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[2024] QCA 67
In this judgment, the Court of Appeal considered whether, for the purpose of determining its jurisdiction under s 94(1)(b) Health Ombudsman Act 2013, the Queensland Civil and Administrative Tribunal had the power to rule on the validity of a decision made by the Director of Proceedings under s 103 of the Act in circumstances where, in making that decision, the Director relied upon material said to have been unlawfully obtained.
Mullins P, Bond JA and Fraser AJA
30 April 2024
Briefly, the appellant, a registered health practitioner, was referred by the respondent to the Queensland Civil and Administrative Tribunal for disciplinary proceedings for misconduct. [9]. Prior to that, the matter had been investigated by the Health Ombudsman, which had amassed material via a search warrant, various statutory notices, and non-compulsory means. [10]. The appellant queried whether particular material had been acquired without lawful authority. [11]. He further asserted that it was potentially problematic that in deciding to make the referral, the respondent had relied upon that material. He argued that the referral itself was invalid since the impugned material had been obtained without lawful authority; therefore the referral made by the respondent under s 103 Health Ombudsman Act 2013 was unauthorised; and accordingly the Queensland Civil and Administrative Tribunal lacked jurisdiction to deal with the referral. [12].
The decision of the Queensland Civil and Administrative Tribunal
The Tribunal dismissed the appellant’s amended application on the basis that it had jurisdiction under s 94(1)(b) Health Ombudsman Act 2013. [31]. In terms of the issue of the validity of the respondent’s referral, it held that it had no jurisdiction to declare that the impugned material was obtained without lawful authority or that the Director was not authorised by s 103 to refer the matter to the Tribunal. In the member’s view, the amended application, in effect, required the Tribunal to engage in a collateral review of the validity of the Director’s decision, which it had no power to undertake. [36].
Did the Tribunal err in finding that the appellant’s attack on the validity of the respondent’s referral was a collateral attack on its jurisdiction?
The appellant asserted that the validity of the Director’s decision under s 103 of the Act was not a “collateral” issue, but rather a matter going to the Tribunal’s jurisdiction under s 94(1)(b). [39]. He contended that the Tribunal by necessary implication had jurisdiction to determine the validity of the Director’s decision, and that since its basis was the impugned material, it amounted to an “abuse of process”, and was therefore invalid as a matter of law. [40].
In considering the merits of the appellant’s propositions the Court noted that in Ousley v The Queen (1997) 192 CLR 69, 98–99 Justice McHugh explained that a collateral attack on an act or decision involves the judicial re-examination of an issue which falls outside of the direct review process. In essence it is “an attempt by a party to assert that an administrative act or decision is void or unlawful in a proceeding that is neither an application for judicial review, nor a direct appeal or review of that act or decision”: see Secretary of the Ministry of Health v The New South Wales Nurses and Midwives’ Association (2022) 320 IR 249, 307 [158] per Walton J.
Relying upon Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305 (2020) 104 NSWLR 19, the appellant submitted that the attack on the validity of the Director’s decision did not fall within what is properly meant by collateral challenge. The Court distinguished that decision, noting that the legislative provisions which were considered in that judgment were clearly dissimilar from those under consideration in the current matter. [67]. In addition, it observed that s 107(2)(a) Health Ombudsman Act 2013 is contrary to the provisions which informed the outcome in Dyldam Developments. Lastly, it commented:
“The appellant’s submissions are even more unpersuasive once regard is had to s 34 of the QCAT Act. This provision… explains the two conditions for a valid referral, neither of which are said to have been breached by the Director”. [73].
The Court held that the member had correctly treated the appellant’s attack on the validity of the Director’s decision under s 103 as a collateral attack. [43].
Does the proper statutory interpretation of the relevant legislation require that the Tribunal’s jurisdiction be subject to the making of a “valid” referral by the respondent?
The appellant sought to argue that, reading the statutory power conferred by s 47 Queensland Civil and Administrative Tribunal Act 2009 with s 94(1)(b) Health Ombudsman Act 2013, a referral is made subject to the Tribunal considering the legal validity of the Director’s decision to make that referral. The Court did not accept the thrust of that argument, relevantly noting that had the legislature intended for a condition of that kind to be observed, it would have inserted clear words to that effect. It also noted that nothing in the Health Ombudsman Act 2013 dictates that a decision by the Director to refer a matter to the Tribunal is only able to be made where the Health Ombudsman’s investigation has been undertaken in accordance with that Act. In addition, there is no requirement that the Director needs to be satisfied that the provisions applicable to the Health Ombudsman’s investigation have been complied with.
The Court held that the validity of the Director’s decision does not go to the Tribunal’s jurisdiction under s 94(1)(b), and that “[i]t is sufficient to enliven the Tribunal’s jurisdiction under s 94(1)(b) that the Director’s decision under s 103 is one which appears formally valid and has not been quashed by judicial review in a court of competent jurisdiction”. [77].
Disposition
The appeal was dismissed.
A Jarro