Health Ombudsman v Mekingrailas

[2021] QCAT 199

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Mekingrailas [2021] QCAT 199

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

PONGSAKORN MEKINGRAILAS

(respondent)

APPLICATION NO/S:

OCR325-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

9 June 2021 (ex tempore)

HEARING DATE:

9 June 2021

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

ORDERS:

1. Pursuant to section 49(5) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), proceeding OCR325-19 is reinstated.

2. Pursuant to section 37(4) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the applicant is exempted from giving a copy of the referral to the respondent.

3. Pursuant to section 93 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the referral is heard and decided in the respondent’s absence.

4. Pursuant to section 113(1) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that, because of his conduct, the respondent poses a serious risk to persons.

5. Pursuant to section 113(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is permanently prohibited from providing any health service.

6. Pursuant to section 73(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal sets aside the decision of the Health Ombudsman on 29 January 2018 to issue an interim prohibition order.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – where the respondent was a massage therapist – where the respondent was convicted on his own plea of guilty of 18 counts of sexual assault committed in the course of his practice – whether the respondent poses a serious risk to persons – whether a permanent prohibition order should be made

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the referral was dismissed due to non-compliance with directions of the Tribunal – whether the referral should be reinstated pursuant to section 49(5) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent has left the jurisdiction and cannot be located – where it is unclear if the respondent has been served with the referral – whether the applicant should be exempted from serving the respondent with the referral – whether the referral should be heard in the absence of the respondent

Administrative Appeals Tribunal Act 1975 (Cth), s 42A

Health Ombudsman Act 2013 (Qld), s 4, s 68, s 113

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 37, s 49, s 93

Briginshaw v Briginshaw [1938] 60 CLR 336

Goldie v Minister for Immigration and Multicultural Affairs [2002] 121 FCR 383
Health Ombudsman v Newman [2019] QCAT 397
Katterns v Comcare [2002] FCA 1366
SZLIO v Administrative Appeals Tribunal [2008] FCA 124

White v Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712

APPEARANCES & REPRESENTATION:

Applicant:

C Templeton instructed by the Office of the Health Ombudsman

Respondent:

No appearance.

REASONS FOR DECISION

Introduction

1. At the time of the conduct the subject of this referral, the respondent, Pongsakorn Mekingrailas, was an unregistered health practitioner providing massage services whilst employed as a masseur at Authentic Thai Massage at Stafford Heights.

2. Police commenced an investigation into the respondent after receiving a complaint from a woman on 20 January 2018. At that time, intelligence reports revealed that two other women had previously reported similar offending in November 2016 and December 2017 respectively.

3. On 23 January 2018, police executed a search warrant at Authentic Thai Massage. The respondent was arrested and transported to the Hendra Police Station where he declined to participate in an interview with police. The respondent was refused bail and was remanded in custody. Over the following weeks, more complainants came forward in relation to his behaviour. The respondent was granted bail in the Magistrates Court at Brisbane on 2 February 2018 and was immediately taken into immigration detention.

4. On 15 February 2019, the respondent appeared before the District Court at Brisbane and pleaded guilty to 18 counts of sexual assault committed between 30 June 2016 and 21 January 2018. The respondent was sentenced to three years’ imprisonment, suspended after serving four months, with an operational period of three years. The term of the head sentence and period to be served before suspension was reduced by 12 months to take into account the period in immigration custody which could not be declared as pre-sentence custody. A further period of 11 days’ pre-sentence custody between 23 January 2018 and 2 February 2018 was declared to be imprisonment already served under the sentence.

5. Although there is no evidence from immigration authorities to establish it, presumably the respondent was deported from Australia after serving the period of four months imprisonment ordered by the District Court. Inquiries on behalf of the applicant have not located the respondent in Australia.

6. On 29 January 2018, the applicant decided to impose an interim prohibition order pursuant to section 68 of the Health Ombudsman Act 2013 (Qld) (HO Act) prohibiting the respondent from providing any health service. That interim prohibition order has continued to have effect until today.

   The referral and its dismissal

7. On 27 September 2019, the applicant filed the referral seeking a finding, pursuant to section 113(1) of the HO Act, that because of his conduct the respondent poses a serious risk to persons, and seeking a permanent prohibition order pursuant to section 113(4) of the HO Act.

8. Attempts by the applicant to locate the respondent were unsuccessful. He did not respond to any communications to his last known email address.

9. In November 2019, the applicant communicated with the Tribunal registry advising that attempts were being made to locate the respondent.

10. On 17 March 2020, I made directions that the applicant must file a copy of an affidavit of service or an application for substituted service by 4.00 pm on 24 April 2020 and that, if the applicant were to fail to comply with such direction, the “disciplinary proceeding filed on 27 September 2019 may be dismissed without further order.”

11. Unfortunately, the timing of those directions coincided with a period of considerable disruption of many businesses and government and other organisations in Brisbane because of steps taken by government to address the risk of spread of the COVID-19 virus. During the week commencing 16 March 2020, the Office of the Health Ombudsman underwent rapid changes to internal business procedures and transitioned to working from home arrangements. I do not need to go into the detail deposed in an affidavit of the responsible legal officer from the Office of the Health Ombudsman, but as a consequence of those changed arrangements, the need to comply with the directions of 17 March 2020 was overlooked.

12. On 14 May 2020, I ordered that the referral be dismissed.

    Application for reinstatement of the referral

13. The applicant has filed an application seeking reinstatement of the referral pursuant to section 49(5) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

14. The applicant has filed very helpful written submissions regarding the construction of section 49(5) of the QCAT Act.

15. Although there appear to be no authorities which have considered the terms of section 49(5) of the QCAT Act and, in particular, the meaning of “in error”, a cognate provision, section 42A(10) of the Administrative Appeals Tribunal Act 1975 (Cth) has been the subject of consideration by the Full Court of the Federal Court,[1] the Federal Court,[2] and the Administrative Appeals Tribunal.[3]

    [1]Goldie v Minister for Immigration and Multicultural Affairs [2002] 121 FCR 383 per Wilcox and Downes JJ at [27] and [29] and per Carr J at [73] and [77].

    [2]SZLIO v Administrative Appeals Tribunal [2008] FCA 124.

    [3]White v Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712 per Forgie DP at [17].

16. I accept the submissions on behalf of the applicant that the term “error” in section 49(5) of the QCAT Act is sufficiently broad to capture an error made by the applicant’s solicitor, which was an operative cause of the dismissal.

17. I also accept the submissions on behalf of the applicant that I fell into error by failing to afford the applicant procedural fairness by inviting submissions after non-compliance with the 17 March 2020 directions as to why the referral should not be dismissed.[4]

    [4]Katterns v Comcare [2002] FCA 1366.

18. For those reasons, the discretion to reinstate the referral pursuant to section 49(5) of the QCAT Act is enlivened and clearly should be exercised to do so. So, the Tribunal orders pursuant to section 49(5) of the QCAT Act that proceeding OCR325-19 is reinstated.

    Proceeding in the absence of the respondent without proof of service of the referral

19. The applicant has filed material in the Tribunal as to its attempts to locate and communicate with the respondent. The attempts to locate the respondent have been extensive but unsuccessful. Given the lack of response to the email correspondence between the Office of the Health Ombudsman and the respondent, I cannot be satisfied that he has been given a copy of the referral as required by section 37(2)(a) of the QCAT Act.

20. I can be satisfied, though, that the applicant has made all reasonable attempts to give a copy of the referral to the respondent but has most likely been unsuccessful. I am also satisfied that the making and deciding of the referral without notice to the respondent will not cause injustice in the circumstances of this case. Therefore, both of the preconditions for exempting the applicant from giving a copy of the referral to the respondent are satisfied. The Tribunal orders, pursuant to section 37(4) of the QCAT Act, that the applicant is exempted from giving a copy of the referral to the respondent.

21. On the same evidence and for the same reasons, I am satisfied that the respondent cannot be found after reasonable inquiries have been made, so that section 93 of the QCAT Act applies and the Tribunal may hear and decide the referral in the respondent’s absence. In the circumstances of this matter, it would not be unjust and it is appropriate that the hearing proceed in the respondent’s absence. The Tribunal orders, pursuant to section 93 of the QCAT Act, that the referral is heard and decided in the respondent’s absence.

    Whether a permanent prohibition order should be made

22. The provisions of section 113 of the HO Act, since repealed, still apply to these proceedings because of the transitional provisions in section 320G of the HO Act.

23. I have previously stated the relevant considerations as to determination by the Tribunal, pursuant to section 113(1) of the HO Act, whether the practitioner poses a serious risk to persons and, if so, whether, pursuant to section 113(4) of the HO Act, a prohibition order should be made.[5]

    [5]Health Ombudsman v Newman [2019] QCAT 397 at [7]-[9].

24. I need only refer to some of the sentencing remarks of the learned sentencing judge Loury QC DCJ, on 15 February 2019, to demonstrate the seriousness of the risk presented by the respondent if he were to be permitted to provide health services such as massages:

    Over a period of 18 months, you sexually assaulted 16 women during the course of a massage. The women were aged between 25 and 56 years. Each of the women were near naked at the time of the offence. Your conduct involved touching the women on the vagina, sometimes on top of the underpants, other times underneath their underpants, or after you had pulled down and removed their underpants. You massaged one woman’s nipples and cupped another’s breast. Ten of the women were touched on their labia or their lips. In November 2016, the second of the women told you to stop as you massaged her nipples. You apologised. Again, in November 2016, another woman told you to stop when you touched her vagina. In June of 2017, one of the women returned to the business to confront you over your inappropriate conduct. Initially, you denied having touched her. You then claimed it was an accident. When she told you it was not an accident, you responded that you thought she liked it and apologised.

    You continued, however, to take it upon yourself to touch more and more women over time. You would move their legs to allow greater exposure of their genitalia and access to you of it. So bold was your behaviour that, in December 2017, you touched the vagina of one woman whilst her husband was in the room next door. Three of the women reported the assaults to police immediately. The remainder of the women came forward at a later time. You refused to be interviewed by police. You were charged and remanded in custody for 11 days. You were then released on bail. You were then immediately taken to immigration detention, where you have remained until now. Each of these women who you assaulted was in a vulnerable position as each of them were in a room alone with you whilst they were near naked. They trusted you to the extent of allowing you to touch them. You violated them in an appalling way. Six of them have provided victim impact statements.

25. The learned sentencing judge noted the significant adverse psychological and emotional impacts on the victims who had provided victim impact statements. The learned sentencing judge continued:

    A serious aspect of your offending is the sheer number of women who you assaulted, the lengthy period of time over which you offended, and that the conduct was not fleeting but rather, on occasions, quite protracted.

26. I am satisfied that there is a risk that the respondent would, if not prohibited from providing health services, sexually assault women in the course of providing massage or other health services. The likelihood of the risk eventuating is high because the respondent has shown a propensity to offend against patients when they are in a vulnerable and trusting state, with the conduct relating to numerous patients and occurring over a substantial period of time. The brazenness and persistence of the conduct is such that the Tribunal could have no confidence that the deterrent effect of imprisonment upon the respondent is such as to eliminate any such risk, bearing in mind the protective purposes of sanction in this jurisdiction and the paramount guiding consideration of the health and safety of the public.[6]

    [6]Health Ombudsman Act 2013 (Qld), s 4.

27. The Tribunal is comfortably satisfied, to the applicable standard of proof,[7] that the respondent poses a serious risk to persons within the terms of section 113(1) of the HO Act.

    [7]Briginshaw v Briginshaw [1938] 60 CLR 336.

28. There are no restrictions on the provision of health services that would adequately ameliorate the serious risk posed by the respondent. The material does not permit the Tribunal to find that any prohibition of practice should be for a finite period only. In all the circumstances, the appropriate order pursuant to section 113(4) of the HO Act is that there be a permanent prohibition from providing any health service.

29. Accordingly, the Tribunal orders:

    (a)Pursuant to section 113(1) of the HO Act, the Tribunal decides that, because of his conduct, the respondent poses a serious risk to persons.

    (b)Pursuant to section 113(4)(a) of the HO Act, the respondent is permanently prohibited from providing any health service.

    (c)Pursuant to section 73(2)(a)(ii) of the HO Act, the Tribunal sets aside the decision of the Health Ombudsman on 29 January 2018 to issue an interim prohibition order.