges that he did not engage in conduct of the nature alleged.121 Consistently with those statements and responses, XD’s affidavit does not include a statement that he is not able to give evidence or instruct counsel about the question whether or not he touched the complainants’ genitals in the ways alleged against him or at all. In the result, XD’s affidavit does not prove that he is unable to give evidence or instructions to counsel upon the question whether he did or did not engage in the conduct alleged against him. In short, for these reasons, and the following reasons elaborating upon them, the evidence upon which XD relies in his application for a stay does not prove that at a hearing of the referrals he will be unable to make a meaningful response to these allegations. 121 Response of respondent to allegations in the first referral, paragraphs 7 (allegation 2), 13 (allegation 4); Response of respondent to allegations in the second referral, paragraphs 9 (allegation 2) and 12 (allegation 3). -- 64 of 72 -- 65 [232] XD’s affidavit refers to his inability, resulting from the disposal of his patient records, to identify a record indicating the presence of a parent, details of examinations, treatments or discussions, or if there was any examination of a complainant’s groin. XD’s affidavit does not elaborate upon the reference to treatment in relation to the relevant complainants, except insofar as XD recommended and prescribed treatment in the form of Roaccutane therapy. There is no evidence that any of the conduct alleged against XD in relation to any complainant might have been treatment. [233] Part of XD’s affidavit specifically refers to each of the allegations in the referrals, but XD’s responses to those allegations are not directed to the questions whether he engaged in the alleged conduct or whether there might be a medical reason for a dermatologist to engage in conduct of the kind alleged; that part of his affidavit focuses instead upon the existence or otherwise of medical records and XD’s lack of recollection of the consultations. [234] A different part of XD’s affidavit includes general statements about symptoms for which an examination might be required, but that part of the affidavit does not identify what kind of examination might be an appropriate response to any identified symptom. The affidavit refers to side-effects of Roaccutane – “painful red areas”, “large blisters”, “peeling layers of skin”, and the “rarer side-effect … [of a] cracked or bleeding penis” – and other possible symptoms of “chafing between the thighs”, a patient or parent having “observed something about the skin… (for example, a lump, mole, tenderness, or irritation, including of the testes)”, and the fact that “given the potential side-effects of Roaccutane, it would sometimes be appropriate to examine a patient’s torso and groin to determine whether there were any noticeable side effects”.122 Both the nature of the described symptoms and the word “noticeable” suggest that the word “examine” in this context connotes a visual inspection. At best for XD’s case, upon a liberal reading of the affidavit, XD does not identify the kind of examination which might be appropriate in response to any of the identified symptoms. [235] Whilst it may readily be accepted that XD’s references to an “examination” comprehend a visual inspection, XD’s affidavit does not justify the Court in drawing an inference, which is not expressed in the affidavit, that any of the identified symptoms might be a medical reason for touching a complainant’s genitals, whether in the ways described in the allegations or at all. The effect of XD’s evidence is instead merely that there are a variety of possible symptoms which might amount to a medical reason for an examination by a dermatologist of a patient’s genitals. That is not evidence that a symptom of a kind from which one of the complainants might have suffered might be a medical reason for a dermatologist to touch the complainant’s genitals in any of the ways described in the allegations or at all. Similarly, XD’s evidence that he recorded symptoms and examinations on his patient records does not justify the Court in inferring that his records of examinations might either describe the conduct alleged against him in any of these allegations, or any touching of a complainant’s genitals, or describe a symptom that might be a medical reason for engaging in such conduct. [236] Those conclusions distinguish allegations 2 and 4 in the first referral, and allegations 2–3 in the second referral, from allegation 1 in the second referral (concerning GH), in relation to which I have concluded that XD’s evidence does 122 Affidavit of XD at paragraphs 39 and 43. -- 65 of 72 -- 66 suggest that there might have been a medical reason for XD to conduct a visual inspection of GH’s genitals and his medical records might have referred to such an examination. [237] In summary: (a) XD’s affidavit does not establish that the erosion of his memory over time or his inability to refresh his memory from his patient records has deprived him of the ability to instruct counsel or give evidence about the centrally important issues of liability in relation to allegations 2 and 4 in the first referral, and allegations 2–3 in the second referral, namely, (i) whether XD did or did not touch the complainants’ genitals in the ways alleged, and (ii) whether there was any, and if so what, symptom which amounted to a medical reason for such an examination. (b) XD’s responses to the referrals are consistent with him being able to give instructions and evidence upon the first of those issues, and there is no evidence that he could not give and adduce expert opinion evidence upon the second topic. (c) Those conclusions tend to support a conclusion that, in relation to these allegations, this is not an exceptional case of a kind that might justify the extreme remedy of a permanent stay of the disciplinary proceeding. [238] XD submits that R v Davis supports the conclusion that a hearing of the referrals will not be fair. Fourteen charges were brought against Dr Davis, a general practitioner, charging him with assaulting 13 named female persons and committing acts of indecency between 1960 and 1974. Three complainants were adults aged between 19 and 29 years. The other ten complainants were minors, two being 15 or 16 years old. All complainants alleged that Dr Davis carried out an internal vaginal examination in an inappropriate manner, most complainants alleged that Dr Davis attempted to stimulate their clitoris, and some spoke of touching of a breast. All but one of the complainants did not report her experience to anyone in authority until very many years after the consultation. Most told a family member or friend shortly after the consultations, and most explained the absence of a complaint to someone in authority by reference to a fear of being disbelieved or a sense of shame. Many complainants reported their experiences to police only after the publication of a newspaper article in 1994. The joint judgment records affidavit evidence of Dr Davis that his secretary/receptionist destroyed the medical records of all except one of the complainants. Dr Davis said he could recall only four of the complainants. [239] XD relies upon the following passage in the judgment of Wilcox, Burchett and Hill JJ,123 which the Judicial Member reproduced in her reasons:124 “Here there is special prejudice, occasioned by the destruction of the medical records. It is understandable that, without the records, Dr Davis is unable to recall the relevant consultations. He must have conducted thousands of consultations during his 37 years in general practice. He probably made hundreds of vaginal examinations. Most 123 (1995) 57 FCR 512 at 520. 124 [2023] QCAT 340 at [27]. -- 66 of 72 -- 67 of the complainants saw him only a few times, some only once or twice. Without his records, Dr Davis would have no way of putting himself back into the situation that applied at the dates of the relevant consultations. He would have no means of checking how many times he saw a complainant, the reason for the consultation or the treatment he provided. We agree with Mr Richardson's comment that it is unlikely that the notes would reveal that Dr Davis masturbated the patient or fondled her breast, if that is what he did. But the comment misses the point and trivialises the difficulty. This is not like many sexual assault cases where the accused person has no business anywhere near the complainant's genitalia. This is the case of a doctor who may have had a legitimate reason for making a vaginal examination. Without the medical notes, it would be impossible for Dr Davis to check whether he made an internal examination of any particular complainant or why he did so or to say how he carried it out. It would be impossible for him to give instructions to his counsel regarding aspects of the general treatment of the complainant, or the particular incident, that should be put to her in cross-examination and which might reveal the incident in a different light.” [240] That analysis was necessarily informed by the evidence in that case, which differed in significant ways from the evidence in this case. As the Full Court’s judgment records:125 (a) Upon those complainants’ own accounts, they presented with a gynaecological problem which “might be thought [to] warrant a vaginal examination”, although in some cases the need was “not so apparent … on the complainant’s statement”. (b) Dr Davis gave unchallenged evidence in his affidavit of his usual practice to record any “internal medical examination of any person” by an entry on the patient’s card and that “those patient cards would record the fact of whether or not I carried out an internal medical examination and would also record the date on which I did so and the patient’s clinical signs and reason for carrying out an internal medical examination”. [241] In relation to allegations 2 and 4 in the first referral and allegations 2–3 in the second referral, no complainant has given an account which refers to any symptom which might be thought to warrant XD touching the complainant’s genitals, and XD’s affidavit does not include a statement that his patient records would record either whether or not he touched the complainants’ genitals or any symptom that might constitute a medical reason for doing so. R v Davis is distinguishable for those reasons, and because this appeal concerns a stay of disciplinary proceedings rather than criminal proceedings. [242] That is not to say that XD’s inability to recall the consultations or to have access to his patient records is not significant in the evaluation of the question whether a hearing will be unfair. XD will be disadvantaged at a hearing of the referrals by reason of his having no recollection of the consultations and his inability to access his patient records. XD is deprived of access to contextual information of a kind which might be adduced in evidence in his defence and deployed in challenges to the 125 (1995) 57 FCR 512 at 516. -- 67 of 72 -- 68 accuracy of evidence in the Director’s case, including the evidence of complainants, and in submissions. That contextual information includes references in XD’s missing records of symptoms, examinations, parents attending consultations, and complainants returning for further consultations after having undergone an examination at a previous consultation. As to the last matter, whilst there are apparently reliable Medicare Records which enable XD to rely upon some complainants returning for consultations after an initial consultation, XD is not able to establish whether an examination occurred at a particular consultation and for what reason. XD is unable to ascertain information of that kind, or to ascertain any other details of such consultations from his records or from his memory. Those matters must be considered together with the loss of other evidence, including evidence that might have been given by staff about XD’s practices when consulting with young patients, the nature of entries XD made on the patient records, and the practices of staff members about entering XD’s rooms during consultations. [243] Disadvantages of those kinds, however, are capable of being ameliorated at the hearing by the techniques discussed in decisions cited in GLJ to which I have referred. Of particular importance in the present context are the ways in which the Tribunal may direct itself, with reference to the evidence at the hearing, by analogy with Longman v The Queen warnings, of the necessity for the Tribunal to take into account the increasing fallibility of human memory over time, and the principle that evidence is to be weighed according to the proof which is in the power of one side to produce and in the power of the other to contradict. The hearing will remain imperfect despite the adoption of such techniques, but that is not, of itself, a sufficient basis for ordering a permanent stay. [244] The Director’s arguments foreshadow that the Director will seek to rely upon the evidence of complainants as coincidence or tendency evidence supporting the evidence of other complainants. It will be open to XD in each case to advance any available argument against that course, including arguments that a complainant’s evidence has insufficient similarity with the evidence of another complainant to justify its admission of coincidence or tendency evidence. Any potential unfairness in that respect is also capable of being ameliorated by the Tribunal in the ways described in preceding paragraph. [245] It is also necessary to keep in mind the public interest in the hearing and determination of these disciplinary proceedings, including as they do allegations of professional misconduct involving sexual touching of young patients during consultations with a specialist medical practitioner. In that context, I am not persuaded that a hearing of any of allegations 2 and 4 in the first referral and allegations 2–3 in the second referral should be permanently stayed upon the ground that the hearing will be unfair. Proposed orders [246] I would make the following orders: 1. Leave is granted to bring the appeal filed on 11 October 2023. 2. The appeal is allowed. 3. The orders made below on 14 September 2023 are set aside. 4. In substitution it is ordered that the referral filed 30 April 2020 (OCR121-20) is permanently stayed except insofar as it relies upon a complaint made by BC and -- 68 of 72 -- 69 DE and the referral filed on 5 October 2021 (OCR288-21) is permanently stayed except insofar as it relates to the complaint made by HI and IJ. 5. If the parties intend that there should be any costs order other than that costs follow the event, they should file written submissions on costs not exceeding five pages, the respondent within seven days of the date of delivery of this judgment, and the appellant within seven days thereafter. 6. Otherwise, costs follow the event. [247] BROWN J: I am grateful for the extensive reasons that have been prepared by Dalton JA and Fraser AJA. As a result of the reasons provided by each of them, with which I largely agree, my reasons only need to be brief. [248] Justice Fraser at [114]-[145] has helpfully set out the background of the referrals made by the Director of Proceedings on behalf of the Health Ombudsman (the Director) to the Queensland Civil and Administrative Tribunal (QCAT) and the summary of the judicial member’s decision. Leave to Appeal and Appellate Review [249] I agree that leave to appeal is required and should be granted to the applicant for the reasons outlined by Dalton JA at paragraphs [9]-[10] and Fraser AJA at paragraphs [146]-[147]. [250] As to the approach that should be adopted upon this appeal, the appeal is by way of rehearing. I agree with Dalton JA and Fraser AJA that, in light of the High Court’s decision in GLJ v Roman Catholic Church for the Diocese of Lismore,126 the “correctness standard” is the proper standard of appellate review to be adopted, as identified in Warren v Coombes.127 I note that decision was handed down after the Judicial Member’s decision. [251] Unlike the present case, GLJ was not dealing with disciplinary proceedings. However, the majority of the High Court in Walton v Gardiner,128 in determining whether the Court of Appeal had properly stayed disciplinary proceedings against three medical practitioners, did consider the concept of abuse of process where there were disciplinary proceedings before a tribunal. The majority relevantly observed that there is “plainly an analogy between the concept of abuse of a court's process in relation to criminal proceedings and the concept of abuse of the Tribunal's process in relation to disciplinary proceedings”.129 The principles in relation to a permanent stay for abuse of process, as set out by the High Court in GLJ, have recently been applied by the Court of Criminal Appeal in New South Wales in Koschier v R130 in the context of criminal proceedings. I agree with Dalton JA that that decision is not plainly wrong and should be followed by this Court. I note that Koschier has also been relied upon by Fraser AJA. It is therefore clear that the approach to appellate review to be adopted in the present case is the approach established by the majority in GLJ. [252] As to how an appellate court is to apply the “correctness standard” of review, in the context of a rehearing, the majority in Warren v Coombes stated:131 126 [2023] HCA 32 (GLJ). 127 (1979) 142 CLR 531 at 552 (Warren v Coombes). 128 (1993) 177 CLR 378 at 396. 129 (1993) 177 CLR 378 at 395. 130 (2024) 113 NSWLR 491 (Koschier). 131 Warren v Coombes at 552. See also Fox v Percy (2003) 214 CLR 118 at 126-7 [25] and 127 [29] per Gleeson CJ, Gummow and Kirby JJ and Koschier at 502 [36] per Bell CJ. -- 69 of 72 -- 70 “The duty of the appellate court is to decide the case—the facts as well as the law—for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.” [253] In GLJ, the majority noted that the courts below enjoyed no advantages of a trial judge as the evidence was wholly documentary. They therefore considered that the duty of the court on the appeal “was to decide the case – the facts as well as the law – for itself”.132 The present case is similar. As Dalton JA and Fraser AJA have observed, in the present case the evidence was wholly documentary and therefore the Judicial Member did not enjoy any advantages over this Court. [254] The relevant principles with respect to a permanent stay of criminal proceedings with the necessary considerations that pertain to disciplinary proceedings have been set out by Dalton JA at paragraphs [19]-[20] and discussed by Fraser AJA at paragraphs [154]-[157] and [158]-[162]. [255] However, as stated by both Dalton JA and Fraser AJA, the Director still must establish that the Judicial Member’s decision was wrong, and that error has occurred. As was said by Bell CJ in Koschier:133 “It is important to remember that the fact that the appellate court must decide the matter for itself does not mean that the appeal is an appeal de novo. Notwithstanding application of the correctness standard, it is open to an appellate court to endorse some or all of the primary judge’s reasoning and adopt unchallenged intermediate findings of fact when it agrees with that reasoning or those findings.” [256] In this context, I agree, for the reasons stated by Dalton JA, that ground 5 of the appeal is conclusionary and adds nothing to the proposed grounds of appeal. Are the grounds of appeal established? [257] I agree that the Judicial Member erred in concluding that the disciplinary proceedings posed a true threat to the integrity of the court arising from systemic incoherence both in relation to what the Judicial Member described as the category 1 allegations as well as the category 2 allegations. While there are similarities between criminal proceedings and disciplinary proceedings, there are significant differences in the nature and purpose of the proceedings which are required to be considered in determining whether a stay of proceedings on the ground of abuse of process should be granted. Those differing considerations may result in a different decision between the two types of proceedings, notwithstanding there is substantially the same underlying factual basis shared by each proceeding. For the reasons discussed by both Dalton JA and Fraser AJA, with whom I agree, grounds 1(e) and 2(d) and (e) of the grounds of appeal should succeed. 132 GLJ at [28] per Kiefel CJ, Gageler and Jagot JJ, citing Warren v Coombes at 552. 133 Koschier at 502-3 [42]. -- 70 of 72 -- 71 [258] I also agree with Dalton JA that grounds 4(a) and 4(b) of the grounds of appeal should succeed as, connected to the Judicial Member’s conclusion that without a stay being granted consistent with a stay having been granted in the criminal proceedings, the concerns about the integrity of the justice system are engaged. The Judicial Member failed to consider the public interest in disciplinary proceedings continuing and failed to give proper regard to the differences in nature, procedure and purpose as between criminal and disciplinary proceedings. [259] While consideration of categories of complaints may sometimes be a convenient way of addressing the relevant issues where there are shared considerations, they can give rise to the danger of not considering different individual circumstances. I agree with Dalton JA that, in this case, the categories adopted by the Judicial Member resulted in the Judicial Member not considering the differing circumstances relevant to the grant of a stay in relation to individual complainants. Ground 4(c) of the grounds of appeal should therefore succeed, although it is not determinative of the appeal. Should the proceedings be permanently stayed? [260] Notwithstanding that I am satisfied the grounds of appeal referred to above have been established, it remains for me to determine whether or not the decision to grant a permanent stay in relation to each complaint the subject of referrals 1 and 2 was correct. In relation to the evaluative process required to be carried out by this Court in applying the “correctness standard”, I agree with Fraser AJA that the impoverishment over time of evidence is a factor relevant to the grant of a stay of proceedings and that the considerations in paragraph [52] of the reasons of the majority in GLJ do not apply to the present application for a permanent stay. [261] I agree that a hearing in the tribunal would be unfair for the reasons set out by Dalton JA in respect of the complaints of AB, CD and EF. While the circumstances of each individual complainant differed and should generally be considered separately, I also agree with Fraser AJA that the position of the complainants who are not to be produced to give evidence or to be cross-examined can be considered together. As his Honour identified, while rules of evidence do not apply in the Tribunal, the right to cross-examination is in this case an incident of XD’s entitlement to natural justice and the unfairness that would result from the admission of certain complainants’ evidence, in circumstances where they are not available for cross- examination by XD, would result in a hearing that is manifestly unfair. I consider that to be the case even aside from the other factors discussed by Dalton JA that also support the conclusion that a hearing of the complaints in the Tribunal would be unfair. [262] Notwithstanding that, unlike other complainants there are some medical records still in existence for FG, and that a transcript of the criminal trial relating to one of the complaints of FG would be produced at the hearing, I agree with Fraser AJA’s reasons at paragraph [191] and Dalton JA’s reasons at [93], that the failure to call FG and provide XD with an opportunity to cross-examine him is also manifestly unfair such that XD cannot have a fair hearing. I agree that the Judicial Member was correct in finding that, without making FG available for cross-examination, the proceedings would disadvantage XD “to an unacceptable degree and would be irremediably unfair”.134 I agree with Justice Dalton that ground 3 of the grounds of appeal is not established in relation to FG. 134 [2023] QCAT 340 at [75]. -- 71 of 72 -- 72 [263] Given the conclusions in [261]-[262], these are cases of exceptional circumstances justifying the grant of a permanent stay. I therefore agree with Dalton JA and Fraser AJA that the prosecution of proceedings against XD as to the disciplinary complaints relating to AB, CD, EF and FG is an abuse of process and the proceedings should be permanently stayed. [264] As to the complaint of GH, I agree with the reasons of both Dalton JA and Fraser AJA that XD could not receive a fair hearing in the Tribunal in relation to the prosecution of that disciplinary complaint and that the continuation of the proceedings would be irremediably unfair and an abuse of process. The Director’s proceeding in relation to GH should be permanently stayed. [265] As to DE, BC, HI and IJ, the relevant considerations in relation to each complainant have been set out in detail by Dalton JA and Fraser AJA. Notwithstanding the disadvantages that XD will face at a hearing of those disciplinary complaints, the disadvantages are not sufficient to not establish the exceptional circumstances justifying the grant of a permanent stay. Whilst finally balanced, I agree for the reasons set out by Fraser AJA that the hearing of the disciplinary proceedings in relation to those complainants has not been established to be unfair such that continuation of the proceedings is an abuse of process, and they should be permanently stayed. [266] I agree with terms of the orders proposed by Fraser AJA. -- 72 of 72 --