Moosawi v Massey - [2015] QSC 169

SUPREME COURT OF QUEENSLAND

CITATION:

Moosawi v Massey [2015] QSC 169

PARTIES:

ALI AL MOOSAWI

(applicant)

v
LUKE MASSEY

(respondent)

FILE NO/S:

No 4981 of 2015

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 June 2015

DELIVERED AT:

Brisbane

HEARING DATE:

12 June 2015

JUDGE:

Dalton J

ORDER:

Declare that the notice issued by the respondent and dated 8 May 2015 is void

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – OTHER MATTERS – where the applicant was issued with a notice under s 228 of the Health Ombudsman Act 2013 to attend before investigators of the Office of the Health Ombudsman and answer questions at an interview – where the applicant submitted that the notice was beyond the powers granted under s 228 – where the respondent submitted that the words “give the authorised person information” in s 228(3) should be interpreted as providing a power to require a person to attend and answer questions – whether a clear intention of the legislature to abrogate rights and liberties through the provision of a power to carry out an interrogative process is identifiable – whether s 228(3) allows the Health Ombudsman to require a person to attend and answer questions

Health Ombudsman Act 2013 (Qld) s 48, s 54, s 161, s 162, s 228, s 229, s232
Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld) s 78 (repealed)
Health Practitioner Regulation National Law Act 2009 (Qld) s 193, Schedule 5
Health Quality and Complaints Commission Act 2006 (Qld) s 123 (repealed)

Ex-parte Willey: In re Wright (1883) 23 Ch. D. 118, cited
Lee v R [2013] NSWCCA 68, cited
NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252, considered
Rees v Kratzmann (1965) 114 CLR 63, considered

Smith v Papamihail & ASIC [1998] FCA 1310, considered

COUNSEL:

K Mellifont QC for the applicant

A MacSporran QC for the respondent

SOLICITORS:

Avant Law Pty Ltd for the applicant

Office of the Health Ombudsman for the respondent

This is an application challenging a notice dated 8 May 2015 served on Dr Moosawi by the respondent on behalf of the Health Ombudsman. The notice was purportedly issued pursuant to s 228 of the Health Ombudsman Act 2013 (Qld) (the Act). The applicant says the notice was beyond the powers given by s 228.
The Act established a Health Ombudsman to deal with complaints against health services, including individual practitioners, such as Dr Moosawi. The scheme of the Act is that when a complaint is made to the Ombudsman, it may investigate the complaint – s 80. For that purpose the Ombudsman has the investigative powers in Part 15 of the Act. Part 15 Div 1 provides that an investigator on behalf of the Ombudsman is defined as an authorised person. An authorised person is given powers to enter places (Part 15 Div 2) and while there, may exercise various powers (Part 15 Div 3), and seize various things (Part 15 Div…

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.

Continue reading Moosawi v Massey

Details

AGLC: Moosawi v Massey [2015] QSC 169
Case: [2015] QSC 169
Decision Date: 24 June 2015

CaseChat Overview and Summary

The applicant, Moosawi, challenged the legality of a notice issued by the respondent, Massey, under section 228 of the Health Ombudsman Act 2013. The notice required Moosawi to attend an interview and answer questions. Moosawi contended that the notice exceeded the powers granted by section 228, while Massey argued that the phrase "give the authorised person information" in section 228(3) enabled the requirement of attendance and questioning. The matter was heard by the court, which needed to determine whether the legislature intended to abrogate rights and liberties through the power to conduct an interrogative process and whether section 228(3) permitted the Health Ombudsman to require a person to attend and answer questions.

The court examined the language and context of section 228(3) to ascertain the legislature's intention. It noted that the phrase "give the authorised person information" does not explicitly provide a power to require attendance and questioning. The court also considered the broader legislative framework and the principles of statutory interpretation. The court found that the legislature's intent to abrogate rights and liberties through an interrogative process was not clearly identifiable. Therefore, the court concluded that section 228(3) does not allow the Health Ombudsman to require a person to attend and answer questions.

The court declared the notice issued by the respondent on 8 May 2015 void. The court's reasoning and decision were grounded in the principles of statutory interpretation and the need for a clear legislative intention to abrogate rights and liberties. The court's decision provides clarity on the scope of powers granted under section 228 of the Health Ombudsman Act 2013 and the limits of the Health Ombudsman's authority in relation to requiring individuals to attend and answer questions.

Orders

Orders of the court

Declare that the notice issued by the respondent and dated 8 May 2015 is void

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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CITATION:	Moosawi v Massey [2015] QSC 169
PARTIES:	ALI AL MOOSAWI (applicant) v LUKE MASSEY (respondent)
FILE NO/S:	No 4981 of 2015
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	24 June 2015
DELIVERED AT:	Brisbane
HEARING DATE:	12 June 2015
JUDGE:	Dalton J
ORDER:	Declare that the notice issued by the respondent and dated 8 May 2015 is void
CATCHWORDS:	STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – OTHER MATTERS – where the applicant was issued with a notice under s 228 of the Health Ombudsman Act 2013 to attend before investigators of the Office of the Health Ombudsman and answer questions at an interview – where the applicant submitted that the notice was beyond the powers granted under s 228 – where the respondent submitted that the words “give the authorised person information” in s 228(3) should be interpreted as providing a power to require a person to attend and answer questions – whether a clear intention of the legislature to abrogate rights and liberties through the provision of a power to carry out an interrogative process is identifiable – whether s 228(3) allows the Health Ombudsman to require a person to attend and answer questions Health Ombudsman Act 2013 (Qld) s 48, s 54, s 161, s 162, s 228, s 229, s232 Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld) s 78 (repealed) Health Practitioner Regulation National Law Act 2009 (Qld) s 193, Schedule 5 Health Quality and Complaints Commission Act 2006 (Qld) s 123 (repealed) Ex-parte Willey: In re Wright (1883) 23 Ch. D. 118, cited Lee v R [2013] NSWCCA 68, cited NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252, considered Rees v Kratzmann (1965) 114 CLR 63, considered Smith v Papamihail & ASIC [1998] FCA 1310, considered
COUNSEL:	K Mellifont QC for the applicant A MacSporran QC for the respondent
SOLICITORS:	Avant Law Pty Ltd for the applicant Office of the Health Ombudsman for the respondent