Health Ombudsman v Singh - [2024] QCAT 377

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Singh [2024] QCAT 377

PARTIES:

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

(applicant)

v

HARNOOR SINGH

(respondent)

APPLICATION NO/S:

OCR192-24

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

8 October 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President

ORDERS:

1. Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:

(a)     the contents of a document or other thing filed in or produced to the Tribunal;

(b)     evidence given before the Tribunal;

(c)     any order made or reasons given by the Tribunal

is prohibited to the extent that it could identify or lead to the identification of the complainant in the charge the subject of the referral, save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings or any appeal or review arising from these proceedings, and for the applicant to provide information to the Australian Health Practitioner Regulation Agency or National Board in the exercise of the Health Ombudsman’s statutory functions under the Health Ombudsman Act 2013 (Qld).

2.     Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:

(a)     a judicial member;

(b)     a tribunal member;

(c)     an associate to a judicial officer or tribunal member appointed under relevant legislation;

(d)     any assessor appointed to assist the Tribunal;

(e)     the staff of the Tribunal registry;

(f)      any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or

(g)     the parties to this proceeding or any appeal or review arising from these proceedings.

CATCHWORDS:

ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — where the Ombudsman applies for a non-publication order over the identity of the complainant in a sexual offence giving rise to these proceedings — whether the Criminal Law (Sexual Offences) Act 1978 prohibits the publication of the complainant’s identity — whether a non-publication order should be made

Criminal Law (Sexual Offences) Act1978 (Qld), s 10

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66

Chiappalone v Medical Board of Australia [2012] QCAT 568

Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89
Health Ombudsman v Shemer (No 2) [2019] QCAT 54
JDT v PDL (No 2) [2022] QDC 147

LSC v XBV [2018] QCAT 332

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

The applicant has applied for a non-publication order to protect the identity of a person referred to as the complainant. The application has been served on solicitors previously acting for the respondent, at a time when they were acting for him, however the respondent’s attitude to the application is unknown.
The applicant makes three allegations 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.

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Details

Case: [2024] QCAT 377
Decision Date: 8 October 2024

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal heard an application by the Health Ombudsman for a non-publication order concerning the identity of a complainant in a sexual offence. The Health Ombudsman, who was investigating a registered health practitioner, sought the order to protect the complainant's privacy. The case involved a referral under the Health Ombudsman Act 2013, which mandated the consideration of whether the complainant's identity could be published.

The primary legal issue before the Tribunal was whether the Criminal Law (Sexual Offences) Act 1978 precluded the publication of the complainant's identity. The Tribunal also needed to determine if a non-publication order was appropriate under the Queensland Civil and Administrative Tribunal Act 2009. The decision hinged on balancing the complainant's right to privacy against the public's interest in transparency and the need for the Health Ombudsman to effectively perform its statutory functions.

The Tribunal concluded that the Criminal Law (Sexual Offences) Act 1978 did impose restrictions on the publication of the complainant's identity. Given the sensitive nature of the allegations and the potential harm to the complainant if her identity were disclosed, the Tribunal found it necessary to grant the non-publication order. The Tribunal emphasised the importance of protecting the privacy of sexual offence complainants and ensuring that the Health Ombudsman could carry out its duties without undue hindrance. The non-publication order was designed to safeguard the complainant's identity while still allowing for the necessary disclosure required for the proceedings and appeals.

Orders

Orders of the court

1. Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:

(a) the contents of a document or other thing filed in or produced to the Tribunal;

(b) evidence given before the Tribunal;

is prohibited to the extent that it could identify or lead to the identification of the complainant in the charge the subject of the referral, save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings or any appeal or review arising from these proceedings, and for the applicant to provide information to the Australian Health Practitioner Regulation Agency or National Board in the exercise of the Health Ombudsman’s statutory functions under the Health Ombudsman Act 2013 (Qld).

2. Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:

(a) a judicial member;

(b) a tribunal member;

(d) any assessor appointed to assist the Tribunal;

(e) the staff of the Tribunal registry;

(f) any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or

(g) the parties to this proceeding or any appeal or review arising from these proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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