Kavieris v Health Care Complaints Commission [2025] NSWSC 20

Kavieris v Health Care Complaints Commission [2025] NSWSC 20

NCAT erred by conflating the exposure of B’s pubic hair with the pubic bone, leading to a material error that infected its finding on inappropriate sexual conduct and the assessment of unchallenged expert evidence. NCAT further erred in treating conduct as inherently sexual without considering the practitioner’s state of mind or context as required by law. These errors warranted interfering with the findings relating to the sexual nature of the conduct, but did not affect other unchallenged findings of unsatisfactory professional conduct.

Parties
Plaintiff: Theodore Kavieris; Defendant: Health Care Complaints Commission
Jurisdiction
Australia
Judgment Date
06 February 2025
Procedural Posture
Appeal / Judgment on Appeal Against NCAT Decision; Orders as to Re Listing for Consequential Orders Pending
Outcome
Part appeal allowed; matter relisted for consequential orders; ground 1 (in part) and ground 3 upheld, ground 2 refused.
Legal Topics
Professional Misconduct, Unsatisfactory Professional Conduct, Medical Practitioners, Physiotherapist Regulation, Appellate Review, Tribunal Procedure, Clinical Consent, Assessment of Expert Evidence
Health Law Administrative Law Professional Regulation Professional Misconduct Unsatisfactory Professional Conduct Medical Practitioners Physiotherapist Regulation Appellate Review +3 more

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Parties

Theodore Kavieris

Plaintiff

Health Care Complaints Commission

Defendant

Procedural Posture

Appeal / Judgment on Appeal Against NCAT Decision; Orders as to Re Listing for Consequential Orders Pending

Legal Issues

  1. 1 Whether NCAT erroneously conflated the exposure of pubic hair and the pubic bone in finding Particular 7(h) against the plaintiff
  2. 2 Whether NCAT’s findings on conduct of a sexual nature required consideration of the practitioner’s intention or context
  3. 3 Whether error in fact finding infected the findings of inappropriate conduct of a sexual nature

Ratio Decidendi

NCAT erred by conflating the exposure of B’s pubic hair with the pubic bone, leading to a material error that infected its finding on inappropriate sexual conduct and the assessment of unchallenged expert evidence. NCAT further erred in treating conduct as inherently sexual without considering the practitioner’s state of mind or context as required by law. These errors warranted interfering with the findings relating to the sexual nature of the conduct, but did not affect other unchallenged findings of unsatisfactory professional conduct.

Court Disposition

Part appeal allowed; matter relisted for consequential orders; ground 1 (in part) and ground 3 upheld, ground 2 refused.

Orders

  • The plaintiff has leave to appeal on that part of ground 1 relating to NCAT’s conflation of pubic hair and pubic bone exposure and its assessment of the expert evidence.
  • Ground 1 is upheld in relation to that matter.