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Braun v Health Ombudsman[2021] QSC 209

Braun v Health Ombudsman[2021] QSC 209

SUPREME COURT OF QUEENSLAND

CITATION:

Braun v Health Ombudsman [2021] QSC 209

PARTIES:

DOCTOR WILLIAM BRAUN

(applicant)

v

HEALTH OMBUDSMAN

(respondent)

FILE NO/S:

BS 10392 of 2020

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 August 2021

DELIVERED AT:

Brisbane

HEARING DATE/S:

30 April and 4 May 2021

JUDGE:

Jackson J

ORDER:

  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.
  4. Direct that the parties are to provide written submissions as to any other relief and costs by 6 September 2021.
  5. Liberty to apply.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – EXTENSION OF TIME – PARTICULAR CASES – where the respondent decided to carry out three investigations in March and April 2019 of matters concerning the applicant’s performance and conduct as a health practitioner – where none of the investigations was completed by the respondent before the due day under s 85(1) of the Health Ombudsman Act 2013 (Qld) that was one year after the decision to carry out the relevant investigation – where the respondent purported to extend the due day for completing each of the investigations under s 85(2) and did so more than once under s 85(3) – where the respondent purported to extend the due day for one of the investigations after the due day had passed – whether the power to extend the due day may be exercised retrospectively

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the due day may be extended under s 85(2) if the respondent reasonably considers that, in all the circumstances, it is not possible to properly complete the investigation by the due day – where the respondent’s records show the approval of requests to place each of the investigations on the public register and to make extensions to the public register and, in March 2021, expressly record the decisions to extend the due day and the reasons for the decisions – where a number of  clinical advices for matters the subject of one of the investigations were not completed until after the decision in March 2021 to extend the due day – whether the respondent did not reasonably consider that it was not possible to properly complete each investigation by the due day

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where the respondent submitted that the due day for each of the investigations was extended, in part, because none of the investigations concerning the applicant had been completed at the time the due day was extended – whether the respondent took an irrelevant consideration into account by considering the other investigations

INTERPRETATION – GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS – GENERAL MATTERS – where the Health Ombudsman Act 2013 (Qld) does not expressly provide for the consequence of a contravention of s 85(1) – where s 4(1) provides that the main principle is that the health and safety of the public are paramount – where s 3(2) 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 and other matters” – whether a failure to validly extend the due day under s 85(2) will cause the due day to pass under s 85(1) with the consequence that the respondent is unlawfully further carrying out the investigations – where the respondent is under a duty under s 90 to decide to take particular relevant action or to take no further action “[a]fter completing an investigation” – whether s 90 applies when the due day under s 85(1) has passed or when the investigation is complete to the satisfaction of the respondent

ADMINISTRATIVE LAW – JUDICIAL REVIEW – STANDING TO INSTITUTE PROCEEDINGS – PARTICULAR CASES – where the relief sought by the applicant is a declaration and an injunction under s 43(2) of the Judicial Review Act 1991 (Qld) – where the respondent submits that each extension of the due day of each of the investigations had no effect on the applicant’s rights or interests – whether there was a decision or conduct of the respondent that affected the applicant’s rights or interests

Acts Interpretation Act 1954 (Qld), s 32A, s 32CA(2), s 38

Health Ombudsman Act 2013 (Qld), s 3, s 4, s 44, s 80, s 85, s 90

Health Practitioner Regulation National Law (Qld), s 5

Judicial Review Act 1991 (Qld), s 22, s 41(2), s 43(2)

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, cited

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, applied

Clayton v Heffron (1960) 105 CLR 214, applied

Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543, cited

Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, cited

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 502, applied

Herron v McGregor (1986) 6 NSWLR 246, cited

Holzinger v Attorney-General (Qld) (2020) 385 ALR 158, cited

Jones v Dunkel (1959) 101 CLR 298, cited

Koon Wing Lau v Calwell (1949) 80 CLR 533, cited

Likiardopoulos v R (2012) 247 CLR 265, cited

Maxwell v R (1996) 184 CLR 501, cited

Nona v Barnes [2013] Qd R 528, cited

Potter v Minahan (1908) 7 CLR 277, applied

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, applied

Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, applied

Sanofi v Parke Davis Pty Ltd (No 2) (1983) 152 CLR 1, distinguished

SAS Trustee Corporation v Miles (2018) 265 CLR 137, cited

Taylor v O'Beirne & Ors [2010] QCA 188, cited

Trindall v Minister for Aboriginal Affairs [2004] NSWLEC 121, distinguished

Walton v Gardiner (1993) 177 CLR 378, cited

COUNSEL:

G Diehm QC and A Scott for the applicant

A Wheatley QC and A Psaltis for the respondent

SOLICITORS:

K & L Gates for the applicant

Clayton Utz for the respondent

Jackson J:

 Summary

  1. [1]
    The central question for decision in this proceeding is whether the due day[1] by which the respondent was to complete each of three investigations carried out[2] under Pt 8 of the Health Ombudsman Act 2013 (Qld) (“the Act”) has passed, with the consequence that the respondent is unlawfully further carrying out the investigations.  A further question is whether, for any of the investigations for which the due day has passed, the respondent must decide to take particular relevant action to further deal with the matter or to take no further action in relation to the matter.[3]
  2. [2]
    Summarising, the applicant alleges that in March and April 2019, the respondent started to carry out three separate investigations.  Two of them were investigations of a matter or matters the subject of a health service complaint.  The third was an investigation started into another matter or matters the respondent considered was relevant to achieving an object of the Act.[4] 
  3. [3]
    Section 85(1) of the Act provides:

“(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. [4]
    None of the three investigations was completed by the respondent by the day that was one year after the decision to carry out the investigation.  In each case, the respondent purported to extend time under s 85(2) of the Act that provides:

“(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. [5]
    The respondent claims to have extended the due day for completing each of the investigations more than once.  That is provided for by s 85(3) of the Act as follows:

“(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. [6]
    For differing reasons in the case of each investigation, the applicant alleges that the due day was not extended.  Although a number of factual considerations were raised by the evidence, whether the due day for each investigation was extended raised three discrete questions.  One is whether the power to extend the due day under s 85(2) may be exercised retrospectively.  Another is whether the power to extend was validly exercised if the reason why it was considered that it was not possible to properly complete the investigation by the due day was that other investigations of matters concerning the applicant’s performance or conduct were not completed.  The third question is whether the applicant proved that the respondent’s delegate did not actually reasonably consider that it was not possible to properly complete each investigation by the due day.
  2. [7]
    If the respondent did not validly extend the due day for completing any of the investigations, the applicant submits that two consequences follow:  first, that it is unlawful for the respondent to further carry out the investigation;  second, that the investigation is complete, within the meaning of s 90 of the Act and the respondent must decide to take particular relevant action to further deal with the matter or to take no further action.
  3. [8]
    The respondent disputes every one of those points.
  4. [9]
    For one of the investigations, I have concluded that the due day by which the respondent must complete the investigation has passed and for that investigation it follows that the respondent must decide to take particular relevant action to further deal with the matter or to take no further action in relation to the matter.  As well, the respondent is not authorised by the Act to carry out further investigation before making that decision.  Otherwise, I have concluded that the applicant has not proved that the due day for the respondent to complete the other two investigations has passed and the applicant is not entitled to relief. 

Factual findings

  1. [10]
    The necessary factual findings to resolve the questions that remain to be decided are relatively few, having regard to the significant volume of the affidavit material filed and read on both sides of the dispute and the short oral evidence ultimately given by one of the witnesses.
  2. [11]
    There are two reasons why the material is larger than perhaps need be.  One is that the application only concerns three of the investigations the respondent decided to carry out under s 80 of the Act.  Yet the material and the submissions of the respondent encompassed other investigations.  The material and submissions relating to the other investigations are irrelevant to any question to be decided in the proceeding, except that the respondent on occasions had regard to all of the ongoing or subsisting matters or investigations in making a decision whether to extend each of the three relevant investigations.  Another is that the material includes voluminous correspondence between the lawyers for the parties, much of which is not relevant to deciding any question in dispute.  Only a few matters raised in that correspondence need be mentioned.
  3. [12]
    On 27 February 2019, the Executive Director of Medical Services at the Metro North Hospital and Health Service (“MNHHS”) made a complaint about the applicant to the respondent.  The text of the complaint is not in evidence, but it related to a number of medical matters, classified by the respondent as “clinical performance” matters and other matters as to alleged inappropriate conduct, classified as “conduct” matters.
  4. [13]
    On 1 March 2019, the respondent decided to carry out an investigation into a number of matters the subject of the MNHHS complaint, that were not identified in the evidence.  It was given file reference number 201902049-RA2.  I will refer to the investigation as Investigation 1.  In accordance with s 85(1) of the Act, set out above, the period within which the respondent was required to complete the investigation, unless extended, was 1 March 2020, being one year after 1 March 2019.[5]
  5. [14]
    On 21 March 2019, the respondent’s Principal Investigations Officer, Steven Martin, wrote to the applicant, informing him that on 1 March 2019 a delegate of the respondent decided to start an investigation into the MNHHS complaint and the delegate had also decided to withhold notifying the applicant of the decision to investigate until 21 March 2019 when that decision was rescinded.  The letter stated that the complaint “raises concerns” regarding the applicant’s clinical performance and post-operative care and inappropriate conduct “including, but not limited to bullying and sexual harassment”.  No other information about the matters the subject of Investigation 1 was provided.
  6. [15]
    Between 26 February 2019 and 3 May 2019, a member of Parliament made a number of statements in Parliament about matters concerning the applicant.
  7. [16]
    On 2 April 2019, the respondent decided to carry out an investigation into some of those matters, that were not identified in evidence.  It was given file reference number 201903126-RA1.  I will refer to it as Investigation 2.  In accordance with s 85(1) of the Act, set out above, the period within which the respondent was required to complete the investigation, unless extended, was 2 April 2020.
  8. [17]
    Also on 2 April 2019, following a patient complaint that is not in evidence, the respondent decided to carry out an investigation into the complaint.  It was given file reference number 201903084-RA1.  I will refer to it as Investigation 3.[6]  In accordance with s 85(1) of the Act, the period within which the respondent was required to complete the investigation, unless extended, was 2 April 2020.
  9. [18]
    On 8 April 2019, the applicant’s lawyers wrote to the respondent’s Senior Investigations Officer, Katherine Mann, requesting a copy of the MNHHS complaint and any other complaint concerning him.
  10. [19]
    On 11 April 2019, Mr Martin wrote to the applicant.  He declined to provide any information about any of the complaints received as requested by the applicant. 
  11. [20]
    However, by that letter, he also notified the applicant that, on 2 April 2019, a delegate of the respondent had decided to carry out Investigation 2.  No information about that investigation was provided, except that from the information from the member of Parliament the respondent noted there were a large number of complaints from several health service providers and consumers spanning a number of years in relation to the applicant’s care of patients and allegations of inappropriate behaviour towards medical staff and trainees. 
  12. [21]
    As well, by the same letter, Mr Martin notified the applicant that a delegate of the respondent had decided to carry out Investigation 3.  The notification identified the patient who had complained, that the applicant had been her surgeon for emergency surgery for acute appendicitis and that she had suffered post-operative peritonitis she believed could have been avoided if she had received appropriate care in the first place.  The patient complained that the applicant did not provide post-operative care or advice and that, when she eventually saw him, she found his manner disturbing and inappropriate.
  13. [22]
    On 19 July 2019, the respondent’s delegate sought “clinical”[7] advice from a consultant specialist surgeon as to a number of matters the subject of Investigation 2, relating to three patients, VM, SR and SW.  The advice was provided and signed and dated 21 August 2019, according to the consultant’s declaration.
  14. [23]
    On 2 March 2020, the due day for the respondent to complete Investigation 1 passed, without prior extension.
  15. [24]
    On 4 March 2020, the respondent’s delegate sought “clinical” advices from a consultant specialist surgeon as to a number of matters the subject of Investigation 2, relating to four other patients, CT, JO, ML and MH.  The advices were respectively completed on 6, 7 and 8 March 2020 and 13 April 2020, according to the consultant’s signed and dated declarations.
  16. [25]
    On 24 March 2020, the respondent’s records show that Paul Bergin, as delegate for the respondent, approved a request to approve placing Investigation 3 on the public register kept under s 85(4) – 85(7) of the Act.  As set out below, s 85(4) provides that the respondent must keep a register on a publicly accessible website of investigations that have not been completed in one year.  Mr Bergin said on affidavit that, on the same date, he made a decision to extend the due day for completion of Investigation 3 for three months.
  17. [26]
    On 25 March 2020, the respondent’s records show that Mr Bergin, as delegate for the respondent, approved a request to approve placing Investigation 2 on the public register kept under s 85(4) – 85(7) of the Act.  Mr Bergin said on affidavit that, on the same date, he made a decision to extend the due day for completion of Investigation 2 for three months. 
  18. [27]
    On 17 April 2020, the respondent’s records show that Mr Bergin approved a request to approve placing Investigation 1 on the public register kept under s 85(4) – 85(7) of the Act.  Mr Bergin said on affidavit that, on the same date, he made a decision to extend the due day to complete Investigation 1 for three months. 
  19. [28]
    On 17 April 2020, the respondent’s delegate sought “clinical” advice from a consultant specialist surgeon as to a number of matters the subject of Investigation 2, relating to an eighth patient, KA.  The advice was completed on 30 June 2020, according to the consultant’s signed and dated declaration.
  20. [29]
    Also on 17 April 2020, the respondent’s delegate sought further advice from a consultant specialist surgeon as to a number of matters the subject of Investigation 2, relating to the first three patients, SR, VM and SW.  The advices were respectively completed on 25 April 2020, 13 May 2020 and 1 June 2020, according to the consultant’s signed and dated declarations.
  21. [30]
    On 29 May 2020, the respondent’s records show that Mr Martin, as delegate of the respondent, decided to approve a request for an extension of the public register for Investigation 1 to 1 September 2020, that is three months from 1 June 2020.  The request was said to be for further evidence gathering.  Mr Martin said on affidavit that, on the same date, he made a decision to extend the due day to complete Investigation 1 for three months. 
  22. [31]
    On 22 June 2020, the respondent’s records show that Mr Martin, as delegate of the respondent, decided to approve a request for an extension of the public register for Investigation 3 to 2 October 2020, that is three months from 2 July 2020.  The request was said to be for further evidence gathering.  Mr Martin said on affidavit that, on the same date, he made a decision to extend the due day to complete Investigation 3 for three months. 
  23. [32]
    On 24 June 2020, the respondent’s records show that Mr Martin, as delegate of the respondent, decided to approve a request for an extension of the public register for Investigation 2 to 2 October 2020, that is three months from 2 July 2020.  The request was said to be for further evidence gathering.  Mr Martin said on affidavit that, on the same date, he made a decision to extend the due day to complete Investigation 2 for three months. 
  24. [33]
    In March 2021, Mr Martin made decisions to extend the due day to complete each of the investigations, for three monthly intervals, until the hearing.  In each instance, Mr Martin said on affidavit that, on the relevant date, he made a decision to extend the due day to complete the relevant investigation for three months.  A notable difference is that the respondent’s records expressly recorded the decisions to extend the due day in each case and gave reasons therefor.  I note that was after this proceeding had been started, raising the contention that the power to extend the due day under s 85(2) of the Act had not been exercised or properly exercised previously.
  25. [34]
    On 23 March 2021, for Investigation 3, which was a single patient complaint, the decision to extend by Mr Martin was recorded in the respondent’s records in the following form:

“As delegate for the Health Ombudsman under section 85(2) I reasonably consider that, in all of the circumstances including being a complex and protracted investigation involving multiple patients and allegations involving expert clinical opinions and awaiting submissions from the practitioner, it is not possible to properly complete the investigation within the previously extended time.  For these reasons I have decided to extend the due day for completing the investigation, with the extension being three months.”

  1. [35]
    This was the same form that was used to record the decision on 25 March 2021 to extend the due day for Investigation 2, which did relate to multiple patients, as previously identified.  It illustrates a theme, that runs through some of the evidence, that at times the respondent’s delegates, officers and lawyers tended to treat the separate investigations as though they were one overall investigation, which they were not.  Investigation 3 concerned a single patient who had emergency surgery for acute appendicitis and suffered post-operative peritonitis, as previously described.
  2. [36]
    On 30 October 2020, the respondent’s Executive Director, Investigations, Kelly Gleeson wrote to the MNHHS, whose Medical Director had made the complaint for Investigation 1, to provide an update.  As to the clinical performance allegations, she stated that the office of the respondent had reached an interim conclusion that the evidence then did not indicate that the applicant posed a serious risk requiring consideration of immediate action under s 58 of the Act and that the respondent did not consider that the matters needed to be referred to the director of proceedings for consideration of disciplinary action before QCAT.  As to the conduct allegations, she stated that the matters were still being investigated and it was anticipated they would be completed within 6-8 weeks.  The respondent’s position at the time of the hearing of this application was that the investigation was not complete.
  3. [37]
    On 25 November 2020, Ms Gleeson wrote to the applicant, in similar terms, on the express basis that he could provide the letter to a private hospital where the applicant had been unable to practise during the period of the unresolved investigations.
  4. [38]
    On 8 December 2020, Ms Gleeson wrote to the applicant, referring to the MNHHS complaint and further information and complaints subsequently received, identifying that the complaints and information related to 23 patients who had been under the applicant’s care.  The letter stated that investigations into the allegations concerning the applicant’s clinical performance had been completed.  The letter stated (for the third time) that the respondent did not consider that the allegations concerning the applicant’s clinical performance needed to be referred to the director of proceedings for consideration of disciplinary action before QCAT, and continued that the potential regulatory pathways in respect of each patient case were referral to the Australian Health Practitioner Regulation Agency or another governmental authority, such as MNHHS, or no action.  The letter contained a request for submissions from the applicant about the eight patients mentioned above and included copies of the “clinical” advices obtained by the respondent between 5 March 2019 and 1 July 2020, previously mentioned.
  5. [39]
    As at 8 December 2020, the public register kept under s 85(4) of the Act gave the then current due days for Investigations 1, 2 and 3 and stated that the reason for each of the then last extensions was “further evidence gathering required” in purported compliance with the requirement under s 85(5) of the Act to state the reason for the extension of the due day.

Invalidity if due day has passed

  1. [40]
    The logical order of the questions for decision might suggest that the legal and factual issues as to whether the due day for each of the investigations has been extended to the present should be considered first.  However, even if those questions are resolved in the applicant’s favour, any entitlement to substantive relief turns on the further question whether it is unlawful for the respondent to further carry out the investigation after the due day has passed and the associated question whether the respondent must make a decision to take particular relevant action or to take no further action.
  2. [41]
    It is appropriate, therefore, to consider those questions first. 
  3. [42]
    The task of statutory construction must begin with the text of s 85(1).  The sentence which constitutes that subsection begins with the subject, “[t]he health ombudsman”, who is commanded by the verb “must complete” in relation to the object “an investigation”.  An adverbial clause modifies the verb by requiring that the action be carried out “as quickly as is reasonable in all the circumstances”.  That modification introduces the requirement of a time within which the action commanded by the verb must be carried out.  The conjunction “and” appends the further clause “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”.  That clause uses the preposition “by” to limit what time may be “reasonable in all the circumstances” to one of two alternatives that are defined to be the “due day”.  The first alternative is one year after the decision to carry out the investigation.  The second alternative is any extended time decided under subsection (2). 
  4. [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.[8]

Principles for assessing invalidity

  1. [44]
    The Act does not expressly provide for the consequence of such a contravention of s 85(1).  In Clayton v Heffron,[9] the plurality judgment stated:

“But commonly no express declaration is to be found in a statutory power as to the effect on validity of departures from the procedure laid down.  The question is then determined by reference to the nature of the power conferred, the consequences which flow from its exercise, the character and purpose of the procedure prescribed.”[10]

  1. [45]
    More recently, the leading case of Project Blue Sky Inc v Australian Broadcasting Authority[11] was concerned with the effect of a breach of a statutory requirement in the making of a decision, as a matter of statutory construction.  The plurality said:

“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.”[12] (footnote omitted)

  1. [46]
    I would add to the relevant considerations the consequences of holding every action done in breach of the condition not to be void.
  2. [47]
    The respondent submitted that statutory construction requires consideration of the text of the provision in the light of its context and purpose, relying on SAS Trustee Corporation v Miles.[13]  The identified paragraph from that case is as follows:

“The starting point for ascertainment of the meaning of a statutory provision is, of course, the text of the provision considered in light of its context and purpose.  Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies.” (footnotes omitted)

  1. [48]
    Text, context and purpose are all fundamentally important.  But, in applying the principles from Project Blue Sky and Clayton stated above, I would add two other broader references.  First in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[14] the plurality said:

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself.  Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.  The language which has actually been employed in the text of legislation is the surest guide to legislative intention.  The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”[15] (footnotes omitted)

  1. [49]
    Second, in a later case, Federal Commissioner of Taxation v Consolidated Media Holdings Ltd,[16] the High Court said:

“‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.”[17] (footnote omitted)

Objects of the Act and the overview

  1. [50]
    The respondent’s submissions referred to a number of provisions of the Act as context, in support of the operation it submitted that s 85(2) has.  Over and again, they invoked 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).  But despite the Court’s invitation, the respondent did not grapple with the effect of the operation of s 85(1) for which it contended.  The respondent simply submitted that contravention of s 85(1) had no effect on the validity of further carrying out an investigation and that the passing of the due day did not engage the duty to decide to take particular relevant action or to take no further action under s 90.  The respondent made no submission as to the effect of that upon the operation of the other provisions of the Act or the structure or outcomes of the various processes provided for under the Act, that give effect to all of its main objects under s 3.
  2. [51]
    Although not taken into account by the respondent’s submissions, s 3 has more objects than just to protect the health and safety of the public.  The main objects are set out in s 3.  That those objects do not always pull in the same direction is expressly recognised in s 4.  Those sections provide:

3  Main objects

  1. (1)
    The main objects of this Act are—
  1. (a)
    to protect the health and safety of the public; and
  1. (b)
    to promote—
  1. (i)
    professional, safe and competent practice by health practitioners; and
  1. (ii)
    high standards of service delivery by health service organisations; and
  1. (c)
    to maintain public confidence in the management of complaints and other matters relating to the provision of health services.
  1. (2)
    The objects are to be achieved mainly be establishing a transparent, accountable and fair system for effectively and expeditiously dealing with complaints and other matters relating to the provision of health services, including by—
  1. (a)
    establishing the health ombudsman with the functions set out in section 25; and
  1. (b)
    providing for the effective and efficient interaction of this Act and the National Law; and
  1. (c)
    providing for the system to be effectively monitored by the Minister and the parliamentary committee.

4 Paramount guiding principle

  1. (1)
    The main principle for administering this Act is that the health and safety of the public are paramount.
  1. (2)
    Without limiting subsection (1), the health and safety of the public is the main consideration for—
  1. (a)
    the health ombudsman, when deciding what relevant action to take to deal with a complaint or other matter; and
  1. (b)
    the director of proceedings, when deciding whether to refer a matter to QCAT; and
  1. (c)
    QCAT, when deciding a matter referred to it under this Act.”
  1. [52]
    The structure of the Act is summarised in Pt 1, Div 3 headed “Overview of Act”.  That overview begins by recognising the operation and existence of the Health Practitioner Regulation National Law (Qld),[18] that is a regulation made under the Health Practitioner Regulation National Law Act 2009 (Qld).  That regulation is described in the Act as the “National Law”, and the Act and the National Law are to be read in conjunction.  The National Law establishes a registration and accreditation scheme for health practitioners.  Both the Act and Pt 8 of the National Law include provisions about the health, conduct and performance of registered health practitioners.[19]  A decision of the health ombudsman or QCAT under the Act that affects the registration of a (registered) health practitioner is given effect under the National Law.[20]
  2. [53]
    The establishment of the office of health ombudsman[21] and appointment to that office gives the holder responsibility for receiving and dealing with health service complaints and dealing with other matters.[22]  A person may make a complaint to the health ombudsman under the Act about a service provided by a health practitioner and the National Law provides for voluntary and mandatory notifications about a registered health practitioner to be made to the health ombudsman and dealt with under the Act as a health service complaint.[23]
  3. [54]
    If a complaint is made, the health ombudsman may assess the complaint to decide the most appropriate action to take.  If satisfied that there is a serious risk to persons and it is necessary to protect public health or safety, the health ombudsman may take immediate action about a health practitioner’s registration or other immediate action.[24]
  4. [55]
    If a complaint is accepted, the health ombudsman may investigate a matter using the investigation powers under the Act.[25] 
  5. [56]
    In some circumstances, the health ombudsman may refer a matter concerning a registered health practitioner to the director of proceedings for a decision about whether proceedings should be taken against the practitioner before QCAT, or refer a complaint or matter concerning a registered health practitioner to the national agency to be dealt with under the National Law.[26]
  6. [57]
    If the health ombudsman decides to take particular relevant action to deal with a complaint, he or she must keep the complainant and health service provider informed by giving notice and giving progress reports at not less than three monthly intervals of the progress of an investigation.[27]
  7. [58]
    While carrying out the statutory functions and exercising the statutory powers, the Act states time frames in which the health ombudsman and other entities must take particular actions in relation to a complaint.  Investigations must generally be completed within the one year but three-month extensions (recorded on the public register) are permitted.[28]
  8. [59]
    This overview is given more detailed and primary expression in the detailed provisions of the Act.  But it serves to inform the provisions that are the main objects of the Act and how they are to be achieved.  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.
  9. [60]
    Accordingly, the provision in s 3(2) of the Act that the objects are to be achieved mainly by establishing a “transparent, accountable and fair system for effectively and expeditiously dealing with complaints and other matters” relating to the provision of health services is fundamental to achieving the main objects.  It would be an error to proceed without regard to that provision.  In a sense, the safety of the public can be said to be protected by provisions that would permit the respondent to investigate a complaint in a dilatory way, whilst the relevant health service provider is legally or in a practical sense suspended from providing health services pending the outcome of the investigation.  But that would hardly be fulfilment of the object of a system established for dealing with complaints and other matters “effectively and expeditiously” in a way that is “transparent, accountable and fair”. 
  10. [61]
    Accordingly, in my view, a construction of the consequences of a contravention of s 85(1) that may be a contestable judgment, should account not only for the main principle that the health and safety of the public are paramount and any decision of the health ombudsman in deciding what relevant action to take to deal with a complaint,[29] but also for the object of the Act in establishing a transparent, accountable and fair system for effectively and expeditiously dealing with complaints and other matters. 

Complaints and matters

  1. [62]
    The holder of the statutory office of health ombudsman has the functions that include to receive health service complaints and take relevant action to deal with them under the Act.[30]  The Act confers some express powers on the health ombudsman, but generally provides that he or she has the power to do all things that are necessary or convenient to be done for or in connection with the performance of the functions.[31]  In performing the functions, the health ombudsman must act independently, impartially and in the public interest.[32] 
  2. [63]
    As defined, a health service complaint is a complaint about a health service or other service provided by a health service provider.[33]  A number of provisions of the Act make it clear that the subject of a health service complaint is a “matter”.[34]  Although the matter the subject of the complaint is referred to as such in some provisions, Pt 3 Div 3 and Pt 4 of the Act make it clear that the health ombudsman’s functions include matters that are not the subject of a complaint.  Part 4 provides for how complaints and “other matters” are dealt with, as its heading provides.  While s 38 specifies the relevant actions that may be taken by the health ombudsman for dealing with a health service complaint, s 39 expressly provides that the health ombudsman may take such action to deal with a matter whether or not a health service complaint has been made about it.[35]
  3. [64]
    Obvious logical possibilities are that a single complaint may relate to more than one subject matter or that more than one complaint or matter may concern a single subject matter.  Those possibilities are dealt with by providing that the health ombudsman may consider two or more health service complaints or other matters relating to a health service provider in making a decision about taking relevant action (under s 38) and that the health ombudsman may deal with two or more matters relating to a health service provider together.[36]  As well, the health ombudsman may deal separately with two or more matters arising from a single complaint.[37]
  4. [65]
    As may be apparent from that summary, the ways in which the health ombudsman may deal with a health service complaint are carefully structured and defined, as reflected in the list of relevant actions identified in s 38(1) as follows:

“(1) Each of the following is a relevant action for dealing with a health service complaint—

  1. (a)
    assessing the complaint under part 5;
  1. (b)
    facilitating local resolution of the complaint under part 6;
  1. (c)
    taking immediate action under part 7;
  1. (d)
    investigating the subject matter of the complaint under part 8;
  1. (e)
    issuing a prohibition order under part 8A;
  1. (f)
    referring the complaint to the National Agency or an entity of the State, another State or the Commonwealth under part 9;
  1. (g)
    for a health service complaint concerning a registered health practitioner, referring the complaint to the director of proceedings under part 10, division 2 for decision about whether to refer the complaint to QCAT;
  1. (h)
    conciliating the complaint under part 11;
  1. (i)
    carrying out an inquiry into the subject matter of the complaint under part 12.”
  1. [66]
    Although perhaps not in strict logical order, Pt 5 of the Act provides how the health ombudsman is to deal with a complaint, if the health ombudsman decides to assess the health service complaint under that part.[38]  The relevant sections include a provision identifying the purpose of the assessment,[39] ways it may be made,[40] that the health ombudsman may give a notice inviting submissions about the complaint,[41] or requiring information to be given by the complainant or health service provider or other person.[42]  Such submissions or information must be provided within 14 days after notice.[43]  Non-compliance in providing information is an offence.[44]
  2. [67]
    These processes in relation to assessing a complaint lead to a duty imposed on the health ombudsman to decide to take particular relevant action to further deal with the complaint or to take no further action in relation to the complaint.[45]  As part of the transparent, accountable and fair system for effectively and expeditiously dealing with complaints, that duty is conditioned by requiring the health ombudsman to complete the assessment within a stated period.  Section 49 of the Act provides:

“(1) The health ombudsman must complete the assessment within 30 days after deciding to carry out the assessment.

  1. (2)
    However, the health ombudsman may extend the period for assessing the complaint by a further period of up to 30 days if necessary because of—
  1. (a)
    the size or complexity of the complaint; or
  1. (b)
    the time taken to obtain submissions under section 47 or information under section 48.”
  1. [68]
    As appears from s 38, as set out above, one relevant action for dealing with a health service complaint is the action of investigating the subject matter of the complaint under Pt 8.  Each of the investigations the subject of this proceeding is or was carried out as relevant action taken under Pt 8. 
  2. [69]
    However, Pt 7 of the Act is also important context for the constructional question raised as to the consequence of a contravention of s 85(1).  Part 7 confers powers upon the health ombudsman to take “immediate action” in relation to health practitioners.  In the case of a registered health practitioner, immediate action means immediate registration action.[46]
  3. [70]
    Part 7, Div 1 provides for immediate registration action, which is defined to mean the suspension of, or imposition of a condition on, the registered health practitioner’s registration.[47]  It is not necessary to detail the processes that condition the exercise of that power or that follow upon such action being taken, except to note that immediately after deciding to take immediate registration action, the health ombudsman must investigate the matter giving rise to the immediate action under Pt 8, or refer the matter under Pt 9, or refer the matter to the director of proceedings under Pt 10, Div 2.[48] 

Investigations

  1. [71]
    Although it comprises only 11 sections, Pt 8 contains detailed provision for the health ombudsman to carry out an investigation.  The power to carry out an investigation is restricted to a matter that is the subject of a health service complaint, a systemic issue relating to the provision of a health service, or another matter if the health ombudsman considers an investigation is relevant to achieving an object of the Act.[49]  That is consistent with the pathways previously mentioned that expressly provide for an investigation.  As well, the Minister may direct an investigation with a stated reasonable period in which it must be completed and the health ombudsman must comply with the request.[50]
  2. [72]
    If the health ombudsman decides to take relevant action for dealing with a health service complaint by investigating the subject matter of the complaint under Pt 8, he or she must give notice to the relevant health service provider under s 278 of the Act.[51]  Section 278 provides the notice must state the reasons for the decision.[52]  If notice of the decision has not been given under s 278, the health ombudsman must notify the health service provider about the investigation before or when it is started.[53]  Section 83 provides as follows:

83  Investigative powers

Part 15 provides for powers that may be exercised for the purpose of conducting an investigation.”

  1. [73]
    After an investigation is started, the health ombudsman must, at not less than three monthly intervals, give a notice of the progress of the investigation to the health service provider being investigated.[54]
  2. [74]
    In full, s 85 of the Act provides:

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. [75]
    After completing an investigation, the health ombudsman may prepare an investigation report containing information, comment or recommendations for action[55] subject to the conditions or limits expressly provided.[56]
  2. [76]
    Section 90 is an important contextual provision for the operation of s 85.  It provides as follows:

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.”

Submissions about s 85 and s 90

  1. [77]
    A number of competing submissions were made by the parties about the operation of and effect of s 90 upon s 85(1).  The applicant submitted that after the due day under s 85(1) passes, the health ombudsman is under a duty to decide to take particular relevant action or to take no further action under s 90.  The respondent submitted that if an investigation is not complete to the satisfaction of the health ombudsman, s 90 does not apply, whether or not the due day under s 85(1) has passed, because the duty to decide under s 90 is only engaged “[a]fter completing an investigation”.
  2. [78]
    The proper construction of s 85(1) is informed by a careful consideration of the operation of both s 85(1) and s 90 on each of the constructions contended for. 
  3. [79]
    The effect of the applicant’s construction of s 85(1) and s 90 is that after the due day has passed and the duty under s 90 is engaged, it does not matter whether the health ombudsman is satisfied that the investigation is complete.  The effect of the respondent’s submission is that the duty under s 90 is only engaged when the investigation is complete to the satisfaction of the health ombudsman, irrespective of how long that takes.
  4. [80]
    There is no definition of what constitutes completing an investigation under Pt 8.  That outcome is identified or recognised by the express text of four provisions in the Act.[57]  As a matter 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”.[58]  That is, “must complete” means must bring the investigation to an end, or finish, or conclude it. 
  5. [81]
    It would follow that, on the ordinary meaning, the phrase “[a]fter completing an investigation” in s 90 (or s 86) means “after bringing to an end, finishing or concluding an investigation”. 
  6. [82]
    It may be argued that if it were intended that the duty under s 90 would be engaged after the due day had passed, even if the investigation was not finished or concluded  to the satisfaction of the health ombudsman, it would have been easy enough to say after the word “part” in s 90, “or the due day to complete the investigation has passed”. 
  7. [83]
    Against that, the applicant submits that the purpose of s 85(1) is to limit the time within which an investigation must be completed to the due day, by providing an initial period of one year with the possibility of one or more three month extensions under s 85(1) and s 85(2), provided the condition for extending the due day is satisfied.  In that context, the applicant submits that the intention sufficiently appears that the duty in s 90 is engaged at the time by which the investigation must be completed, so that any time after that is after completing the investigation for the purposes of s 90. 
  8. [84]
    There is a further contextual indication that the phrase “[a]fter completing an investigation” in s 90 does not mean after completing an investigation to the satisfaction of the health ombudsman.  One of the things that the health ombudsman may do under s 90 after completing an investigation is to decide to “take no further action” in relation to the matter.  The note under subparagraph (a)(ii) cross-refers to s 44 for the grounds on which that may be done.  Section 44 provides, in part, as follows:

44 Decision to take no further action on a matter

  1. (1)
    At any time, the health ombudsman may decide to take no further action on a health service complaint or other matter if the health ombudsman reasonably considers—
  1. (a)
  1. (b)
    for a complaint—
  1. (i)
    the complainant has failed, without reasonable excuse, to—
  1. (a)
  1. (b)
    comply with a request from the health ombudsman for information the health ombudsman needs to properly deal with the complaint; …”
  1. [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”.
  2. [86]
    The respondent submits that both the express text in s 90 of “[a]fter completing an investigation” that conditions when the duty under s 90 arises, and the fact that s 90 makes no provision for the time during which that duty must be performed support the conclusion that the duty under s 90 is not engaged simply because the due day under s 85(1) has passed.  However, if the respondent’s construction were accepted, it follows that there is no consequence if the due day passes.  The respondent submits the health ombudsman can further carry out the investigation, presumably until satisfied that it is complete.  Only at that point would the point of “[a]fter completing the investigation” be reached and the duty to decide to take particular relevant action or to take no further action be engaged under s 90. 
  3. [87]
    In my view, an important point is that if the respondent’s construction and its consequences were accepted, it would also follow that the investigative powers under Pt 15 of the Act conferred on the health ombudsman during an investigation by s 83 would continue. 

Functions and powers of authorised persons

  1. [88]
    Part 15 of the Act comprises seven Divisions that confer functions and powers on “authorised persons”, that include the health ombudsman and appointed persons, and provide for the conditions and regulation of the exercise of those functions and powers. 
  2. [89]
    An authorised person has the function to carry out activities for the purpose of an investigation by the health ombudsman under Pt 8.[59]  The powers conferred on an authorised person include power to enter a place in identified circumstances[60] and to apply for a warrant for entry to a place,[61] once at the place to search, inspect, examine things, take extracts from documents or copies thereof, produce images and the like,[62] to require an occupier of a place to give reasonable help,[63] to seize a thing reasonably believed to be evidence about a matter being investigated[64] and to require information or attendance of a person reasonably believed to be able to give information about a matter being investigated by the health ombudsman.[65]  In a number of respects, failure to comply with or cooperate with the requirements of an authorised person in exercising these powers is an offence.[66]
  3. [90]
    It is unnecessary to go further in detailing the relevant provisions. The point of significance is that if the respondent’s construction were correct, the health ombudsman’s and other authorised persons’ intrusive investigatory powers and the corresponding obligations that may be imposed on a health service provider being investigated and others will continue, notwithstanding contravention of the statutory requirement under s 85(1) of the Act that the health ombudsman must complete the investigation by the due day.

Reviewable decisions

  1. [91]
    At this point, it is convenient to deal with the respondent’s challenge to the Court’s power to make the orders applied for on the ground that there is no decision or conduct of the respondent that affects the applicant’s rights or interests in a way that is amenable to relief under Pt 5 of the Judicial Review Act 1991 (Qld) (“JRA”). 
  2. [92]
    The relevant relief in the present case is a declaration and an injunction sought under s 43(2) of the JRA.  The respondent submits that each extension of the due day of each investigation under s 85(2) of the Act was procedural and had no effect on the applicant’s rights or interests, in any event.  The respondent submits that no effect on the applicant’s rights or interests will occur until the respondent makes a decision whether or not to take action under s 90, relying on Ainsworth v Criminal Justice Commission[67] and Taylor v O'Beirne & Ors.[68]
  3. [93]
    If the passing of the due day under s 85(1) means that an investigation is complete, whether or not the respondent is satisfied that it is complete, the contention that no right or interest of the applicant is affected by an invalid and ineffective extension of the due day under s 85(2) must be rejected.  That is because the authorising effect of s 83, that Pt 15 powers may be exercised for the purpose of conducting an investigation, comes to an end when the investigation is complete.  That view of the operation of s 83 is consistent with the statement in s 186(a) of the Act that the functions of an authorised person under Pt 15 include to carry out activities for the purpose of an investigation by the health ombudsman under Pt 8.
  4. [94]
    The circumstances of the present case illustrate this point.  On 27 April 2021, the respondent served notice under s 228(2)(a) and (3) of the Act on the applicant, requiring him to attend before an authorised person to answer questions or produce documents related to relevant information.  If the investigation and the investigative powers for the investigation are at an end, the respondent had no power to serve the notice and the applicant is not obliged to attend before the authorised person.  On the other hand, if the respondent extended the due day under s 85(2) the investigation is not complete within the meaning of s 85(1).  Accordingly, the relevant decision to extend the due day affected the rights or interests of the applicant. 
  5. [95]
    In reaching that conclusion, I have not overlooked that in some circumstances the scope of judicial review in relation to investigative processes and decisions may be limited or virtually non-existent.  For example, decisions made in the processes of the criminal law whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio and whether or not to present evidence, and decisions as to a particular charge to be laid or prosecuted “are, of their nature, insusceptible of judicial review”.[69]  In earlier times, that was said to be because the relevant discretions were seen as part of the prerogative of the Crown and unreviewable.[70]
  6. [96]
    More recently, the relevant discretions are vested in statutory officers under legislation.  Accordingly, the rationale for those rules has been seen to lie not in the notion or doctrine of Crown prerogative but in “[t]he integrity of the judicial process - particularly its independence and impartiality and the public perception thereof – [that] would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what”.[71]
  7. [97]
    I also note that rationale is not based on the proposition that none of those decisions affects a right or interest of a person who is subject to the decision.  In one case, that point was expressly left open by one of the judges of the High Court.[72]  However, two Queensland cases support, or arguably support, an analysis that such decisions may not be susceptible of judicial review because there is no right or interest affected of the person who is subject to the decision.[73]  In the result, I do not find it necessary to engage upon closer analysis of these decisions because of the particular provisions of the Act in the present case that, in my view, do mean that a decision to extend the due day under s 85(2) affects a right or interest of a person being investigated.

Principle of legality

  1. [98]
    At least since Saeed v Minister for Immigration and Citizenship,[74] the High Court has accepted what has been coined, in modern usage, the presumption embodied in the “principle of legality”.  As stated by the High Court, the principle operates as follows:

“The presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness, derives from the principle of legality which, as Gleeson CJ observed in Electrolux Home Products Pty Ltd v Australian Workers’ Union , ‘governs the relations between Parliament, the executive and the courts’.”[75] (footnotes omitted)

  1. [99]
    The principle that statutes are to be interpreted in that way was not new in 2010.  On the contrary, there was clear authority for that approach in an early High Court case, Potter v Minahan,[76] decided in 1908, expressed in broader language, as follows:

“So far from extending the operation of the Act beyond the ordinary meaning of the words which the Legislature has used, it is always necessary, in cases such as this where a Statute affects civil rights, to keep in view the principle of construction stated in Maxwell on Statutes, 4th ed, p. 121:— ‘There are certain objects which the legislature is presumed not to intend; and a construction which would lead to any of them is therefore to be avoided.’ After dealing with other matters not material to the aspect of the rule now under consideration the learned author continues (at p 122):—

‘One of these presumptions is that the legislature does not intend to make any alteration in the law beyond what it explicitly declares (per Trevor J; in Arthur v. Bokenham: See also Harbert's Case, either in express terms or by implication; or, in other words, beyond the immediate scope and object of the Statute. In all general matters beyond, the law remains undisturbed. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in the widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.’”

  1. [100]
    The explanation that the presumption is sourced in the relationship between Parliament, the executive and the courts appears to have originated, at least in recent High Court authority, in two judgments in the House of Lords.[77]  But there is nothing in the modern Australian cases to suggest that explanation has affected the scope of the presumptive principle.
  2. [101]
    To assess whether the presumptive approach has any role in the present case requires identification of the rights or immunities that might be affected by the provision to be construed.  For example, at a general level, there is no common law immunity that a person has against being investigated for conduct that might constitute unsatisfactory professional performance[78] or unprofessional conduct[79] or professional misconduct.[80]  
  3. [102]
    However, such conduct may result in a proceeding under the Act before QCAT, where the health ombudsman refers a matter to the director of proceedings[81]  and the director of proceedings[82] decides to refer the matter to QCAT.[83]  After hearing the matter QCAT may decide, if such conduct is found, to impose a condition on the health practitioner’s registration,[84] or require the health practitioner to pay a fine,[85] or suspend the health practitioner’s registration for a specified period,[86] or cancel the health practitioner’s registration.[87]
  4. [103]
    The health ombudsman’s power to refer a matter to the director of proceedings is not conditioned on first carrying out an investigation under Pt 8.[88]  However, if an investigation is started, either following a health service complaint,[89] or on the health ombudsman’s own motion,[90] it must end in a decision to take particular relevant action (including the power to refer the matter to QCAT) to further deal with the matter or to take no further action.[91]
  5. [104]
    The Act’s processes, and the rights and liabilities created under them, supersede earlier professional regulatory regimes.  At common law, it is recognised that the Supreme Court of a State, as part of its supervisory jurisdiction, may have power to stay the prosecution of a proceeding before a medical disciplinary tribunal for professional misconduct as an abuse of process on the ground of delay.[92]
  6. [105]
    Although there is no common law immunity against being investigated, the provisions of the Act, including those that operate during an investigation, clearly expose a health service provider to obligations and liabilities that do not exist outside its provisions at common law.
  7. [106]
    In my view, notwithstanding the Act’s main objects to protect the health and safety of the public and to promote professional, safe and competent practice by health practitioners, the alterations of the law effected by the Act that expose a health service provider to those obligations and liabilities, including those that operate during an investigation, attract the principles stated in Potter v Minahan.
  8. [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.

Further constructional arguments

  1. [108]
    The respondent submitted that the powers conferred on the health ombudsman under s 90 support the conclusion that there is no duty to make a decision under that section even if the due day under s 85(1) has passed, if the health ombudsman does not consider that the relevant investigation is complete.  He submitted that the health ombudsman’s power to decide to “take particular relevant action” under s 90(a)(i) engaged the definition of “relevant action” under s 38[93] and, under that definition, relevant action included “investigating the subject matter of the complaint under part 8”.  Accordingly, the respondent submitted that there would be no purpose in deciding that passing of the due day under s 85(1) engages the health ombudsman’s duty under s 90 to take particular relevant action since the health ombudsman could simply decide again to investigate the subject matter of the complaint.
  2. [109]
    In my view, this argument is not persuasive.  If accepted, it would render the mandatory provision of s 85(1) that an investigation must be completed by the due day and the provision in s 85(2) that requires the health ombudsman to reasonably consider that it is not possible to properly complete the investigation by the due day before extending the due day by no more than three months at a time quite pointless.  Importantly, the definition of “relevant action” applies “except so far as the context or subject matter otherwise indicates”.[94]  The context  and subject matter of s 85(1) indicate that the decision under s 90 should not be to re-commence an investigation into the subject matter of the complaint.
  3. [110]
    The respondent submitted that once the duty under s 90 is engaged, no provision of the Act limits the time within which the health ombudsman must decide whether to take particular relevant action or to take no further action in relation to the matter.  That is a surprising submission.  It must be rejected.  Section 38(4) of the Acts Interpretation Act 1954 (Qld) provides that “[i]f no time is provided or allowed for doing anything, the thing is to be done as soon as possible…”  In the absence of s 38(4), on ordinary principles, the absence of a specific time for making the decision under s 90 would imply that the decision must be made within a reasonable time.[95] 
  4. [111]
    As further relevant context, where, as in this case, the investigation relates to a health service complaint, the health ombudsman must give notice of the decision to the complainant and the relevant health service provider under s 278 of the Act.[96]  Section 278(1) provides that notice must be given no later than seven days after making the decision. 
  5. [112]
    If the health ombudsman failed to make a decision under s 90 in breach of the statutory duty to do so as soon as possible, a complainant or health service provider would be able to apply for an order requiring the health ombudsman to perform the statutory duty, either under s 22 of the JRA or by an order in the nature of a writ of mandamus under s 41(2) of the JRA. 
  6. [113]
    In my view, the absence of a specified time within which to make the decision under s 90 does not support the conclusion that the duty to decide under s 90 is not engaged if the due day has passed but the investigation is not complete to the satisfaction of the health ombudsman.

Conclusion as to the effect of the due day passing

  1. [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.

Extending the time retrospectively

  1. [115]
    The facts raise two further questions about whether the due day has passed for each of the relevant investigations.
  2. [116]
    For one of them, the respondent, by his delegate, allowed the due day to pass but then purported to extend the due day retrospectively. 
  3. [117]
    The only power to extend the due day provided for under the Act is contained in s 85(2).  The power conferred is discretionary – “may extend the due day…” – and exercisable if a condition is satisfied – “if the health ombudsman reasonably considers that… it is not possible to properly complete the investigation by the due day”.
  4. [118]
    Starting with the text of s 85(2), the condition is to be satisfied when the power may be exercised.  At that time, the health ombudsman must reasonably consider that “it is not possible to properly complete… by the due day”.  The condition is expressed in the present tense.  A retrospective exercise of the power would not involve the health ombudsman forming the opinion that it is not possible to complete by the due day but an opinion that it was not possible to complete by the due day.  The ordinary grammatical meaning of the text of s 85(2) is not consistent with the retrospective exercise of the power to extend.
  5. [119]
    The context of s 85(2) does not support a different meaning.  As discussed above, in my view, the expiry of the due day engages the duty of the health ombudsman to either decide to take particular relevant action or to take no further action in relation to the matter.  It would be inconsistent with that view for the health ombudsman to be able to extend the due day retrospectively and thereby to outflank the duty to decide.
  6. [120]
    The respondent submitted that the word “extend” in a statutory provision may permit a retrospective extension, relying on passages from two cases where that meaning was accepted in particular contexts.[97]  So  much may be accepted, but it does not address the text of the condition in s 85(2) as the particular context in this case, as discussed above.
  7. [121]
    The respondent further submitted that the proper construction of s 85(2) was affected by the purpose of the Act as a whole, so that s 85(2) is to be broadly construed to permit retrospective extensions.  Again, in support of this submission, the respondent relied on the main objects of the Act in s 3 and the paramount principle in s 4 and submitted that the ability to retrospectively extend the time for completion of an investigation is consistent with the purpose of the Act as a whole, which it submits is directed towards protecting the health and safety of the public.  In making this submission, the respondent did not deal with the provision in s 3(2) of the Act that the objects are to be achieved by establishing a transparent, accountable and fair system for effectively and expeditiously dealing with complaints and other matters or the consequences of the operation of s 85(2) for which it contended.
  8. [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. 
  9. [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”?  
  10. [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?
  11. [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.
  12. [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?
  13. [127]
    The respondent did not address any of these questions in submissions.
  14. [128]
    In my view, neither the text on its ordinary meaning nor the context of s 85(2) in the Act supports the conclusion that the power to extend the due day may be exercised retrospectively.

Extending the time otherwise

  1. [129]
    One of the grounds of the application was always that the respondent had not, in fact, exercised the power under s 85(2) to extend the due day of any of the investigations.  The respondent answered this part of the application in three stages.  First, he filed an affidavit of Ms Gleeson, that plainly contained hearsay statements as to the facts relating to the extensions, that were notified as objected to in advance of the hearing.  Second, in the face of that objection, but still days before the hearing, the respondent applied for leave to file and read a further affidavit by Ms Gleeson exhibiting documents from the records of the respondent relating to the extensions and brought an urgent application for an order that he not be required to further prove the facts of the extensions.  As reasonable notice of that application had not been given to the applicant, the Court declined to deal with it. 
  2. [130]
    On the day of the hearing, the applicant did not object to the respondent filing and reading the further affidavit of Ms Gleeson but submitted that it still did not prove the relevant facts to establish extensions made under s 85(2) of the Act.  The respondent did not apply to file further evidence until during the course of final submissions by the respondent when the Court raised the question whether Jones v Dunkel[98] applied to the question of whether an inference should be drawn, as the applicant submitted, that the delegated decision maker had not reasonably considered that it was not possible to properly complete the investigation by the due day in respect of some of the challenged extensions.
  3. [131]
    Following an adjournment granted, in effect, as an indulgence to the respondent for the reason that the Court should be informed by the best available evidence in deciding the relevant issues, the respondent filed affidavits by the decision makers for each of the relevant decisions to extend the due day for each of the investigations, being Mr Bergin and Mr Martin, and Mr Bergin was cross-examined.  For the first decisions to extend the due day for each of the relevant investigations, Mr Bergin was the decision maker.  He said that the due day for each of the relevant investigations was extended, in part, because there were a number of investigations involving the applicant, none of which was completed at the time.  
  4. [132]
    The applicant submitted that whether there were other investigations concerning the applicant was an irrelevant consideration in exercising the power to extend the due day for an individual investigation under s 85(2). 
  5. [133]
    In my view, that is not necessarily so.  It depends on the matters the subject of the investigations.  It is logically possible for the subject of two investigations to be either interconnected or sufficiently similar that the investigation of one may inform the investigation of the other.  That logical possibility does not, however, permit the respondent simply to delay completion of one investigation that must be completed by the due day under s 85(1) because there is another investigation into the same health professional that the respondent has decided to carry out later than the first investigation.
  6. [134]
    The applicant’s submission requires some consideration of the legal meaning of the pre-condition in s 85(2) for exercise of the power to extend the due day of an investigation, namely that 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.
  7. [135]
    Under that condition, the decision maker must actually address the question whether it is not possible to properly complete the particular investigation which has the particular due day to be extended.  Second, he or she must “consider” the question.  In context, “considers” means believes or forms the opinion.  Third, the power to extend is exercisable only if he or she “reasonably considers”.  The adverb “reasonably” requires that the belief or opinion must be held reasonably.
  8. [136]
    The phrase “reasonably considers” is a form of words that has the same meaning as “considers on reasonable grounds” or “believes on reasonable grounds”.[99]  It is analogous to a power exercisable when a decision maker is satisfied of a state of affairs.  Such a satisfaction is a state of mind which must be formed reasonably and on a correct understanding of the law that conditions the exercise of the power.[100] Such a power is also reviewable on judicial review under the JRA.[101]
  9. [137]
    Bearing in mind the onus of proof on the applicant, the determination, in a proceeding for judicial review, of whether a statutory or other office holder reasonably had a belief of a particular description is one on which the Court is to be satisfied that facts did not exist which were sufficient to induce the belief.[102] 
  10. [138]
    The accepted or binding statement of principle as to the factual requirements in such a case are as follows:

“When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. That was the point of Lord Atkin’s famous, and now orthodox, dissent in Liversidge v Anderson… That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers…  Therefore it must appear to the issuing justice… that reasonable grounds for the relevant suspicion and belief exist.”[103]

  1. [139]
    It might be possible to assemble all the respondent’s witnesses’ evidence so as to argue that the respondent failed to adhere to the statutory requirement to consider each investigation separately as to whether it was possible to properly complete it by the due day, because of the administrative convenience of dealing with them all together.  But that was not the way that the case of the applicant was presented, understandably, because only Mr Bergin and Mr Martin were the relevant decision makers.
  2. [140]
    Mr Bergin said in his affidavit that the investigations into the applicant’s performance or conduct were one of the three largest investigations current at the time when he joined the respondent’s office in February 2020. 
  3. [141]
    On 10 March 2020, he had a meeting with Mr Martin and another about where the investigations of the applicant had progressed to.  At the meeting, he raised that it was not necessarily feasible to get “clinical” advices on all separate patient matters.
  4. [142]
    After that date, he decided on a course of action to obtain eight “clinical” advices in total “in the initial instant”.  I note that, as at 10 March 2020, “clinical” advice had been sought and completed for six of the eight patients referred to above that were subsequently raised with the applicant and the “clinical” advice for the seventh patient was completed on 13 April 2020.  Only the advice for the eighth patient, KA, and the further advices sought relating to the three earliest patients, SR, VM and SW, were requested later than that, on 17 April 2020, so far as the evidence showed.  Each of those patients was the subject of the matters contained in Investigation 2.  There was no evidence of any patient relating to Investigation 1 or the patient the subject of Investigation 3 being among the eight patients decided upon in accordance with Mr Bergin’s decision.  However, Mr Bergin was not asked about either of those matters.
  5. [143]
    Instead, taking Investigation 2 as the example, it was submitted that Mr Bergin’s affidavit evidence showed that he took into account the other investigations as interconnected with Investigation 2 without identifying an actual basis of connection, but rather more broadly on the basis of wanting to see what the other investigations might show before completing that investigation.
  6. [144]
    It is possible that is what Mr Bergin did.  But a decisive point for extending the due day for Investigation 2 was that the advice for the seventh patient, MH, was completed, and the advice for the eighth patient, KA, was sought and completed after Mr Bergin’s decision to extend the due day for Investigation 2 on 25 March 2020.  In my view, the challenge to that decision on the basis that Mr Bergin could not have reasonably considered that it was not possible to properly complete the investigation by the due day of 2 April 2020 must fail.
  7. [145]
    In reaching that conclusion, I have not overlooked the briefing note given to Mr Bergin for the decision that was prepared by the Senior Investigations Officer dated 20 March 2020.  That note refers to Investigation 2 as well as to Investigation 1 and other patient complaints, as though the 23 patients identified across all investigations were to be considered.  Notwithstanding that, there were patients the subject of Investigation 2 that required further “clinical” advice, as previously mentioned.
  8. [146]
    As to Investigation 1, I have already reached the conclusion that the purported retrospective extension of the due day by Mr Bergin, on 17 April 2020, was made too late and was invalid.  It is unnecessary to consider the applicant’s submission that, in any event, it was made taking into account an irrelevant consideration and is invalid for that additional reason.
  9. [147]
    As to Investigation 3, there is no evidence as to the subject matter of the investigation, beyond the notification to the applicant that it concerned a single patient who had emergency surgery for acute appendicitis and suffered post-operative peritonitis who complained about the quality of her treatment and the applicant’s manner.  Accordingly, it is not possible to decide whether the subject matter of Investigation 3 was sufficiently connected to Investigation 2 or any other unresolved investigation to warrant Mr Bergin taking them into account in reasonably considering that it was not possible to properly complete Investigation 3 by the due day when he decided on 24 March 2020 to extend the due day for Investigation 3.  However, as the applicant bears the onus of proof to show that to take the connection into account was to take an irrelevant consideration into account, this ground of challenge must fail.
  10. [148]
    Again, in reaching that conclusion, I have not overlooked the briefing note given to Mr Bergin for the decision that was prepared by the Senior Investigations Officer dated 18 March 2020 that was in similar terms to the briefing note dated 20 March 2020 for Investigation 2.
  11. [149]
    As to the later decisions by Mr Martin to extend the due day for each of the investigations, it is again unnecessary to further consider Investigation 1 as the due day for that investigation had not been validly extended from 1 March 2020.
  12. [150]
    As for Investigation 3, to extend the due day for that investigation on 23 March 2021 on the basis that it was a complex and protracted investigation involving multiple patients and allegations was erroneous.  The applicant also submitted that no clinical advice was sought about Investigation 3, so far as the evidence showed.  That submission should be accepted.  The question is whether the error amounted to taking an irrelevant consideration into account or a failure to reasonably consider that it was not possible to properly complete that investigation by the due day.
  13. [151]
    I note that by 8 December 2020 Ms Gleeson had, on three occasions, officially stated in correspondence that the respondent’s investigations relating to the applicant’s clinical performance had been completed.  But Mr Martin was not asked about those statements in relation to his decisions to extend the due day for Investigation 3 made after that time.
  14. [152]
    Further, as to both Investigation 3 and Investigation 2, it is unclear whether or to what extent those investigation may have concerned conduct matters.  The notices to the applicant that the respondent had decided to carry out Investigation 2 and Investigation 3 foreshadowed investigation of conduct allegations.  For Investigation 3 it was said that the patient “found [the applicant’s] manner to be very disturbing and inappropriate” and for Investigation 2 that there were “allegations of inappropriate behaviour towards medical staff and trainees”.
  15. [153]
    With considerable diffidence, but because the applicant bears the onus of proof to show that to take the connection with the other investigations into account was to take an irrelevant consideration into account, I conclude that this ground of challenge must fail in respect of each of the extensions of Investigation 2 and Investigation 3.  That result may be a reflection of the observation made in one case that whether the decision of an authority can effectively be reviewed by the courts will often depend on the nature of the matters of which the authority is required to be satisfied.[104]

Footnotes

[1] Health Ombudsman Act 2013 (Qld), s 85(1).

[2] Health Ombudsman Act 2013 (Qld), s 80.

[3] Health Ombudsman Act 2013 (Qld), s 90.

[4] Health Ombudsman Act 2013 (Qld), s 80.

[5] Acts Interpretation Act 1954 (Qld), s 38(1).

[6]  During the oral hearing, this investigation was referred to as Investigation 6, reflecting that the respondent’s submissions described three “investigations” as “child” investigations of Investigation 2.  However, no decision that a separate investigation was to be created for those matters to be carried out was placed in evidence.  Accordingly, I refer to the investigation in these reasons as Investigation 3.

[7]  The respondent labelled this and similar advice, which was in fact expert opinion given retrospectively as to the applicant’s conduct, as “clinical”.

[8] Acts Interpretation Act 1954 (Qld), s 32CA(2).

[9]  (1960) 105 CLR 214.

[10]  (1960) 105 CLR 214, 246.

[11]  (1998) 194 CLR 355.

[12]  (1998) 194 CLR 355, 388-389 [91].

[13]  (2018) 265 CLR 137, 149 [20].

[14]  (2009) 239 CLR 27.

[15]  (2009) 239 CLR 27, 46-47, [47].

[16]  (2012) 250 CLR 503.

[17]  (2012) 250 CLR 503, 519 [39].

[18] Health Ombudsman Act 2013 (Qld), s 10(1).

[19] Health Ombudsman Act 2013 (Qld), s 10(3).

[20] Health Ombudsman Act 2013 (Qld), s 10(4).

[21] Health Ombudsman Act 2013 (Qld), s 24.

[22] Health Ombudsman Act 2013 (Qld), s 11.

[23] Health Ombudsman Act 2013 (Qld), s 13.

[24] Health Ombudsman Act 2013 (Qld), s 14(3).

[25] Health Ombudsman Act 2013 (Qld), s 14(4) and Pt 8.

[26] Health Ombudsman Act 2013 (Qld), s 14(6), (7) and Pts 9 and 10.

[27] Health Ombudsman Act 2013 (Qld), s 17.

[28] Health Ombudsman Act 2013 (Qld), s 15.

[29] Health Ombudsman Act 2013 (Qld), s 4(1) and (2).

[30] Health Ombudsman Act 2013 (Qld), s 25.

[31] Health Ombudsman Act 2013 (Qld), s 26.

[32] Health Ombudsman Act 2013 (Qld), s 27.

[33] Health Ombudsman Act 2013 (Qld), s 31.

[34] Health Ombudsman Act 2013 (Qld), s 31 “Examples of matters that may be the subject of a health service complaint”, s 35(1)(a)(i).

[35] Health Ombudsman Act 2013 (Qld), s 39(1).

[36] Health Ombudsman Act 2013 (Qld), s 40.

[37] Health Ombudsman Act 2013 (Qld), s 41.

[38] Health Ombudsman Act 2013 (Qld), s 45.

[39] Health Ombudsman Act 2013 (Qld), s 46(1).

[40] Health Ombudsman Act 2013 (Qld), s 46(2).

[41] Health Ombudsman Act 2013 (Qld), s 47(1).

[42] Health Ombudsman Act 2013 (Qld), s 48(1).

[43] Health Ombudsman Act 2013 (Qld), ss 47(2) and 48(2).

[44] Health Ombudsman Act 2013 (Qld), s 48(3).

[45] Health Ombudsman Act 2013 (Qld), s 50.

[46] Health Ombudsman Act 2013 (Qld), Schedule 1, Definition “immediate action”.

[47] Health Ombudsman Act 2013 (Qld), s 57.

[48] Health Ombudsman Act 2013 (Qld), s 64.

[49] Health Ombudsman Act 2013 (Qld), s 80.

[50] Health Ombudsman Act 2013 (Qld), s 81.

[51] Health Ombudsman Act 2013 (Qld), s 50(b).

[52] Health Ombudsman Act 2013 (Qld), s 278(1)(c).

[53] Health Ombudsman Act 2013 (Qld), s 82(2).

[54] Health Ombudsman Act 2013 (Qld), s 84(1)(a).

[55] Health Ombudsman Act 2013 (Qld), s 86(1).

[56] Health Ombudsman Act 2013 (Qld), ss 87 and 88.

[57] Health Ombudsman Act 2013 (Qld), ss 85(2), 85(3), 86(1) and 90.

[58]  Shorter Oxford English Dictionary, 6th Ed, Volume 1, p 471, Definition “complete”.

[59] Health Ombudsman Act 2013 (Qld), s 186(a).

[60] Health Ombudsman Act 2013 (Qld), s 197(1).

[61] Health Ombudsman Act 2013 (Qld), s 202.

[62] Health Ombudsman Act 2013 (Qld), s 209.

[63] Health Ombudsman Act 2013 (Qld), s 210.

[64] Health Ombudsman Act 2013 (Qld), s 212(2).

[65] Health Ombudsman Act 2013 (Qld), s 228(2)(a).

[66]  For example, Health Ombudsman Act 2013 (Qld), s 229 (contravening information requirement).

[67]  (1992) 175 CLR 564, 582.

[68]  [2010] QCA 188, 7-9 [24]-[29].

[69] Maxwell v R (1996) 184 CLR 501, 534.

[70] Maxwell v R (1996) 184 CLR 501, 534.

[71] Maxwell v R (1996) 184 CLR 501, 534.

[72] Likiardopoulos v R (2012) 247 CLR 265, 269-270 [4].

[73] Holzinger v Attorney-General (Qld) (2020) 385 ALR 158, 170 [52]; Nona v Barnes [2013] 2 Qd R 528, 536-538 [18]-[23].

[74]  (2010) 241 CLR 252.

[75]  (2010) 241 CLR 252, 259 [15].

[76]  (1908) 7 CLR 277, 304.

[77]  In Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, 329, Gleeson CJ referred to Lord Steyn’s speech in R v Home Secretary; Ex parte Pierson [1998] AC 539, 587, 589.  In an earlier case, Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543,  582 [106], Kirby J referred to Lord Hoffmann’s speech in R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115, 131.

[78] Health Practitioner Regulation National Law (Qld), s 5.

[79] Health Practitioner Regulation National Law (Qld), s 5.

[80] Health Practitioner Regulation National Law (Qld), s 5.

[81] Health Ombudsman Act 2013 (Qld), s 38(1)(g), s 38(3)(e) and s 102.

[82] Health Ombudsman Act 2013 (Qld), ss 258-260.

[83] Health Ombudsman Act 2013 (Qld), s 104.

[84] Health Ombudsman Act 2013 (Qld), s 107(3)(b).

[85] Health Ombudsman Act 2013 (Qld), s 107(3)(c).

[86] Health Ombudsman Act 2013 (Qld), s 107(3)(d).

[87] Health Ombudsman Act 2013 (Qld), s 107(3)(e).

[88]  See Health Ombudsman Act 2013 (Qld), s 38(1)(g), s 38(3)(e), s 64(c) and 75(c).

[89] Health Ombudsman Act 2013 (Qld), s 38(1)(d).

[90] Health Ombudsman Act 2013 (Qld), s 38(3)(b).

[91] Health Ombudsman Act 2013 (Qld), s 90.

[92] Walton v Gardiner (1993) 177 CLR 378, 391 and Herron v McGregor (1986) 6 NSWLR 246.

[93] Health Ombudsman Act 2013 (Qld), s 6 and Schedule 1, Definition “relevant action”; Acts Interpretation Act 1954 (Qld), s 32A.

[94] Acts Interpretation Act 1954 (Qld), s 32A.

[95] Koon Wing Lau v Calwell (1949) 80 CLR 533, 573-574.

[96] Health Ombudsman Act 2013 (Qld), s 90(b)(i).

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

[98]  (1959) 101 CLR 298.

[99] ING Funds Management Ltd v ANZ Nominees Ltd (2009) 228 FLR 444, 461 [102]. 

[100] Wei v Minister for Immigration (2015) 257 CLR 22, 45 [33].

[101] Wotton v State of Queensland (2012) 146 CLR 1, 12 [12]-[13].

[102]  Compare Gypsy Jokers Inc v Commissioner of Police (2008) 234 CLR 532, 557 [28].

[103] George v Rockett (1990) 170 CLR 104, 112.

[104] Buck v Bavone (1976) 135 CLR 110, 118; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 652-654 [133]-[136].

Close

Editorial Notes

  • Published Case Name:

    Braun v Health Ombudsman

  • Shortened Case Name:

    Braun v Health Ombudsman

  • MNC:

    [2021] QSC 209

  • Court:

    QSC

  • Judge(s):

    Jackson J

  • Date:

    23 Aug 2021

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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