Health Ombudsman v Than - [2023] QCAT 478

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Than [2023] QCAT 478

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

BRANDAN THAN

(respondent)

APPLICATION NO/S:

OCR050-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

22 December 2023

Amended on 6 June 2025

HEARING DATE:

4 September 2023

HEARD AT:

Brisbane

DECISION OF:

The Hon P J Murphy SC, Judicial Member

Assisted by:

Mr P Cattach, Physiotherapist Panel Member
Dr Wendy Grigg, Public Panel Member
Ms Anne Jones, Physiotherapist Panel Member

ORDERS:

1. A finding is made that Brandan Than has engaged in professional misconduct within the meaning of s 5 of the Health Practitioner Regulation National Law (Queensland) and s 107 of the Health Ombudsman Act 2013 QLD. (“the Act”)

2. In consequence, pursuant to s 107(3) and (4) of the Act:

(a) The respondent is reprimanded.

(b) The respondent is disqualified from applying for registration as a health practitioner for two years from the date of this order.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHYSIOTHERAPISTS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT– where the applicant Health Ombudsman applies to the Tribunal for disciplinary findings and orders against the respondent practitioner – where the practitioner was convicted of two counts of sexual assault in the District Court following a trial – where the respondent accepts that he was convicted, but maintains his innocence – where the Tribunal must make findings of fact – whether certain findings should be made – whether the conduct amounts to professional misconduct – whether certain sanctions should be imposed

EVIDENCE – PROOF – MATTERS RELATING TO JUDICIAL DOCUMENTS AND PROCEEDINGS – CONVICTIONS – where the respondent practitioner was convicted by a jury of two counts of sexual assault in the District Court of Queensland – where the applicant Health Ombudsman asserts that the Tribunal need not resolve factual matters because they have already been considered by the criminal court and are the basis of the conviction – where the applicant relies on s 79 of the Evidence Act 197 (Qld) – where s 79 does not have the effect that a conviction is conclusive proof the factual matters underlying the conviction or the subsequent sentence – whether the Tribunal can be satisfied of certain factual matters in the disciplinary proceeding

Criminal Code 1899 s 352

Evidence Act 1929 (SA) s 34A
Evidence Act 1977 s 79
Health Ombudsman Act 2013 ss 4, 107
Health Practitioner Regulation National Law (Queensland) s 5
Queensland Civil and Administrative Tribunal Act 2009 ss 28, 31

South Australian Civil and Administrative Tribunal Act 2013 (SA) s 39

Chinese Medical Board of Australia v Zhou [2020] SACAT 23

Craig v Medical Practitioners Board [2001] SASC 169
Crime and Misconduct Commission v Assistant Commissioner Ross Barnett [2010] QCAT 690
Espedido v Physiotherapy Board of Australia (Review and Regulation) [2017] VCAT 1401
Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASFC 167
Health Care Complaints Commission v Do [2014] NSWCA 307
Health Ombudsman v Barber [2017] QCAT 431
Health Ombudsman v Chang

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 478
Decision Date: 22 December 2023 Amended on 6 June 2025

CaseChat Overview and Summary

Health Ombudsman sought disciplinary action against Brandan Than, a physiotherapist, following his conviction for two counts of sexual assault. The Tribunal had to determine whether Than's conduct constituted professional misconduct and, if so, what sanctions should be imposed. The central issue was whether the Tribunal could make findings on facts already adjudicated in the criminal court and, if so, whether these facts constituted professional misconduct warranting specific sanctions.

The Tribunal examined whether it could make findings on facts that had already been the subject of a criminal conviction. The Tribunal found that the Evidence Act 1977 (Qld) did not prevent it from considering those facts afresh. While the conviction confirmed that Than was found guilty by a jury, it did not render those facts conclusive proof in the disciplinary proceeding. The Tribunal was entitled to make its own findings based on the evidence presented before it. Having considered the evidence, the Tribunal was satisfied that Than had indeed engaged in the conduct for which he was convicted. This conduct amounted to professional misconduct under the Health Ombudsman Act 2013 (Qld) and the Health Practitioner Regulation National Law (Queensland).

In light of the Tribunal's findings of professional misconduct, it imposed sanctions on Than. The Tribunal reprimanded him and disqualified him from applying for registration as a health practitioner for two years from the date of the order. These sanctions were deemed appropriate given the gravity of Than's misconduct and its implications for public trust in the health profession. The Tribunal’s decision underscores the importance of professional standards and the consequences of breaching them, even in the face of prior criminal convictions.

Orders

Orders of the court

1. A finding is made that Brandan Than has engaged in professional misconduct within the meaning of s 5 of the Health Practitioner Regulation National Law (Queensland) and s 107 of the Health Ombudsman Act 2013 QLD. (“the Act”)

2. In consequence, pursuant to s 107(3) and (4) of the Act:

(a) The respondent is reprimanded.

(b) The respondent is disqualified from applying for registration as a health practitioner for two years from the date of this order.

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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