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…
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- Case
- [2021] QSC 209
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues, including whether the power to extend the due day for completing an investigation could be exercised retrospectively, whether the respondent reasonably considered that it was not possible to complete the investigations by the original deadlines, whether the respondent took irrelevant considerations into account, and what the consequences were if the due day was not validly extended. Additionally, the court needed to ascertain whether Dr Braun had standing to institute the proceedings, given the relief sought and the impact of the respondent’s actions on his rights and interests.
The court found that the power to extend the due day under s 85(2) of the Health Ombudsman Act 2013 (Qld) could not be exercised retrospectively. The court also determined that the respondent did not reasonably consider that it was not possible to complete each investigation by the original deadlines. Furthermore, the court held that the respondent took irrelevant considerations into account by considering the status of the other investigations. The court interpreted s 90 of the Act, which requires the health ombudsman to decide on further action after completing an investigation, to mean that the duty under s 90 is only engaged after the investigation is complete to the satisfaction of the health ombudsman, regardless of whether the original deadline has passed. Finally, the court found that Dr Braun had standing to bring the proceedings, as the respondent’s decisions had affected his rights and interests.
The court declared that the due day for completing the investigation into the complaint made by the Metro North Hospital and Health Service was 1 March 2020, and that the purported extensions of the due day were invalid. The court also declared that the respondent was obliged to make a decision under s 90 of the Act as soon as possible concerning that investigation. The parties were directed to provide written submissions regarding any other relief and costs by a specified date, with liberty to apply granted.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.