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…

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: [2023] QCAT 61
Decision Date

CaseChat Overview and Summary

The Health Ombudsman has brought disciplinary proceedings against Dr Orr in the Queensland Civil and Administrative Tribunal (QCAT). The Ombudsman alleges that Dr Orr engaged in an inappropriate relationship with a patient and reused acupuncture needles. The respondent, Dr Orr, has sought orders in relation to the alleged unlawfulness of evidence obtained under search warrants and statutory notices under the Health Ombudsman Act 2013 (HO Act). The respondent sought to amend his application to seek declarations that the evidence was obtained without lawful authority, that the Director of Proceedings (DOP) was not authorised by the HO Act to refer the matter to QCAT, and that QCAT lacks jurisdiction to deal with the referral. In the alternative, the respondent sought directions that the impugned evidence was obtained unlawfully and could not be relied upon by the applicant. The Tribunal dismissed the application.

The legal issues considered by the Tribunal were whether the respondent’s application constituted an inappropriate collateral attack and whether there was power in the Tribunal to declare that the impugned evidence 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. The Tribunal also considered whether it had jurisdiction to deal with the referral.

The Tribunal held that the respondent’s application was an inappropriate collateral attack. The Tribunal noted that the statutory provisions of the HO Act establish a comprehensive regime for the determination of issues such as the validity of warrants and statutory notices. The Tribunal held that the Parliament did not intend for it 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. The Tribunal found that the respondent’s application should be dismissed as there was no power in the Tribunal to declare that the impugned evidence 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. The Tribunal also found that it did not lack jurisdiction to deal with the referral. The alternative basis for relief were also dismissed.

The Tribunal dismissed the application. 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. The Tribunal will then make orders for delivery of written submissions about such matters.

Orders