Director of Proceedings on behalf of the Health Ombudsman v XD

SUPREME COURT OF QUEENSLAND

CITATION:

Director of Proceedings on behalf of the Health Ombudsman v XD [2024] QCA 215

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN
(applicant)
v
XD
(respondent)

FILE NO/S:

Appeal No 12814 of 2023
QCAT No 121 of 2020
QCAT No 288 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal – [2023] QCAT 340 (Judicial Member Dick SC)

DELIVERED ON:

8 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2024

JUDGES:

Dalton JA and Fraser AJA and Brown J

ORDERS:

1.   Leave is granted to bring the appeal filed on 11 October 2023.

2.   The appeal is allowed.

3.   The orders made below on 14 September 2023 are set aside.

4.   In substitution it is ordered that the referral filed 30 April 2020 (OCR121-20) is permanently stayed except insofar as it relies upon a complaint made by BC and DE and the referral filed on 5 October 2021 (OCR288-21) is permanently stayed except insofar as it relates to the complaint made by HI and IJ.

5.   If the parties intend that there should be any costs order other than that costs follow the event, they should file written submissions on costs not exceeding five pages, the respondent within seven days of the date of delivery of this judgment, and the appellant within seven days thereafter.

6.   Otherwise, costs follow the event.

CATCHWORDS:

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – STAY OF PROCEEDINGS – DELAY – where the respondent is a dermatologist who has practised for over 30 years – where multiple male complainants have made allegations of the respondent molesting them when they were either young boys or young men, which span from the 1980s to the late 2010s – where all but one of the allegations were made many years after the alleged conduct occurred – where the allegations ranged in seriousness between each of the complainants, from gentle cupping of the scrotum to flagrant sexual assault (for example, masturbation) – where, in accordance with standard industry practice, the respondent disposed of his patient notes and medical records within 7 years after ceasing to consult his patients – where, given the lapse of time since the alleged offending occurred, the respondent no longer has access to his patient notes or medical records in respect of all but one of the complainants – where the respondent denies that he engaged in sexual misconduct with respect to any of the complainants, and argues that he only ever engaged in conduct which was reasonably necessary and appropriate in accordance with legitimate medical treatments or procedures – where the appellant brought disciplinary proceedings against the respondent alleging professional misconduct – where the respondent contends that it was correct to order a permanent stay of the proceedings, as the delay meant that the respondent had no relevant recollection of the consultations, and he had disposed of his patient notes and medical records in relation to all but one of the complainants – where, following the primary decision but prior to the appeal, the High Court published its decision in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857, which held that, in the context of specific New South Wales legislation, the mere effluxion of time is not, by itself, sufficient to warrant the grant of a permanent stay – whether the decision in GLJ applies to the present case – whether, having regard to the consequences of the delay in the circumstances of the case, the respondent’s right to a fair trial had been irreparably prejudiced, such that it was appropriate to order a permanent stay of the proceedings

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – STAY OF PROCEEDINGS – ABUSE OF PROCESS – INCONSISTENCY BRINGING THE ADMINSTRATION OF JUSTICE INTO DISREPUTE – where the respondent is a dermatologist who has practised for over 30 years –where multiple male complainants have made allegations of the respondent molesting them when they were either young boys or young men – where, in response to allegations between 2014 to 2017 by six of the nine complainants, the respondent was charged with 10 criminal offences – where, following an application by the respondent, a District Court judge permanently stayed the criminal proceedings in respect of 9 of the 10 counts – where the matter proceeded to trial on the remaining count, and the respondent was acquitted – where, after the conclusion of the criminal proceedings, allegations were made by three complainants but no further criminal charges were brought in response – where the appellant subsequently brought disciplinary proceedings against the respondent, alleging professional misconduct in relation to all nine complainants – where the primary judge approached the question of whether to order a stay by putting the nine complainants into 3 categories – where, in respect of the complainants in categories 1 and 2, the primary judge concluded that a stay of proceedings should be ordered because she was not persuaded that there was not a true threat to the integrity of the court arising from systemic incoherence if the disciplinary proceedings were to proceed – whether, when deciding if it was appropriate to order a permanent stay, the primary judge failed to have sufficient regard to the distinctions between criminal proceedings and disciplinary proceedings

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – STAY OF PROCEEDINGS – ABUSE OF PROCESS – PROCEDURE – WITNESSES – CROSS‑EXAMINATION – where the respondent is a dermatologist who has practised for over 30 years – where multiple male complainants have made allegations of the respondent molesting them when they were either young boys or young men – where the appellant refuses to call four of the complainants as witnesses or make them available for cross‑examination in the disciplinary proceedings, and instead relies on their written evidence as exhibits to other persons’ affidavits – where the appellant does not offer any explanation as to why this is the case – where the primary judge ordered a stay of proceedings in respect of one of the complainants on the ground that he would not be called as a witness or made available for cross‑examination – whether, in respect of all the complainants who will not be called as witnesses or made available for cross‑examination, the trial will necessarily be so unfair as to amount to an abuse of process, such that it is appropriate to order a stay in respect of those complainants

Evidence Act 1977 (Qld), s 92, s 93B
Health Ombudsman Act 2013 (Qld), s 3, s 4
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28, s 47, s 95

Australian Securities & Investments Commission v Australian Investors Forum Pty Ltd [2003] NSWSC 618, cited
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27, considered
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, cited
CM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWCA 313, applied
Davis v Medical Board (ACT) (1994) 52 FCR 279; [1994] FCA 1302, considered
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32, considered
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46, considered
Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60, considered
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited
Moubarakby his tutorCoorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102, distinguished
Palmer v Magistrates Court of Queensland [2024] QCA 8, cited
R v Davis (1995) 57 FCR 512; [1995] FCA 1321, distinguished
R v Edwards (2009) 83 ALJR 717; [2009] HCA 20, distinguished
R v Noyes [2005] 1 Qd R 169; [2003] QCA 564, cited
R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7, distinguished
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1935) 50 CLR 228; [1933] HCA 30, considered
Star Aged Living Limited v Lee [2024] QCA 1, applied
Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325; [2018] HCA 53, considered
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77, applied
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, cited

COUNSEL:

J R Hunter KC, with S J Cartledge, for the applicant
G W Diehm KC, with C D Templeton, for the respondent

SOLICITORS:

Office of the Health Ombudsman for the applicant
K&L Gates for the respondent

DALTON JA: Although no application for leave to appeal was filed, this should be treated as an application for leave to appeal from a decision of a judicial member of the Queensland Civil and Administrative Tribunal (the tribunal). As I would grant the necessary leave, I will refer to the Ombudsman as the appellant, not applicant in my reasons.
XD is a medical doctor who is the subject of 10 disciplinary complaints to the tribunal. It is alleged that he engaged in professional misconduct involving sexual offending against nine complainants between 1986 and 2013. All the complainants were adolescent boys or young men at the time of the alleged offending. The disciplinary charges against XD are put on the basis that he physically assaulted each of the nine complainants by touching their genitals in circumstances where there was no medical reason to do so. There is no complaint that he committed lesser breaches of his professional code, such as not asking permission from the patient to examine and touch their genitals, or not explaining the reason for the examination. A tenth complaint is different in that it alleges a professional boundary violation, namely that XD had sexual relations with a young adult male patient (the second set of complaints made by FG, see below). The judicial member permanently stayed all the disciplinary complaints in the tribunal.
The judicial member grouped the 10 complaints before her into three categories. Although she did not explain the reason for the grouping, it appears to be based upon the extent to which the subject matter of the 10 complaints had been dealt with in the criminal justice system. Her category 1 dealt with complaints made by AB, BC, CD and EF. Criminal charges had been brought against XD on the basis of the factual matters alleged in their complaints, and, in 2018, those charges had been permanently stayed in the District Court. The judicial member’s category 2 comprised four complainants: DE, GH, HI and IJ. There had been no criminal charges in respect of those complainants. The judicial member’s third category was in relation to two complaints brought by FG. The subject matter of his first complaint (2005) had been the subject matter of an indictment in the District Court. There had been a trial and XD had been acquitted. The subject of his second complaint had not been the subject of criminal charges.
Grounds of Appeal
The grounds of the proposed appeal in this Court were nearly the same in relation to categories 1 and 2. They are that the judicial member erred:
“1.…
a.In concluding that the loss of medical records occasioned special prejudice, or alternatively giving excessive weight to the consideration of the loss of records;
b.In relying on R v Davis (1995) 57 FCR 512, in circumstances where that practitioner had unsuccessfully sought a stay of disciplinary proceedings in respect of the same allegations on the basis of the loss of records: Davis v ACT Medical Board (1994) 52 FCR 279;
c.In giving excessive weight to the consideration that two of the four complainants in this category would not be available for cross-examination by the respondent;
d.In giving excessive weight to the consideration that witnesses who might have assisted the respondent in his defence of the disciplinary proceedings were either dead or unavailable;
e.In concluding that the disciplinary proceedings posed a true threat to the integrity of the court arising from systemic incoherence;
And therefore that a permanent stay of proceedings was required.
2.…
a.In concluding that the loss of medical records occasioned special prejudice, or alternatively giving excessive weight to the consideration of the loss of records;
b.In relying on R v Davis (1995) 57 FCR 512 in circumstances where that practitioner had unsuccessfully sought a stay of disciplinary proceedings in respect of the same allegations on the basis of the loss of records: Davis v ACT Medical Board (1994) 52 FCR 279;
c.In giving excessive weight to the consideration that witnesses who might have assisted the respondent in his defence of the disciplinary proceedings were either dead or unavailable;
d.In concluding that the disciplinary proceedings posed a true threat to the integrity of the court arising from systemic incoherence;
e.In concluding that, had the matters in Category 2 been before the District Court, they would also have been stayed, and that there were therefore concerns about the integrity of the justice system;
And therefore that a permanent stay of proceedings was required.”
In respect of the judicial member’s third category, the ground of appeal proposed was that the judicial member erred:
“3.…
a.In giving excessive weight to the consideration that the complainant in this category would not be available for cross-examination by the respondent;
b.In concluding that a hearing in which the complainant was not available for cross-examination would be ‘unfair and opaque’, and that to proceed on the basis of statements or affidavits would disadvantage the respondent to an unacceptable degree and be irremediably unfair.
And therefore that a permanent stay of proceedings was required.”
There were two further grounds of appeal proposed in relation to all three of the judicial member’s categories. They were:
“4.With respect to all of the matters in each of the three categories:
a.In failing to have proper regard to the public interest in disciplinary proceedings continuing before the specialist tribunal established by law to discharge the protective function of adjudicating allegations of improper conduct by medical practitioners;
b.In failing to give proper regard to the differences in nature, procedure and purpose as between criminal and disciplinary proceedings;
c.In considering the matter by breaking the disciplinary proceedings against the respondent into separate categories and thereby failing to have proper regard to the whole of the disciplinary proceedings.
5.The learned judicial member was wrong in law to conclude that the proceedings should be permanently stayed.”
The last of these grounds (ground 5) was added with leave at the hearing. It was apparently thought necessary or desirable because of the decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore.[1]
[1][2023] HCA 32; (2023) 97 ALJR 857.
The orders sought by the Health Ombudsman in its proposed appeal were that the judicial member’s decision be set aside, and in lieu thereof this Court order that XD’s application to stay the referrals brought against him be dismissed.
Leave to Appeal
Section 149 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCATA) is the relevant section governing appeal rights from decisions of the tribunal in this case. It provides:
“149 Party may appeal—decisions of tribunal
(1)...
(2)A party to a proceeding … may appeal to the Court of Appeal against another decision of the tribunal in the proceeding if a judicial member constituted the tribunal in the proceeding.
(3)However—
(a)…
(b)an appeal under subsection (2) on a question of fact, or a question of mixed law and fact, may be made only if the party has obtained the court’s leave to appeal.
...”
Plainly enough, all the appeal grounds here, with the possible exception of ground 1(b), were appeals against questions of fact or, mixed fact and law. The appellant submitted that, because there were no factual disputes before the judicial member, leave was not required. This is a misunderstanding of s 149(3)(b). The questions which the appellant asks this Court to determine are questions of fact, and/or mixed questions of fact and law. Leave is required. In my view leave ought to be granted in this case because the reasons given by the judicial member are erroneous and do not satisfactorily explain eight of the decisions she reached; in my view, two of the complaints should not be stayed, and because the proposed appeal concerns matters of public interest.
The relevant section of QCATA governing the hearing of this appeal is s 154, it provides:
“154 Deciding appeal on question of fact or mixed law and fact
(1)This section applies to an appeal before the Court of Appeal against a decision of the tribunal on a question of fact only or a question of mixed law and fact.
(2)The appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the Court of Appeal.
(3)In deciding the appeal, the Court of Appeal may—
(a)confirm or amend the decision; or
(b)set aside the decision and substitute its own decision.”
Nature of Decision to Grant Permanent Stay
In GLJ the High Court decided that the decision of a court on an application to permanently stay a civil proceeding was not one made as a matter of discretion; instead, the question posed on such an application was one susceptible of only one correct answer. That means that on appeal against such a decision, the appeal court must look to see whether or not the court below arrived at the correct decision, rather than simply looking to see whether or not the court below took into account all proper considerations and arrived at a decision which did not offend the rule in House v The King.[2]
[2](1936) 55 CLR 499.
In Koschier v R[3] the Court of Criminal Appeal in New South Wales accepted that that test should apply when appeal is made against a decision to permanently stay criminal proceedings. I cannot see that Koschier is plainly wrong, and I accept that the consequence of that decision is that the GLJ approach ought to apply here in an appeal from a decision permanently staying a disciplinary proceeding against a medical practitioner.
[3][2024] NSWCCA 24, [33].
At paragraphs [35]–[42] of Koschier, the New South Wales Court of Criminal Appeal discussed the effect of this new approach in hearing an appeal from a decision to permanently stay a criminal proceeding. It was said that the appeal would be by way of rehearing, but not amount to an appeal de novo, [42]. Happily, that coincides with s 154 of the QCATA, above.
Questions as to the advantages enjoyed by the primary judge[4] have always been relevant when a court of appeal conducts a rehearing. I cannot see that there is any logical reason why they would be more or less relevant where that rehearing is into the correctness of a decision to permanently stay a proceeding, and I do not understand that the New South Wales Court of Criminal Appeal in Koschier thought that to be the case.
[4]Warren v Coombes (1979) 142 CLR 531 and Fox v Percy (2003) 214 CLR 118.
In this case there was no real advantage enjoyed by the judicial member: there was no factual contest below; there was no examination or cross-examination of witnesses below. The errors asserted by the Ombudsman are nearly all errors in evaluating and weighing the facts presented below. As recognised in Koschier,[5] this Court’s function in dealing with such appeal grounds is different after the decision in GLJ.After GLJ an appellate court needs to make “requisite evaluative judgments” itself and it is in that sense that the evaluative judgments or reasoning of the primary judge will “recede in importance”, compared to a case where the appellate court simply looks to discover whether there has been a House v The King-type error.[6]
[5]Above, [41].
[6]Rogerson v The Queen [2021] NSWCCA 160, [551] cited in Koschier at [40].

None of this means that an appellant from a decision to permanently stay a proceeding does not need to identify error in the decision below. Appeals by way of rehearing are based on the identification of error.[7] It is not, in my view, sufficient to assert, as the appellant did here by its additional fifth ground of appeal, that the judicial member below was wrong to conclude that the proceedings should be permanently stayed. The appeal court does not simply hear the matter as if it were the court at first instance.[8] The ground of appeal which the appellant added with leave at the commencement of this appeal was very similar to the fifth ground of appeal in Koschier. The Court of Criminal Appeal there dealt with the specific grounds of appeal and then said of ground 5, “Proposed Ground 5 is simply conclusory and adds nothing to the other proposed grounds of appeal” – [74]. I deal with ground 5 of the present appeal in the same way.
[7]An appeal by way of rehearing is “error-based”; an appeal de novo is not: Engelbrecht v DPP (NSW) [2016] NSWCA 290, [60] and the authority cited there. Engelbrecht was cited in the dissenting judgment of Jagot J in Stanley v DPP (2023) 407 ALR 222, [144].
[8]Koschier, [42].
Granting of Permanent Stay Extraordinary Remedy
The judicial member found that she had power to stay a disciplinary proceeding which was an abuse of process, vexatious or unfair. That proposition was not challenged before us. The member also recognised that XD bore the onus of showing that a permanent stay was appropriate, and that that was a weighty matter: a permanent stay should only be ordered in exceptional circumstances.[9]
[9]Walton v Gardiner (1993) 177 CLR 378, 395–396.
In Koschier the New South Wales Court of Criminal Appeal relied upon “the summary of principles relevant to the grant of a permanent stay of criminal proceedings in La Rocca v R:
“(i)the remedy is an extraordinary one, only to be given in exceptional or extreme circumstances: R v Glennon (1992) 173 CLR 592 at 605; [1992] HCA 16 (Glennon); Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [33]-[35] (Dupas); Strickland at [166];
(ii)such a description recognises the powerful social imperative for those who are charged with criminal offences to be brought to trial: Strickland at [106], see also at [166]-[167], [262];
(iii)notwithstanding this, the categories or circumstances in which the exceptional remedy of a permanent stay of criminal proceedings may be granted are not and should not be closed: Strickland at [99];
(iv)there is no “definitive category” of extreme cases: Dupas at [35];
(v)each case accordingly must be decided according to its own facts: Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 (Moti) at [60]; Strickland at [99], [246], [261];
(vi)a permanent stay of criminal proceedings may be appropriate where to refuse such a remedy would bring the administration of justice into disrepute: Rogers v The Queen (1994) 181 CLR 251 at 286; [1994] HCA 42; Moti at [10];
(vii)the administration of justice may be brought into disrepute in a number of different ways;
(viii)one example which may warrant a permanent stay is the toleration of an unfair trial where there is a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”: Barton v The Queen (1980) 147 CLR 75 at 111; [1980] HCA 48; Jago v District Court (NSW) (1989) 168 CLR 23 at 34; [1989] HCA 46; Glennon at 605-606; Dupas at [35] ...’”.[10]
[10]La Rocca v R [2023] NSWCCA 45, [34]; Koschier, above, [52].
In Davis v Medical Board of the Australian Capital Territory,[11] Gallop J cited the High Court decision in Walton v Gardiner[12] to the effect that “whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings …”. The following passage from Walton v Gardiner, set out by Gallop J, is applicable here:
“In its application to the Tribunal, the concept of abuse of process requires some adjustment to reflect the fact that the jurisdiction of the Tribunal, which is not a court in the strict sense, is essentially protective – ie protective of the public – in character. Nonetheless, the legal principles and the decided cases bearing upon the circumstances which will give rise to the inherent power of a superior court to stay its proceedings on the grounds of abuse of process provide guidance in determining whether, assuming jurisdiction to do so, the circumstances of a particular case are such as to warrant an order being made by the Supreme Court staying proceedings in the Tribunal on abuse of process grounds. In particular, in a context where the disciplinary power of the Tribunal extends both to the making of an order permanently removing a medical practitioner from the Register with consequent loss of entitlement to practise and to the imposition of a fine of up to $25,000 (See Medical Practitioners Act 1938 (NSW), s 32R(l)(g) and (h)), there is plainly an analogy between the concept of abuse of a court’s process in relation to criminal proceedings and the concept of abuse of the Tribunal’s process in relation to disciplinary proceedings. In that regard, it is relevant to mention that we do not read any of the provisions of the Act as expressly or impliedly cutting down the scope of the general supervisory jurisdiction of the Court of Appeal to stay proceedings in the Tribunal on abuse of process grounds.
As we pointed out in Jago v District Court(NSW) (1989) 168 CLR 23 (See, in particular, at 30-34, per Mason CJ; 59-61, per Deane J; 72, per Toohey J; 76-78, per Gaudron J), the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings (in the Tribunal) should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners.”[13]
[11](1994) 52 FCR 279, 282–283.
[12](1993) 177 CLR 378, 396.
[13]Walton v Gardiner, above, at 395–396, cited, as it was extracted, in Davis, above, at 282–283.
Bearing those matters in mind, I turn to the appeal grounds in this case. Some of the grounds of appeal apply to several, or all, of the complaints which the Ombudsman wishes to prosecute in the tribunal. I will deal with those grounds first, then I will deal with grounds which can only be dealt with against the context of the factual circumstances thrown up by each of the individual complaints.
Ground 4(c): Categories
The ground is that the judicial member erred in considering the matters before her in categories. This ground applies to all of the complaints which the Ombudsman wishes to prosecute. I think this ground should succeed in relation to all the complaints. Although it is not determinative of the appeal in respect of any particular complaint, I consider it first, as the result of that ground of appeal means that I structure the rest of my reasons without reference to those categories.
There are numerous factual matters to be weighed in coming to a decision about the application to stay in this case. The judicial member dealt with the 10 complaints in three categories. The categories seem to be based upon the complainants’ interactions with the criminal law system. I cannot see that this provided a logical basis to categorise the complainants for the purpose of analysis. To begin with, only six of the complainants had interacted with the criminal law system. XD relied upon the same factual matters in this litigation as he did when applying for a stay of four of the criminal matters which were brought against him. However, the stay of those matters was only one factor to be considered in relation to those four complaints. Each of those four complaints differed otherwise as to the factual matters bearing on the question of whether it should be stayed. Next, having dealt first with the four matters where there had been a stay in the criminal proceedings, the judicial member did not consider different matters in relation to her next category; she simply reasoned that, had there been criminal proceedings on the basis of their complaints, those would also have been stayed in the criminal courts. That is, her reasoning betrayed that there was no logical basis for the first two categories she adopted.
As to the third category adopted by the judicial member, there were discrete issues to be considered in relation to FG. However, his two separate complaints were different from each other. One was that he had been sexually abused on numerous occasions as a child patient of XD; this was subject matter which at least overlapped with the subject matter of a trial in the District Court where XD was acquitted. FG’s second complaint was that as an adult he had engaged in sexual activity with XD; questions as to consent, and violation of patient/doctor boundaries arose.
On analysis, none of the complaints which the Ombudsman wishes to prosecute in the tribunal are the same. The judicial member should have separately considered the factors relevant to each of the individual complaints which the Ombudsman wished to prosecute, not analysed them in the categories adopted.
Some facts are common to all the matters, and in that respect I adopt the general facts outlined by Fraser AJA at paragraphs [114]–[138] of his judgment, including his incorporation of the table handed to us during the hearing of the appeal by way of submissions; it helpfully summarises much of the relevant factual content in a very accessible way.
Grounds 1(b), 1(e), 2(b), 2(d) and 2(e): Systematic Incoherence of the Justice System
These grounds of appeal applied to the four complainants whose complaints had been the subject matter of criminal proceedings in the District Court, but which proceedings were stayed (AB, BC, CD and EF). By the extension of reasoning described at [22] above, they also applied to the complaints made by DE, GH, HI and IJ.
In relation to offences against AB, BC, CD and EF, XD was charged in the District Court on indictment, but the charges were permanently stayed in the District Court on 6 February 2018. There is no question of any estoppel or res judicata arising. Further, the District Court did not consider the merits of the claims which were subject of the indictments, so there is no question of inconsistent factual determinations. It was, however, submitted that it would create incoherence in the justice system, or damage the integrity of the justice system, to allow the Ombudsman to prosecute complaints in the tribunal in circumstances where a prosecution based on the same facts had been permanently stayed in the District Court. The member below found this argument so persuasive that it was the basis for her staying the proceedings in the tribunal, so far as they related to AB, BC, CD and EF – [55] below. By the member’s extension of reasoning – [62] below – this factor was also a persuasive reason for her staying all the cases based on complaints by DE, GH, HI and IJ. I think the judicial member’s reasoning was incorrect in respect of all eight matters.
The arguments XD relied upon for a permanent stay in the tribunal are similar to those he relied upon in the District Court criminal proceedings. However, there are significant differences between the District Court criminal proceedings and the proceedings in the tribunal. District Court trials would have taken place before juries, on a standard of proof beyond reasonable doubt. Had XD been found guilty, he likely would have been jailed. In the tribunal, a referral would be heard by a member applying a civil standard of proof, albeit on a Briginshaw basis. Should XD be found to have acted in the way alleged, it is likely he will be disqualified from practice. The rules of evidence do not apply in the tribunal, although, it would be hoped that a tribunal member hearing a disciplinary proceeding would not depart substantially from them: they were formulated over time in order to ensure fairness and reliability, which must necessarily be important in disciplinary proceedings. However, the strict necessity to comply with the rules of evidence, and the absence of a jury, means that the member conducting a hearing in the tribunal might have more flexibility to adopt measures likely to produce a fair hearing for both XD and the complainants than would be available in a jury trial.
The judicial member relied heavily on a passage from Moubarak v Holt.[14] In that case the New South Wales Court of Appeal stayed a civil action seeking damages for sexual assault said to have occurred some 42 years earlier. The defendant had dementia and his disease was so severe that he could no longer understand what was said to him. Police had investigated, including by trying to interview the defendant, and had informed the plaintiff that they were unable to proceed because the defendant was not fit for trial. The New South Wales Court of Appeal dealt with an argument that nonetheless, there could be a civil trial because fitness for trial, while necessary for a defendant in criminal proceedings, was not necessary for a defendant in civil proceedings. It is in this context that Bell P made the comments relied upon by the judicial member at [31]:
“[108] Coherence is a quality that the common law values. An incoherent legal system is one that is apt to undermine respect for the rule of law and bring the administration of justice into disrepute. It would, in my opinion, tend towards incoherence to maintain that what constitutes a fair trial should differ in cases involving identical factual allegations. If the defendant was not fit to face criminal charges in respect of the plaintiff’s complaint to police because ‘the minimum requirements for a fair trial’ (see Rivkin at [97] above) would not be present, it would, in my opinion, offend commonsense simultaneously to maintain that the defendant could secure a fair civil trial in relation to identical factual allegations.
[109] In my opinion, the primary judge erred in dismissing the relevance of Presser out of hand. It provides powerful insight into matters going to the very essence of a fair trial, including the ability to give instructions, to decide what defence will be relied on, and to make the defendant’s version of facts known to the court and his counsel.”
[14](2019) 100 NSWLR 218.
In Moubarak there had been no criminal proceedings, and no stay of any criminal proceedings. The defendant could not have understood either civil or criminal proceedings. This fact was of such magnitude that it overwhelmed any other considerations. There is no one overwhelming matter in any of the cases which the Ombudsman seeks to prosecute. The case is no doubt correctly decided but it is not of much assistance or application here.
In fact, a second case concerning Dr Davis provides a relevant and helpful precedent. In September 1994, the Full Court of the Supreme Court of the ACT dismissed an appeal from a refusal to permanently stay disciplinary proceedings brought against Dr Davis. It is the report of that case to which I have referred above. The next year, the Full Court of the Federal Court of Australia dismissed an appeal from a decision permanently staying criminal proceedings based upon the identical factual allegations.[15] It is these two cases which are referred to at grounds of appeal 1(b) and 2(b). In the second case the Federal Court said:
“We do not accept this submission. It is true that both proceedings arise out of the same set of allegations. If there will be difficulties in Dr Davis answering the criminal charges because of the lapse of time and the destruction of his medical records, there will also be difficulties for him in dealing with the Medical Board investigation. But that does not mean that the result, in terms of a stay, must be the same in each proceeding. There are important differences between the two proceedings. The Medical Board proceedings are not punitive in character. Although an order striking a practitioner’s name from the register ordinarily has serious consequences for the practitioner, such an order is made to protect the public, not to punish the practitioner. Consistently with this distinction, a different standard of proof applies. An allegation of professional misconduct need be proved only to the civil standard of proof, a balance of probabilities. Charges of indecent assault, like other criminal charges, must be proved beyond reasonable doubt. The difference in the standard of proof reflects a view that it may be acceptable, as an act of public protection, to exclude from practice a person against whom it is impossible to prove the facts beyond reasonable doubt. The point was made by Mason CJ, Deane J and Dawson J in Walton v Gardiner (1993) 177 CLR 378 at 396:
‘The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners.’
There being different elements involved in the weighing process, we think Gallop J was correct in declining to determine the application for a stay of the criminal proceedings by reference to the outcome of the Medical Board case.”
[15]R v Davis (1995) 57 FCR 512, 519.
Together the two cases concerning Dr Davis are strong support for the Ombudsman. I think the member below failed to recognise that, and grounds of appeal (1(b) and 2(b)) must succeed. It is common enough that the same facts are the subject of criminal law charges and then (almost invariably subsequently) the subject of civil proceedings. The difference in trial procedure, standard of proof and purpose of proceedings means that different results as between the two different types of proceedings can be accommodated without damaging the coherence of the legal system. The two cases concerning Dr Davis illustrate this point.
In relation to complaints made by AB, BC, CD and EF, the member’s incorrect reasoning about this point was determinative of her decision. In relation to all other complaints except those two concerning FG, the member’s reasoning was to say that if criminal prosecutions had been brought against XD in relation to these four complainants, those charges would likely have been stayed, “Therefore, concerns about the integrity of the justice system are engaged” – [62]. This reasoning is faulty. There were no criminal charges in relation to these complainants. There could be no considerations about integrity of the justice system in relation to them. As a consequence the Ombudsman’s grounds of appeal 1(b), 1(e), 2(b), 2(d) and 2(e) must succeed. While that success is enough to mean that the decisions of the judicial member in relation to all eight complaints just discussed must be set aside; it does not mean that there should be no stay with respect to these complaints. Whether there is a stay must depend upon this Court’s evaluation of all the relevant matters bearing on the prosecution of each of the complaints.
Grounds 4(a) and 4(b): Purpose of Disciplinary Proceedings

The purpose of a criminal proceeding is largely punitive, while the purpose of a disciplinary proceeding is largely protective of the public. The ACT Court decision in Davis is valuable in the context of this case because it considers that in deciding whether or not to stay disciplinary proceedings against a medical practitioner, the purpose of those proceedings: protecting the public from a medical practitioner who is a sexual predator, assumes considerable significance. In that case, by the time of the Court hearing, the practitioner had retired from medical practice. Gallop J (dissenting in the result) in particular found this a compelling reason in favour of a stay of disciplinary proceedings.
In this case XD has given an undertaking not to treat male patients who are less than 18 years old. The complainants other than FG say they were between 10 and 17 years old when they were sexually abused by him. FG makes complaints about behaviour after he turned 18, albeit as a continuation of behaviour when he was a child patient. I do not find XD’s undertaking persuasive in XD’s favour. First, I am not persuaded that patients who may have turned 18, but are still young, are protected by the undertaking. Secondly, as the Ombudsman submitted, there is more than one statutory purpose outlined at s 3(1) of the Health Ombudsman Act 2013 (Qld). The Ombudsman is to protect the health and safety of the public and to maintain public confidence in the management of complaints and other matters relating to the provision of health services. The second limb of that statutory purpose means that a prosecution by the Ombudsman might still have a statutory purpose even if (whether by undertaking or retirement) a medical practitioner posed no future risk to the safety of patients. The fact that nine men have complained of misconduct by XD, which occurred when they were children, does underscore the strong public interest in the Ombudsman taking proceedings.
There are strong reasons relating to the purpose of the proceedings which the Ombudsman wishes to prosecute favouring the Ombudsman in relation to the question of whether the proceedings should be stayed. I do not think the member below accorded them sufficient weight. In that respect, I think the appellant has made out grounds 4(a) and (b) of the notice of appeal in relation to all the complainants. That success does not determine the ultimate issue of whether there should be a stay in any of the matters; it does mean that the consideration I give to the weight of this matter is greater than that given by the member below.
Grounds 1(d) and 2(c): Lost Witnesses
The evidence before the judicial member was that, although XD had made searches for receptionist staff who might have had relevant knowledge as to his practice of leaving his consulting room door open when examining patients, he had been unable to find them. There was a relevant prejudice to XD in this regard, and I cannot see that the judicial member erred in taking it into account.
The loss of ability for XD to call his reception staff applied to all the complaints which the Ombudsman wishes to prosecute in the tribunal. In one or two instances there is specific evidence that another possible witness is unable to be called. I will discuss those missing witnesses as I deal with the individual complaints below. In no case do I find that this is a determinative factor.
Similar Fact Evidence
Although it was not the subject matter of a discrete ground of appeal, an argument was advanced by the Ombudsman which applied to all the complaints. It was that there was a striking similarity to be observed in relation to all the complaints made and that each case against XD was strengthened as a result. To be admissible and probative in a criminal trial, similar fact evidence must be strikingly similar – Pfennig v The Queen.[16] To be used as probative evidence in a disciplinary hearing, evidence should meet, or come close to, this standard. The reason is the same as that which underlies the rule in criminal cases, the necessity for a sound factual basis to prove serious factual allegations. I do not think the Ombudsman makes out its submission at a factual level. Three of the complainants say that what took place between themselves and XD was frankly sexual – masturbation to ejaculation. Others describe something which is far short of that, and might have been part of a medical examination. Some complainants say that the conduct occurred on numerous occasions; others say it occurred only once. Two complainants say that the conduct took place on the first appointment they had with XD (which is significant in terms of its medical legitimacy, see below); the others say that it took place on subsequent occasions.
[16](1995) 182 CLR 461.
Furthermore, where only five of eight complainants are proposed as witnesses in the tribunal, I think this point is further weakened.
Lastly, at this preliminary stage of the proceedings in the tribunal, before there has been any hearing, I think it would be dangerous to use similarities apparent in the complainants’ statements as strengthening all the cases. At this point in time, when considering whether or not the prosecutions in the tribunal ought to be stayed, I think each complaint should be assessed by reference to its individual merits, rather than being bolstered by untested potential evidence in another complaint.
Having said all that, as recognised in paragraph [36] above, I do accept that the fact that there are nine complaints against XD for broadly similar behaviour in relation to young men of a broadly similar age is a reason to be weighed in the Ombudsman’s favour when considering the public purpose is prosecuting XD in the tribunal.
Individual Complaints in the Tribunal
The remaining grounds of appeal: 1(a), (c), (d); 2(a), (c) and 3, cannot be dealt with as matters of generality, but must be dealt with as part of a consideration of each individual complaint.
AB
AB said that he had been abused in the first half of 1986 when he was about 16 years old. Every time he went to see XD, his mother went too, but she waited outside the consultation room. His first appointment lasted about an hour and nothing untoward happened. He had an appointment monthly after that. From the second consultation onwards, XD would examine his genitals and would play with his penis until he obtained an erection and then XD would masturbate him. He could feel XD’s erect penis against his arm. This happened at least three times.
He told his mother he did not want to go back to XD. He made an excuse, but the real reason was because of XD’s sexual abuse of him.
He began suffering mental health problems which he attributes to XD’s assaulting him. These have apparently continued, as he has been on a disability pension since 2001. He gave a statement to police in 2015. His partner gave a statement to police in 2016 which included that AB made a preliminary complaint to him in 2014. His sister made a statement to police in 2015 in which she records that AB made a preliminary complaint to her in about 1982 when he was about 13, (sic), and that she heard him make a preliminary complaint to his mother at that time.
The Ombudsman will not call AB, his partner, or his sister at the hearing it proposes in the tribunal. The Ombudsman does not explain why these witnesses will not be called. It cannot call his mother, as she has passed away. The Ombudsman proposes a hearing at which it will simply tender the statements of AB, his partner and sister. Those statements themselves are nearly 10 years old.
AB made allegations against XD to the Medical Board of Queensland[17] in 2009. Even at the time when this earlier complaint was made, XD had disposed of his records in relation to AB. XD has sworn that the Medical Board discontinued these allegations because there was insufficient basis on which to proceed. This must be a hearsay statement. At committal proceedings, AB gave evidence that the Medical Board discontinued the 2009 proceedings because it lost contact with him because he moved about so much at that time. This also must be hearsay. The Ombudsman does not intend to put any material as to the 2009 allegations before the tribunal. It does not explain that decision. There would presumably be material both as to the substance of the 2009 allegations, and as to why they did not proceed. The Ombudsman has, in making complaints before the tribunal, a prosecutor’s duty of fairness to disclose and place before the tribunal relevant evidence, even though it may tend against the Ombudsman’s overall case.
[17]This body was a predecessor to the Health Ombudsman.
XD does not have any medical records in relation to this patient. He cannot recall this patient. XD relies upon the complainant’s mother having passed away to say he is prejudiced, but I cannot place much weight on this assertion where he provides no details as to how her evidence might have assisted him.
There are some medical records which the Ombudsman has obtained from other sources. Medicare records show that XD treated AB on 12 occasion in a period of just over 12 months, spanning 1986 and 1987. This is contrary to AB’s evidence at the committal. There he swore both that at every examination but the first XD masturbated him, and that he stopped attending XD after about four consultations because of the sexual assaults. Medical records from another doctor show that AB complained to another doctor of soreness of testes in January 1995.
The loss of medical records must be assumed to be a very significant prejudice to any fair hearing in the tribunal.[18] XD cannot remind himself of the patient, his medical condition, or the course of treatment undertaken. Particularly here, XD cannot ascertain whether or not AB is recorded as suffering from any of the conditions which the Ombudsman’s expert would regard as prompting a legitimate examination of genitals. In this regard, AB’s statement includes that XD told him he was checking for discharge, and his sister’s statement records that XD had told AB he was checking his glands. There is the note in other medical records that AB complained of sore testicles. That is, there are indications that an examination of AB’s genitals may have been warranted on medical grounds.
[18]Davis, in the Full Court of the Federal Court, above, 520-521, cited in Moubarak, above, [94].
As XD has no recollection of AB it is not possible for him to point to specific ways in which he is prejudiced by the delay. As McHugh J said in Brisbane South Regional Health Authority v Taylor,[19] “…the whole quality of justice deteriorates …” where there is substantial delay.
[19](1996) 186 CLR 541, 551, quoting R v Lawrence [1982] AC 510, 517.
The Ombudsman submitted that the loss of XD’s records was of less significance in AB’s case, for there could be no possible medical reason for XD to treat AB as AB alleges, and his sexual assaults of AB are unlikely to be recorded in the medical notes. A similar argument was recognised by the Full Federal Court in Davis, but discounted.[20] While it is superficially attractive, I think that there are difficulties with the submission in relation to AB. First, it assumes the truth of the complainant’s allegations. Secondly, as the partial evidence from other sources shows, in AB’s case the records might shed significant light on the reliability of the complainant’s recollections and raise several possibilities as to legitimate reasons for examination of AB’s genitals.
[20]Above, pp 520-521.
The reference in respect of AB was made in 2020, 34 years after the behaviour complained of. That delay is not expressly explained on the Ombudsman’s material. This lack of explanation is particularly pertinent where there was a complaint to the Medical Board of Queensland in 2009.
I think this Court can take judicial notice of the fact that there often is substantial delay in making complaints of a sexual nature, and that that may be particularly so where the complainant is a child at the time of the alleged abuse.[21] AB’s police statement says that almost immediately after what he says was abuse at the hands of XD, he suffered significant mental health problems. In cross-examination at the committal hearing an answer was given by AB which blamed his mental health problems and feelings of shame for the delay. In these circumstances it would be unfair to regard the delay in making the complaint as totally unexplained.
[21]The Queen v Lane, FCFCA, 19 June 1995.
On the scant contemporary material which is available, real questions as to AB’s reliability arise. That brings into sharp focus the Ombudsman’s proposed conduct of the referral concerning AB. The Ombudsman does not propose to call witnesses, and this is not explained. The cases have recognised that cross-examination is a fundamental part of a hearing because it gives one party the opportunity of testing the allegations made against them.[22] The member cited Lee v The Queen[23] to the effect that “confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial”.
[22]Allen v Allen [1894] P 248; Lee v The Queen (1998) 195 CLR 594, [32].
[23]Above, [32].
In my opinion, a hearing in the tribunal would be unfair because of the loss of XD’s medical notes; his lack of recollection of AB, and the Ombudsman’s intention to run a case before the tribunal which provides no opportunity for XD to cross‑examine AB, and to a lesser extent, those to whom he has complained in the past, as well as the Ombudsman’s decision not to explain or put material before the tribunal as to the 2009 complaint by AB, and the reason it was not pursued. Ultimately the appeal must be dismissed so far as it concerns the complaint made by AB. That is, the Ombudsman’s grounds of appeal at 1(a), 1(c) and 1(d) fail.
BC
BC swore an affidavit for use in the tribunal by the Ombudsman. His evidence was that in 1986 when he was a 17 year old university student he attended once on XD. He suffered from acne. He said that XD “rigorously” examined his genital region for much longer than any other part of his body. He pulled BC’s penis and scrotum in different directions, apparently looking at them. BC felt very uncomfortable about the examination and did not return to XD. However, he said it was not until about two years later that he started to reflect more maturely on the consultation and why he did not behave more assertively in it. He read an article in the newspaper in August 2016 about other people making complaints against XD, and that provided the impetus for him to make a complaint to the police, which he did that year.
Considerations as to delay and its effects are somewhat different from those discussed in AB’s case. Unlike AB’s case, there is no unexplained independent delay by the Ombudsman or its predecessor, the Medical Board. Further, BC does explain his delay in complaining about XD. The flavour of his statement in the tribunal proceedings is that, while he remained offended and annoyed about what had happened at the consultation, these feelings were not sufficient to motivate him to take any action. It was only when he read the newspaper article in 2016 and thought that others had also been treated as he had, that he felt he “should do something about it”. That motivation is consonant with considerations as to the purpose of disciplinary proceedings by the Ombudsman.
From the perspective of XD, delay has meant that he has no records and no recollection of BC. As discussed above, this must be significantly prejudicial to him. BC describes something which might have been part of a medical examination (in contrast to what AB described). However, for the Ombudsman it was said that, according to its unchallenged expert evidence, genital examination would not be warranted on the first consultation, in the absence of symptoms. It would perhaps be warranted on subsequent consultations to see if there was evidence of side effects from the use of the drug Roaccutane. In this respect, the Medicare history relating to BC does show only one attendance on XD, and that is described as “initial specialist attendance”.
BC has made an affidavit in the tribunal proceedings and will be available for cross‑examination. BC’s police statement says that he made a preliminary complaint to his wife, and while there is a police statement from her annexed to material the Ombudsman wishes to use in the tribunal, it is not planned that she be called as a witness. This must be a point weighing against the Ombudsman, but not so heavily as in those cases where the complainant themselves will not give evidence.
In my view, no stay was warranted in the case of the referral of BC’s complaint. It must be recognised that there is significant prejudice caused to XD because of the delay. However, in circumstances where Medicare records support BC’s recollection that he only ever consulted XD once, and XD does not challenge the expert evidence that genital examination would not be warranted on a first consultation, I am not persuaded that this prejudice is so overwhelming as to make a fair prosecution by the Ombudsman in the tribunal impossible. The tribunal member will no doubt have regard to the disadvantages caused by delay in determining whether or not to make a finding against XD.[24] In relation to the complaint by BC, the appeal should be allowed. In this respect I think the appellant succeeds on its grounds 1(a) and 1(d).
[24]Cf Dr SS v Health Care Complaints Commission [2002] NSWCA 391, [32].
CD
CD complains that he was sexually assaulted by XD on five occasions in 1987 when he was 16 or 17 years old. He says his first consultation with XD passed without incident. He had acne. XD looked at his face and prescribed him Roaccutane. At the second consultation XD examined him and looked at his penis, lifting it up and turning it from side to side. He said XD did not touch his testicles. He did not understand what XD was doing. The examination lasted for about 10 seconds. He felt uncomfortable. The same thing happened on another four or five occasions.
CD gave a statement to police in 2017, some 30 years after the events in question. So did his wife, recording a preliminary complaint in 2016. CD’s mother gave a statement to police in 2017 which recorded that CD complained that he was uncomfortable because XD asked him to pull his pants down during consultations. She was not sure whether these complaints occurred during the course of treatment or were “well after the consultations”. CD thought that he disclosed his discomfort to his mother within a year or two of being treated by XD. His mother recalled a second preliminary complaint in 2016.
The Ombudsman will not call CD, his wife or his mother at the proceedings it proposes to run in the tribunal. No explanation is provided for that decision.
While general matters going to delay in cases of sexual abuse are relevant, [56] above, no specific or express explanation is provided for CD’s delay in making a complaint either to the Medical Board or the police about the alleged behaviour of XD.
Delay has prejudiced XD because he has disposed of his medical notes and he has no recollection of CD. This is particularly important where what CD describes could have been part of a medical examination. Furthermore, what CD described occurred not on the first consultation, but only on subsequent consultations. The expert evidence as to side effects of Roaccutane provides some support for the idea that what CD describes may have been part of a medical examination. In fact, in telling his wife about the conduct complained of, CD said that at the time it felt “odd but was probably necessary to do as to monitor any possible side effects from the medication …”.

It seems to me that a tribunal hearing could not be fair to XD. XD could not use his notes to explain what he did at consultations with CD, and why. He could not consider whether to call expert evidence of his own, based on his notes. Nor could he test CD’s evidence in cross-examination. He could not put a version of events supported by his medical notes to CD. Even allowing for the extraordinary nature of the remedy of a permanent stay, and taking into account those matters which do favour the Ombudsman, it seems to me that the disciplinary prosecution proposed by the Ombudsman in the tribunal could not be fair to XD and that a permanent stay was warranted. In this respect the Ombudsman fails on its grounds 1(a), (c) and (d).
DE
DE alleges that he was assaulted by XD as a 15-year-old in 1991. DE does not describe anything untoward at the first consultation, when he was accompanied by his mother. He had acne. He was examined by XD and prescribed Roaccutane. DE says that on the second consultation XD examined his genitals and describes a prolonged examination, which does not sound particularly medical, although DE says that during the examination XD explained that he was looking for dry skin on DE’s penis which can, having regard to the Ombudsman’s evidence, be a side effect of Roaccutane, and thus perhaps a legitimate reason for genital examination. There were subsequent consultations but the conduct was not repeated.
DE made comments about XD’s conduct to a school friend at the time which are capable of being regarded as a preliminary complaint. He later made complaints to a girlfriend and, later again, to his wife.
DE made a statement to police in November 2017. While general considerations as to delay in cases of sexual abuse are relevant, [56] above, DE does not expressly explain why he delayed in making the statement to police.
DE has sworn an affidavit in the tribunal which the Ombudsman proposes to rely upon in the tribunal. Further, the school friend to whom DE complained has also sworn an affidavit in that proceeding. Both the wife and former girlfriend of DE gave police statements, but the Ombudsman does not propose to use affidavits or evidence from either of them in the tribunal, and does not explain that decision. This must be against the Ombudsman in considering a permanent stay, but less so than where it has made unexplained decisions not to call the complainants.
XD was charged by police with a sexual offence on the complaint of DE but no indictment was presented. The Ombudsman does not put any material before either the tribunal or this Court to explain that. Considerations as to the Ombudsman’s duty of fairness apply to this lack of explanation and evidence. These matters weigh against the Ombudsman.
Delay has caused prejudice to XD. He has no recollection of DE and no notes or other records.
Although the matters are finely balanced, I do not think that there can be a fair hearing in the tribunal in relation to the complaint made by DE. DE does not describe something which (like, say, AB) is flagrant sexual assault. What he describes might have been part of a legitimate medical examination, misinterpreted by a 15 year old boy. In those circumstances where XD does not have his notes and is not able to use them to make a defence (see [69] above), I cannot see that there can be a fair hearing in the tribunal. That is, the Ombudsman has failed in relation to grounds 1(a), (c) and (d) of its notice of appeal.
EF
EF said that he had been sexually assaulted by XD in the last quarter of 1999 when he was 13 or 14 years old. The Ombudsman has a police statement from him dating to 2016 and a police statement from his mother in 2016.
Delay has caused prejudice to XD. He has no recollection of EF or no notes or other records relating to him. The Health Ombudsman has located a one page letter from XD to EF’s GP. The letter shows that XD was treating EF for acne and had decided to prescribe Roaccutane. That is, it might give some support to XD’s case, but cannot be said to give him any great assistance as to his recollection, or treatment, of this patient.
The allegations made by EF are not consistent with a medical examination necessitated by Roaccutane use. First, XD’s attention to his genitals occurred on the only consultation he had with XD, so according to the uncontradicted evidence sought to be led in the tribunal proceedings, there could have been no occasion to check for side effects of Roaccutane at that consultation. Further, EF describes that XD cupped and squeezed his testicles. EF says he did not have any symptoms relating to his genitals and XD did not explain why he conducted a genital examination. I work on the basis that if the conduct alleged by EF did occur, it is unlikely to appear in the medical notes made by XD of the consultation. That to some extent diminishes the importance of the loss of the medical notes.
EF’s mother says that he made a complaint to her the day of his appointment with XD. This is potentially powerful evidence in support of EF’s credit. As well, there are police statements from three other people, including his de facto wife, who received preliminary complaints from him.
Allowing for general considerations about the delay in making sexual complaints, [56] above, EF does not explain the delay in making a complaint to the Ombudsman. I note that this is in the context where his mother says that on the very day of the assault he alleges, he complained to her about it. This factor is not decisive against EF, but it does weigh in my exercise of discretion against him.
Neither EF, nor any of the people to whom he made preliminary complaint, will be called by the Ombudsman in the tribunal proceedings. This is unexplained by the Ombudsman. In my view, this determines the appeal against the Ombudsman insofar as the referral to the tribunal rests on the complaint of EF. Delay significantly prejudices XD. To the extent that is mitigated by the unlikelihood that a sexual assault would be recorded in XD’s notes, focus is thrown very much upon the reliability and veracity of EF’s account and, on the facts of this complaint, EF’s mother. That cannot be tested in the proceeding which the Ombudsman proposes. The appeal must be dismissed so far as it relates to the part of the referral which relies on EF’s complaint. That is, I think that the Ombudsman’s grounds of appeal at 1(a), (c) and (d) fail, and this is decisive against this part of the appeal.
FG
FG makes two different types of allegations against XD. The first relates to the time when he was a child patient of XD. He was in Year 11 and aged 16. He attended XD’s surgery with his father. His father was present for the first part of the consultation, but then left the consultation room. After this, XD instructed him to remove all his clothes, which he did, and lie face upwards on the examination table. FG said that XD examined his body including his penis, but then at some stage removed his gloves, placed oil on his penis and then began masturbating him. He said XD made sexual comments to him as he did this. FG said that subsequent consultations would begin with a medical examination of his skin conditions, which involved him removing his shirt. However, after that XD would ask him to pull down his pants and lie on the examination table. During these interactions FG said that XD would press on certain parts of his abdomen and would masturbate him regularly, sometimes performing oral sex on him. FG said he ejaculated as a result of these assaults.
The second set of allegations FG makes against XD concerned behaviour at times when FG was a young adult, aged 18–23 years old. The second set of allegations against XD were accurately described by the judicial member as spanning many years and being vague as to dates and other matters – [72] below.
On one occasion XD drove to pick him up for an appointment which XD (rather than FG) had made. XD drove him to his professional rooms, but it was out of hours and the building was empty. He had sexual contact with FG in his rooms.
XD gave FG his mobile phone number and they contacted each other outside consultation times. XD bulk‑billed FG and once gave him $50 in cash. XD asked FG for anal sex but he refused. FG would masturbate XD through his pants, although he said he had seen XD’s penis and described it. On one occasion XD lay down naked on the consultation table next to him. Once XD gave FG a t-shirt.
XD would book appointments with FG himself, rather than FG making appointments with reception staff. The appointments would be at 4.30 or 5.30 in the afternoon, after the reception staff had left for the day. XD took photos of his penis for XD’s own sexual gratification, rather than any legitimate medical purpose.
FG asked XD to fund an expensive operation he wanted. XD refused, and FG made statements that may have been an attempt to blackmail XD. His police statement is not clear as to when this occurred.
This second set of allegations is in respect of conduct alleged by FG to be “more consensual” and by the Ombudsman to be in breach of the Medical Board’s guidelines on sexual boundaries.[25]
[25]Paras 46–48 of the Ombudsman’s application for referral in the tribunal.
XD does have his medical records in relation to FG. This does not mean XD is not prejudiced by delay and loss of recollection, but it must ameliorate that prejudice. The records disclose that XD treated him for penile warts in April 2011, genital warts in December 2011 and managed him for anal warts in 2012.
The Ombudsman has police statements from FG’s mother and father. The Ombudsman does not intend to call FG or his parents as witnesses in the tribunal proceedings. This decision is unexplained.
FG complained to police about what he said happened to him on his first consultation with XD. There was a trial concerning these matters before a jury in the District Court in 2018. The jury acquitted XD. The jury must at least have had a reasonable doubt as to the reliability of FG’s evidence. In those circumstances it weighs very heavily against the Ombudsman that it will not call FG (or his parents) in the tribunal proceeding. I would add that there are matters on the face of FG’s police statement that sound unsatisfactory, and sound as if cross-examination is likely to produce matters adversely affecting FG’s credit. To some extent this appears to have been demonstrated during cross-examination at committal proceedings. The transcript of the committal proceeding, but not the jury trial, is in the material which the Ombudsman intends to place before the tribunal, and is not before this Court. This is not explained.
The judicial member below thought that in circumstances where the Ombudsman was not making FG available for cross-examination, the proceedings should be stayed because they would disadvantage XD “to an unacceptable degree and would be irremediably unfair” – [75] below. I think that the decision of the member below was correct, and correct for the reasons which she stated. In all the circumstances just discussed, it could not be fair to have a hearing in the tribunal where the Ombudsman did not call FG to give evidence. In this regard the Ombudsman fails to make out appeal ground 3.
GH
GH gave a statement to the Health Ombudsman in 2022. He was 38 years old at that time. He said that he attended on XD when he was in Grade 9 or 10 for the treatment of acne. This was in 1998 or 1999. He was prescribed Roaccutane and had treatment with XD for 12 to 18 months. He usually attended appointments with XD by himself; that is, without a parent. He recalled that on two or three occasions XD asked him to lie on the treatment bed and remove his pants. XD then inspected his penis. GH thought this was odd at the time. He had discussed this with three other boys who were treated by XD and they said the same thing had happened to them. Two of those other boys were complainants to the Health Ombudsman.[26]
[26]GH says things about these other patients of XD, but these allegations are hearsay, and I cannot imagine that the tribunal member hearing the Ombudsman’s complaints against XD would allow them into evidence. While there are no rules of evidence in the tribunal, where allegations are as grave as the ones made against XD, a tribunal acting properly would be astute to ensure that any departure from the rules of evidence which would apply in a court could not result in unfairness to XD.
Delay has prejudiced XD. He has destroyed his records in relation to GH in the ordinary course of administering his practice. He has no recollection of GH. Given the expert evidence the Ombudsman plans to lead in the tribunal, it is hard to see that GH’s description of XD inspecting his penis on two or three times in the course of a 12 to 18 month course of treatment with Roaccutane is necessarily anything other than medical treatment. Therefore, in this case XD is particularly disadvantaged by the fact that he has no notes. The Ombudsman has located one letter in relation to this patient. It is written by XD to GH’s GP. It says that XD is treating GH for acne and has decided to prescribe Roaccutane. While it may generally assist XD, it could not be of much assistance to his recollection of GH, or his treatment of him.
While I bear in mind general matters as to delay in making complaint about sexual matters, [56] above, there is no explanation of delay by GH in complaining to the Health Ombudsman about this matter.
The Ombudsman intends to call GH as a witness before the tribunal so that he will be available for cross-examination. In this regard, there will be more procedural fairness available to XD than in those cases where the Ombudsman does not propose to call the complainant before the tribunal. However, in this particular case it is hard to see that making GH available for cross-examination will make the tribunal proceeding any fairer to XD. GH’s proposed evidence-in-chief is limited and, on its face, does not describe anything which is necessarily outside the bounds of acceptable medical practice. It might well be in XD’s best interests not to cross-examine GH.
Weighing all the matters relevant to the complaint made by GH, it seems to me that XD could not receive a fair hearing in the tribunal and that the Ombudsman’s proceeding should be stayed so far as it related to this complaint. In that regard, I think that the Ombudsman has failed to make out grounds 2(a) and (c) of its appeal grounds.
HI
HI gave the Ombudsman a statement in relation to XD in 2022 when he was 35 years old. He said he had attended on XD when he was about 14 years old for treatment of acne. He was prescribed Roaccutane. He thought that he remained under the treatment of XD until he was 16, possibly even 17. He thought that his mother attended consultations with him on occasion, but said that when XD conducted physical examinations of him, his mother was either not there, or a curtain was pulled so she could not see. HI recalled that on at least two occasions XD examined him and felt around his penis and testicles. He did not recall XD asking permission or giving any explanation for these examinations. He said those events made him dread going to see XD. HI said that the examination of his genitals took “a maximum of maybe 10 seconds” and that XD felt each testicle and examined his penis with his hand.
HI said that he did suffer side effects from Roaccutane, including “dry skin and cracked lips. I had dry skin for the whole of my body, but especially on my face was very dry. … The dry skin was mostly on exposed parts like my hands, sometimes my knuckles would crack because of the dryness and my face and lips. I would have to apply lip balm all the time because it would soak it all up quicky. The dryness was more limited to my face and my hands.”[27] HI said he did not have any “issue in my genital area or mention any issues in my genital area that would have [given XD] any reason to do such an inspection”.[28] I suppose the obvious point to make about that statement is that where the patient did otherwise have dry and cracked skin as a side effect of Roaccutane, examination of his genital area might have been warranted.
[27]Witness statement of HI.
[28]Above.
Apart from general considerations as to delay in sexual complaints, [56] above, there is nothing express on the material to explain why HI did not complain to the Health Ombudsman earlier. This must be a factor which weighs against the Ombudsman on this appeal, although it is not of decisive weight by itself.
HI will be made available for cross-examination during proceedings in the tribunal. However, although the comments I have made in relation to GH, [97], apply here too; the availability of HI for cross-examination may not make the tribunal proceedings any fairer to XD.
XD has destroyed his medical records in relation to HI. The Ombudsman has obtained two letters written by XD to HI’s GP, one dated June 2001, and the other January 2003. These record that HI has severe cystic and scarring acne on the face and upper trunk. XD decided to prescribe Roaccutane and other drugs in June 2001. He records that he has advised HI of “possible side effects from his medication, including photosensitivity”. The 2003 letter describes a “bad recurrence” and another course of Roaccutane is prescribed. In a very general way, these letters do support XD, including showing that he had prescribed Roaccutane and had a concern with side effects. However, they are not a substitute for XD’s complete medical notes and the destruction of these is still a significant disadvantage to XD.
Weighing all the matters relevant to whether there ought to be a permanent stay of the Ombudsman’s proceedings in the tribunal, so far as they concern HI, my view is that there should be a stay. In all the circumstances, I cannot see that the tribunal proceedings would be fair to XD. In that regard my view is that the Ombudsman has failed to make out grounds 2(a) and (c) of its notice of appeal.
IJ
IJ gave a statement to the Ombudsman in 2022 when he was 34 years old. It was to the effect that he attended upon XD in 2002 or 2003 when he was 14 or 15 years of age. He said that on the first consultation he had with XD he was directed to a bed in the room and XD drew the curtain closed while his mother waited on a chair on the other side of the curtain. IJ said that XD initially inspected the skin on his face, chest and neck, but then began tapping his abdomen until he reached his pants. He said that he pushed his pants down and then eventually asked IJ to take his pants and underpants off. IJ complied. He said that XD then “intently” inspected his penis. XD then looked at his testicles and massaged them. IJ was confused and embarrassed.
He said during the second consultation with XD he was again made to lie on the bed and XD performed the same checks to his lower abdomen, then pulled his pants down and had a long look at his penis before rubbing it and making sexual comments and asking IJ sexual questions. He said that XD played with his scrotum and cupped it in his hand. XD told him he was looking for signs of ringworm. Then he began to masturbate IJ, which he continued to do until IJ ejaculated.
IJ said that he made a preliminary complaint to someone in his church who was not helpful. That person has not made a statement to the Ombudsman.
IJ outlines psychological symptoms which he attributes to the abuse by XD and says that a doctor has diagnosed him with post-traumatic stress disorder as a result of the abuse. He attributes difficulties with his workplaces and social relations over the years to the abuse, and much of his statement deals in depth with these matters. There are statements from family members which are generally corroborative of some of the dysfunction in his life.

XD’s affidavit refers to his inability, resulting from the disposal of his patient records, to identify a record indicating the presence of a parent, details of examinations, treatments or discussions, or if there was any examination of a complainant’s groin. XD’s affidavit does not elaborate upon the reference to treatment in relation to the relevant complainants, except insofar as XD recommended and prescribed treatment in the form of Roaccutane therapy. There is no evidence that any of the conduct alleged against XD in relation to any complainant might have been treatment.
Part of XD’s affidavit specifically refers to each of the allegations in the referrals, but XD’s responses to those allegations are not directed to the questions whether he engaged in the alleged conduct or whether there might be a medical reason for a dermatologist to engage in conduct of the kind alleged; that part of his affidavit focuses instead upon the existence or otherwise of medical records and XD’s lack of recollection of the consultations.
A different part of XD’s affidavit includes general statements about symptoms for which an examination might be required, but that part of the affidavit does not identify what kind of examination might be an appropriate response to any identified symptom. The affidavit refers to side-effects of Roaccutane – “painful red areas”, “large blisters”, “peeling layers of skin”, and the “rarer side-effect … [of a] cracked or bleeding penis” – and other possible symptoms of “chafing between the thighs”, a patient or parent having “observed something about the skin… (for example, a lump, mole, tenderness, or irritation, including of the testes)”, and the fact that “given the potential side-effects of Roaccutane, it would sometimes be appropriate to examine a patient’s torso and groin to determine whether there were any noticeable side effects”.[122] Both the nature of the described symptoms and the word “noticeable” suggest that the word “examine” in this context connotes a visual inspection. At best for XD’s case, upon a liberal reading of the affidavit, XD does not identify the kind of examination which might be appropriate in response to any of the identified symptoms.
[122]Affidavit of XD at paragraphs 39 and 43.
Whilst it may readily be accepted that XD’s references to an “examination” comprehend a visual inspection, XD’s affidavit does not justify the Court in drawing an inference, which is not expressed in the affidavit, that any of the identified symptoms might be a medical reason for touching a complainant’s genitals, whether in the ways described in the allegations or at all. The effect of XD’s evidence is instead merely that there are a variety of possible symptoms which might amount to a medical reason for an examination by a dermatologist of a patient’s genitals. That is not evidence that a symptom of a kind from which one of the complainants might have suffered might be a medical reason for a dermatologist to touch the complainant’s genitals in any of the ways described in the allegations or at all. Similarly, XD’s evidence that he recorded symptoms and examinations on his patient records does not justify the Court in inferring that his records of examinations might either describe the conduct alleged against him in any of these allegations, or any touching of a complainant’s genitals, or describe a symptom that might be a medical reason for engaging in such conduct.
Those conclusions distinguish allegations 2 and 4 in the first referral, and allegations 2–3 in the second referral, from allegation 1 in the second referral (concerning GH), in relation to which I have concluded that XD’s evidence does suggest that there might have been a medical reason for XD to conduct a visual inspection of GH’s genitals and his medical records might have referred to such an examination.
In summary:
(a)XD’s affidavit does not establish that the erosion of his memory over time or his inability to refresh his memory from his patient records has deprived him of the ability to instruct counsel or give evidence about the centrally important issues of liability in relation to allegations 2 and 4 in the first referral, and allegations 2–3 in the second referral, namely,
(i)whether XD did or did not touch the complainants’ genitals in the ways alleged, and
(ii)whether there was any, and if so what, symptom which amounted to a medical reason for such an examination.
(b)XD’s responses to the referrals are consistent with him being able to give instructions and evidence upon the first of those issues, and there is no evidence that he could not give and adduce expert opinion evidence upon the second topic.
(c)Those conclusions tend to support a conclusion that, in relation to these allegations, this is not an exceptional case of a kind that might justify the extreme remedy of a permanent stay of the disciplinary proceeding.
XD submits that R v Davis supports the conclusion that a hearing of the referrals will not be fair. Fourteen charges were brought against Dr Davis, a general practitioner, charging him with assaulting 13 named female persons and committing acts of indecency between 1960 and 1974. Three complainants were adults aged between 19 and 29 years. The other ten complainants were minors, two being 15 or 16 years old. All complainants alleged that Dr Davis carried out an internal vaginal examination in an inappropriate manner, most complainants alleged that Dr Davis attempted to stimulate their clitoris, and some spoke of touching of a breast. All but one of the complainants did not report her experience to anyone in authority until very many years after the consultation. Most told a family member or friend shortly after the consultations, and most explained the absence of a complaint to someone in authority by reference to a fear of being disbelieved or a sense of shame. Many complainants reported their experiences to police only after the publication of a newspaper article in 1994. The joint judgment records affidavit evidence of Dr Davis that his secretary/receptionist destroyed the medical records of all except one of the complainants. Dr Davis said he could recall only four of the complainants.
XD relies upon the following passage in the judgment of Wilcox, Burchett and Hill JJ,[123] which the Judicial Member reproduced in her reasons:[124]
“Here there is special prejudice, occasioned by the destruction of the medical records. It is understandable that, without the records, Dr Davis is unable to recall the relevant consultations. He must have conducted thousands of consultations during his 37 years in general practice. He probably made hundreds of vaginal examinations. Most of the complainants saw him only a few times, some only once or twice. Without his records, Dr Davis would have no way of putting himself back into the situation that applied at the dates of the relevant consultations. He would have no means of checking how many times he saw a complainant, the reason for the consultation or the treatment he provided. We agree with Mr Richardson's comment that it is unlikely that the notes would reveal that Dr Davis masturbated the patient or fondled her breast, if that is what he did. But the comment misses the point and trivialises the difficulty. This is not like many sexual assault cases where the accused person has no business anywhere near the complainant's genitalia. This is the case of a doctor who may have had a legitimate reason for making a vaginal examination. Without the medical notes, it would be impossible for Dr Davis to check whether he made an internal examination of any particular complainant or why he did so or to say how he carried it out. It would be impossible for him to give instructions to his counsel regarding aspects of the general treatment of the complainant, or the particular incident, that should be put to her in cross-examination and which might reveal the incident in a different light.”
[123](1995) 57 FCR 512 at 520.
[124][2023] QCAT 340 at [27].
That analysis was necessarily informed by the evidence in that case, which differed in significant ways from the evidence in this case. As the Full Court’s judgment records:[125]
(a)Upon those complainants’ own accounts, they presented with a gynaecological problem which “might be thought [to] warrant a vaginal examination”, although in some cases the need was “not so apparent … on the complainant’s statement”.
(b)Dr Davis gave unchallenged evidence in his affidavit of his usual practice to record any “internal medical examination of any person” by an entry on the patient’s card and that “those patient cards would record the fact of whether or not I carried out an internal medical examination and would also record the date on which I did so and the patient’s clinical signs and reason for carrying out an internal medical examination”.
[125](1995) 57 FCR 512 at 516.
In relation to allegations 2 and 4 in the first referral and allegations 2–3 in the second referral, no complainant has given an account which refers to any symptom which might be thought to warrant XD touching the complainant’s genitals, and XD’s affidavit does not include a statement that his patient records would record either whether or not he touched the complainants’ genitals or any symptom that might constitute a medical reason for doing so. R v Davis is distinguishable for those reasons, and because this appeal concerns a stay of disciplinary proceedings rather than criminal proceedings.
That is not to say that XD’s inability to recall the consultations or to have access to his patient records is not significant in the evaluation of the question whether a hearing will be unfair. XD will be disadvantaged at a hearing of the referrals by reason of his having no recollection of the consultations and his inability to access his patient records. XD is deprived of access to contextual information of a kind which might be adduced in evidence in his defence and deployed in challenges to the accuracy of evidence in the Director’s case, including the evidence of complainants, and in submissions. That contextual information includes references in XD’s missing records of symptoms, examinations, parents attending consultations, and complainants returning for further consultations after having undergone an examination at a previous consultation. As to the last matter, whilst there are apparently reliable Medicare Records which enable XD to rely upon some complainants returning for consultations after an initial consultation, XD is not able to establish whether an examination occurred at a particular consultation and for what reason. XD is unable to ascertain information of that kind, or to ascertain any other details of such consultations from his records or from his memory. Those matters must be considered together with the loss of other evidence, including evidence that might have been given by staff about XD’s practices when consulting with young patients, the nature of entries XD made on the patient records, and the practices of staff members about entering XD’s rooms during consultations.
Disadvantages of those kinds, however, are capable of being ameliorated at the hearing by the techniques discussed in decisions cited in GLJ to which I have referred. Of particular importance in the present context are the ways in which the Tribunal may direct itself, with reference to the evidence at the hearing, by analogy with Longman v The Queen warnings, of the necessity for the Tribunal to take into account the increasing fallibility of human memory over time, and the principle that evidence is to be weighed according to the proof which is in the power of one side to produce and in the power of the other to contradict. The hearing will remain imperfect despite the adoption of such techniques, but that is not, of itself, a sufficient basis for ordering a permanent stay.

The Director’s arguments foreshadow that the Director will seek to rely upon the evidence of complainants as coincidence or tendency evidence supporting the evidence of other complainants. It will be open to XD in each case to advance any available argument against that course, including arguments that a complainant’s evidence has insufficient similarity with the evidence of another complainant to justify its admission of coincidence or tendency evidence. Any potential unfairness in that respect is also capable of being ameliorated by the Tribunal in the ways described in preceding paragraph.
It is also necessary to keep in mind the public interest in the hearing and determination of these disciplinary proceedings, including as they do allegations of professional misconduct involving sexual touching of young patients during consultations with a specialist medical practitioner. In that context, I am not persuaded that a hearing of any of allegations 2 and 4 in the first referral and allegations 2–3 in the second referral should be permanently stayed upon the ground that the hearing will be unfair.
Proposed orders
I would make the following orders:
1.   Leave is granted to bring the appeal filed on 11 October 2023.
2.   The appeal is allowed.
3.   The orders made below on 14 September 2023 are set aside.
4.   In substitution it is ordered that the referral filed 30 April 2020 (OCR121-20) is permanently stayed except insofar as it relies upon a complaint made by BC and DE and the referral filed on 5 October 2021 (OCR288-21) is permanently stayed except insofar as it relates to the complaint made by HI and IJ.
5.   If the parties intend that there should be any costs order other than that costs follow the event, they should file written submissions on costs not exceeding five pages, the respondent within seven days of the date of delivery of this judgment, and the appellant within seven days thereafter.
6.   Otherwise, costs follow the event.
BROWN J: I am grateful for the extensive reasons that have been prepared by Dalton JA and Fraser AJA. As a result of the reasons provided by each of them, with which I largely agree, my reasons only need to be brief.
Justice Fraser at [114]-[145] has helpfully set out the background of the referrals made by the Director of Proceedings on behalf of the Health Ombudsman (the Director) to the Queensland Civil and Administrative Tribunal (QCAT) and the summary of the judicial member’s decision.
Leave to Appeal and Appellate Review
I agree that leave to appeal is required and should be granted to the applicant for the reasons outlined by Dalton JA at paragraphs [9]-[10] and Fraser AJA at paragraphs [146]-[147].
As to the approach that should be adopted upon this appeal, the appeal is by way of rehearing. I agree with Dalton JA and Fraser AJA that, in light of the High Court’s decision in GLJ v Roman Catholic Church for the Diocese of Lismore,[126] the “correctness standard” is the proper standard of appellate review to be adopted, as identified in Warren v Coombes.[127] I note that decision was handed down after the Judicial Member’s decision.
[126][2023] HCA 32 (GLJ).
[127](1979) 142 CLR 531 at 552 (Warren v Coombes).
Unlike the present case, GLJ was not dealing with disciplinary proceedings. However, the majority of the High Court in Walton v Gardiner,[128] in determining whether the Court of Appeal had properly stayed disciplinary proceedings against three medical practitioners, did consider the concept of abuse of process where there were disciplinary proceedings before a tribunal. The majority relevantly observed that there is “plainly an analogy between the concept of abuse of a court's process in relation to criminal proceedings and the concept of abuse of the Tribunal's process in relation to disciplinary proceedings”.[129] The principles in relation to a permanent stay for abuse of process, as set out by the High Court in GLJ, have recently been applied by the Court of Criminal Appeal in New South Wales in Koschier v R[130] in the context of criminal proceedings. I agree with Dalton JA that that decision is not plainly wrong and should be followed by this Court. I note that Koschier has also been relied upon by Fraser AJA. It is therefore clear that the approach to appellate review to be adopted in the present case is the approach established by the majority in GLJ.
[128](1993) 177 CLR 378 at 396.
[129](1993) 177 CLR 378 at 395.
[130](2024) 113 NSWLR 491 (Koschier).
As to how an appellate court is to apply the “correctness standard” of review, in the context of a rehearing, the majority in Warren v Coombes stated:[131]
“The duty of the appellate court is to decide the case—the facts as well as the law—for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.”
[131]Warren v Coombes at 552. See also Fox v Percy (2003) 214 CLR 118 at 126-7 [25] and 127 [29] per Gleeson CJ, Gummow and Kirby JJ and Koschier at 502 [36] per Bell CJ.
In GLJ, the majority noted that the courts below enjoyed no advantages of a trial judge as the evidence was wholly documentary. They therefore considered that the duty of the court on the appeal “was to decide the case – the facts as well as the law – for itself”.[132] The present case is similar. As Dalton JA and Fraser AJA have observed, in the present case the evidence was wholly documentary and therefore the Judicial Member did not enjoy any advantages over this Court.
[132]GLJ at [28] per Kiefel CJ, Gageler and Jagot JJ, citing Warren v Coombes at 552.
The relevant principles with respect to a permanent stay of criminal proceedings with the necessary considerations that pertain to disciplinary proceedings have been set out by Dalton JA at paragraphs [19]-[20] and discussed by Fraser AJA at paragraphs [154]-[157] and [158]-[162].
However, as stated by both Dalton JA and Fraser AJA, the Director still must establish that the Judicial Member’s decision was wrong, and that error has occurred. As was said by Bell CJ in Koschier:[133]
“It is important to remember that the fact that the appellate court must decide the matter for itself does not mean that the appeal is an appeal de novo. Notwithstanding application of the correctness standard, it is open to an appellate court to endorse some or all of the primary judge’s reasoning and adopt unchallenged intermediate findings of fact when it agrees with that reasoning or those findings.”
[133]Koschier at 502-3 [42].
In this context, I agree, for the reasons stated by Dalton JA, that ground 5 of the appeal is conclusionary and adds nothing to the proposed grounds of appeal.
Are the grounds of appeal established?
I agree that the Judicial Member erred in concluding that the disciplinary proceedings posed a true threat to the integrity of the court arising from systemic incoherence both in relation to what the Judicial Member described as the category 1 allegations as well as the category 2 allegations. While there are similarities between criminal proceedings and disciplinary proceedings, there are significant differences in the nature and purpose of the proceedings which are required to be considered in determining whether a stay of proceedings on the ground of abuse of process should be granted. Those differing considerations may result in a different decision between the two types of proceedings, notwithstanding there is substantially the same underlying factual basis shared by each proceeding. For the reasons discussed by both Dalton JA and Fraser AJA, with whom I agree, grounds 1(e) and 2(d) and (e) of the grounds of appeal should succeed.

I also agree with Dalton JA that grounds 4(a) and 4(b) of the grounds of appeal should succeed as, connected to the Judicial Member’s conclusion that without a stay being granted consistent with a stay having been granted in the criminal proceedings, the concerns about the integrity of the justice system are engaged. The Judicial Member failed to consider the public interest in disciplinary proceedings continuing and failed to give proper regard to the differences in nature, procedure and purpose as between criminal and disciplinary proceedings.
While consideration of categories of complaints may sometimes be a convenient way of addressing the relevant issues where there are shared considerations, they can give rise to the danger of not considering different individual circumstances. I agree with Dalton JA that, in this case, the categories adopted by the Judicial Member resulted in the Judicial Member not considering the differing circumstances relevant to the grant of a stay in relation to individual complainants. Ground 4(c) of the grounds of appeal should therefore succeed, although it is not determinative of the appeal.
Should the proceedings be permanently stayed?
Notwithstanding that I am satisfied the grounds of appeal referred to above have been established, it remains for me to determine whether or not the decision to grant a permanent stay in relation to each complaint the subject of referrals 1 and 2 was correct. In relation to the evaluative process required to be carried out by this Court in applying the “correctness standard”, I agree with Fraser AJA that the impoverishment over time of evidence is a factor relevant to the grant of a stay of proceedings and that the considerations in paragraph [52] of the reasons of the majority in GLJ do not apply to the present application for a permanent stay.
I agree that a hearing in the tribunal would be unfair for the reasons set out by Dalton JA in respect of the complaints of AB, CD and EF. While the circumstances of each individual complainant differed and should generally be considered separately, I also agree with Fraser AJA that the position of the complainants who are not to be produced to give evidence or to be cross-examined can be considered together. As his Honour identified, while rules of evidence do not apply in the Tribunal, the right to cross-examination is in this case an incident of XD’s entitlement to natural justice and the unfairness that would result from the admission of certain complainants’ evidence, in circumstances where they are not available for cross-examination by XD, would result in a hearing that is manifestly unfair. I consider that to be the case even aside from the other factors discussed by Dalton JA that also support the conclusion that a hearing of the complaints in the Tribunal would be unfair.
Notwithstanding that, unlike other complainants there are some medical records still in existence for FG, and that a transcript of the criminal trial relating to one of the complaints of FG would be produced at the hearing, I agree with Fraser AJA’s reasons at paragraph [191] and Dalton JA’s reasons at [93], that the failure to call FG and provide XD with an opportunity to cross-examine him is also manifestly unfair such that XD cannot have a fair hearing. I agree that the Judicial Member was correct in finding that, without making FG available for cross-examination, the proceedings would disadvantage XD “to an unacceptable degree and would be irremediably unfair”.[134] I agree with Justice Dalton that ground 3 of the grounds of appeal is not established in relation to FG.
[134][2023] QCAT 340 at [75].
Given the conclusions in [261]-[262], these are cases of exceptional circumstances justifying the grant of a permanent stay. I therefore agree with Dalton JA and Fraser AJA that the prosecution of proceedings against XD as to the disciplinary complaints relating to AB, CD, EF and FG is an abuse of process and the proceedings should be permanently stayed.
As to the complaint of GH, I agree with the reasons of both Dalton JA and Fraser AJA that XD could not receive a fair hearing in the Tribunal in relation to the prosecution of that disciplinary complaint and that the continuation of the proceedings would be irremediably unfair and an abuse of process. The Director’s proceeding in relation to GH should be permanently stayed.

As to DE, BC, HI and IJ, the relevant considerations in relation to each complainant have been set out in detail by Dalton JA and Fraser AJA. Notwithstanding the disadvantages that XD will face at a hearing of those disciplinary complaints, the disadvantages are not sufficient to not establish the exceptional circumstances justifying the grant of a permanent stay. Whilst finally balanced, I agree for the reasons set out by Fraser AJA that the hearing of the disciplinary proceedings in relation to those complainants has not been established to be unfair such that continuation of the proceedings is an abuse of process, and they should be permanently stayed.
I agree with terms of the orders proposed by Fraser AJA.

[2024] QCA 215

8 November 2024

Key Legal Topics

Areas of Law

Administrative Law

Medical Law

Legal Concepts

Stay of Proceedings

Abuse of Process

Discovery & Disclosure

Admissibility of Evidence

Compensatory Damages

CITATION:	Director of Proceedings on behalf of the Health Ombudsman v XD [2024] QCA 215
PARTIES:	DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN (applicant) v XD (respondent)
FILE NO/S:	Appeal No 12814 of 2023 QCAT No 121 of 2020 QCAT No 288 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal – [2023] QCAT 340 (Judicial Member Dick SC)
DELIVERED ON:	8 November 2024
DELIVERED AT:	Brisbane
HEARING DATE:	7 March 2024
JUDGES:	Dalton JA and Fraser AJA and Brown J
ORDERS:	1. Leave is granted to bring the appeal filed on 11 October 2023. 2. The appeal is allowed. 3. The orders made below on 14 September 2023 are set aside. 4. In substitution it is ordered that the referral filed 30 April 2020 (OCR121-20) is permanently stayed except insofar as it relies upon a complaint made by BC and DE and the referral filed on 5 October 2021 (OCR288-21) is permanently stayed except insofar as it relates to the complaint made by HI and IJ. 5. If the parties intend that there should be any costs order other than that costs follow the event, they should file written submissions on costs not exceeding five pages, the respondent within seven days of the date of delivery of this judgment, and the appellant within seven days thereafter. 6. Otherwise, costs follow the event.
CATCHWORDS:	QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – STAY OF PROCEEDINGS – DELAY – where the respondent is a dermatologist who has practised for over 30 years – where multiple male complainants have made allegations of the respondent molesting them when they were either young boys or young men, which span from the 1980s to the late 2010s – where all but one of the allegations were made many years after the alleged conduct occurred – where the allegations ranged in seriousness between each of the complainants, from gentle cupping of the scrotum to flagrant sexual assault (for example, masturbation) – where, in accordance with standard industry practice, the respondent disposed of his patient notes and medical records within 7 years after ceasing to consult his patients – where, given the lapse of time since the alleged offending occurred, the respondent no longer has access to his patient notes or medical records in respect of all but one of the complainants – where the respondent denies that he engaged in sexual misconduct with respect to any of the complainants, and argues that he only ever engaged in conduct which was reasonably necessary and appropriate in accordance with legitimate medical treatments or procedures – where the appellant brought disciplinary proceedings against the respondent alleging professional misconduct – where the respondent contends that it was correct to order a permanent stay of the proceedings, as the delay meant that the respondent had no relevant recollection of the consultations, and he had disposed of his patient notes and medical records in relation to all but one of the complainants – where, following the primary decision but prior to the appeal, the High Court published its decision in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857, which held that, in the context of specific New South Wales legislation, the mere effluxion of time is not, by itself, sufficient to warrant the grant of a permanent stay – whether the decision in GLJ applies to the present case – whether, having regard to the consequences of the delay in the circumstances of the case, the respondent’s right to a fair trial had been irreparably prejudiced, such that it was appropriate to order a permanent stay of the proceedings QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – STAY OF PROCEEDINGS – ABUSE OF PROCESS – INCONSISTENCY BRINGING THE ADMINSTRATION OF JUSTICE INTO DISREPUTE – where the respondent is a dermatologist who has practised for over 30 years –where multiple male complainants have made allegations of the respondent molesting them when they were either young boys or young men – where, in response to allegations between 2014 to 2017 by six of the nine complainants, the respondent was charged with 10 criminal offences – where, following an application by the respondent, a District Court judge permanently stayed the criminal proceedings in respect of 9 of the 10 counts – where the matter proceeded to trial on the remaining count, and the respondent was acquitted – where, after the conclusion of the criminal proceedings, allegations were made by three complainants but no further criminal charges were brought in response – where the appellant subsequently brought disciplinary proceedings against the respondent, alleging professional misconduct in relation to all nine complainants – where the primary judge approached the question of whether to order a stay by putting the nine complainants into 3 categories – where, in respect of the complainants in categories 1 and 2, the primary judge concluded that a stay of proceedings should be ordered because she was not persuaded that there was not a true threat to the integrity of the court arising from systemic incoherence if the disciplinary proceedings were to proceed – whether, when deciding if it was appropriate to order a permanent stay, the primary judge failed to have sufficient regard to the distinctions between criminal proceedings and disciplinary proceedings QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – STAY OF PROCEEDINGS – ABUSE OF PROCESS – PROCEDURE – WITNESSES – CROSS‑EXAMINATION – where the respondent is a dermatologist who has practised for over 30 years – where multiple male complainants have made allegations of the respondent molesting them when they were either young boys or young men – where the appellant refuses to call four of the complainants as witnesses or make them available for cross‑examination in the disciplinary proceedings, and instead relies on their written evidence as exhibits to other persons’ affidavits – where the appellant does not offer any explanation as to why this is the case – where the primary judge ordered a stay of proceedings in respect of one of the complainants on the ground that he would not be called as a witness or made available for cross‑examination – whether, in respect of all the complainants who will not be called as witnesses or made available for cross‑examination, the trial will necessarily be so unfair as to amount to an abuse of process, such that it is appropriate to order a stay in respect of those complainants Evidence Act 1977 (Qld), s 92, s 93B Health Ombudsman Act 2013 (Qld), s 3, s 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28, s 47, s 95 Australian Securities & Investments Commission v Australian Investors Forum Pty Ltd [2003] NSWSC 618, cited Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27, considered Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, cited CM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWCA 313, applied Davis v Medical Board (ACT) (1994) 52 FCR 279; [1994] FCA 1302, considered GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32, considered House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46, considered Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60, considered Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited Moubarakby his tutorCoorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102, distinguished Palmer v Magistrates Court of Queensland [2024] QCA 8, cited R v Davis (1995) 57 FCR 512; [1995] FCA 1321, distinguished R v Edwards (2009) 83 ALJR 717; [2009] HCA 20, distinguished R v Noyes [2005] 1 Qd R 169; [2003] QCA 564, cited R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7, distinguished R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1935) 50 CLR 228; [1933] HCA 30, considered Star Aged Living Limited v Lee [2024] QCA 1, applied Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325; [2018] HCA 53, considered Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77, applied Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, cited
COUNSEL:	J R Hunter KC, with S J Cartledge, for the applicant G W Diehm KC, with C D Templeton, for the respondent
SOLICITORS:	Office of the Health Ombudsman for the applicant K&L Gates for the respondent