Health Ombudsman v Orr - [2023] QCAT 61

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Orr [2023] QCAT 61

PARTIES:

Health OMbudsman

(applicant)

v

Andrew Jamie Orr

(respondent)

APPLICATION NO/S:

OCR222-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

28 February 2023

HEARING DATE:

26 October 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D Reid

ORDERS:

1. Application dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the applicant alleges that the respondent had an inappropriate relationship with a patient and that the respondent’s practice inappropriately removed and re-used acupuncture needles – where the respondent argues that the evidence obtained by the respondent by means of search warrants and statutory notices was unlawfully obtained – where the respondent alleges as a result of the evidence underpinning the referral being unlawfully obtained, the Director of Proceedings was not authorised by law to refer the matter to the Tribunal – where the respondent submits that the Tribunal lacks jurisdiction to deal with the referral, where the respondent seeks a direction that evidence was obtained unlawfully and cannot be used in the proceeding - whether the respondent’s application constitutes an inappropriate collateral attack – whether there is power in the Tribunal to declare that the impugned evidence was obtained without lawful authority or that the Director of Proceedings was not authorised under the Act to refer the matter to the Tribunal – whether the Tribunal has jurisdiction to deal with the referral

Charter of Human Rights and Responsibilities Act 2006 (Vic)

Health Ombudsman Act 2013

Queensland Civil and Administrative Tribunal Act 2009

Director of Housing v Sudi [2011] 33 VR 559

Frugtniet v Attorney-General (NSW) (1997) 41 NSWLR 588

Medical Board of Australia v Singh [2019] SACAT 66

Minister of Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11

Ousley v The Queen [1997] 192 CLR 69

APPEARANCES & REPRESENTATION:

Applicant:

C Templeton instructed by Turks Legal

Respondent:

B Nolan instructed by Gardner Legal and Regulatory

REASONS FOR DECISION

The Health Ombudsman (the applicant) has commenced disciplinary proceedings in the Tribunal against Dr Orr (the respondent), alleging he had an inappropriate relationship with a patient and also alleging his practice inappropriately removed and reused acupuncture needles.
The respondent has sought orders in relation to the alleged unlawfulness of evidence obtained pursuant to search warrants and statutory notices under the Health Ombudsman Act 2013 (HO Act).
During the course of the hearing before me, the respondent sought to amend the terms of the application he had filed. He now sought declarations pursuant to section 60 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) that:
(a)the evidence, the subject of the impugned material was obtained without lawful authority;
(b)the referral made by the Director of Proceedings under section 103 of the HO Act was not authorised by that Act; and
(c)the Tribunal lacks jurisdiction to deal with the referral.
In the alternative, the respondent sought directions pursuant to section 62 of the QCAT Act, that the impugned evidence was obtained unlawfully and could not be relied upon by the applicant. The respondent also framed such directions in a further alternative way, seeking a ruling as to the lawfulness of the impugned material.
The applicant did not oppose the respondent being given leave to amend his application.
In essence, both the original application and the amended application involve an examination of the question of whether the alleged unlawfulness of warrants and statutory notices on which the applicant relied could be the subject of examination by this Tribunal. The amended application was designed to shift the point of examination from the question of this Tribunal’s capacity to consider the lawfulness of the warrants and notices directly to an examination of a decision made by the Director of Proceedings (DOP), an appointed person under this section 258 of the HO Act, to refer the matter to the Tribunal which decision relied, at least in part, on the evidence said to be unlawfully obtained. It is said by the respondent that because of that unlawfulness, the decision of the DOP was infected with legal error such that this Tribunal was without jurisdiction to determine the applicant’s application.

Statutory provisions

Because of the manner in which the respondent framed his argument, it is appropriate to first consider the statutory provisions of the HO Act, which underpin the ability of the applicant to bring disciplinary proceedings in QCAT.
The HO Act establishes a statutory scheme for dealing with complaints concerning health practitioners (section 3(2) of the Act). Complaints can be made by anyone (section 32). The HO must then decide to accept or not accept the complaint (section 35).
If a complaint is accepted, Division 2A of the HO Act applies, comprising section 35B/H.
Section 38 of the HO Act provides a range of ways in which a complaint may be handled. Relevantly, in this case, they include investigating the matter under part 8 (being sections 80-90). Under section 278, the HO must give notice of having made a decision about accepting a complaint.
So too, under section 82, if the health service provider has not been given notice under section 278, the HO must notify the provider about the investigation by the time it starts. Section 83 empowers the HO to exercise the powers provided for in part 15 of the Act in carrying out the investigation.
These include the power to enter premises under a warrant issued by a magistrate (see sections 202-207 of the HO Act) and to obtain information pursuant to notices issued under section 228.
Before turning to those provisions, it is appropriate to consider the role of the DOP in referring matters to QCAT.
QCAT has jurisdiction pursuant to section 94(1)(b) of the HO Act, “to hear a matter concerning a registered health practitioner referred to QCAT by the (DOP) on the Health Ombudsman’s behalf under section 103.”
Dr Orr is of course a registered health practitioner.
Pursuant to section 101 of the HO Act, Division 2 of Part 10 of the Act applies if the HO decides to refer a complaint concerning a registered health practitioner to the DOP. Section 103(1)(a) provides that it is the DOP who then refers the matter as provided under the QCAT Act to QCAT on behalf of the HO.
Section 104 provides that if the DOP refers the matter to QCAT, the Tribunal may exercise its original jurisdiction under the Act to hear and determine the matter.
The submission of the respondent is that the referral by the DOP in this case was based on information “obtained beyond the statutory remit” allowed under the HO Act, such that this Tribunal does not have jurisdiction to consider the matter. It was submitted that the determination of the Tribunal’s jurisdiction to decide the matter was not an exercise of judicial review but forms part of the Tribunal’s incidental jurisdiction to form an opinion about the limits of its own jurisdiction, which opinion is itself amenable to judicial review.
That submission was said to be based on observations of Gleeson CJ at [12] – [14] and of Gaudron and Gummow JJ at [46] of the decision of the High Court in Minister of Immigration and Multicultural Affairs v Bhardwaj.[1] I shall refer to this case later.
[1][2002] HCA 11.
Before turning to such questions, it is, I think, helpful to briefly consider the statutory basis for search warrants and statutory notices under the HO Act.
Part 15, Division 1, of the Act provides for the appointment of Authorised Persons (AP). Under section 197(1)(c) of the Act (being part of Division 2, Part 10), an AP may enter a place if the entry is authorised under a warrant and, if there is an occupier, section 207 has been complied with.
Subdivision 3, Division 2 deals with Entry under Warrant. Section 202(1) empowers an AP to apply to a magistrate for a warrant and section 203(1) provides that the magistrate may issue the warrant in certain defined circumstances.
Section 206(1) provides that:
(1) A warrant is not invalidated by a defect in–
(a) the warrant; or
(b) compliance with this subdivision.
Section 207 contains provisions which prescribe the conduct of an AP entering a place pursuant to a warrant issued under the subdivision.
The respondent submits that the warrants obtained in the Magistrates Court in this case were defective because, inter alia, they sought material beyond the scope of the investigation by the HO.
Division 5, Part 15 of the HO Act, containing sections 226-229A, sets out, inter alia, other powers of an AP to give notice to a person requiring the person to provide to the AP information relating to the matter being investigated.
The provisions of section 258, require the appointment of a lawyer as the DOP. Under section 259, that person’s functions include deciding whether to refer a health service complaint to QCAT on the HO’s behalf under section 103 of the Act, and to conduct such proceedings in QCAT.
The respondent’s submission before me was that the scheme of the HO Act was such that a decision predicated upon evidence unlawfully obtained was legally ineffective. It was submitted that strict compliance with the statutory restraints on the HO is necessary for decisions of the HO or DOP to be legally effective.
It is said that the decision to refer the matter to QCAT was based, at least in part, on material obtained pursuant to search warrants or statutory notices which were, for a variety of reasons, improper or unlawful.
It is, in my view, unnecessary to further set out the basis for the respondent’s submission that the warrants and statutory notices were invalid in order to dispose of the application.
The applicant submits that the recasting of the respondent’s application as earlier set out in these reasons is a misguided attempt to sidestep the difficulty the respondent faces because his attack on the warrants and statutory notices amounts to a collateral challenge to the obtaining of evidence pursuant to those mechanisms. It is said that the respondent has no authority for the proposition that in deciding its own jurisdiction,[2] the Tribunal has jurisdiction to rule on the lawfulness of the decision made by the DOP to commence proceedings.
[2]The applicant accepted that this Tribunal has jurisdiction to decide its own jurisdiction see Citta Hobart Pty Ltd v Cawthorn [2020] 96 ALJR 476 at [22] and [24].
It was submitted this too was a collateral attack on a different administrative decision and was directly contrary to the decision of Director of Housing v Sudi[3] and Medical Board of Australia v Singh.[4]
[3][2011] 33 VR 559.
[4][2019] SACAT 66.
Before proceeding further, it is helpful to consider the nature of what has been described as a collateral challenge.
In Ousley v The Queen [1997] 192 CLR 69, McHugh J said:
A collateral attack on an act or decision occurs when the act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision. In In re Preston, however, Lord Scarman used the term “collateral challenge” to include any process challenging a decision - including an application for judicial review - other than a proceeding by way of appeal. This use of the term is readily intelligible. However, with the widespread availability of judicial review procedures, it conduces to clarity of thought, in my opinion, if the term “collateral challenge” is confined to challenges that occur in proceedings where the validity of the administrative act is merely an incident in determining other issues.
The nature of a collateral challenge was also addressed in Frugtniet v Attorney-General (NSW)[5] where at page 602, Beazley JA said:
Collateral challenge is a well-established means of attacking the validity of an administrative or official act in proceedings where the validity of the act is relevant to matters in issue but the proceedings are not specially designed to challenge the validity of the administrative act or conduct.
[5](1997) 41 NSWLR 588.
Her honour continued, later on the same page, “(t)he starting point for determining whether collateral challenge is available is the legislation governing the matter central to the proceedings.”
It is for this reason in particular that I have set out some of the essential statutory provisions of the HO Act concerning the obtaining of evidence pursuant to warrants and statutory notices.
The entry procedure in respect of warrants is set out in section 207 and the powers; including the power to search, inspect, and take things for examination; is set out in section 209. Section 213 deals with seizure of evidence.
Subdivisions 3 and 4 of Division 3, Part 15, deal with safeguards for seized things and with forfeiture.
Importantly sections 218 and 222 require an AP who seizes or forfeits things to give to the owner or person in control a receipt and an “information notice about the decision” to seize or forfeit the thing.
There is no provision in the HO Act or QCAT Act for any member of QCAT to issue warrants or to review warrants so issued by a magistrate.
Division 7, Part 15 provides that a person given an information notice about a decision made under Part 15, as required by sections 218 and 222 in respect of seized or forfeited things, has a right of appeal, initially by way of internal review to the HO and ultimately to the Magistrates Court. The Division sets out the procedure for such review.
It is also necessary to observe that Division 5, Part 15, deals with the power to require a person to give information or to attend for questioning pursuant to a notice given under section 228 of the Act.
This then is the context in which I must consider the parties submissions about whether the respondent’s application constitutes an inappropriate collateral attack.
In Director of Housing v Sudi,[6] the Victorian Court of Appeal was concerned with the ability of VCAT to engage in a collateral review of the decision of the Director to apply for possession of certain residential premises. In the Tribunal, the application was dismissed as it was said the Director was in breach of its statutory obligations under the Charter of Human Rights and Responsibilities Act.[7]
[6] [2011] 33 VR 559.
[7]2006 (Vic).
The Court of Appeal held VCAT did not have jurisdiction to consider the validity of the Director’s decision to apply to VCAT. Critically at paragraph 245, Weinberg JA said:
There is nothing in any of the statutes relevant to this case, whether the VCAT Act, the RTA, or the Charter, that deals specifically with the subject of collateral review. That is hardly surprising. Statutes rarely contain provisions which address that issue. Legislation may, however, establish a particular and comprehensive regime for the determination of specific issues. Where that course is followed, an implication arises that collateral review is not available.
The procedure under the HO Act is for a party to seek a review by the HO, and the party has a right of appeal to a magistrate against a decision to seize or forfeit things found on entry of premises pursuant to a warrant under the HO Act.
This in my view strongly militates in favour of the view that collateral review of the warrant, as the respondent seeks, is not available.
It is helpful also to consider His Honour’s subsequent remarks at [246 – 249], where he notes some of the practical advantages and disadvantages of collateral review, in particular noting at [249] that the problems associated with collateral review were perhaps more acute in proceedings before tribunals than in courts.
Further, at [261], His Honour said:
Although VCAT may well have some powers to engage in some form of collateral review, these are confined by Ousley,[199] as are the powers of the courts, to challenges brought on the basis of something akin to ‘facial’ or ‘patent’ invalidity.
In that case, Maxwell P said the appeal raised the issue of whether the Tribunal had the power to examine the legal validity of a decision by a government agency to institute a proceeding in the Tribunal's original jurisdiction.
This involved the central question of whether, having regard to the character of the Tribunal, and the terms of the statutory charter, Parliament can be taken to have intended to confer on the Tribunal such a power.
So too the Chief Justice said in Sudi that the issue of whether collateral review was available involved matters of construing the statutory provision, emphasising the different considerations which apply when the review would be by a court, rather than a tribunal.
Her Honour referred also to Bhardwaj’s case, which did involve issues of collateral review by a tribunal. In that case the High Court held that the Immigration Review Tribunal could enquire into, and decide for itself, whether its own original decision was a nullity because of jurisdictional error.
However, in Sudi the Chief Justice said at [31]:
But Bhardwaj is not an authority for the broad proposition that administrative tribunals can, in general, conduct inquiries into the validity of purported decisions of any administrative body if the decision happens to be material to the dispute before the tribunal. Rather, the extent of an administrative tribunal’s ability, if any, to conduct such inquires remains a question of construction of the relevant statutory provisions. The question is whether the provisions evince an intention that the tribunal should attach ‘some relevant legal consequence’ to a purported decision of the kind in question, even if the decision is vitiated by jurisdictional error.
It is for such reasons that I have drawn attention to the provisions of the HO Act:
(a)that any application for a warrant is to a magistrate not to QCAT itself;
(b)that the decision as to whether to issue a warrant is that of a magistrate (see section 202(4) and section 203(1) of the HO Act); and
(c)that a warrant is not invalidated by a defect in the warrant or compliance with the provisions of the subdivision dealing with entry under warrant (Subdivision 3, Division 2, Part 15 of the HO Act).
I also note the provisions of section 235 of the HO Act, that a person who has a right to be given an information notice about a decision made under Part 15 has a right of appeal under section 235, initially by way of internal review and ultimately to a magistrate. Such an information notice about a decision to seize anything during the execution of the warrant is made under section 218 or about a decision to forfeit anything seized, under section 222.
A person who has applied for a review of an original decision and who was dissatisfied with the review decision may appeal under section 240 to the Magistrates Court. Such an appeal is by way of rehearing and the Court has the same powers as the HO.
Those provisions, and those earlier set out, assist me in concluding that the Parliament in this case did not intend the Tribunal to have power to examine the legal validity of a decision by the HO or its representative to institute a proceeding in the Tribunal’s original jurisdiction.
My conclusion about such a manner is significantly fortified by consideration of the decision of President Hughes of the South Australian Civil and Administrative Tribunal in Medical Board of Australia v Singh.[8]
[8][2019] SACAT 66.
In that matter the respondent filed an application related to the conduct of search warrants issued by a magistrate which resulted in the seizure of documents. An interview was also later conducted with the receptionist at the respondent’s medical practice regarding, inter alia, the content of the seized documents. The respondent sought to have the evidence obtained as a consequence of the execution of the warrants excluded from evidence.

The respondent also, as here, sought orders that the proceedings be dismissed or struck out as an abuse of process.
As in Queensland, the issue of warrants under the applicable South Australian legislation was also by magistrates. Section 10 of the relevant South Australian legislation was materially similar to section 203 of our HO Act.
In that case, the Medical Board argued that what was sought amounted to a collateral review of decisions which were beyond the jurisdiction of the Tribunal. Her Honour in Singh said:
However, this application does not merely require consideration of collateral review but of the power of a tribunal that is not a court to undertake such an enquiry and make such orders as may follow from it.
Her Honour also considered the decision of the Victorian Court of Appeal in Sudi to which I have referred, stating in [18]-[19]:
[18]The High Court has recognised the special supervisory role of state Supreme Courts in Australia’s common law system:
The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of state executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts.
[19]In contrast, the role and jurisdiction of VCAT is quite different. As an administrative tribunal, the jurisdiction of VCAT derives entirely from statute. The powers of an administrative tribunal in any particular instance flow from the statute that establishes the tribunal, in this case the VCAT Act, and any subject-specific legislation granting further jurisdiction, in this instance, the RTA. VCAT is intended to be a forum for speedy and inexpensive resolution of specific kinds of disputes in respect of which the legislature saw fit to confer jurisdiction.
President Hughes noted the Chief Justice’s observation in Sudi that, as with QCAT, the purpose of the VCAT Act was to create a speedy and inexpensive resolution to disputes and that this told against the implication of a power of collateral review. She also noted the Chief Justice’s observation that the detour into administrative law within the bounds of a tenancy review was at odds with VCAT’s lack of a general civil jurisdiction.
In the case of QCAT and the circumstances of this case, it might be observed that a detour into the law of warrants and consideration of the lawfulness of statutory review is inconsistent with the limited scope of an inquiry into medical malpractice and ethical conduct.
The President at [20] of Singh said:
The Chief Justice concluded that the VCAT should treat relevant purported administrative decisions as being valid unless and until they are set aside by a court of competent jurisdiction.
In Singh, President Hughes also noted (as is again the case with QCAT) that SACAT does not have jurisdiction to carry out judicial review of administrative action (as would be involved with decisions concerning the issue of a warrant by a magistrate to issue statutory notices by an AP or to refer a matter to QCAT by the DOP). Her Honour noted that in each case it was necessary to examine the scheme of the relevant act creating the tribunal and the act conferring jurisdiction. In my case that involved the QCAT Act and the HO Act.
I interpose that, in that regard, counsel for the respondent submitted that the relevant SA Acts, and the QLD Acts were different but did not in oral or written submissions identify how that was so or how that might impact on my application of the Singh decision to the respondent’s circumstances. At [25] of Singh, Her Honour said:
In relation to the Tribunal’s ability to review the administrative action of a Magistrate in issuing warrants, the indication from the legislature is that the Tribunal is not conferred the power of review over the Magistrate’s actions. Firstly, the legislature has placed the administrative function of issuing warrants in the Magistracy. In placing the function in the Magistracy, it signalled an intention that the function be performed by a judicial officer exercising administrative functions. There is little to account for the function being vested in a judicial officer, albeit exercising an administrative function, if that officer’s action is reviewable by the Tribunal, constituted as it may be by a non-judicial officer. It might be expected that such a course would be expressly provided for if it were the legislature’s intention.
In my view, the import of that paragraph is directly applicable to the issuing of warrants under the HO Act and consideration of whether the Tribunal might have power to review such decisions by way of collateral review.
Furthermore, the scheme under the HO Act entails decision making being vested in an AP and the DOP and in magistrates. There is no provision for review of a such decision by QCAT. Further, there are with warrants to be subject to appeal by courts or by way of judicial review of administrative acts under the Judicial Review Act.
A clear path for reviewing such decision exists. The respondent has chosen not to follow it. That is of course his right, but it does not result in a finding that he may do so in these proceedings.
In my view, the application should, on that basis, be dismissed as there is no power in the Tribunal to declare that the evidence identified in the Schedule to the application was obtained without lawful authority or that the DOP was not authorised under section 103 of the HO Act to refer the matter to QCAT. I find that the Tribunal does not lack jurisdiction to deal with the referral.
The alternative basis for relief are also, for the same reasons, without foundation and are dismissed.
I will hear argument as to costs. The parties, if unable to reach agreement about the issue, should advise the Associate to the Deputy President within seven (7) days of the orders each seeks. I will then make orders for delivery of written submissions about such matters.