Health Ombudsman v Esposo - [2025] QCAT 166

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION: Health Ombudsman v Esposo [2025] QCAT 166

PARTIES:
HEALTH OMBUDSMAN

(applicant)

v

SARAH REGINA ESPOSO

(respondent)

APPLICATIONNO/S: OCR157-24

MATTERTYPE: Occupational regulation matters

DELIVEREDON:
18 June 2025 (decision)

25 June 2025 (reasons)

HEARINGDATE: 23 May 2025

HEARDAT: Brisbane

DECISIONOF:
Judicial Member Jones Assisted by:

Mr S Brimstone Ms K Butler

Dr W Grigg

ORDERS:
IT IS THE DECISION OF THE TRIBUNAL THAT:

     Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), the respondent has behaved in a way that constitutes professional misconduct.

    Pursuant to s 107(3)(a) of the HO Act respondent is to be reprimanded.

    There be no orders as to costs.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – where the

respondent was a registered psychologist – where the respondent was criminally convicted of misconduct in relation to public office – where the applicant seeks, inter alia, that the respondent be disqualified from applying for registration as a psychologist for six months – whether the Fleischmann principle applies - whether the inordinately lengthy extent of delay in finalising the proceedings renders a disqualification period punitive

Health Ombudsman Act 2013 (Qld)

Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal 2009 (Qld)
Bolton v Law Society (1994) 1 WLR 512
Council for the Regulation of Health Care Professionals v General Dental Council and Fleischmann [2005] EWHC 87 (Admin)
Health Ombudsman v ANP [2022] QCAT 6 Health Ombudsman v Brown [2019] QCAT 218 Health Ombudsman v ICN [2024] QCAT 246 Health Ombudsman v OOD [2021] QCAT 388
Health Ombudsman v Warburton [2025] QCAT 167 Nursing and Midwifery Board of Australia v Jacobsen [2015] QCAT 549

APPEARANCES & REPRESENTATION:

Applicant: Tineke Harding, Principal Legal Officer of the Office of the Health Ombudsman

Respondent: Renae Kirk instructed by Cridland & Hua Lawyers

REASONS FOR DECISION

This proceeding is concerned with an application brought by the Director of Proceedings on behalf of the Health Ombudsman (‘applicant’) against Sarah Regina Esposo (‘respondent’) who, at the relevant time was a registered psychologist. She was convicted of the offence of misconduct in relation to public office – a public officer doing an act or making an omission in abuse of authority of office pursuant to section 92A(1)(c) of the Criminal Code Act 1899 (Qld) (‘Criminal Code’).
The matter was dealt with in the District Court of Queensland at Brisbane on 8 December 2023. At all material times, the respondent was not acting in her capacity as a practising psychologist.

Background to the referral

The respondent’s date of birth is 6 January 1982. She first obtained general registration as a psychologist on 12 August 2010 with the Psychology Board of Australia (‘Board’). Since the conduct that brought the respondent before this Tribunal and before the District Court of Queensland, the respondent elected not to renew her registration when it was due for renewal on 30 November 2021. As a consequence, her registration lapsed on or about…

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.

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Details

Case: [2025] QCAT 166
Decision Date: 18 June 2025 (decision) 25 June 2025 (reasons)

CaseChat Overview and Summary

The case of Health Ombudsman v Esposo involved the respondent, a registered psychologist, who had been criminally convicted of misconduct in relation to their public office. The Health Ombudsman applied to the tribunal for various disciplinary actions, including that the respondent be disqualified from applying for registration as a psychologist for six months. The central issue before the tribunal was whether the Fleischmann principle applied to the case and whether the delay in finalising the proceedings made any disqualification period punitive. The tribunal had to determine the appropriate penalty, if any, considering the Fleischmann principle and the delay in the proceedings.

The Fleischmann principle refers to a legal doctrine where a delay in proceedings may impact the severity of a penalty. The tribunal considered whether the significant delay in finalising the disciplinary proceedings against the respondent was so lengthy that it would render any disqualification period punitive. The tribunal assessed whether the delay undermined the effectiveness of the penalty or if it was justified due to the complexity of the case. In doing so, the tribunal examined the nature and seriousness of the misconduct, the delay in proceedings, and the potential impact of the Fleischmann principle on the penalty.

After careful consideration, the tribunal found that the respondent had indeed behaved in a way that constituted professional misconduct. The tribunal imposed a reprimand on the respondent as per section 107(3)(a) of the Health Ombudsman Act 2013 (Qld). However, the tribunal decided against imposing a disqualification period, finding that such a penalty would be punitive due to the inordinately lengthy delay in finalising the proceedings. The tribunal concluded that any disqualification period would not serve its intended purpose of protecting the public and maintaining professional standards, given the delay in proceedings. Therefore, the tribunal did not make any orders regarding costs.

In summary, the tribunal found the respondent to have engaged in professional misconduct and issued a reprimand. However, due to the lengthy delay in finalising the proceedings, the tribunal decided not to impose a disqualification period, as it would have been punitive under the circumstances. The tribunal did not make any orders regarding costs.

Orders

Orders of the court

IT IS THE DECISION OF THE TRIBUNAL THAT:

Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), the respondent has behaved in a way that constitutes professional misconduct.

Pursuant to s 107(3)(a) of the HO Act respondent is to be reprimanded.

There be no orders as to costs.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Health Ombudsman v Esposo [2025] QCAT 166
PARTIES:	HEALTH OMBUDSMAN (applicant)
v
SARAH REGINA ESPOSO (respondent)
APPLICATIONNO/S:	OCR157-24
MATTERTYPE:	Occupational regulation matters
DELIVEREDON:	18 June 2025 (decision) 25 June 2025 (reasons)
HEARINGDATE:	23 May 2025
HEARDAT:	Brisbane
DECISIONOF:	Judicial Member Jones Assisted by: Mr S Brimstone Ms K Butler Dr W Grigg
ORDERS:	IT IS THE DECISION OF THE TRIBUNAL THAT: Pursuant to s 107(2)(b)(iii) of the Health *Ombudsman Act 2013* (Qld) (‘HO Act’), the respondent has behaved in a way that constitutes professional misconduct. Pursuant to s 107(3)(a) of the HO Act respondent is to be reprimanded. There be no orders as to costs.
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PSYCHOLOGISTS – where the respondent was a registered psychologist – where the respondent was criminally convicted of misconduct in relation to public office – where the applicant seeks, inter alia, that the respondent be disqualified from applying for registration as a psychologist for six months – whether the Fleischmann principle applies - whether the inordinately lengthy extent of delay in finalising the proceedings renders a disqualification period punitive Health Ombudsman Act 2013 (Qld) Health Practitioner Regulation National Law (Queensland)

APPEARANCES & REPRESENTATION:
Applicant:	Tineke Harding, Principal Legal Officer of the Office of the Health Ombudsman
Respondent:	Renae Kirk instructed by Cridland & Hua Lawyers