Health Ombudsman v Singh[2024] QCAT 377

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicant has applied for a non-publication order to protect the identity of a person referred to as the complainant. The application has been served on solicitors previously acting for the respondent, at a time when they were acting for him, however the respondent’s attitude to the application is unknown.
2. [2]
   The applicant makes three allegations in the underlying proceeding against the respondent who is a nurse:

   1. that the respondent sexually assaulted the complainant by grabbing the complainant twice by the breast sometime between 2 and 3am in the morning in the inner suburbs of Brisbane;
   2. at the same time, or immediately after, that he physically assaulted the complainant by striking her face with his hand causing her to fall down; and
   3. that he contravened s 130 of the Health Practitioner Regulation National Law (Queensland) (National Law) by failing to give the Board notice, within seven days or at all, of being charged with criminal offences arising from this conduct.
3. [3]
   I infer, from the time and place of the alleged conduct, that the conduct did not occur in the course of his professional activities as a nurse. The applicant, in submissions, informs the Tribunal that whilst the respondent was charged with sexual assault and assault occasioning bodily harm, the Crown discontinued the indictment on the morning of the trial. Thus, the respondent has not been convicted of any sexual offence (or other offence). However, the allegations in the referral arise out of the same conduct that was the subject of the criminal charges. 
4. [4]
   The applicant submits that the orders should be made pursuant to s 66(2)(d) and/or s 66(2)(e) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and because of the requirements of s 10 of the Criminal Law (Sexual Offences) Act 1978 (Qld) (CLSOA).

The legislative scheme

5. [5]
   Section 66(1) of the QCAT Act confers power on the Tribunal to make an order prohibiting the publication, other than in the way and to the persons stated in the order, of:

   1. the contents of a document or other things produced to the Tribunal;
   2. evidence given before the Tribunal; or
   3. information that may enable a person who has appeared before the Tribunal or is affected by a proceeding to be identified.
6. [6]
   Section 66(2) provides that the Tribunal may make an order under s 66(1) only if it considers it necessary to do so:

   1. to avoid interfering with the proper administration of justice; or
   2. to avoid endangering the physical or mental health or safety of a person; or
   3. to avoid offending public decency or morality; or
   4. to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
   5. for any other reason in the interests of justice.
7. [7]
   It has been observed that this provision gives the Tribunal a broader power to constrain the operation of the open court principle than is available to courts generally by virtue of their inherent (or implied) jurisdiction.^[1]  Specifically, the phrase “in the interests of justice” generally confers a broad discretionary power on the decision maker.^[2]  Having said that, the exercise of the discretion pursuant to s 66(1) is informed by the paramount principle of open justice.^[3]
8. [8]
   The party seeking the non-publication order must satisfy the Tribunal it is necessary.^[4] I note section 31(3) of the Human Rights Act 2019 (Qld) (HR Act). The Tribunal has considered the respondent’s rights under the HR Act and is satisfied there is no limitation on those rights in its consideration and determination of this application.
9. [9]
   The applicant submits that the material to be filed in this proceeding is likely to include documents relied on or arising from the criminal proceeding which would likely identify or lead to the identification of the complainant, such as the CCTV footage and police witness statements.
10. [10]
    Section 10 of the CLSOA prohibits the publication of the name, address, school or place of employment or any other particular that is likely to lead to the identification of a complainant otherwise than in a report concerning an examination of witnesses or a trial.  This proceeding is not an examination of witnesses or a trial as defined in the CLSOA.
11. [11]
    A ‘complainant’ is defined for the CLSOA as a person in respect of whom a sexual offence is alleged to have been committed. This definition has been observed to have ‘potential breadth’.^[5] A ‘sexual offence’ is defined to mean any offence of a sexual nature, including a prescribed sexual offence. A ‘prescribed sexual offence’ is defined as including an offence defined in s 352 of the Criminal Code 1899 (Qld), which is a sexual assault.  The allegation in the referral of a ‘sexual assault’ does not come immediately within the definition of these terms in the CLSOA.
12. [12]
    On the information currently before the Tribunal, the respondent has not been convicted of any sexual offence arising out of the events in the referral and there is no such charge pending against him arising out of these events.  As such, identification of the complainant by reason of the allegation of sexual assault in the referral, may not be prohibited by the CLSOA.^[6]
13. [13]
    It is plain, however, that publication of the identity of the complainant is inconsistent with the protections afforded by the CLSOA. As such, I am satisfied it is in the interests of justice to grant the application for a non-publication order sought by the applicant. I will grant the order on an interim basis, such that the order may be revisited if it becomes necessary to do so.