Harirchian v Health Ombudsman
[2020] QCAT 392
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- Unreported Judgment
- Harirchian v Health Ombudsman[2020] QCAT 392
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Harirchian v Health Ombudsman[2020] QCAT 392
Harirchian v Health Ombudsman[2020] QCAT 392
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Harirchian v Health Ombudsman [2020] QCAT 392 |
PARTIES: | DR RAMIN HARIRCHIAN (applicant) v HEALTH OMBUDSMAN (respondent) |
APPLICATION NO/S: | OCR149-20 |
MATTER TYPE: | Occupational regulation matters |
DATE OF ORDERS: | 15 October 2020 |
DATE OF REASONS: | 27 October 2020 |
HEARING DATE: | 15 October 2020 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Allen QC, Deputy President |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – tribunal assisted by assessors – whether reasonable apprehension of bias of an assessor by reason of prejudgment – role of assessors – whether reasonable apprehension of bias of an assessor causes reasonable apprehension of bias of tribunal COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – PARTICULAR GROUNDS – PREJUDGMENT – tribunal constituted by judge – tribunal assisted by assessors – whether reasonable apprehension of bias of an assessor by reason of prejudgment – role of assessors – whether reasonable apprehension of bias of an assessor causes reasonable apprehension of bias of tribunal PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROCEEDINGS BEFORE BOARDS, TRIBUNALS, ETC – tribunal constituted by judge – tribunal assisted by assessors – whether reasonable apprehension of bias of an assessor by reason of prejudgment – role of assessors – whether reasonable apprehension of bias of an assessor causes reasonable apprehension of bias of tribunal Health Ombudsman Act 2013 (Qld), s 58A, s 63, s 94, s97, s 117, s118, s 126, s 127, s 129, s 132 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 168 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Webb v the Queen (1994) 181 CLR 41 IW v City of Perth (1997) 191 CLR 1 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka (2001) 206 CLR 128 Hot Holdings v Creasy (2002) 210 CLR 438 Preston v Carmody (1993) 44 FCR 1 Carruthers v Connolly [1998] 1 Qd R 339 Dental Board of Queensland v B [2003] QCA 294 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504 FGT Custodians v Gagenblat [2003] VSCA 33 |
REPRESENTATION: | |
Applicant: | J R Jones instructed by Avant Law |
Respondent: | C Templeton instructed by Office of the Health Ombudsman |
REASONS FOR DECISION
Introduction
- [1]Dr Ramin Harirchian (the applicant) applied to the Tribunal for review of a decision of the Health Ombudsman (the respondent) to vary earlier immediate registration action by suspending the applicant’s registration as a medical practitioner following upon the applicant’s conviction of criminal offences. The applicant seeks that the Tribunal set aside the decision of the respondent and instead order that the registration of the applicant be subject to conditions.
- [2]On 18 September 2020, the proceeding came before the Tribunal for hearing. The Tribunal was constituted by myself. I was assisted, as required by s 126 of the Health Ombudsman Act 2013 (Qld) (HO Act), by three assessors. Counsel for each party made submissions with reference to documents, including affidavit evidence and written submissions, filed earlier in the Tribunal. At the conclusion of the hearing, I reserved the Tribunal’s decision.
- [3]The Tribunal’s decision was still reserved when the applicant filed an application for miscellaneous matters seeking a direction that an assessor disqualify himself from the hearing of the proceeding.
- [4]The application for miscellaneous matters was heard by me, without the assistance of assessors, on 15 October 2020. Counsel for each party made submissions with reference to affidavit evidence and written submissions filed earlier in the Tribunal. At the conclusion of the hearing, I made orders recusing myself from further hearing and determination of the proceeding and directed that the proceeding be heard and determined by a reconstituted Tribunal constituted by a different judicial member and, unless otherwise ordered, assisted by different assessors. I further directed that, unless otherwise ordered, the rehearing will be on the papers, including the transcript of proceedings on 18 September 2020. These are the reasons for my decision.
The application for miscellaneous matters
- [5]The application sought a direction that an assessor disqualify himself from the hearing of matter OCR149-20. An outline of submissions on behalf of the applicant described the relief sought as disqualification of an assessor from further participation in hearing OCR149-20 on the basis of apprehended bias. However, during the hearing, counsel for the applicant clarified that the applicant was seeking orders that the proceeding be reheard before another properly constituted Tribunal.
Evidence relied on by the applicant
- [6]The applicant relied upon affidavits of two witnesses. Both deponents are law students who, on 18 September 2020, as part of a work experience program, were in the public gallery of the courtroom throughout the hearing of the proceeding. Both witnesses deposed to being in the precincts of the QEII Courts of Law Complex during the lunch adjournment of the hearing when they were approached by a man who struck up a conversation with them. They recognised him as being one of the assessors who had been seated at the bench with me during the hearing.
- [7]The assessor queried the deponents as to their reasons for attendance at the hearing. The assessor expressed the opinion that the case was “boring”, that there was “no case”, and it was “quite clear what the outcome would be”. He expressed the opinions that no one would continue to seek treatment from a doctor if they knew they had been convicted of the same offences as the applicant, that most people would agree with the suspension of a doctor following conviction for such offences, and that the applicant should not be practising as a medical doctor and should be suspended.
Applicant’s submissions
- [8]The statements by the assessor related directly to the issues in dispute in the proceeding. They gave rise to a reasonable apprehension that the assessor had prejudged such matters adversely to the applicant before hearing all submissions in the matter. They were capable of giving rise to the reasonable apprehension that the assessor had prejudged matters prior to the hearing and was not open to persuasion by submissions during the hearing. There was a reasonable apprehension of bias of the assessor by reason of prejudgment.
- [9]Given the significance of the role of the assessor as prescribed by the provisions of the HO Act, a reasonable apprehension of bias of the assessor tainted the proceedings such as to give rise to a reasonable apprehension of bias of the Tribunal.
- [10]The proceeding should be reheard by a reconstituted Tribunal. If unacceptable delay would flow from unavailability of new assessors, the reconstituted Tribunal might be able to hear and determine the proceeding without assessors pursuant to s 126(2) of the HO Act.
Respondent’s submissions
- [11]Prior to the statements by the assessor, he had presumably read the written material filed prior to the hearing and had heard most of the oral submissions to be made by both parties: submissions had been made over the course of one and a half hours by counsel for the applicant and for 50 minutes by counsel for the respondent prior to the lunch adjournment; only a further 23 minutes of submissions by counsel for the respondent and a further 19 minutes in reply from counsel for the applicant remained to be heard after the lunch adjournment. A reasonable informed bystander would not regard strongly expressed opinions at such a time to be indicative of prejudgment.[1]
- [12]On a proper analysis of the terms of the statements by the assessor, they were not indicative of prejudgment. They reflected a mind which had been swayed strongly in one direction; not one which from the outset was closed to persuasion.[2]
- [13]The nature of the role of assessors is such that they are expected to bring their own views to a hearing; they are not required to have a completely open mind uninformed by their own experience.[3]
- [14]Whilst the comments might engender in an observer “a sense of unease or a “feeling that conventions of discretion and prudence have been breached”[4], they would not lead to a conclusion that a reasonable bystander might apprehend that the assessor might not have brought an impartial mind to the case.
- [15]Even if there was a reasonable apprehension of bias of the assessor, that would not lead to a reasonable apprehension of bias of the Tribunal. The reasonable bystander would understand the limited role of the assessor: he did not have a “vote”; the decision-maker is the judge who constitutes the Tribunal. The case law concerning “rotten apple” cases of apprehended bias draw a distinction between someone playing a central role in the decision-making process and one that is peripheral.[5] The assessor’s role is sufficiently disconnected – and apparently so – from the judge who is charged with deciding so that, even if the assessor is affected by an apprehension of bias, that would not lead to a reasonable apprehension of bias of the Tribunal.
- [16]The Tribunal should determine the proceeding as presently constituted. If the Tribunal was to conclude that the assessor should be disqualified by reason of bias, the Tribunal could not proceed as constituted without the assistance of the assessor given the mandatory requirement in s 126 of the HO Act; a reconstituted Tribunal with a different judicial member should consider the possible operation of s 126(2) of the HO Act.
Legislative provisions
- [17]Section 28(3)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) requires the Tribunal to observe the rules of natural justice. The rule against bias, both actual and apprehended, is a fundamental rule of natural justice.
- [18]Section 168 of the QCAT Act permits the reconstitution of the Tribunal for a matter and further provides:
- (2)The tribunal as reconstituted must continue to hear the matter and decide it and, for that purpose, may have regard to the decisions and any records of proceedings of the tribunal as previously constituted, including any record of evidence.
- [19]Sections 58A(3) and 63 of the HO Act provide for a practitioner to apply to the Tribunal for review of a decision of the type the subject of the proceeding. Pursuant to s 94(1)(a)(i) of the HO Act, the Tribunal is given jurisdiction to review such a decision. The applicant’s application to review is accordingly a “disciplinary proceeding” as defined in schedule 1 of the HO Act. Accordingly, pursuant to s 97 of the HO Act, for the proceeding, the Tribunal must be constituted by one judicial member[6].
- [20]The provisions of part 10, division 5 of the HO Act provide for the establishment of, and appointment of individuals to, a public panel of assessors and professional panels of assessors for specified health professions including “a medical practitioners panel of assessors”.[7] Appointment is by the Governor in Council on recommendation of the responsible Minister who must be satisfied that the proposed individual “has sufficient experience, knowledge, skills and standing in the profession having regard to the functions of assessors.”[8]
- [21]The provisions of part 10, division 6 of the HO Act provide for the assistance of the Tribunal by assessors. Section 126 of the HO Act provides as follows:
- (1)In conducting a hearing of a disciplinary proceeding relating to a registered health practitioner, the tribunal must be assisted by—
- (a)1 assessor chosen by the principal registrar from the public panel of assessors; and
- (b)2 assessors chosen by the principal registrar from—
- (i)the professional panel of assessors for the practitioner’s profession; or
- (ii)if the practitioner is registered in more than 1 profession—the panel of assessors for the profession to which the disciplinary proceeding relates.
- (2)Despite subsection (1), QCAT may conduct a hearing of a disciplinary proceeding without the assistance of assessors if QCAT is satisfied it is necessary because of the urgency of the matter.
- [22]Section 127 of the HO Act provides for the assessor’ function:
- (1)The function of an assessor in a hearing of a disciplinary proceeding is to sit with the tribunal and advise the tribunal about questions of fact.
- (2)To enable an assessor to perform the assessor’s function, the assessor may, during the hearing—
- (a)ask questions of a witness before the tribunal; and
- (b)discuss any question of fact with a lawyer or other person appearing for a party at the hearing.
- [23]Sections 129 and 132 of the HO Act are provisions concerned with the fact and appearance of the impartiality of assessors in carrying out their function:
129Particular persons not eligible to be assessor in a disciplinary proceeding
A person is not eligible to be an assessor for a hearing of a disciplinary proceeding if the person was a member of a national panel that8made a decision about a matter to which the disciplinary proceeding relates.
132Disclosure of interests
- (1)This section applies if an assessor who is to help the tribunal in a particular disciplinary proceeding has or acquires an interest, financial or otherwise, that may conflict with the proper performance of the assessor’s functions.
- (2)The assessor must—
- (a)disclose the nature of the interest to the president of the tribunal; and
- (b)not take part in the proceeding or exercise powers for it, unless all parties to the proceeding and the president agree otherwise.
Consideration
- [24]The test for apprehended bias is whether a fair-minded observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question to be decided.[9]
- [25]There is force in the submissions of the respondent as to the timing of the comments by the assessor. They were made at such a stage of the hearing that the assessor might reasonably expected to have formed strong views as to the issues in dispute. Nevertheless, they were in such terms that I concluded that a fair-minded observer might reasonably apprehend that the assessor might not have brought an impartial mind to the hearing of the competing arguments of counsel in the hearing; they were capable of giving rise to a reasonable apprehension that he had prejudged the matter and was incapable of persuasion to the contrary.
- [26]As to whether a reasonable apprehension of bias of the assessor would lead to a reasonable apprehension of bias of the Tribunal, it is true that a fair-minded observer would consider the limited role of the assessor as an adviser rather than decision-maker. However, the role of the assessor is an important one.[10] The provisions of the HO Act reflect the importance of the reality and appearance of impartiality of assessors. The principle behind the reasonable apprehension of bias test is that it is of “fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.[11] Although the matter was a finely balanced one, I concluded that the circumstances were such as to give rise to a reasonable apprehension of bias of the Tribunal and that it was necessary that I recuse myself and that the matter be heard by a differently constituted Tribunal.
- [27]The directions for the rehearing allowed for the possibility that the reconstituted Tribunal might, pursuant to s 126(2) of the HO Act, hear and determine the matter without assessors if unavailability of assessors would cause inordinate delay in the rehearing and determination of the matter. The directions also, with the assent of both parties, provided for the rehearing to be on the documents filed in the Tribunal prior to and during the hearing on 18 September 2020 and the transcript of the hearing on that day. The assessor did not ask questions of counsel on that day and both parties agreed there was no impediment to, and practical advantage in, the reconstituted Tribunal having regard to the transcript of the hearing.
Concluding remarks
- [28]It is most unfortunate that the parties have incurred further costs, the determination of the proceeding has been delayed and the limited resources of the Tribunal taxed as a result of the inappropriate conduct of the assessor.
- [29]These unfortunate consequences should serve as a salutary reminder to assessors as to the significance of their role and the importance of them not only being, but being seen to be, impartial.
- [30]Assessors should observe a rule of prudence that, at least until a proceeding is determined, they do not discuss the issues in the proceeding with anyone other than the presiding judicial member and their fellow assessors in the proceeding.
Footnotes
[1] Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100.
[2] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 [72].
[3] Ibid at 562-563 [180].
[4] Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka (2001) 206 CLR 128 at 158 [90].
[5] Carruthers v Connolly [1998] 1 Qd R 339; IW v City of Perth (1997) 191 CLR 1; McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; Hot Holdings v Creasy (2002) 210 CLR 438; Preston v Carmody (1993) 44 FCR 1; FGT Custodians v Gagenblat [2003] VSCA 33.
[6] The term, “judicial member”, is defined in schedule 3 of the QCAT Act.
[7] HO Act, s 117.
[8] HO Act, s 118.
[9] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 [6].
[10]See Dental Board of Queensland v B [2003] QCA 294 at [26].
[11] Webb v the Queen (1994) 181 CLR 41 at 47.