Health Ombudsman v Braun - [2022] QCA 117

SUPREME COURT OF QUEENSLAND

CITATION:

Health Ombudsman v Braun [2022] QCA 117

PARTIES:

HEALTH OMBUDSMAN
(appellant)
v
DOCTOR WILLIAM BRAUN
(respondent)

FILE NO/S:

Appeal No 10882 of 2021
SC No 10392 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2021] QSC 209 (Jackson J)

DELIVERED ON:

30 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2022

JUDGES:

Fraser and McMurdo and Mullins JJA

ORDERS:

1.   Allow the appeal in part, by setting aside the third of the declarations made by the primary judge.

2.   Otherwise dismiss the appeal.

3.   Unless the appellant contends otherwise, by a written submission not exceeding four pages and filed within 14 days of the judgment, the appellant pay the respondent’s costs of the appeal.

CATCHWORDS:

INTERPRETATION – GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS – GENERAL MATTERS – where in early 2019 the appellant received a complaint about the respondent and decided to investigate that complaint – where the appellant was required by s 85 of the Health Ombudsman Act 2013 (Qld) (“the Act”) to complete the investigation as quickly as was reasonable, and within one year from the decision to carry out the investigation – where, by the time that period had expired, the appellant had not completed the investigation, and nor had he exercised his power to extend the time for completing under s 85(2) of the Act – where, subsequently and on several occasions, the appellant purported to extend the time for completion – whether s 85(2) of the Act permitted the appellant to extend the due day for completion of the investigation after that day had passed – whether the appellant was obliged by s 90 of the Act to take some further step in relation to the complaint as if he had completed the investigation

Health Ombudsman Act 2013 (Qld), s 85, s 90

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited

COUNSEL:

K A McMillan QC, with N J Derrington, for the appellant
G W Diehm QC, with A D Scott, for the respondent

SOLICITORS:

Clayton Utz for the appellant
K&L Gates for the respondent

FRASER JA: I agree with McMurdo JA.
McMURDO JA: In early 2019, the appellant, the health ombudsman under the Health Ombudsman Act 2013 (Qld) (the Act), received a complaint about the respondent, Dr Braun. The ombudsman decided to investigate matters complained of, as he was empowered to do under the Act. By s 85 of the Act, he was required to complete the investigation as quickly as was reasonable and, in any case, within one year from his decision to carry out the investigation.[1]
[1]s 85(1).
By the time that period had expired, the ombudsman had not completed the investigation, and nor had he exercised his power to extend the time for completing, in accordance with s 85(2). Subsequently and on several occasions, the ombudsman purported to extend the time for completion.
The questions in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Health Ombudsman v Braun and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] QCA 117
Decision Date: 30 June 2022

CaseChat Overview and Summary

In the case of Health Ombudsman v Braun, the appeal before the court was brought by the Health Ombudsman, who was dissatisfied with the decision of the primary judge. The Ombudsman had received a complaint about Dr. Braun, which he decided to investigate. The primary concern was whether the Ombudsman could extend the time for completing the investigation after the original deadline had passed, as well as whether he was required to take further action regarding the complaint if he had not completed the investigation. The primary judge found that the Ombudsman could not extend the time for completion of the investigation once the deadline had expired, and that the Ombudsman was not obliged to take any further action regarding the complaint if he had not completed the investigation. The Ombudsman appealed against these findings.

The primary legal issue that the court had to address was whether section 85(2) of the Health Ombudsman Act 2013 (Qld) permitted the Ombudsman to extend the due day for completion of the investigation after that day had passed. The Ombudsman argued that the ordinary meaning of the word "must" in section 85(1) of the Act indicated that the power to extend the time for completing an investigation was required to be exercised. However, the primary judge disagreed, stating that the ordinary meaning of the mandatory language of the command that the Ombudsman "must complete" an investigation "by" the due day was that an investigation carried out after the due day would be an investigation carried out in contravention of s 85(1). The court found that the Ombudsman could not extend the time for completing the investigation once the deadline had expired.

The second legal issue was whether the Ombudsman was obliged by section 90 of the Act to take some further step in relation to the complaint as if he had completed the investigation. Section 90 required the Ombudsman to decide whether to take particular relevant action to further deal with the matter or to take no further action in relation to the matter after completing an investigation. The primary judge found that the Ombudsman was not obliged to take any further action regarding the complaint if he had not completed the investigation. The court agreed with the primary judge on this point, stating that there was no obligation on the Ombudsman to take any further action if the investigation had not been completed.

The appeal was partially allowed, setting aside the third declaration made by the primary judge. The Ombudsman's appeal was otherwise dismissed, and he was ordered to pay the respondent's costs of the appeal, unless he contended otherwise in a written submission not exceeding four pages and filed within 14 days of the judgment.

Orders

Orders of the court

1. Allow the appeal in part, by setting aside the third of the declarations made by the primary judge.

2. Otherwise dismiss the appeal.

3. Unless the appellant contends otherwise, by a written submission not exceeding four pages and filed within 14 days of the judgment, the appellant pay the respondent’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 90 should be set out in full:“90 Notice of decision after investigating matterAfter completing an investigation of a matter under this part, the health ombudsman must—(a)decide—(i) to take particular relevant action to further deal with the matter; or(ii) to take no further action in relation to the matter; andNote—See section 44 for the grounds on which the health ombudsman may decide to take no further action on a matter under this part.(b)give notice of the decision—(i) if the investigation relates to a health service complaint—to the complainant and relevant health service provider under section 278; or(ii) otherwise—to any health service provider being investigated.”The facts in this case The complaint in this case was made, on 27 February 2019, by the Executive Director of Medical Services at the Metro North Hospital and Health Service. The primary judge said that although the text of the complaint was not in evidence, it related to a number of matters described by the ombudsman as “clinical performance” matters and “conduct” matters. The ombudsman decided to carry out an investigation into a number of matters which were the subject of this complaint on 1 March 2019. On 21 March 2019, the ombudsman’s principal investigations officer wrote to Dr Braun, informing him of that decision to start an investigation into the complaint.[21][21]Judgment [14]. In April 2019, the respondent decided to carry out two further investigations which are not the subject of this appeal.[22] The due day for completing the subject investigation was 1 March 2020, which passed without any prior extension.[22]The due date for those investigations was extended in each case, prior to the (original) due date. There was a challenge to those extensions on factual grounds, which was rejected in the Judgment at [153]. On 17 April 2020, the ombudsman’s delegate caused the investigation to be listed on the ombudsman’s public register of investigations that have not been completed within one year of the decision to carry them out, in accordance with ss 85(4)-(7). On the same day, the delegate decided to extend the due day for completion of the investigation by three months. There followed a series of subsequent decisions which extended the due day, or purported to do so, ultimately to the date of the hearing.The reasoning of the primary judge His Honour described the ordinary meaning of the text of s 85(1) as follows:“[43] The ordinary meaning of the mandatory language of the command that the health ombudsman “must complete” an investigation “by” the due day is that an investigation carried out after the due day would be an investigation carried out in contravention of s 85(1). That ordinary meaning is reinforced by or consistent with the legal meaning of the word “must” when used in an Act in relation to a power, to indicate that the power is required to be exercised.”[23][23]Acts Interpretation Act 1954 (Qld), s 32CA(2) (footnote in the original).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Health Ombudsman v Braun [2022] QCA 117
PARTIES:	HEALTH OMBUDSMAN (appellant) v DOCTOR WILLIAM BRAUN (respondent)
FILE NO/S:	Appeal No 10882 of 2021 SC No 10392 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2021] QSC 209 (Jackson J)
DELIVERED ON:	30 June 2022
DELIVERED AT:	Brisbane
HEARING DATE:	22 March 2022
JUDGES:	Fraser and McMurdo and Mullins JJA
ORDERS:	1. Allow the appeal in part, by setting aside the third of the declarations made by the primary judge. 2. Otherwise dismiss the appeal. 3. Unless the appellant contends otherwise, by a written submission not exceeding four pages and filed within 14 days of the judgment, the appellant pay the respondent’s costs of the appeal.
CATCHWORDS:	INTERPRETATION – GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS – GENERAL MATTERS – where in early 2019 the appellant received a complaint about the respondent and decided to investigate that complaint – where the appellant was required by s 85 of the Health Ombudsman Act 2013 (Qld) (“the Act”) to complete the investigation as quickly as was reasonable, and within one year from the decision to carry out the investigation – where, by the time that period had expired, the appellant had not completed the investigation, and nor had he exercised his power to extend the time for completing under s 85(2) of the Act – where, subsequently and on several occasions, the appellant purported to extend the time for completion – whether s 85(2) of the Act permitted the appellant to extend the due day for completion of the investigation after that day had passed – whether the appellant was obliged by s 90 of the Act to take some further step in relation to the complaint as if he had completed the investigation Health Ombudsman Act 2013 (Qld), s 85, s 90 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited
COUNSEL:	K A McMillan QC, with N J Derrington, for the appellant G W Diehm QC, with A D Scott, for the respondent
SOLICITORS:	Clayton Utz for the appellant K&L Gates for the respondent