Fuller v Health Ombudsman

[2025] QCAT 41

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:	Fuller v Health Ombudsman [2025] QCAT 41
PARTIES:	MITCHELL JOHN FULLER
(applicant)
v
OFFICE OF THE HEALTH OMBUDSMAN
(respondent)
APPLICATION NO/S:	OCR 270-24
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	5 February 2025
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Judge Dann, Deputy President
ORDERS:	THE TRIBUNAL ORDERS THAT:
Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:

(a)	the contents of a document or other thing filed in or produced to the Tribunal;
(b)	evidence given before the Tribunal;
(c)	any order made or reasons given by the

Tribunal;

is prohibited to the extent that it could identify or lead to the identification of the complainants and the partner of one of the complainants referred to in the QP9 material supplied by the Health Ombudsman to the Tribunal pursuant to s 21(2)(b) of the

Queensland Civil and Administrative Tribunal Act

2009 (Qld) save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings, or any appeal or review arising from these proceedings, and for the respondent to provide information to the Australian Health Practitioner Regulation Agency or National Board in the exercise of the Health

Ombudsman’s statutory functions under the Health

Ombudsman Act 2013 (Qld).

Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:

(a)	a judicial member;
(b)	a tribunal member;
(c)	an associate to a judicial officer or tribunal member appointed under relevant legislation;
(d)	any assessor appointed to assist the Tribunal;
(e)	the staff of the Tribunal registry;
(f)	any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or
(g)	the parties to these proceedings or any appeal or review arising from these proceedings.

The practitioner’s application to extend the non-

publication order to prohibit the identification of
himself and his work colleagues is dismissed.

CATCHWORDS:  ADMINISTRATIVE LAW – ADMINISTRATIVE

TRIBUNALS – QUEENLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the Health

Ombudsman applies for a non-publication order over the

complainants and one’s partner – where the applicant

practitioner also applies to extend the non-publication order

to apply to him and other work colleagues – whether the

Criminal Law (Sexual Offences) Act 1978 prohibits the

publication of the complainants’ identities – whether a non-

publication order should be made

Criminal Law (Sexual Offences) Act 1978 (Qld)
Health Ombudsman Act 2013 (Qld)

Human Rights Act 2019 (Qld)

Queensland Civil and Administrative Tribunal Act 2009

(Qld)

Cutbush v Team Maree Property Service (No 3) [2010]
QCATA 89
Health Ombudsman v Shemer (No 2) [2019] QCAT 54

LSC v XBV [2018] QCAT 332

APPEARANCES &	This matter was heard and determined on the papers
REPRESENTATION:	pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. In this review the respondent (Health Ombudsman) applies for a non-publication order in respect of two persons and the partner of one of them, which the applicant does not oppose. The applicant practitioner also applies to extend the non-publication order to apply to him and other work colleagues. The Health Ombudsman opposes this.

2. In the substantive proceeding the practitioner seeks a review of the Health

   Ombudsman’s decision to take immediate registration action against him by

   suspending his registration.

3. The Health Ombudsman has acted pursuant to s 58(1)(d) of the Health Ombudsman

   Act 2013 (Qld) (‘HO Act’) in circumstances where the applicant is facing three

   charges for alleged sexual offences committed against one complainant and, subsequent to the decision the subject of review, one charge of an alleged sexual offence committed against another complainant. The complainants are the two persons already referred to. The events are alleged to have occurred on a night out involving the two complainants, the practitioner, two other colleagues and, for at least some of them, quite a lot of alcohol. At the time of the events, they all worked together at a hospital in south east Queensland.

   The legislative scheme

4. Section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

   (‘QCAT Act’) confers power on the Tribunal to make an order prohibiting the

   publication, other than in the way and to the persons stated in the order, of:

(a)	the contents of a document or other things produced to the Tribunal;
(b)	evidence given before the Tribunal;
(c)	information that may enable a person who has appeared before the Tribunal or is affected by a proceeding to be identified.

1. Section 66(2) provides that the Tribunal may make an order under s 66(1) only if it considers it necessary to do so:

(a)	to avoid interfering with the proper administration of justice; or
(b)	to avoid endangering the physical or mental health or safety of a person; or
(c)	to avoid offending public decency or morality; or
(d)	to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
(e)	for any other reason in the interests of justice.

1. It has been observed that this provision gives the Tribunal a broader power to constrain the operation of the open court principle than is available to courts generally by virtue of their inherent (or implied) jurisdiction.[1] Having said that, the exercise of the discretion pursuant to s 66(1) is informed by the paramount principle of open justice.[2]

   [1]            LSC v XBV [2018] QCAT 332 at [26] per P Lyons QC.

   [2]            See Health Ombudsman v Shemer (No 2) [2019] QCAT 54 at [6] per Allen DCJ and the authorities cited therein.

2. The party seeking the non-publication order must satisfy the Tribunal it is necessary.[3]

   Should the Health Ombudsman’s application be granted?

   [3]            Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 at [8]-[9].

3. The Health Ombudsman relies on s 66(2)(a) in respect of each of the complainants because of the requirements of ss 10 and 6 of the Criminal Law (Sexual Offences) Act

   1978 (Qld) (‘CLSOA’). The Tribunal accepts the Health Ombudsman’s submission

   that the proposed non-publication order reflects the statutory prohibition on publication provided for by the CLSOA in respect of the two persons who are complainants in sexual offences and, by extension, the partner of one of the complainants.

4. I will make a non-publication order in the terms of Annexure A to the Health

   Ombudsman’s revised submissions received on 17 January 2025.

   Should the practitioner’s application be granted?

5. The Tribunal turns now to the practitioner’s application. The practitioner applies for

   the non-publication order to extend to both himself and any of his work colleagues on the basis that publication of the identity of any of them could likely lead to the identification of the two complainants, particularly by other colleagues.[4]

   [4]            Email from the applicant’s solicitor to the Tribunal, copied to the Health Ombudsman, dated 14

[11]    Section 6(1) of the CLSOA provides relevantly, in respect of reports made or published concerning an examination of witnesses or a trial that the information not

to be revealed is the “… name, address, school or place of employment of a

complainant… or any other particular likely to lead to the identification of a

complainant…”. (emphasis added)

[12]    There is no equivalent limitation on the publication of the defendant’s identity.

Indeed, s 7(1) and (2) of the CLSOA provide that if a defendant is charged with a prescribed sexual offence, an eligible person may apply to a Magistrates Court for a non-publication order prohibiting the publication of identifying matter relating to the defendant before the defendant is committed for trial or sentence.

1. The grounds for making an order on such an application are that the order is necessary to:[5]

   [5] Criminal Law (Sexual Offences) Act 1978 (Qld) s 7B.

(a)	prevent prejudice to the proper administration of justice;
(b)	prevent undue hardship or distress to a complainant or witness in relation to the charge;
(c)	protect the safety of any person.

1. Thus, it is contemplated that the usual course in the criminal law would be that a

   person in the practitioner’s position would be identified, even though a complainant’s

   identity is afforded statutory protection.

2. The provisions in that form became law on 3 October 2023. The explanatory notes for the bill which included this provision provided relevantly that the removal of the then current prohibition on publishing such information at the pre-committal stage was intended to promote open justice in relation to prescribed sexual offences.[6] Thus, the statutory scheme is established on the basis that the naming of a defendant will not, of itself, breach the prohibition on identifying a complainant.

   [6]            Explanatory notes to the Justice and Other Legislation Amendment Bill 2023 (Qld) p 8.

3. There is no evidence that the practitioner has applied for or obtained a non-publication order pursuant to the CLSOA. As the Health Ombudsman submits, in the absence of

   such an order, there is no prohibition on the publication of a defendant’s identity in

   the context of the criminal proceedings.

[17]    Information contained within the documents filed by the Health Ombudsman indicates at least two other work colleagues were present at events prior to those giving rise to the alleged criminal offences and have provided statements to the police. As such it is likely at least those two colleagues are aware of the allegations, and thereby the identity of the complainants, already.

1. The applicant has provided no evidence in support of his application. Evidence of matters such as the size of the department where the persons worked or the number of women employed in that department or the hospital in question may have informed

   the Tribunal’s assessment of the asserted likelihood that this information was “any other particular likely to lead to the identification of a complainant”. Absent such

   evidence, the Tribunal will not speculate.

2. The right to privacy in s 25 of the Human Rights Act 2019 (Qld) (‘HRA’) is one

   expressed on the basis that it is a right limited to not having privacy unlawfully or

   arbitrarily interfered with. A refusal of the practitioner’s application is compatible

   with his rights.

3. The publication of these reasons is consistent with section 31(3) of the HRA.

4. Where the practitioner’s identity is not the subject of a non-publication order in the

   criminal proceedings and there is no evidence that supports the likelihood that the naming of the practitioner on this application will lead to the identification of the complainants, the Tribunal is not satisfied that an order protecting the identity of the applicant practitioner is necessary.

5. Given the importance of the principles of open justice, the nature of the proceeding

   and the limited evidence provided to support the practitioner’s application, the

   Tribunal is not satisfied that an order protecting the identity of the practitioner is necessary.

6. The practitioner’s application is refused.

January 2025.