Director of Proceedings on behalf of the Health Ombudsman v XD

In this case, the respondent, a dermatologist with over 30 years of practice, is facing disciplinary proceedings brought by the appellant, the Health Ombudsman, alleging professional misconduct in relation to multiple male complainants. The allegations span from the 1980s to the late 2010s, with most being made many years after the alleged incidents. The respondent denies any misconduct and argues that his conduct was always within the bounds of legitimate medical treatment. The Queensland Civil and Administrative Tribunal (QCAT) granted a permanent stay of the proceedings, which the Health Ombudsman now appeals. The appeal raises issues regarding the applicability of the High Court's decision in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore, the differences between criminal and disciplinary proceedings, and the impact of the delay on the respondent's right to a fair trial.

The court was required to determine whether the delay in bringing the disciplinary proceedings had irreparably prejudiced the respondent's right to a fair trial, justifying a permanent stay. Additionally, the court had to assess whether the primary judge erred in not sufficiently distinguishing between criminal and disciplinary proceedings when deciding whether to order a stay. The appeal also questioned whether the refusal to call four of the complainants as witnesses or make them available for cross-examination amounted to an abuse of process, warranting a stay of proceedings.

The court granted the appeal, finding that the reasons provided by the primary judge were erroneous and did not adequately explain eight of the decisions reached. The court determined that two of the complaints should not have been stayed and that the appeal concerned matters of public interest, justifying the grant of leave. The court concluded that the approach in GLJ should apply to the appeal from a decision permanently staying disciplinary proceedings against a medical practitioner. Consequently, the orders made by QCAT were set aside, and the appeal was allowed. The referral filed on 30 April 2020 was permanently stayed except insofar as it relied upon a complaint made by BC and DE. The referral filed on 5 October 2021 was permanently stayed except insofar as it related to the complaint made by HI and IJ. Costs followed the event unless the parties filed written submissions on costs within a specified period.

The final orders of the court were to grant leave to bring the appeal, allow the appeal, set aside the orders made by QCAT, permanently stay the referrals except for specific complaints, and direct the parties to file written submissions on costs if they intended any costs order other than costs following the event.