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Health Ombudsman v Braun[2022] QCA 117

Health Ombudsman v Braun[2022] QCA 117

SUPREME COURT OF QUEENSLAND

CITATION:

Health Ombudsman v Braun [2022] QCA 117

PARTIES:

HEALTH OMBUDSMAN

(appellant)

v

DOCTOR WILLIAM BRAUN

(respondent)

FILE NO/S:

Appeal No 10882 of 2021

SC No 10392 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2021] QSC 209 (Jackson J)

DELIVERED ON:

30 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2022

JUDGES:

Fraser and McMurdo and Mullins JJA

ORDERS:

  1. Allow the appeal in part, by setting aside the third of the declarations made by the primary judge.
  2. Otherwise dismiss the appeal.
  3. Unless the appellant contends otherwise, by a written submission not exceeding four pages and filed within 14 days of the judgment, the appellant pay the respondent’s costs of the appeal.

CATCHWORDS:

INTERPRETATION – GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS – GENERAL MATTERS – where in early 2019 the appellant received a complaint about the respondent and decided to investigate that complaint – where the appellant was required by s 85 of the Health Ombudsman Act 2013 (Qld) (“the Act”) to complete the investigation as quickly as was reasonable, and within one year from the decision to carry out the investigation – where, by the time that period had expired, the appellant had not completed the investigation, and nor had he exercised his power to extend the time for completing under s 85(2) of the Act – where, subsequently and on several occasions, the appellant purported to extend the time for completion – whether s 85(2) of the Act permitted the appellant to extend the due day for completion of the investigation after that day had passed – whether the appellant was obliged by s 90 of the Act to take some further step in relation to the complaint as if he had completed the investigation

Health Ombudsman Act 2013 (Qld), s 85, s 90

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited

COUNSEL:

K A McMillan QC, with N J Derrington, for the appellant

G W Diehm QC, with A D Scott, for the respondent

SOLICITORS:

Clayton Utz for the appellant

K&L Gates for the respondent

  1. [1]
    FRASER JA:  I agree with McMurdo JA.
  2. [2]
    McMURDO JA:  In early 2019, the appellant, the health ombudsman under the Health Ombudsman Act 2013 (Qld) (the Act), received a complaint about the respondent, Dr Braun.  The ombudsman decided to investigate matters complained of, as he was empowered to do under the Act.  By s 85 of the Act, he was required to complete the investigation as quickly as was reasonable and, in any case, within one year from his decision to carry out the investigation.[1]
  3. [3]
    By the time that period had expired, the ombudsman had not completed the investigation, and nor had he exercised his power to extend the time for completing, in accordance with s 85(2).  Subsequently and on several occasions, the ombudsman purported to extend the time for completion.
  4. [4]
    The questions in this appeal involve the proper interpretation of ss 85 and 90 of the Act.  Did s 85(2) permit the ombudsman, as he argues, to extend the due day for completing an investigation after that day had passed?  If not, was the ombudsman precluded from continuing his investigations?  As Dr Braun contends, was the ombudsman obliged by s 90 to take some further step in relation to the complaint as if he had completed the investigation?  The primary judge (Jackson J) answered “no” to the first and second questions, and “yes” to the third question.[2]
  5. [5]
    For the reasons that follow, his Honour was correct in answering the first and second questions, and in thereby declaring that the purported extensions of the due day for the completion of this investigation were invalid.  However, I have reached a different conclusion from his Honour about s 90.  In my opinion, s 90 is engaged only by an actual completion of an investigation, within the period permitted for it, so that in this case s 90 did not require the ombudsman to act in some way.  Although there may be no practical effect of that difference of opinion in this case, the appeal should be allowed to set aside a declaration which was made about the effect of s 90.

The Act

  1. [6]
    The main objects of the Act are the protection of the health and safety of the public together with the promotion of professional, safe and competent practice by health practitioners and high standards of service delivery by organisations.  They also include maintaining public confidence in the management of complaints and other matters relating to the provision of health services.[3]  Those objects are achieved by establishing the Office of the Health Ombudsman with the functions set out in the Act and by the interaction of the Act with the so called National Law,[4] which establishes a national registration and accreditation scheme for the regulation of health practitioners.[5]
  2. [7]
    The health ombudsman is responsible for receiving and dealing with health service complaints and for dealing with other matters including the investigation of systemic issues in the health system.[6]  Any person may make a health service complaint.[7]  The ombudsman may assess a complaint to decide the most appropriate action to take.[8]
  3. [8]
    Section 14 summarises the courses of action which the ombudsman may take in response to a complaint.  The ombudsman may:
  • facilitate a resolution of the complaint between the complainant and the health service provider;
  • if satisfied that there is a serious risk to persons and it is necessary to protect public health or safety, take immediate action (for registered health practitioners) by suspending or imposing conditions on the practitioner’s registration, or (for other health practitioners) by prohibiting, or imposing restrictions on, the practitioner’s practice;
  • investigate a matter, using the investigation powers under the Act, and prepare a report on the investigation;
  • make an order prohibiting a health practitioner other than a registered health practitioner from practising, or imposing restrictions on the practitioner’s practice;
  • refer a matter concerning a registered health practitioner to the so called director of proceedings for a decision by that person about whether proceedings should be taken against the practitioner before QCAT;
  • refer a complaint or matter concerning a registered health practitioner to the so called National Agency to be dealt with under the National Law;
  • conciliate a complaint;
  • conduct an inquiry into a complaint or other matter, using the inquiry powers under this Act, and prepare a report on the inquiry;
  • refer a complaint or matter to another state or commonwealth entity that has a function to deal with it.
  1. [9]
    If a matter becomes the subject of a proceeding in QCAT, that tribunal may suspend or cancel the practitioner’s registration, impose conditions on the practitioner’s registration or require the practitioner to pay a fine.[9]
  2. [10]
    One of the ombudsman’s functions is to take “relevant action” to deal with complaints, and s 38 defines what constitutes a relevant action, which is any of the actions to which I have referred at [7].  The ombudsman may take more than one relevant action to deal with a matter.[10]
  3. [11]
    The ombudsman must decide whether or not to accept the complaint, and if the complaint is accepted, whether to take particular relevant action about the matter of the complaint, or take no further action in relation to it.[11]  Section 44, to which I will return, provides that at any time the ombudsman may decide to take no further action on a complaint in certain circumstances.
  4. [12]
    Investigations are governed by Part 8 of the Act.  The ombudsman may carry out an investigation on their own decision or as directed by the relevant Minister.[12]
  5. [13]
    In the conduct of an investigation, the health ombudsman has the investigative powers conferred by Part 15 of the Act.  They include a power to enter places,[13] either with the consent of an occupier or with the authority of a warrant, and powers to search an inspect the place and examine, photograph or copy things and documents found at the place.[14]  As a so called authorised person, the ombudsman may also seize a thing at a place which has been entered under the powers conferred by Part 15.[15]  It is unnecessary to discuss the further and extensive powers which are conferred by Part 15.
  6. [14]
    Section 84(1) provides that the health ombudsman must, at not less than three monthly intervals, give a notice of the progress of an investigation to the health service provider being investigated and to the complainant.  A person who has a right to be given a notice under s 84(1) may waive that right,[16] and waiver may be withdrawn “at any time before the investigation is complete”.[17]
  7. [15]
    Section 85 should be set out in full:

85 Times by which investigations must be completed

  1. (1)
    The health ombudsman must complete an investigation as quickly as is reasonable in all the circumstances and, in any case, by the day (the due day) that is 1 year, or any extended time decided under subsection (2), after the decision to carry out the investigation.
  1. (2)
    The health ombudsman may extend the due day for completing an investigation if the health ombudsman reasonably considers that, in all the circumstances (including, for example, the size and complexity of the matters being investigated), it is not possible to properly complete the investigation by the due day.
  1. (3)
    The due day for completing an investigation may be extended more than once under subsection (2) but each extension may not be more than 3 months.
  1. (4)
    The health ombudsman must keep a register, on a publicly accessible website of the health ombudsman, of investigations that have not been completed within 1 year after the decision to carry them out.
  1. (5)
    The register must list the following matters for each of the investigations—
  1. (a)
    the general nature of the matter being investigated;
  1. (b)
    the day on which it was decided to carry out the investigation;
  1. (c)
    the current due day for completing the investigation;
  1. (d)
    the reason for each extension of the due day.
  1. (6)
    The register must not include information that identifies a complainant, health service provider or individual to whom a health service was provided.
  1. (7)
    Also, despite subsection (5)(a), the register must not state anything about the nature of the matter being investigated if the health ombudsman considers that doing so may—
  1. (a)
    put at serious risk a person’s health or safety; or
  1. (b)
    put a complainant or other person at risk of being harassed or intimidated; or
  1. (c)
    prejudice an investigation or inquiry.
  1. (8)
    If an investigation is not completed within 2 years after the decision to carry it out—
  1. (a)
    the health ombudsman must give notices to the Minister and the parliamentary committee stating—
  1. (i)
    details of the matter being investigated; and
  1. (ii)
    why the investigation has not been completed; and
  1. (b)
    without limiting section 179(1)(c), the parliamentary committee may review the health ombudsman’s performance of functions under this part in relation to the investigation.
  1. (9)
    This section does not apply to an investigation carried out in compliance with a direction by the Minister under section 81 if the direction includes a stated time by which the investigation must be completed.”
  1. [16]
    By s 86, after completing an investigation, the health ombudsman may prepare a report on the investigation containing information, comment or recommendations for action.  If the ombudsman decides to refer an investigated matter to the director of proceedings for decision about whether to refer the matter to QCAT, the report must not be made publicly available.[18]  Otherwise, subject to certain limitations as to confidential information,[19] the ombudsman may make an investigation report publicly available and provide a copy to an entity which the ombudsman considers appropriate.[20]
  2. [17]
    Section 90 should be set out in full:

90 Notice of decision after investigating matter

After completing an investigation of a matter under this part, the health ombudsman must—

  1. (a)
    decide—
  1. (i)
    to take particular relevant action to further deal with the matter; or
  1. (ii)
    to take no further action in relation to the matter; and

Note—

See section 44 for the grounds on which the health ombudsman may decide to take no further action on a matter under this part.

  1. (b)
    give notice of the decision—
  1. (i)
    if the investigation relates to a health service complaint—to the complainant and relevant health service provider under section 278; or
  1. (ii)
    otherwise—to any health service provider being investigated.”

The facts in this case

  1. [18]
    The complaint in this case was made, on 27 February 2019, by the Executive Director of Medical Services at the Metro North Hospital and Health Service.  The primary judge said that although the text of the complaint was not in evidence, it related to a number of matters described by the ombudsman as “clinical performance” matters and “conduct” matters.  The ombudsman decided to carry out an investigation into a number of matters which were the subject of this complaint on 1 March 2019.
  2. [19]
    On 21 March 2019, the ombudsman’s principal investigations officer wrote to Dr Braun, informing him of that decision to start an investigation into the complaint.[21]
  3. [20]
    In April 2019, the respondent decided to carry out two further investigations which are not the subject of this appeal.[22]  The due day for completing the subject investigation was 1 March 2020, which passed without any prior extension.
  4. [21]
    On 17 April 2020, the ombudsman’s delegate caused the investigation to be listed on the ombudsman’s public register of investigations that have not been completed within one year of the decision to carry them out, in accordance with ss 85(4)-(7).  On the same day, the delegate decided to extend the due day for completion of the investigation by three months.  There followed a series of subsequent decisions which extended the due day, or purported to do so, ultimately to the date of the hearing.

The reasoning of the primary judge

  1. [22]
    His Honour described the ordinary meaning of the text of s 85(1) as follows:

[43] The ordinary meaning of the mandatory language of the command that the health ombudsman “must complete” an investigation “by” the due day is that an investigation carried out after the due day would be an investigation carried out in contravention of s 85(1). That ordinary meaning is reinforced by or consistent with the legal meaning of the word “must” when used in an Act in relation to a power, to indicate that the power is required to be exercised.”[23]

  1. [23]
    His Honour referred to passages from several judgments of the High Court governing the task of statutory construction: Clayton v Heffron,[24] Project Blue Sky Inc v Australian Broadcasting Authority,[25] SAS Trustee Corporation v Miles,[26] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[27] and Federal Commissioner of Taxation v Consolidated Media Holdings Ltd.[28]  In particular, his Honour quoted the statement by the plurality in Project Blue Sky:[29]

“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.”[30]

(Footnote omitted.)

  1. [24]
    The primary judge described the submissions for ombudsman as placing a heavy emphasis on one of the main objects of the Act, being to protect the health and safety of the public, as stated in s 3(1)(a).[31]  He said that the argument did not grapple with the text of s 85(1) or the effect of other main objects of the Act, and observed that “those objects do not always pull in the same direction…”.[32]
  2. [25]
    His Honour was there referring to s 3(2), which provides that the objects of the Act are to be achieved mainly by establishing “a transparent, accountable and fair system for effectively and expeditiously dealing with complaints …”.[33]  In that respect, his Honour said:

“…One critical point in the statutory scheme may be obvious, but it is that an Act which provides for a process of making a complaint by a person about the provision of a health service, that confers power on a statutory office holder to investigate the complaint and to exercise investigative powers in doing so, and that leads to a decision that will affect the rights, powers, privileges and status of a health service provider who is subject to a complaint, is one that vitally affects the rights, powers, privileges and status of the health service provider, just as much as it serves to protect the health and safety of the public or promotes professional, safe and competent practice by the health practitioner.”[34]

Therefore, his Honour concluded, it would be an error to proceed without regard to that provision within s 3(2).[35]

  1. [26]
    The judge discussed the process of the assessment of a complaint and the ways in which the ombudsman may then deal with it.  He noted that there were time limits prescribed for the assessment process, such as the time for provision of submissions or information in response to a notice given to the complainant, the relevant health service provider or any other person, as well as a prescribed period of 30 days (with provision for an extension in certain circumstances) in which the ombudsman must complete the assessment.[36]
  2. [27]
    The judge noted that there was no definition of what constituted the completion of an investigation, and said:

“As a matter [of] ordinary meaning, and in the context of the processes provided for by the Act, the requirement in s 85(1) that the health ombudsman must “complete” an investigation by the due day is one that engages the ordinary meaning of the verb “complete”. That is, “must complete” means must bring the investigation to an end, or finish, or conclude it.”[37]

(Footnote omitted.)

  1. [28]
    The judge referred to the requirement under s 90 for the ombudsman to decide to take particular relevant action to further deal with the matter or to take no further action.  He referred to the note in s 90 to s 44 as stating “the grounds on which the health ombudsman may decide to take no further action on a matter under this part.”
  2. [29]
    Section 44 enables the ombudsman to decide to take no further action on a health service complaint or other matter if the ombudsman reasonably considers –
  1. “(a)
    the complaint or other matter—
  1. (i)
    is frivolous, vexatious, trivial or not made in good faith; or
  1. (ii)
    is misconceived or lacking in substance; or
  1. (iii)
    is being adequately dealt with by another appropriate entity; or
  1. (iv)
    has been resolved or otherwise appropriately finalised by the health ombudsman or another appropriate entity; or
  1. (v)
    despite reasonable efforts by the health ombudsman or another appropriate entity, cannot be resolved; or
  1. (b)
    for a complaint—
  1. (i)
    the complainant has failed, without reasonable excuse, to—
  1. (A)
    satisfactorily cooperate with attempts made or arranged by the health ombudsman to resolve the complaint; or
  1. (B)
    comply with a request from the health ombudsman for information the health ombudsman needs to properly deal with the complaint; or
  1. (ii)
    the complaint is withdrawn; or
  1. (iii)
    the matter of the complaint arose, and the complainant was aware of the matter, at least 2 years before the complaint was made.”

Section 44 (2) provides that sub-section (1)(b)(iii) does not apply if the ombudsman reasonably considers that a registered health practitioner may have behaved in a way that constitutes professional misconduct or another ground may exist for the suspension or cancellation of the practitioner’s registration.

  1. [30]
    His Honour said this about the operation of s 44 and s 90:

[85] An investigation where the complainant has failed without reasonable excuse to comply with a request for information the health ombudsman needs to deal with the complaint is not one that would be described as complete to the satisfaction of the health ombudsman, yet it is one that falls within the operation of the power to take no further action under s 90 on the footing that it is “[a]fter completing an investigation”.”

  1. [31]
    The judge referred to the extensive powers of the ombudsman for the purpose of an investigation which are conferred by Part 15 of the Act.  He noted that consistently with the ombudsman’s argument, these “intrusive investigatory powers and the corresponding obligations that may be imposed on a health service provider being investigated and others” would continue, notwithstanding a contravention of the statutory requirement under s 85(1) that the investigation be completed by the due day.[38]  The primary judge drew support from the principle of legality, saying that:

[107] It follows, in my view, that the question of the proper construction of the Act of the consequences of a contravention of s 85(1) should take into account that the extent of the Act’s interference with the ordinary civil rights of an affected health service practitioner should be limited to what the Act expressly declares or clearly intends as a matter of construction and should not extend past that point in the absence of a clearly expressed or implied legislative intention.”

  1. [32]
    After discussing and rejecting some further arguments for the respondent, his Honour expressed this conclusion:

[114] The result of this analysis, in my view, is that a failure to validly extend the due day under s 85(2) of the Act will cause the due day to pass under s 85(1) of the Act and will cause an investigation to be completed on the due day.”

It can be seen that it was by that reasoning that his Honour concluded that s 90 was engaged in this case.

  1. [33]
    The primary judge then discussed (or further discussed) the question of whether the due day could be extended retrospectively.  As his Honour observed, the only power to extend the due day is that contained in s 85(2), and the condition for the exercise of the power to extend is that the ombudsman must reasonably consider that “it is not possible to properly complete … by the due day”.  As his Honour said, that condition is expressed in the present tense, and a retrospective exercise of the power would involve the ombudsman forming the opinion that it was not possible to complete by the due day.  Consequently, he said, the ordinary meaning of the text was inconsistent with the retrospective exercise of the power to extend.[39]
  2. [34]
    His Honour considered that the context did not support a different meaning of s 85(2).  He noted the submissions for the ombudsman which relied upon cases in which the word “extend” was held to permit a retrospective extension.[40]  However, he said, the submission by reference to those authorities did not address the text of s 85(2).[41]
  3. [35]
    The judge then listed five considerations which were against a construction which would permit a retrospective extension:

“[122] First, if the power to extend the due day may be retrospectively exercised, there is no objectively ascertainable limit on the due day to complete an investigation.

[123] Second, in exercising the power to extend the due day retrospectively, how would the respondent answer the question posed under s 85(2) that “it is not possible to properly complete the investigation by the due day”?

[124] Third, given that an extension under s 85(2) may only be for three months at a time, because of the operation of s 85(3), could the power to extend be exercised more than three months retrospectively?

[125] Fourth, the register of all investigations that have not been completed within 12 months that the respondent must keep on a publicly accessible website under s 85(4) must state the current due day for completing each investigation. For any such investigation, where a due day has not been extended prospectively, the register will show the due day as expired or the investigation must be removed as completed. But on a retrospective extension, the expired due day will be altered, retrospectively.

[126] Fifth, as previously discussed, if the intrusive investigative powers under Pt 8 of the Act are brought to an end after an investigation is completed by expiry of the due day, it also follows that a construction of s 85(2) that permitted a retrospective extension of the due day would also re-engage those powers. Further complex questions would arise. Would the retrospective operation operate nunc pro tunc to validate what was not authorised before the retrospective extension? Would an offence be created retrospectively against a person who did not comply with or cooperate with the requirements of an authorised person between the original expiry of the due day and its retrospective extension?”

  1. [36]
    His Honour held that neither the text on its ordinary meaning nor the context of s 85(2) supported the conclusion that the power to extend the due day may be exercised retrospectively.[42]  He granted relief by three declarations in these terms:
  1. Declare that the due day for the respondent to complete the investigation into the complaint made by the Metro North Hospital and Health Service on 27 February 2019 was 1 March 2020.
  2. Declare that the purported extensions of the due day made by the respondent’s delegates for that investigation were invalid.
  3. Declare that the respondent is obliged in respect of that investigation to make a decision under s 90 of the Health Ombudsman Act 2013 (Qld) as soon as possible.

The submissions in this Court

  1. [37]
    For the ombudsman, it is submitted that the primary judge’s conclusions were affected by two principal errors.  The first was to conclude that the passing of the due day for the completion of an investigation has the result that the investigation is taken to be completed, regardless of whether in fact that has occurred to the ombudsman’s satisfaction.  The second, it is said, was in the judge’s conclusion that it was not possible for the due day to be extended retrospectively.  It is submitted that the ordinary meaning of “extend” permits a retrospective application, and when the context of the Act, particularly its object and purpose which are directed to protecting the health and safety of the public are considered, the word should be given that meaning.
  2. [38]
    The argument challenges the judge’s observation that upon the construction for which the ombudsman contended, the noncompletion of an investigation by the due day would be inconsequential.[43]  It is submitted that there is remedy to compel compliance with the obligation to complete the investigation, namely that under ss 22(2) and 41(2) of the Judicial Review Act 1991 (Qld).  It is said that in the absence of an extension, the passage of the due day would leave the health ombudsman under a continuing duty to complete the investigation, and as quickly as is reasonably possible.  It is submitted that the mandatory language of s 85(1) does not address what is a different question, namely the legal consequence of not having completed an investigation within the stipulated time.  Citing Minister for Immigration and Citizenship v Li,[44] it is submitted that the language of s 85(1) is merely “exhortatory or aspirational”, so as not to affect the validity of an investigation conducted beyond the due day.
  3. [39]
    The submissions for Dr Braun, in substance, support the reasoning of the primary judge.

Consideration

  1. [40]
    Upon receipt of a complaint, the ombudsman is required to assess the complaint under Part 5.  Having completed that assessment, the ombudsman must decide to take particular relevant action to further deal with the complaint, or take no further action.[45]  One such relevant action is the investigation of the subject matter of the complaint under Part 8.  The ombudsman is not obliged to investigate a complaint, apart from where the Minister so directs under s 81.  If the ombudsman decides to carry out an investigation, the ombudsman has the extensive powers conferred by Part 15.
  2. [41]
    Part 8 imposes certain obligations on the health ombudsman in carrying out the investigation: notice must be given to the relevant health service provider of the decision to carry out the investigation,[46] and the ombudsman must give progress reports of the investigation.[47]  There are also obligations imposed by Part 8 after completing an investigation.[48]
  3. [42]
    The investigative powers are subject to the time limitations prescribed by s 85.  In particular, the requirement that, in any case, the investigation be completed by the due day is a limitation upon those powers.
  4. [43]
    The carrying out of an investigation will nearly always involve decisions by the investigator, in their judgment, as to the course which the investigation should take.  Reasonable investigators might differ as to what was required before being satisfied that an investigation has been completed.  For example, a certain line of inquiry might be relevant, but considered too difficult or expensive to pursue.  That discretion in the investigator is recognised in the terms of s 85(2), by conferring a power of extension of the due day for completing an investigation if the health ombudsman reasonably considers that, in all the circumstances (including, for example, the size and complexity of the matters being investigated), it is not possible to properly complete the investigation by the due day.  It is by a timely extension of the date for completion of the investigation that the investigator’s powers continue to be exercisable, and not indefinitely.
  5. [44]
    There is no sanction which is expressed for the non-completion of an investigation by the due day.  That is consistent with the characterisation of the time limitations as limitations on the exercise of the investigative powers.
  6. [45]
    Once the due day has passed, those powers are no longer exercisable and the ombudsman must consider what other relevant action should be taken for dealing with the complaint, or if permitted by s 44, decide to take no further action.  That other action is by one or more ways as expressed in s 38(1).  As noted earlier, the ombudsman may take more than one relevant action to deal with a matter.[49]  The power to deal with a complaint is not confined to taking the particular relevant action which is at first taken by the ombudsman.
  7. [46]
    That power to take other relevant action, once the investigative power is no longer exercisable, does not derive from s 90.  Section 90 is engaged after an investigation has been completed, and where it is engaged, it imposes upon the ombudsman a duty to make a certain decision.
  8. [47]
    I respectfully disagree with the trial judge’s construction that, where the due date for completing an investigation has passed, without the investigation having been completed, it is by those circumstances to be considered as having been completed for the purposes of s 90.  The completion of an investigation should be given the meaning in s 90 which it has in s 85 and s 86.  An investigation is not completed by the expiry of the time allowed for that to occur.
  9. [48]
    The power to extend the due day, conferred by s 85(2), is just that: a discretionary power and not a duty to extend the time.  It is a power which is exercisable only in the event that the ombudsman reasonably considers that, in all the circumstances, it is not possible to properly complete the investigation by the due day.  In some cases, the ombudsman may not be able to satisfy that condition of the power to extend, and in some cases, the ombudsman may not wish to continue the investigation.  Absent an extension, the power to investigate will not remain on foot because an extension of those powers could not be justified or because in the ombudsman’s judgment, the investigation should not continue.
  10. [49]
    I agree with the primary judge that the arguments for the ombudsman disregard the expressed requirement for a transparent, accountable and fair system for effectively and expeditiously dealing with complaints.[50]  The investigative powers under Part 15 are extensive and, in practice, they could be burdensome to the subject of the investigation and perhaps to others.  The need to balance the different objects and interests affected by the operation of the Act explains both the time limit prescribed by s 85 and the limitation on the circumstances in which the due date may be extended.
  11. [50]
    I agree with his Honour’s succinct reasoning on each of the five points which I have extracted from the judgment above at [34].  The persuasiveness of those five considerations are not affected by the judge’s view with which I have disagreed – that the passage of the due day engages s 90.
  12. [51]
    Like the primary judge, I would accept that the word “extend” in a statutory provision may permit a retrospective extension, but that it is necessary to address the text of this statutory provision.
  13. [52]
    Most importantly, there is the second of those points, which is that upon the text of s 85(2) the condition which is expressed for the exercise of the power is expressed in the present tense.
  14. [53]
    The submissions for the ombudsman do not engage with the third of his Honour’s points whilst maintaining that a retrospective extension could be made more than three months after the passage of the due day.  The suggested means of avoiding the evident mischief from such a power of extension is said to be the availability of a remedy whereby the person being investigated might have a court compel the ombudsman to prolong the investigation.
  15. [54]
    The ombudsman’s answer to the fifth of his Honour’s points is that there would be no lacuna in the ombudsman’s investigative powers in the period between the passage of the due day and a retrospective extension, because the power to investigate does not cease on the passage of the due day.  As I have explained, that interpretation should be rejected.

Conclusion and orders

  1. [55]
    The appeal should be dismissed, save for the appeal against the third of the declarations.  As I have explained, in my view s 90 was not engaged for the reason that the expression “after completing an investigation of a matter under this part” refer to the completion, in fact, of an investigation.
  2. [56]
    I would order as follows:
  1. Allow the appeal in part, by setting aside the third of the declarations made by the primary judge.
  2. Otherwise dismiss the appeal.
  3. Unless the appellant contends otherwise, by a written submission not exceeding four pages and filed within 14 days of the judgment, the appellant pay the respondent’s costs of the appeal.
  1. [57]
    MULLINS JA:  I agree with McMurdo JA.

Footnotes

[1]  s 85(1).

[2] Braun v Health Ombudsman [2021] QSC 209 (Judgment).

[3]  s 3(1).

[4] Health Practitioner Regulation National Law (Qld).

[5]  National Law s 3(1)(a).

[6]  s 11 of the Act.

[7]  s 32.

[8]  s 14(1).

[9]  s 16(1).

[10]  s 42.

[11]  s 35(1).

[12]  s 80 and s 81.

[13]  s 197.

[14]  s 209.

[15]  s 212 and s 213.

[16]  s 84(2).

[17]  s 84(3).

[18]  s 87(1).

[19]  s 88.

[20]  s 87(2).

[21]  Judgment [14].

[22]  The due date for those investigations was extended in each case, prior to the (original) due date.  There was a challenge to those extensions on factual grounds, which was rejected in the Judgment at [153].

[23] Acts Interpretation Act 1954 (Qld), s 32CA(2) (footnote in the original).

[24]  (1960) 105 CLR 214 at 246.

[25]  (1998) 194 CLR 355 at 388-389 [91].

[26]  (2018) 265 CLR 137 at 149 [20].

[27]  (2009) 239 CLR 27.

[28]  (2012) 250 CLR 503 at 519 [39].

[29]  Judgment [45].

[30] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-389 [91].

[31]  Judgment [50].

[32]  Judgment [51].

[33]  Judgment [51].

[34]  Judgment [59].

[35]  Judgment [60].

[36]  s 48 and s 49 of the Act.

[37]  Judgment [80] citing Shorter Oxford English Dictionary, 6th Ed, Volume 1, p 471, Definition “complete”.

[38]  Judgment [90].

[39]  Judgment [118].

[40] Sanofi v Parke Davis Pty Ltd (No 2) (1983) 152 CLR 1 at 7-8; Trindall v Minister for Aboriginal Affairs [2004] NSWLEC 121.

[41]  Judgment [120].

[42]  Judgment [128].

[43]  Judgment [86].

[44]  (2013) 249 CLR 332 at [95]-[98].

[45]  s 50 of the Act.

[46]  s 82(2).

[47]  s 84.

[48]  s 90.

[49]  s 42.

[50]  s 3(2).

Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v Braun

  • Shortened Case Name:

    Health Ombudsman v Braun

  • MNC:

    [2022] QCA 117

  • Court:

    QCA

  • Judge(s):

    Fraser JA, McMurdo JA, Mullins JA

  • Date:

    30 Jun 2022

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2021] QSC 20923 Aug 2021-
Notice of Appeal FiledFile Number: CA10882/2120 Sep 2021-
Appeal Determined (QCA)[2022] QCA 11730 Jun 2022-

Appeal Status

Appeal Determined (QCA)

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