Workplace Sexual Harassment by a Senior Nurse: When Repeated Boundary Breaches Become Professional Misconduct and Justify Long Protective Orders Under the Health Practitioner Regulation National Law?

Based on the authentic Australian judicial case Health Care Complaints Commission v Hill [2025] NSWCATOD 59 (File No 2024/00195824), this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

• Court of Hearing: Civil and Administrative Tribunal of New South Wales, Occupational Division
• Presiding Judge: Panel constituted by Senior Members and a General Member
• Cause of Action: Professional discipline proceedings brought by the Applicant regulator, alleging unsatisfactory professional conduct and professional misconduct by a registered health practitioner
• Judgment Date: 19 May 2025
• Core Keywords:
  • Keyword 1: Authentic Judgment Case
  • Keyword 2: Professional discipline
  • Keyword 3: Sexual harassment in healthcare
  • Keyword 4: Briginshaw standard in civil discipline
  • Keyword 5: Non-attendance and procedural fairness
  • Keyword 6: Protective and prohibition orders

Background

The Applicant, a statutory complaints regulator, commenced disciplinary proceedings against the Respondent, a nurse who had held senior operational and supervisory roles in hospital settings. The case concerned alleged harassment and sexual harassment of multiple co-workers over several years, spanning different workplaces and involving repeated comments, unwanted touching, and escalating conduct. The Tribunal was required to assess whether the alleged conduct occurred, whether it amounted to “other improper or unethical conduct” in professional practice, whether the accumulation reached the statutory level of professional misconduct, and what protective orders were necessary to protect the public and maintain confidence in the profession.

Core Disputes and Claims

• What the Applicant sought:
  • Findings that the Respondent engaged in multiple instances of unsatisfactory professional conduct, characterised as improper or unethical conduct relating to professional practice
  • A further finding of professional misconduct based on the seriousness and/or accumulation of those instances
  • Protective orders, including prohibitions on providing health services and restrictions on future registration
  • Costs on the ordinary basis
• What the Respondent sought:
  • The Respondent did not substantively participate in the proceedings, made no admissions, filed no evidentiary material, and did not attend the hearing. The practical dispute therefore centred on whether the Applicant’s evidence, without cross-examination, satisfied the Tribunal to the requisite civil standard informed by the gravity of the allegations.

---

Chapter 2: Origin of the Case

The dispute began in the ordinary rhythm of hospital work: handovers, corridor conversations, shared offices, and the daily reliance junior staff place on senior clinicians and managers. The Respondent occupied roles that carried authority over staffing, patient flow, and operational decisions. In such environments, professional boundaries are not abstract ideals: they are the safety rails that allow staff to work in close proximity, at high stress, around vulnerable patients, without fear that power will be misused.

Over time, multiple co-workers described experiences that followed a recognisable pattern.

First, there were comments framed as “banter” or “compliments”, directed at appearance and intimate body-related matters. In isolation, a single remark might be minimised by the recipient as awkwardness or “over-friendliness”. But the Tribunal’s record shows that several complainants initially responded exactly as many people do in real workplaces: by trying to brush it off, stay professional, and not “make a big deal”.

Second, there were incidents of unwanted touching: a hug in a corridor when “no one was really around”, an arm around the waist, a kiss on the cheek, a swipe on the bottom, a ponytail pull accompanied by a sexualised remark. These actions did not occur in a social vacuum. They occurred within a workplace hierarchy, where the Respondent’s seniority created an imbalance that shaped how safe it felt to object, report, or escalate.

Third, the conduct escalated in seriousness in at least one workplace interaction: in a small office used for operational handovers, the Respondent allegedly closed and locked the door, positioned himself between a colleague and the exit, and changed his pants in a way the Tribunal assessed as sexualised and unwelcome in context. In another setting, the evidence described repeated sexualised touching and propositions over the course of a workday, including physical acts the Tribunal treated as plainly beyond any defensible professional boundary.

The decisive moments that led to litigation were not only the incidents themselves, but the points at which the conduct became impossible to rationalise as misunderstanding, and where workplace processes triggered regulatory involvement. Reports to managers, internal investigations, contemporaneous messages, and formal statements created an evidentiary chain. The Applicant regulator, formed the view that if the allegations were substantiated, they would justify serious disciplinary outcomes, and therefore brought the matter to the Tribunal as required by the statutory scheme.

---

Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments

The Applicant’s case was built as a documentary and witness-statement prosecution, typical of professional discipline matters where multiple incidents span years and workplaces. The key evidentiary modules included:

1. Witness statements from multiple complainants (identified in the decision by anonymised labels rather than personal names), describing:
   • The location and setting of incidents: corridors, nurses’ stations, near elevators, shared offices, patient-adjacent areas
   • The exact or approximate words used: sexualised comments about body shape, breasts, and personal sexual propositions
   • The physical acts: hugging, kissing, touching, swiping, pulling hair, lifting clothing, placing hands on intimate body areas
   • The immediate reactions: shock, discomfort, attempts to avoid shifts, reluctance to report due to employment vulnerability, distress after disclosure
2. Contemporaneous communications:
   • Text messages sent shortly after incidents, capturing immediate emotional responses, such as a message describing being kissed and grabbed, and expressing disbelief and discomfort
   • A message expressing fear of reporting due to casual employment status and risk of losing shifts
   • Screenshots of a text exchange in which a photo was described as “hot” and “distracting”
3. Internal workplace investigation records and file notes:
   • HR file notes documenting reports made to human resources and managers, including the phrasing used by complainants when recounting what occurred
   • Investigation summaries from employers and associated correspondence
4. Regulatory and disciplinary materials:
   • Documents prepared for or produced during complaint investigation processes
   • Evidence of the Respondent’s prior awareness of professional boundary expectations through earlier incidents and formal reminders
5. Professional standards instruments:
   • Nursing and Midwifery Board of Australia Code of Conduct, including provisions addressing bullying and harassment
   • Workplace codes and policies prohibiting harassment and sexual harassment

The Applicant argued that, even applying the civil standard, the seriousness of the allegations required careful scrutiny consistent with Briginshaw v Briginshaw (1938) 60 CLR 336, and that the evidence, taken as a whole, met that standard. The Applicant further argued that protective orders were necessary because the paramount purpose of discipline under the National Law is public protection, and because the conduct showed repeated boundary breaches and misuse of workplace power.

Respondent’s Main Evidence and Arguments

The Respondent did not attend the hearing, did not file sworn evidence, and did not challenge the Applicant’s witnesses by cross-examination. However, the record contained some unsworn responses and accounts given in the course of workplace processes and earlier investigations, including:

• Denials or attempted minimisation of specific allegations
• Assertions that complainants engaged in inappropriate talk, framed as an attempt to deflect credibility concerns away from the Respondent and onto complainants
• Explanations describing conduct as innocent, misinterpreted, or unavoidable due to office layouts and work proximity
• Claims that some complainants had performance or absenteeism issues, offered as contextual attacks rather than direct answers to the pleaded particulars

The Tribunal treated such unsworn and untested assertions with caution, particularly where they did not directly engage with the pleaded allegations.

Core Dispute Points

1. Proof without cross-examination: Whether the Applicant’s evidence, largely uncontested due to non-attendance, nonetheless met the civil standard informed by the gravity of findings and consequences.
2. Characterisation: If the acts occurred, whether they constituted “improper or unethical conduct relating to the practice” and therefore unsatisfactory professional conduct.
3. Accumulation and seriousness: Whether the set of established incidents, considered together, amounted to professional misconduct.
4. Protective orders: Whether the Respondent posed a “substantial risk” such that prohibitions and disqualifications were required to protect the public and preserve confidence in health services.
5. Procedural fairness: Whether proceeding in the Respondent’s absence was fair, given service and notice.

---

Chapter 4: Statements in Affidavits

The decision shows a practical truth about litigation in regulatory forums: the sworn statement is not merely a narrative; it is a tactical device. Each party’s written material either constructs a coherent evidentiary chain or attempts to fracture it.

Here, the Applicant’s witness statements had several recurring strategic strengths:

• Specificity over emotion: The statements repeatedly anchored allegations to tangible settings and sequences, such as corridors between wards, the nurses’ station, an office layout, and the timing of calls or shifts. This reduced the risk that evidence would be dismissed as mere impression.
• Contemporaneity: Where available, the Applicant relied on near-immediate texts and messages to show that the reaction was not invented later. A short message like “He put his arm around me waist and kissed my cheek” carries forensic weight because it is simple, immediate, and consistent with later recounting.
• Pattern and escalation: The statements, read together, presented repeated conduct across different complainants, supporting the inference that the behaviour was not a one-off misunderstanding but a sustained boundary problem.

By contrast, the Respondent’s approach in the materials that existed outside the hearing tended toward deflection rather than direct forensic engagement. The Tribunal identified this as a known phenomenon: attempting to damage a complainant’s credibility by pointing to unrelated alleged misconduct, rather than answering the pleaded particulars. In professional discipline, that strategy carries particular risk because the Tribunal’s task is not to try the complainant, but to decide whether the practitioner’s conduct breached professional standards.

Strategic Intent Behind Procedural Directions

Where a Tribunal directs filing of sworn statements and sets a combined hearing structure, the purpose is often to:

• Define the issues with precision, so the Tribunal can isolate what must be proved and what is merely contextual noise
• Reduce ambush, ensuring parties know the case they must meet
• Support efficient fact-finding where multiple complaints and multiple witnesses exist
• Allow the Tribunal to scrutinise internal consistency across documents: statement, HR file note, message, and later report

In a case involving multiple complainants and alleged misuse of workplace authority, procedural directions serve a protective forensic function: they narrow the inquiry to provable particulars and prevent the hearing from becoming a broad contest of character.

---

Chapter 5: Court Orders

Before the final determination, the case required procedural management consistent with its complexity and sensitivity. The Tribunal’s process involved, in substance:

• Directions for service of the complaint and amended complaint
• Listing for a hearing structured to deal with findings and protective orders in one sitting
• Requirements for filing and service of the Applicant’s evidence bundle, including witness statements and supporting documents
• Confirmation of the Respondent’s notice of the proceeding and hearing
• Management of confidentiality concerns, including restrictions on publication of witness identities to protect persons involved in the complaint process

---

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

Process Reconstruction: Live Restoration

This hearing did not resemble a cinematic courtroom clash of barristers. Its decisive feature was absence: the Respondent did not attend. That absence transformed the “showdown” into a different kind of contest—between the inherent reliability of the Applicant’s evidence and the Tribunal’s obligation to scrutinise serious allegations carefully even when unopposed.

The Tribunal first addressed whether it was proper to proceed. It determined that service and notice were adequate and that the Respondent’s choice not to participate did not prevent the Tribunal from conducting its inquiry. The Tribunal treated non-attendance as an election, not as a procedural obstacle.

The second feature was evidentiary discipline. Even where evidence was uncontested, the Tribunal did not treat its task as mechanical. It reviewed the material in detail, complaint by complaint, and explained why particular evidence was accepted, why some peripheral allegations were given no weight, and why particular documents strengthened the chain.

Core Evidence Confrontation

Without cross-examination, the confrontation happened on paper:

• Contemporaneous text messages were placed against later statements for consistency.
• HR file notes were compared with witness statements to identify whether later accounts were embellished or whether differences were immaterial.
• The Respondent’s denials and explanations were tested against objective features: screenshots, timing, plausibility, and whether an alternative explanation made sense in a workplace where private changing facilities existed.
• Evidence of workplace hierarchy and power imbalance was treated as context that affects how coercive and harmful conduct can be, even where the words might be defended as “jokes” in a different setting.

Judicial Reasoning

The Tribunal’s reasoning rested on three foundations: procedural fairness, careful application of the civil standard informed by seriousness, and statutory objectives focused on public protection.

The failure of a party to appear at the hearing does not, alone, mean the hearing is procedurally unfair. What is required is that the party has been given a reasonable opportunity to be heard.

This statement was determinative because it set the legal gateway: once reasonable opportunity was established, the Tribunal could proceed to evaluate evidence on its merits, rather than treating absence as a bar.

The Tribunal then applied the civil standard of proof, recognising that the strength of evidence required can vary with gravity, consistent with Briginshaw and related authority. It accepted that disciplinary findings with serious professional consequences require evidence and materials that properly support the findings, given their impact on the practitioner and the public.

Finally, the Tribunal aligned each factual finding with professional standards and the statutory scheme. Where it found conduct occurred, it characterised the conduct objectively as improper or unethical in the practice context, and then moved to orders necessary to protect the public and the integrity of health services.

---

Chapter 7: Final Judgment of the Court

The Tribunal made disciplinary findings that the Respondent was:

• Guilty of unsatisfactory professional conduct in relation to multiple complaints, characterised as other improper or unethical conduct relating to professional practice
• Guilty of professional misconduct, based on the seriousness and accumulation of instances of unsatisfactory professional conduct

The Tribunal determined that protective orders were necessary to protect the public and to give effect to the objectives of the National Law. The orders included:

• A finding that, if the Respondent had remained registered, the Tribunal would have cancelled registration
• A disqualification period from registration in the health profession for three years from the date of orders
• A prohibition on providing health services unless and until reinstatement or other order is made under the statutory scheme
• Costs payable by the Respondent on the ordinary basis
• A non-publication restriction preventing disclosure and publication of witness names and addresses until further order

---

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This judgment has jurisprudential value beyond its disturbing facts because it demonstrates how a Tribunal should reason in three challenging conditions that commonly arise in professional discipline:

1. The practitioner does not participate.
2. The evidence is largely testimonial, requiring careful corroboration and cautious acceptance.
3. The allegations are serious, with high professional stakes, requiring the Briginshaw-informed approach within a civil standard.

It also shows a modern judicial awareness of the realities of workplace sexual harassment: it is often not “explicit”, can be communicated by implication and physical proximity, and can be magnified by hierarchy and constrained spaces like corridors and small offices. The Tribunal’s approach rejects the false comfort of “it was just a joke” when the context makes the conduct objectively sexualised and unwelcome.

Judgment Points

1. Proceeding in absence is lawful when reasonable opportunity exists
   The Tribunal treated notice and service as the decisive fairness metric. Once satisfied, it proceeded, ensuring the system cannot be paralysed by a respondent’s strategic refusal to engage. This protects the public interest function of discipline.

2. Unchallenged does not mean untested
   The Tribunal did not accept every allegation simply because it was uncontested. It expressly excluded peripheral allegations not pleaded, and it weighed evidence complaint-by-complaint. This is a critical template for practitioners: credibility is enhanced when irrelevant material is consciously excluded.

3. Contemporaneous messages are powerful credibility anchors
   Short messages sent immediately after incidents functioned as “time-stamped emotional fingerprints”. They reduced the risk of reconstruction bias and supported acceptance of later statements.

4. Deflection attacks on complainants are treated as irrelevant unless fabrication is evidenced
   The Tribunal’s approach signals that attempts to tarnish a complainant’s character, without evidence of fabrication, will not answer the pleaded case. This is both a doctrinal and cultural statement about disciplined reasoning.

5. Power imbalance is not a rhetorical flourish; it is evidentiary context
   The Tribunal treated seniority, supervisory control, shift allocation influence, and workplace dependency as facts shaping how conduct is experienced and why reporting may be delayed. This improves realism in legal evaluation.

6. Characterisation is objective: improper or unethical conduct is measured against professional standards, not intent
   The Tribunal aligned with authority that intentionality is not a prerequisite. The key is whether reasonable persons would regard conduct as falling below expected standards and tending to bring the profession into disrepute.

7. Accumulation can transform repeated “lesser” incidents into professional misconduct
   The statutory scheme permits professional misconduct findings where multiple instances, considered together, reach sufficient seriousness to justify cancellation or suspension. The judgment is a textbook example: the repeated pattern, across complainants and years, drove the professional misconduct outcome.

8. Protective orders are justified by risk and public protection, including for former registrants
   Even where a practitioner is no longer registered, prohibition orders can be necessary to prevent provision of health services and protect the public from substantial risk. The Tribunal treated this as essential to prevent the protective purpose being undermined by resignation or lapse of registration.

Legal Basis

The Tribunal’s reasoning was grounded in the statutory framework:

• The Tribunal’s disciplinary jurisdiction and the requirement to observe statutory objectives and principles, including public protection as the paramount consideration
• Unsatisfactory professional conduct defined to include “other improper or unethical conduct relating to the practice” under the National Law
• Professional misconduct defined as unsatisfactory professional conduct sufficiently serious to justify cancellation or as multiple instances that together reach that seriousness
• Power to make protective and prohibition orders, including in relation to persons no longer registered
• Civil standard of proof applied with careful attention to the gravity of allegations and consequences, consistent with Briginshaw principles
• Power to make non-publication orders to protect witness identities and the integrity of the process

Evidence Chain

Victory in the Applicant’s case was not achieved by a single dramatic document. It was built through a layered chain:

1. Primary witness statements describing specific incidents in specific settings, with consistent internal structure and plausible detail.
2. Contemporaneous corroboration through texts and messages sent shortly after incidents, capturing immediate reactions.
3. Workplace investigative records that pre-dated the Tribunal proceeding and recorded disclosures in a procedural context where exaggeration is less likely.
4. Consistency across sources: where file notes differed from later statements, the Tribunal assessed whether differences were material; where not material, consistency on core facts prevailed.
5. Respondent’s partial admissions and implausible explanations, which, when tested against workplace realities, strengthened the inference that conduct was inappropriate and sexualised in context.
6. Pattern evidence across complainants, supporting the objective characterisation of repeated boundary violations rather than isolated misunderstanding.

Judicial Original Quotation

The paramount consideration is the protection of the health and safety of the public. The paramount consideration is not achieved when health practitioners and associated staff are the subject of harassment and sexual harassment, or work in an environment where they are likely to be subject to harassment and sexual harassment.

This statement was determinative because it anchored every later step: once the Tribunal found harassment occurred, protective orders followed as a logical consequence of the statutory objective. It also framed sexual harassment not as a private moral issue but as a public safety and system integrity issue in healthcare.

Analysis of the Losing Party’s Failure

The Respondent’s failure was forensic and strategic, not merely factual:

1. Non-participation forfeited cross-examination opportunities
   In a case heavily reliant on witness accounts, cross-examination is the primary tool to expose inconsistency, exaggeration, or improbability. By not attending, the Respondent allowed the Applicant’s evidence to stand largely intact.

2. Deflection did not answer particulars
   Attempts to criticise complainants’ unrelated behaviour, without evidence of fabrication, did not engage the statutory questions. The Tribunal treated such deflection as irrelevant and gave it little or no weight.

3. Implausible alternative explanations weakened credibility
   Where the evidence showed workplace-available alternatives, such as private facilities for changing clothing, explanations that normalised conduct in a shared office appeared unreasonable.

4. Pattern evidence magnified each incident
   Even if a practitioner hopes to frame one event as misjudgment, repeated similar boundary breaches across multiple people and settings undermine that narrative. The Tribunal treated the accumulation as central.

5. Failure to show insight or responsibility increased the need for protective orders
   In discipline, insight and acceptance of wrongdoing can be relevant to risk and future safety. Minimisation and refusal to acknowledge wrongdoing can support a finding that protective orders are necessary because the risk of recurrence is not reduced.

Implications

1. Professional boundaries are not optional manners; they are safety rules
   In healthcare, people work close together, under pressure, and around vulnerable patients. Boundary breaches destabilise the environment that safe care depends on.

2. If you are uncomfortable, that discomfort is evidence of a boundary being crossed
   Many complainants initially tried to rationalise behaviour as friendliness. The law recognises that harassment often begins in ambiguous forms that rely on the target staying silent.

3. Reporting delays do not automatically weaken credibility
   People delay reporting because they fear retaliation, lost shifts, reputational harm, or being labelled “difficult”. Tribunals can understand that reality when evidence is otherwise coherent.

4. Contemporaneous notes and messages can protect you later
   A short message to a trusted person, a dated diary note, or an email to yourself can become critical evidence if the matter escalates.

5. Workplaces must treat complaints as system risks, not interpersonal drama
   A workplace that leaves a complainant managed by the person complained about increases harm and risk. Good governance requires separation and safe reporting pathways.

Q&A Session

1. If the practitioner does not attend, does that mean the regulator automatically wins?
   No. The regulator still carries the onus of proof. The Tribunal must still examine whether evidence supports findings, applying the civil standard informed by seriousness. Non-attendance removes a key testing mechanism but does not remove the Tribunal’s duty to scrutinise.

2. Why does the Tribunal focus so much on context, like corridors and power imbalance?
   Because the same words and actions can carry different meanings depending on environment and hierarchy. In confined spaces and supervisory relationships, “jokes” can operate as coercion, intimidation, or grooming for escalation.

3. Why can protective orders apply even if the person is not currently registered?
   Because the protective purpose of the National Law can be undermined if a practitioner avoids discipline by letting registration lapse or resigning. Prohibition orders prevent the person from providing health services and manage ongoing risk.

---

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype

Professional Discipline in Health Practice: Sexual Harassment and Boundary Violations by a Registered Health Practitioner in Workplace Settings

Judgment Nature Definition

Final Judgment with Protective Orders and Costs Orders

---

2. Self-examination of Core Statutory Elements

Execution Instruction Applied

The following elements are a structured reference framework for analysing professional discipline cases under the National Law and associated Tribunal legislation. Outcomes tend to be determined by the interaction of statutory purpose, proven facts, and risk assessment. These standards are not substitutes for case-specific legal advice and must be applied to the particular evidence and jurisdictional setting.

Core Test 1: Jurisdiction, Onus, and Standard of Proof

• Jurisdiction:
  • Confirm the Tribunal has jurisdiction to hear disciplinary matters for registered health practitioners under the National Law as applied in the jurisdiction and the Tribunal’s enabling legislation.
  • Confirm the matter is properly brought by the regulator empowered to prosecute disciplinary complaints.
• Onus of proof:
  • The regulator bears the onus to prove the factual allegations and the statutory characterisation.
• Standard of proof:
  • The civil standard, balance of probabilities, applies.
  • The strength and quality of evidence required tends to increase with the seriousness of the allegation and the gravity of potential consequences, consistent with Briginshaw v Briginshaw (1938) 60 CLR 336 and subsequent authority.

Core Test 2: Establishing Unsatisfactory Professional Conduct

• Identify the pleaded category:
  • In cases of harassment and sexual harassment, regulators commonly plead “other improper or unethical conduct relating to the practice or purported practice” within the statutory definition of unsatisfactory professional conduct.

#######- Step-by-step approach:
1. Fact-finding: Determine whether each alleged act occurred, based on evidence quality, consistency, corroboration, and plausibility.
2. Contextual assessment: Consider workplace hierarchy, supervisory power, vulnerability of complainant, location, and whether the conduct was unwelcome.
3. Objective characterisation: Determine whether reasonable persons with knowledge of professional duties would regard the conduct as falling below expected standards, tending to bring the profession into disrepute or reduce public confidence.
4. Professional standards instruments: Consider admissible codes of conduct and workplace policies as evidence of expected standards.
5. Intent is not always decisive: Improper conduct can be established even where a practitioner asserts non-sexual intention, if the conduct is objectively improper in context.

Core Test 3: Establishing Professional Misconduct

Professional misconduct can be established where:

• A single instance of unsatisfactory professional conduct is of sufficiently serious nature to justify suspension or cancellation of registration, or
• More than one instance of unsatisfactory professional conduct, when considered together, amounts to conduct of sufficiently serious nature to justify suspension or cancellation.

#######Step-by-step approach:

1. Confirm multiple established instances or a single sufficiently grave instance.
2. Evaluate seriousness: Consider persistence, escalation, abuse of power, impact on victims, workplace safety implications, and insight or lack of insight.
3. Ask whether the conduct has the capacity to justify suspension or cancellation, even if the final order is shaped by circumstances such as current registration status.
4. Consider whether the conduct reveals a defect of character or a risk that tends to be managed only by removal from practice or strict conditions.

Comparable authority themes include:

• The seriousness of conduct takes colour from context and improper purpose.
• The statutory category is a matter of evaluative judgment based on nature and seriousness.
• Professional misconduct is not limited to the “worst cases” but to the extent of departure from proper standards.

Core Test 4: Protective Orders and Prohibition Orders

Disciplinary orders are protective, not punitive, though they may feel punitive.

Step-by-step approach:

1. Paramount consideration: Public health and safety, and maintaining confidence in health services.
2. Risk assessment: Determine whether the practitioner poses a substantial risk if permitted to practise or provide health services.
   #####3. Suitability of orders:
   • Cancellation or suspension if registered
   • Disqualification periods to prevent re-registration for a defined time
   • Conditions for practice where risk can be managed
   • Prohibition orders preventing the person from providing health services, including where no longer registered, to prevent circumvention of protective purpose
     ######4. Evidence relevant to risk:
   • Pattern of conduct
   • Lack of insight, minimisation, or refusal to accept responsibility
   • Prior reminders or prior similar complaints indicating recurrence risk
   • Workplace power misuse and vulnerability of those affected

Core Test 5: Procedural Fairness and Non-attendance

Step-by-step approach:

1. Confirm service: Proper service of initiating and amended documents.
2. Confirm notice: Adequate notice of hearing date and opportunity to participate.
3. Confirm election: Evidence that non-attendance is a choice rather than inability.
4. Proceeding in absence: If reasonable opportunity exists, the Tribunal may proceed, but must still scrutinise evidence carefully and not treat the case as automatically proven.

---

3. Equitable Remedies and Alternative Claims

Execution Instruction Applied

In professional discipline proceedings, equitable remedies tend to have limited direct application because the Tribunal is exercising statutory disciplinary powers rather than adjudicating private rights between two private litigants. However, alternative legal pathways can still be relevant depending on the affected person’s objectives.

Potential Alternative Paths for Affected Persons

• Workplace law pathways:
  • A complaint of sexual harassment, bullying, or adverse action may be available under relevant workplace legislation and instruments. Outcomes tend to depend on jurisdiction, time limits, and whether conduct falls within statutory definitions.
  • If a workplace complaint process fails, a general protections claim may sometimes provide a different evidentiary structure, including a reverse onus in some circumstances.
• Anti-discrimination pathways:
  • Sexual harassment complaints may be pursued through anti-discrimination bodies depending on jurisdiction and time limits. These claims can focus on remedy for the person harmed rather than discipline of the practitioner as such.
• Procedural fairness themes in review contexts:
  • If a practitioner challenges disciplinary action, procedural fairness arguments may arise in appeals or judicial review, focusing on notice, opportunity to be heard, apprehended bias, and whether the Tribunal acted within jurisdiction.

Why Equity is Usually Secondary Here

• The Tribunal’s core task is protective regulation of health services.
• Private law doctrines like estoppel or constructive trust rarely address the central question: whether a practitioner’s conduct breached professional standards and created risk.
• Equity may still arise indirectly, for example where confidentiality, suppression, or protective measures are considered, but the controlling source is usually statute.

---

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

• Jurisdictional threshold: The conduct must relate to professional practice or purported practice, or otherwise fall within the statutory scope of professional discipline.
• Evidentiary threshold: The regulator must prove facts on the balance of probabilities, informed by seriousness.
• Protective threshold: Orders tend to be made where the Tribunal is satisfied they are necessary to protect the public or maintain confidence in the profession.
• Procedural threshold for proceeding in absence: Reasonable opportunity to be heard must be provided.

Exceptional Channels

• Non-attendance does not prevent proceedings:
  • A respondent’s refusal to participate tends to be treated as an election. The Tribunal may proceed, but will usually intensify scrutiny of evidence and reasoning due to seriousness.
• Orders even if no longer registered:
  • Prohibition orders may be available to prevent a person from providing health services despite not being registered, to avoid undermining protective outcomes.

Suggestion

Do not abandon a complaint or defence simply because the situation feels ambiguous or difficult to prove. In harassment cases, corroboration tends to come from patterns, contemporaneous messages, workplace records, and credible consistency across accounts. Conversely, if you are defending, non-participation tends to carry relatively high strategic risk because it removes your ability to test evidence and present insight or alternative explanations.

---

5. Guidelines for Judicial and Legal Citation

Citation Angle

It is recommended to cite this case in legal submissions or debates involving:

• Professional discipline responses to workplace sexual harassment by health practitioners
• The objective characterisation of “improper or unethical conduct” relating to professional practice
• Application of the civil standard informed by seriousness in disciplinary proceedings
• Proceeding in a respondent’s absence where reasonable opportunity to be heard has been provided
• Protective orders, including prohibition orders for persons no longer registered

Citation Method

• As Positive Support:
  • When your matter involves repeated boundary breaches, power imbalance, and credible contemporaneous corroboration, citing this authority can strengthen arguments that conduct tends to justify serious protective orders to protect the public and preserve confidence in health services.
• As a Distinguishing Reference:
  • If the opposing party cites this case, you should emphasise the uniqueness of your matter, such as genuine participation in proceedings, substantial contradictory evidence, strong insight and remediation steps, or materially different context undermining the inference of sexualised or harassing intent.

Anonymisation Rule

When discussing the case in your own publications or submissions, strictly use procedural titles such as Applicant and Respondent. Do not disclose witness identities. Comply with any non-publication directions applicable to the proceeding.

---

Conclusion

This judgment shows how disciplined legal reasoning transforms lived workplace discomfort into proven facts, legal characterisation, and protective orders. The Tribunal’s method was clear: establish what happened, assess it objectively against professional standards, and then craft orders that protect the public and preserve trust in healthcare.

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Civil and Administrative Tribunal of New South Wales (Health Care Complaints Commission v Hill [2025] NSWCATOD 59), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

---

Original Case File:

👉 Can’t see the full document?
Click here to download the original judgment document.