Orr v Director of Proceedings on behalf of the Health Ombudsman

[2024] QCA 67

SUPREME COURT OF QUEENSLAND

CITATION:

Orr v Director of Proceedings on behalf of the Health Ombudsman [2024] QCA 67

PARTIES:

ANDREW JAMIE ORR
(appellant)
v
DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN
(respondent)

FILE NO/S:

Appeal No 3891 of 2023
QCAT No 222 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal – [2023] QCAT 61 (Judicial Member Reid)

DELIVERED ON:

30 April 2024

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2024

JUDGES:

Mullins P and Bond JA and Fraser AJA

ORDERS:

1.   The appeal is dismissed.

2.    The parties have leave to make written submissions upon costs in accordance with the Practice Direction.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS – where the appellant was a medical practitioner – where the respondent referred the appellant to the Queensland Civil and Administrative Tribunal (“the Tribunal”) for disciplinary proceedings for misconduct – where, in deciding to make the referral, the respondent relied upon material (“the impugned evidence”) which had been obtained in the course of a related investigation by the Health Ombudsman – where the appellant contended that the impugned evidence was obtained pursuant to search warrants and statutory notices which were defective, such that the impugned evidence itself was obtained without lawful authority – where the Tribunal found that it did not have jurisdiction to rule on the validity of the respondent’s referral, as this amounted to a collateral attack on its jurisdiction – where the appellant contends that the Tribunal erred in finding that it did not have power to rule on the validity of the referral – whether the Tribunal erred in finding that the appellant’s attack on the validity of the respondent’s referral was a collateral attack on its jurisdiction – whether the proper statutory interpretation of the relevant legislation requires that the Tribunal’s jurisdiction be subject to the making of a “valid” referral by the respondent

Health Ombudsman Act 2013 (Qld), s 94(1)(b), s 102, s 103, s 104, s 203, s 206, s 209, s 218, s 228
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 4(c), s 10(1)(b), s 15(b), s 28(3)(d), s 34(2), s 35, s 47

Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16, distinguished
Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266, applied
Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305 (2020) 104 NSWLR 19; [2020] NSWCA 327, distinguished
Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398; [1911] HCA 31, cited
Health Care Complaints Commission v Hill [2022] NSWCA 270, considered
Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49, applied
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32, cited
Secretary of the Ministry of Health v The New South Wales Nurses and Midwives’ Association (2022) 320 IR 249; [2022] NSWSC 1178, applied
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422, cited

COUNSEL:

B K Nolan for the appellant
C D Templeton for the respondent

SOLICITORS:

Alex Rashidi Lawyers for the appellant
Turks Legal for the respondent

1. MULLINS P:  I agree with Fraser AJA.

2. BOND JA:  I agree with the reasons for judgment of Fraser AJA and with the orders proposed by his Honour.

3. FRASER AJA: This is an appeal pursuant to s 149(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) from an order of a judicial member constituting the Queensland Civil and Administrative Tribunal (the Tribunal).[1]

   [1]Health Ombudsman v Orr [2023] QCAT 61 (“Reasons”).

4. Pursuant to s 94(1)(b) of the Health Ombudsman Act 2013 (Qld) (HO Act), the Tribunal has jurisdiction to hear a matter concerning a registered health practitioner referred to it by the Director of Proceedings (the Director) on the Health Ombudsman’s behalf under s 103 of the HO Act.[2]

   [2]See also Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 9, 10(1)(b) and 15(b).

5. Section 103 of the HO Act relevantly provides:

   “103   How director must deal with referral

   (1)The director must—

   (a)refer the matter, as provided under the QCAT Act, to QCAT on behalf of the health ombudsman; or

   (b)refer the matter back to the health ombudsman to deal with under section 105.

   …

   (3)In deciding whether to refer the matter to QCAT, the director must have regard to—

   (a)the paramount guiding principle; and

   (b)the seriousness of the matter; and

   (c)the likelihood of proving relevant matters before QCAT; and

   (d)the orders that QCAT may make; and

   (e)anything else the director considers relevant.”

6. The primary issue raised by this appeal is whether, for the purpose of determining its jurisdiction under s 94(1)(b), the Tribunal has the power to rule on the validity of the Director’s decision under s 103 in circumstances where, in making that decision, the Director has relied on material said to have been unlawfully obtained.

7. Put briefly, the appellant, who is a registered health practitioner, submits the learned member at first instance erred in finding that the Tribunal lacked such power. The appellant submits that the validity of the Director’s decision under s 103 is an issue going to the Tribunal’s jurisdiction under s 94(1)(b) which the Tribunal necessarily has the implied power to determine.[3]  The Director submits that the member was correct to characterise the attack on the validity of the Director’s decision as a collateral attack which the Tribunal has no power to determine.

   [3]See Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216, [21].

8. The issue arises in the context of the following relevant background.

   Background

9. On 22 October 2021, the Director commenced disciplinary proceedings in the Tribunal against the appellant by referring a matter to the Tribunal under s 103.[4]  The proceedings allege that the appellant was involved in an inappropriate relationship with one or more of his patients and that his practice inappropriately removed and reused acupuncture needles.

   [4]The appellant is a “health service provider” as that term is defined in s 8 of the Health Ombudsman Act 2013 (Qld).

10. Prior to being referred to the Tribunal, the matter was investigated by the Health Ombudsman under Part 8 of the HO Act. That investigation relevantly involved obtaining material pursuant to a search warrant issued under s 203 of the HO Act (the search warrant) and various statutory notices issued under s 228 of the HO Act (the statutory notices).  Material was also obtained using non-compulsory means.

11. The appellant contends, as he did before the Tribunal, that the scope of the search warrant was “impermissibly wide” and that the statutory notices were issued “beyond power”, such that particular material obtained pursuant to those compulsory processes was obtained without lawful authority (the impugned material).  It can be assumed for present purposes that the Director’s decision to refer the matter to the Tribunal was predicated, at least in part, upon the impugned material.

12. By an amended application dated 26 October 2022, the appellant sought declarations pursuant to s 60 of the QCAT Act that:

    (a)the impugned material, which was identified in a schedule to the amended application, was obtained without lawful authority;

    (b)the referral made by the Director under s 103 of the HO Act was not authorised by that Act; and

    (c)the Tribunal lacked jurisdiction to deal with the referral.

1. In the alternative, the appellant sought directions pursuant to s 62 of the QCAT Act that the impugned material was obtained unlawfully and could not be relied upon by the Director. The appellant also framed such directions in a further alternative way, seeking a ruling as to the lawfulness of the impugned evidence.

2. Originally, the appellant’s application had sought orders in relation to the alleged unlawfulness of the impugned evidence; however, leave was granted during the course of the hearing in the Tribunal to rely on the amended application.[5]

   [5]AB 470 lines 39 – 40.

   The relevant legislation

3. Before turning to the Tribunal’s decision, it is useful first to consider the relevant provisions of the HO Act and the Tribunal’s jurisdiction and powers.

4. The HO Act establishes a statutory scheme for dealing with complaints and other matters relating to the provision of health services.[6] As was the course taken in this case, the Health Ombudsman may investigate a matter, using the investigative powers under the HO Act,[7] and refer a matter concerning a registered health practitioner to the Director to make a decision about whether proceedings should be taken against the practitioner before the Tribunal.[8]

   [6]Health Ombudsman Act 2013 (Qld), s 3(2).

   [7]Health Ombudsman Act 2013 (Qld), s 14(4).

   [8]Health Ombudsman Act 2013 (Qld), s 14(6).

5. Investigations by the Health Ombudsman are governed by Part 8. The powers that may be exercised in conducting such an investigation are provided for in Part 15.[9]  Relevantly, those powers are exercisable only by the Health Ombudsman,[10] or some other “authorised person” appointed by the Health Ombudsman.[11]

   [9]Health Ombudsman Act 2013 (Qld), s 83.

   [10]Health Ombudsman Act 2013 (Qld), s 187.

   [11]Health Ombudsman Act 2013 (Qld), s 188.

6. Subdivision 3, Division 2, Part 15 deals with entry under warrant. Relevantly, under s 202(1), an authorised person may apply to a magistrate for a warrant. The circumstances in which the magistrate may issue the warrant are set out in s 203(1). Defects in relation to a warrant are dealt with by s 206(1), which relevantly provides:

   “(1)A warrant is not invalidated by a defect in—

   (a)the warrant; or

   (b)compliance with this subdivision;

   unless the defect affects the substance of the warrant in a material particular.”

7. Section 209 empowers an authorised person who has gained entry to a place pursuant to a warrant to search, inspect and take things for examination. Section 218 requires an authorised person who seizes anything from a place to give the owner or person in control of the thing an “information notice” about the decision to seize it. A person issued with an information notice about such a decision has a right of appeal initially to the Health Ombudsman by way of internal review and ultimately to the Magistrates Court.[12]

   [12]Health Ombudsman Act 2013 (Qld), Division 7, Part 15.

8. Division 5, Part 15 deals with the power of an authorised person to require a person to give information, or to attend for questioning, pursuant to a statutory notice issued under s 228.

9. After completing an investigation of a matter under Part 8, the Health Ombudsman must decide whether or not to take particular “relevant action” to further deal with the matter.[13]  The term “relevant action” is defined in s 38 and includes “referring the complaint to the [Director] … for decision about whether to refer the complaint to [the Tribunal]”.[14]

   [13]Health Ombudsman Act 2013 (Qld), s 90(a). See also s 38(1)(g).

   [14]Health Ombudsman Act 2013 (Qld), s 38(1)(g).

10. Division 2, Part 10 applies if the Health Ombudsman decides to refer a matter to the Director.[15] Such a referral must, pursuant to s 102, be accompanied by “all the relevant information” that the Health Ombudsman has about the matter.

    [15]Health Ombudsman Act 2013 (Qld), s 101.

11. The Director is an office to which the Health Ombudsman is obliged to appoint a member of its staff.[16]  The appointee must be a lawyer.[17]  The functions (or, perhaps more accurately, the “powers and obligations”[18]) of the Director are identified in s 259, which relevantly provides:

    [16]Health Ombudsman Act 2013 (Qld), s 258(1).

    [17]Health Ombudsman Act 2013 (Qld), s 258(2).

    [18]Health Care Complaints Commission v Hill [2022] NSWCA 270, [26] per Basten AJA.

    “259   Functions

    (1)The director’s functions are—

    (a)to decide whether or not to refer health service complaints and other matters concerning registered health practitioners to QCAT on the health ombudsman’s behalf under section 103; and

    (b)to conduct proceedings for the complaints and other matters that the director refers to QCAT.

    (2)In proceedings before QCAT, the director may appear in person or by a lawyer, whether or not from within the Office of the Health Ombudsman.”

12. Pursuant to s 260, the Director is not subject to the direction of the Health Ombudsman or anyone else about a decision whether or not to refer a matter concerning a registered health practitioner to the Tribunal or about the conduct of a matter before the Tribunal.

13. Section 103, which is set out above, identifies how the Director must deal with a matter referred to it by the Health Ombudsman.

14. Section 104(1) of the HO Act provides:

    “104   Referral to QCAT

    (1)If the director decides to refer the matter to QCAT on behalf of the health ombudsman, QCAT may exercise its original jurisdiction under the QCAT Act to hear and decide the matter.”

15. The use of the word “may” in s 104(1) should not be construed as conferring a discretion upon the Tribunal to exercise its jurisdiction. Rather, it is to be construed as conferring a power which must be exercised if the circumstances are such as to call for its exercise.

16. The Tribunal’s original jurisdiction is provided for in Division 2, Part 1, Chapter 2 of the QCAT Act. Relevantly, s 10(1)(b) of the QCAT Act provides that the Tribunal’s original jurisdiction is “the jurisdiction conferred on the [Tribunal] under an enabling Act to decide a matter in the first instance”. Such jurisdiction is conferred by the provisions in s 94(1)(b) of the HO Act that the Tribunal has jurisdiction “to hear a matter concerning a registered health practitioner referred to [the Tribunal] by [the Director].” By s 15(b) of the QCAT Act, the Tribunal “may exercise its original jurisdiction conferred by an enabling Act if … a person has, under [the QCAT Act], referred a matter to the [Tribunal] to exercise its original jurisdiction”.

17. Section 34 of the QCAT Act applies if an enabling Act (in this case, the HO Act) provides for the referral of a matter to the Tribunal. Relevantly, s 34(2) provides:

    “(2)The referral must be made—

    (a)within the period provided for under the enabling Act; and

    (b)in a way complying with the rules.”

    The reference to “the rules” in s 34(2)(b) is a reference to the Queensland Civil and Administrative Tribunal Rules 2009 (Qld).

18. Finally, s 107 of the HO Act sets out the particular orders that the Tribunal may make “after hearing” a matter concerning a registered health practitioner, other than a student, referred to the Tribunal by the Director under s 103.

    The Tribunal’s decision

19. On 28 February 2023 the member dismissed the appellant’s amended application on the basis that the Tribunal did have jurisdiction under s 94(1)(b) of the HO Act.

20. The member identified the issue raised by the amended application in these terms:[19]

    “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 [Director] 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], 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 [appellant] that because of that unlawfulness, the decision of the [Director] was infected with legal error such that this Tribunal was without jurisdiction to determine the [Director’s referral].”

    [19]Reasons, [6].

21. Much of the member’s reasons focussed on whether a collateral review of the search warrant and statutory notices was available to the appellant.  As the member correctly identified, the jurisdiction of a tribunal (or court) to engage in collateral review depends upon a close attention to the text and structure of the legislation in question.[20]

    [20]Reasons, [36]–[37].

22. Having reviewed the relevant provisions of the HO Act and the QCAT Act, the member made the following relevant observations, which are not challenged on appeal:

    (a)Any application for a search warrant is to a magistrate, not the Tribunal.[21]

    (b)The decision to issue a search warrant is made by a magistrate.[22]

    (c)A search warrant is not invalidated by a defect in the warrant or compliance with the provisions of Subdivision 3, Division 2, Part 15 of the HO Act.[23]

    (d)A person issued with an information notice about a decision to seize a thing found on entry of premises pursuant to a search warrant has a right of appeal initially to the Health Ombudsman by way of internal review and ultimately to the Magistrates Court by way of rehearing.[24]

    (e)There is no provision in the HO Act or the QCAT Act for any member of the Tribunal to issue search warrants or review warrants so issued by a magistrate.[25]

    (f)Being an administrative act, any decision made by a magistrate to issue a search warrant is, in any event, subject to judicial review.[26]

    [21]Reasons, [56].

    [22]Reasons, [56].

    [23]Reasons, [56].

    [24]Reasons, [57]–[58].

    [25]Reasons, [41].

    [26]Reasons, [72]–[73].

23. In considering these observations, the member relied on the decision in Director of Housing v Sudi (Sudi),[27] where the Victorian Court of Appeal held that the Victorian Civil and Administrative Tribunal (VCAT) lacked the power to collaterally review the validity of a decision made by the Director of Housing to bring an application for an order for the possession of residential premises.[28]  This decision is considered in greater detail below.

    [27](2011) 33 VR 559.

    [28]Reasons, [45]–[59].

24. The member ultimately held that the Tribunal had no power to declare that the impugned material was obtained without lawful authority or that the Director was not authorised by s 103 to refer the matter to the Tribunal. In the member’s view, the amended application therefore required the Tribunal to engage in a collateral review of the validity of the Director’s decision, which it had no power to undertake.[29]

    [29]Reasons, [74].

    This appeal

25. The appellant advances the following two grounds of appeal:

    “1.The [Tribunal] erred in finding that it had jurisdiction to deal with [the] referral made to it by the [Director] under s 103 of the [HO Act] by failing to find that:

    a.A determination as to the lawfulness of the accumulation of [the impugned evidence] is a necessary incident of the determination of whether the Tribunal has jurisdiction to deal with the referral under section 103 of the HO Act;

    b.This is because a referral made in accordance with law viz. the statutory provisions of the HO Act is a necessary precondition to the exercise of the Tribunal’s power to hear and decide the matter referred under section 103 of the HO Act; and

    c.As the Tribunal is empowered only to engage in an exercise of its original jurisdiction, it is not able to review the referral in lieu of the [Director], such that the only proper course is to declare that that Tribunal lacks jurisdiction to deal with the referral.

    2.In the alternative, the [Tribunal] erred in finding that [the impugned evidence]:

    a.was admissible on the Application; and

    b.need not be excluded.”

1. The Director was given the necessary extension of time within which to file a notice of contention. The notice contends that, even if the validity of the Director’s decision under s 103 of the HO Act to refer the matter to the Tribunal was open to challenge as an incident of the Tribunal determining its jurisdiction (or otherwise amenable to collateral review), and assuming the impugned material was obtained without lawful authority, the Director’s decision was not legally invalid by reason of the Director’s considering the impugned material.

2. In essence, the first ground of appeal contends that the validity of the Director’s decision under s 103 is not a “collateral” issue, but rather a matter going to the Tribunal’s jurisdiction under s 94(1)(b). This issue was not expressly considered by the member at first instance, whose analysis proceeded upon the basis that the appellant’s amended application raised a collateral attack, with the only question being whether the collateral attack was able to be determined.

3. The effect of the first ground, if made out, is that the Tribunal has, by necessary implication, the power required to determine the validity of the Director’s decision. This is because the conferral of jurisdiction upon the Tribunal by s 94(1)(b) carries with it the implied power to determine the existence of facts upon which that jurisdiction depends. So much was recently confirmed by the High Court in Citta Hobart Pty Ltd v Cawthorn (Citta Hobart).[30] The appellant submits that, because the Director’s decision under s 103 was predicated upon the impugned material, it constituted an “abuse of process”, thus rendering it invalid as a matter of law. On this basis, the appellant submits the Tribunal lacked jurisdiction under s 94(1)(b).

   [30](2022) 276 CLR 216, [17], [21] per Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ.

4. At the hearing of the appeal, the appellant was unable to identify any finding of the kind described in the second ground of appeal.  Furthermore, such a ground could not succeed unless, contrary to the member’s finding, the Tribunal has the power to declare that the impugned material was in fact obtained without lawful authority.  Aside from the submissions made in respect of the first ground, the appellant made no attempt – either orally or in writing – to substantiate their contention that the Tribunal has such a power.  Accordingly, the second ground of appeal goes no further than the first.  It also should be noted that, as the Director argues, the second ground necessarily involves a factual analysis, with the result that it could not be pursued without a grant of leave to appeal by this Court,[31] but leave was neither sought nor granted.

   [31]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 149(3)(b).

5. Importantly, if this Court characterises the appellant’s attack on the validity of the Director’s decision as a collateral attack, neither ground of appeal seeks to challenge the member’s finding that the Tribunal has no power to determine such an attack. It follows that the only issue requiring determination by this Court is whether, for the purpose of determining its jurisdiction, the Tribunal is empowered to rule on the validity of the Director’s decision under s 103. This necessarily depends on whether the validity of the Director’s decision goes to the Tribunal’s jurisdiction under s 94(1)(b).

6. For the reasons that follow, the appeal should be dismissed. The member was correct to treat the appellant’s attack on the validity of the Director’s decision under s 103 as a collateral attack. The validity of the Director’s decision does not go to the Tribunal’s jurisdiction under s 94(1)(b). Nor is it a matter which that Tribunal otherwise has the power to determine by way of collateral review.

   The appellant’s attack on the validity of the Director’s decision is a collateral attack

7. What is meant by collateral attack or collateral review will depend upon context.[32]  In Ousley v The Queen (Ousley),[33] McHugh J described a collateral attack in the following terms:

   “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… [It occurs] in proceedings where the validity of the administrative act is merely an incident in determining other issues.”

   [32]Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305 (2020) 104 NSWLR 19, [59] per White JA (Emmett and Simpson JJA agreeing).

   [33](1997) 192 CLR 69, 98–99.

8. The authors of Judicial Review of Administrative Action and Government Liability[34] described a collateral challenge as one where:

   “… the allegation of a jurisdictional flaw arises in a matter not designed specifically for handling it, nor necessarily focussing on that issue or involving the directly affected parties, and in a court or tribunal which may not have much administrative law experience.”

   [34](7^th ed, LawBook Co, 2022) at [13.250].

9. In this sense, a collateral attack or collateral review can be described as an attempt by a party to assert that an administrative act or decision is void or unlawful in a proceeding that is neither an application for judicial review, nor a direct appeal or review of that act or decision.[35]

   [35]Secretary of the Ministry of Health v The New South Wales Nurses and Midwives’ Association (2022) 320 IR 249, [158] per Walton J.

10. The appellant submits that the attack on the validity of the Director’s decision does not fall within the concept of collateral attack described by McHugh J in Ousley.  The appellant principally relies on Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305 (Dyldam Developments)[36] to support his submission that the Tribunal has the power, and is obliged, to determine whether the Director’s decision under s 103 was valid, and that his challenge to the validity of that decision is not properly characterised as collateral.

    [36](2020) 104 NSWLR 19.

11. In Dyldam Developments, White JA (Emmett and Simpson JJA agreeing) held that it was “central”, and not collateral, for the New South Wales Civil and Administrative Tribunal (NCAT) to determine the validity of purported occupation certificates when exercising its jurisdiction under the Home Building Act 1989 (NSW) (HB Act).[37]  It was the centrality of the issue to NCAT’s jurisdiction that distinguished Dyldam Developments from the earlier decision in Sudi (which, as mentioned, was a case relied upon by the member at first instance).[38]

    [37]Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305 (2020) 104 NSWLR 19, [57].

    [38](2011) 33 VR 559. See Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305 (2020) 104 NSWLR 19, [57], [60].

12. It is necessary to consider these decisions in further detail before dealing with the appellant’s submissions.

    Director of Housing v Sudi

13. As mentioned, Sudi concerned the ability of VCAT to collaterally review the validity of a decision made by the Director of Housing to apply for possession of certain residential premises. The Director of Housing had applied to VCAT for an order for possession of residential premises. VCAT dismissed the applications on the basis that the Director of Housing had breached her statutory obligations under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in seeking to evict the respondent from the premises.

14. The Victorian Court of Appeal held that VCAT lacked the power to undertake collateral review of the validity of the decision made by the Director of Housing to bring the relevant applications.  Each of the judges, writing separately, emphasised the primacy of the enabling legislation in determining the question.

15. Warren CJ considered that for VCAT to have such a power would be inconsistent with the stated purpose for establishing VCAT, which was to set up “a specialist forum of limited jurisdiction” that provides “speedy and inexpensive resolution of specific kinds of disputes”.[39]  Her Honour observed that “[i]n order to entertain a collateral attack on the validity of an administrative decision … VCAT would have to, in effect, conduct a trial within a trial.  VCAT would need to leave the subject of tenancy law and enter the domain of administrative law.”[40]  Warren CJ also acknowledged that while the exclusion of a collateral review power may lead to “fragmentation of proceedings” (by requiring the respondent to bring a separate proceeding in the Supreme Court to challenge the administrative decision), this was “a necessary consequence of setting up a specialist forum of limited jurisdiction”.[41]  Ultimately, her Honour held:[42]

    “… the [Residential Tenancies Act 1997 (Vic)] and the VCAT Act evince an intention to deny VCAT power to collaterally review the validity of a purported administrative decision that happens to be material to the tenancy dispute before VCAT. Or, to put it differently, the two Acts evince an intention that, in dealing with applications under the RTA, VCAT should treat relevant purported administrative decisions as being valid unless and until set aside by a court of competent jurisdiction.”

    [39]Director of Housing v Sudi (2011) 33 VR 559, [34], [39]. See also [80] per Maxwell P.

    [40]Director of Housing v Sudi (2011) 33 VR 559, [35].

    [41]Director of Housing v Sudi (2011) 33 VR 559, [39].

    [42]Director of Housing v Sudi (2011) 33 VR 559, [43].

16. Writing separately, Maxwell P and Weinberg JA made similar comments.  Maxwell P noted, in particular, that the proceeding in VCAT was “not conditioned on the existence of a valid administrative act by a public official”.[43]

    [43]Director of Housing v Sudi (2011) 33 VR 559, [74].

17. Weinberg JA relevantly observed that “[a]lthough VCAT may well have some powers to engage in some form of collateral review, these are confined by Ousley … to challenges brought on the basis of something akin to ‘facial’ or ‘patent’ invalidity”.[44]  The collateral review entertained by VCAT was not of that character.  As Warren CJ commented, the decision made by the Director of Housing to bring the applications bore “no brand of invalidity upon its forehead”.[45]

    [44]Director of Housing v Sudi (2011) 33 VR 559, [261].

    [45]Director of Housing v Sudi (2011) 33 VR 559, [23].

    Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305

18. Dyldam Developments was an application for leave to appeal from orders made by the Appeal Panel of NCAT.  The Appeal Panel had affirmed a decision of NCAT dismissing an application for an order that a claim for breaches of statutory warranties in relation to the erection of a residential building was commenced out of time.

19. Section 18E(1)(a) of the HB Act provided that proceedings for breach of a statutory warranty must be commenced within seven years after “the completion of the work to which it relate[d]”. Section 3C(2)(a) of the HB Act relevantly provided that completion of residential building work occurred on “the date of issue of an occupation certificate that authorise[d] the occupation and use of the whole of the building”.

20. There were three documents purporting to be occupation certificates for the building. Two were described as “interim” and were issued outside of the seven years provided under s 18E of the HB Act. The third certificate was issued within the seven years and was described as a “final” certificate.

21. The issue on appeal was whether either of the “interim” occupation certificates, which NCAT had determined were issued in contravention of s 109H(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), authorised the occupation and use of the whole of the building for the purpose of the running of the limitation period in the HB Act.

22. The appellant builder contended that NCAT had no authority to determine whether an interim occupation certificate was issued in breach of the EPA Act. A question therefore arose as to the power of NCAT to determine the validity of occupation certificates purportedly issued by a building certifier.

23. White JA (Emmett and Simpson JJA agreeing) held that the “starting point” is the jurisdiction conferred on NCAT by the HB Act.[46] Section 48K of the Home Building Act relevantly provided:

    [46]Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305 (2020) 104 NSWLR 19, [43] per White JA.

    “48K Jurisdiction of Tribunal in relation to building claims

    (1)The Tribunal has jurisdiction to hear and determine any building claim brought before it in accordance with this Part in which the amount claimed does not exceed $500,000 (or any other higher or lower figure prescribed by the regulations).

    (2)The Tribunal has jurisdiction to hear and determine any building claim whether or not the matter to which the claim relates arose before or after the commencement of this Division, except as provided by this section.

    …

    (7)The Tribunal does not have jurisdiction in respect of a building claim arising from a breach of a statutory warranty … if the date on which the claim is lodged is after the end of the period within which proceedings for a breach of the statutory warranty must be commenced (as provided by section 18E).”

24. White JA emphasised that it was the express denial of jurisdiction by the plain words of s 48K(7) of the HB Act that meant that the issue as to whether a building claim was within time became an issue “central” to NCAT’s jurisdiction.

25. Relevantly, his Honour held:[47]

    “In my view, the issue as to the validity of the certificates was not collateral at all to the proceeding before the Tribunal. It was central to the Tribunal’s decision which the Tribunal was both obliged and authorised to make as to its jurisdiction to entertain the claim. As the authority of the Tribunal to decide the issue depends upon the proper construction of the Tribunal’s jurisdiction conferred by s 48 of the Home Building Act (Frugtniet v Attorney-General of New South Wales (1997) 41 NSWLR 588 at 602), I find it impossible to understand how that legislation does not confer jurisdiction on the Tribunal to decide whether the effect of the documents relied upon by Dyldam was to authorise the occupation and use of the whole of the building. The facts of this case are, in that respect, quite different from the authorities on the jurisdiction of courts and tribunals to entertain a collateral challenge to the validity of administrative or legislative acts considered by the Appeal Panel and by the Victorian Court of Appeal in Director of Housing v Sudi.

    In Jacobs v OneSteel Manufacturing Pty Ltd Debelle J (at [14]) noted that an issue is not truly collateral if it is the central issue to be decided.  The Appeal Panel described a collateral challenge as one where (at [99]):

    ‘[99] … the allegation of a jurisdictional flaw arises in a manner not designed specifically for handling it, nor necessarily focusing on that issue or involving the directly affected parties, and in a court or tribunal which may not have much administrative law experience’

    (quoting M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Sydney, Thomson Reuters (Professional) Australia Ltd) at par 10.280).

    What is meant by collateral challenge or collateral review will depend upon context. In the sense described by the Tribunal it can be accepted that the respondent makes a collateral challenge to the validity of the certificates. That does not deny the centrality of that challenge to the Tribunal’s decision. This informs the construction of s 48K conferring jurisdiction on the Tribunal. The challenge is not collateral in the sense described by McHugh J in Ousley v The Queen (1997) 192 CLR 69 at 98–99; [1997] HCA 49 as being merely an incident in the determination of other issues.”

    [47]Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305 (2020) 104 NSWLR 19, [57]–[60] per White JA.

26. As mentioned, his Honour considered that the centrality of the issue to the Tribunal’s jurisdiction distinguished the case from Sudi:[48]

    “… [N]either the Residential Tenancies Act 1997 (Vic) nor the Victorian Civil and Administrative Tribunal Act 1998 (Vic) expressly conditioned the Tribunal’s jurisdiction on the application being brought in conformity with the applicant’s obligations under the Charter of Human Rights and Responsibilities Act. By contrast in the present case, NCAT’s jurisdiction is expressly dependent upon whether the occupation certificates relied upon by Dyldam authorised the occupation and use of the whole of the building.

    Had the relevant Victorian legislation provided in substance that the Tribunal could make an order for possession only if the applicant, in seeking such an order, complied with the applicant’s obligations under the Charter of Human Rights and Responsibilities Act in bringing the application, one may venture to think that the result would have been different.”

    [48]Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305 (2020) 104 NSWLR 19, [60]–[61] per White JA.

    Consideration

27. As Walton J observed in Secretary of the Ministry of Health v The New South Wales Nurses and Midwives’ Association:[49]

    “It is clear from Dyldam Developments that an attack on the validity of an order, certificate, decision or the like is not to be characterised as a collateral attack if determining the attack is necessary for the court or tribunal to determine whether it has jurisdiction to decide the broader claim brought before it.  In contrast, where an attack on the validity of an order, certificate, decision or the like does not go to the jurisdiction of the court or tribunal, it can be properly characterised as a collateral attack.”

    [49](2022) 320 IR 249, [178] per Walton J.

28. The appellant submits that the Tribunal’s jurisdiction under s 94(1)(b) is conditioned upon the Director’s decision under s 103 being, as a matter of law, a valid decision. From this submission, it necessarily follows that the reference to the word “referred” in s 94(1)(b) and throughout the HO Act and QCAT Act, can only be understood as “validly referred”.

29. The question is one of statutory construction.[50] To properly construe the statute, it is necessary to examine both the language in which ss 94(1)(b) and 103 are cast and “the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional”.[51]

    [50]Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, [57] per French CJ, [109] per Gummow, Hayne, Crennan and Bell JJ.

    [51]Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707, [6] per Spigelman CJ.

30. The legislative provisions in s 48K of the HB Act considered in Dyldam Developments are readily distinguishable from those in the HO Act. There is no provision like s 48K(7) that expressly denies jurisdiction to the Tribunal unless a condition is met. The construction advocated by counsel for the appellant does not conform with the plain text of ss 94(1)(b) and 103. There is no aspect of the language of either provision that manifests an intention to qualify the requirement for the Director to have referred a matter “under section 103” in the manner contended for by the appellant. On a plain reading of s 103, the Director’s decision to refer a matter to the Tribunal is not confined by any express constraints as to the circumstances in which a matter should be referred.

31. While s 103(3) identifies mandatory considerations for the Director, each involves an evaluative judgment of a kind appropriately conferred on a senior professional officer of an authority.[52] The Tribunal’s task in determining whether it has jurisdiction under s 94(1)(b) is to determine, as a preliminary matter, whether the Director has complied with s 103(3) by having regard to the particular considerations. The absence of any requirement for the Director to reach a particular state of satisfaction in respect of these mandatory considerations suggests that, as a matter of statutory construction, Parliament intended that any question of satisfaction or priority (as between the particular considerations) be left as a matter for the Director. So much is consistent with the fact that the Director is established as an independent authority outside ministerial control. In that sense, as Basten AJA observed in Health Care Complaints Commission v Hill (“Hill”),[53] “the functions of the office [of the Director] are analogous to those of the Director of Public Prosecutions in relation to criminal proceedings”.

    [52]Health Care Complaints Commission v Hill [2022] NSWCA 270, [26] per Basten AJA.

    [53]Health Care Complaints Commission v Hill [2022] NSWCA 270, [39] per Basten AJA.

1. In Hill, Basten AJA was considering the equivalent statutory scheme in NSW.  His Honour (Ward P and Mitchelmore JA agreeing) held that the Director exercises powers that are comparable to those of a Crown prosecutor, which are “largely immune” from judicial review but always subject to the control of the court or tribunal in which proceedings are commenced.[54]  The appeal was disposed on the basis that a decision by the Director to commence disciplinary proceedings was immune from judicial review on the ground of legal unreasonableness.  However, his Honour left open the possibility that a decision may be invalid if made for a corrupt or improper purpose, or without compliance with the mandatory preconditions.  It would be a strange result if the Director’s decision could not be impugned in a superior court exercising supervisory jurisdiction, yet its validity was a jurisdictional fact the existence of which enlivened the Tribunal’s jurisdiction.

   [54]Health Care Complaints Commission v Hill [2022] NSWCA 270, [40]–[53] per Basten AJA.

2. This view is reinforced by the timely process for resolving disputes which is contemplated by the procedure and role of the Tribunal.  As Spigelman CJ observed in Woolworths Ltd v Pallas Newco Pty Ltd,[55] the resultant “inconvenience” is the “most significant element suggesting that classification is not a jurisdictional fact”. The objects of the QCAT Act include that the Tribunal “deal with matters in a way that it is accessible, fair, just, economical, informal and quick”.[56] With a view to achieving the objects of the QCAT Act, the Tribunal must “ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice”.[57]  In the conduct of a proceeding, the Tribunal “must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act, or the rules and a proper consideration of the matters before the Tribunal permit”.[58] The QCAT Act naturally does not confine its objects and means of achieving them by reference only to considerations of economy, informality, and speed of disposition of proceedings in the Tribunal, but those are important features of the Act which establishes the Tribunal. If the Tribunal’s jurisdiction were conditioned on the existence of a valid decision under s 103, an inquiry would need to be conducted at the outset into the validity of the decision. This is because it is the “first duty” of a court to be satisfied that it has jurisdiction to decide the matter before it.[59] The resulting technicality and delay in the Tribunal would be incongruent with important provisions of the QCAT Act.

   [55](2004) 61 NSWLR 707 at [63].

   [56]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b).

   [57]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4(c).

   [58]QueenslandCivil and Administrative Tribunal Act 2009 (Qld), s 28(3)(d).

   [59]Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398, 415 per Griffith CJ.

3. The HO Act requires the Tribunal to be constituted by one “judicial member” for a disciplinary proceeding.[60]  The definition of “judicial member” comprehends the president, the deputy president, and a supplementary member who is any of a Supreme Court judge, District Court judge or member of the Land Court.[61]  The appellant relies upon the circumstances that the Tribunal is declared to be a “court of record”[62] and has been held to be a “court” for the purposes of s 77(ii) and Ch III of the Constitution.[63] The present exercise of statutory construction must proceed, however, upon the footing that the Tribunal may be constituted by a member of a court which has no jurisdiction to embark upon judicial review of administrative decisions. Also bearing in mind the provisions of the QCAT Act discussed in the preceding paragraph, the Tribunal is plainly ill-suited to decide the legal validity of a decision made by the Director under s 103. That makes it seem unlikely that the legislative purpose includes the imposition of the condition upon the Tribunal’s jurisdiction for which the appellant contends.

   [60]Health Ombudsman Act 2013 (Qld), s 97(1). (There are departures from that provision but they are irrelevant for present purposes).

   [61]Health Ombudsman Act 2013 (Qld), s 97(3), referring to the definition in Queensland Civil and Administrative Tribunal Act 2009 (Qld), schedule 3.

   [62]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 164(1).

   [63]Owen v Menzies [2013] 2 Qd R 327.

4. Further, the Tribunal’s jurisdiction to take one of the actions in s 107(2) is only enlivened “after hearing” a matter that has been “referred” by the Director under s 103. Section 107(2)(a) provides that one of the actions that the Tribunal may take is to dismiss the matter on the ground that “the practitioner has no case to answer and no further action is to be taken in relation to the matter”. If it is established that the Director’s decision under s 103 was for whatever reason invalid, then the proper course would be to dismiss the matter under that provision because there is no case to answer and the Tribunal should take no action. Section 107(2)(a) has the opposite effect to the provisions that informed the outcome in Dyldam Developments.

5. The appellant’s submissions are even more unpersuasive once regard is had to s 34 of the QCAT Act. This provision, which is set out above, explains the two conditions for a valid referral, neither of which are said to have been breached by the Director. In this respect, the appellant argues that s 34 is qualified by s 35. The latter section empowers the principal registrar to reject an application or referral on any of the grounds that: it is made by a person who is not authorised to make it; it is made after the expiry of the period within which it is required to be made under the QCAT Act; or it does not otherwise comply with that Act, an enabling Act, or the rules.

6. The appellant apparently relies upon the last of those three grounds. The circumstance that the principal registrar is empowered to reject a referral upon the ground that it does not comply with the enabling Act self-evidently does not shed any light upon the question whether a referral does or does not comply with its enabling Act. Contrary to a related submission, no assistance in answering that question may be derived from provisions of the QCAT Act that the principal registrar’s decision may be reviewed by the Tribunal[64] and that a proceeding starts when the referral is accepted by the principal registrar.[65] Those provisions do not reduce the impact of s 34 as an indication that the Tribunal’s jurisdiction is not conditioned upon the legal validity of the Director’s decision to make the referral.

   [64]Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 35(4) - (8).

   [65]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 36.

7. The appellant relies upon s 47 of the QCAT Act. That section empowers the Tribunal, on application of a party to the proceeding or on the Tribunal’s own initiative, to order a proceeding to be dismissed or struck out if the Tribunal considers the proceeding to be frivolous, vexatious or misconceived, lacking in substance, or otherwise an abuse of process. The appellant submits that a breach of a duty imposed upon the Health Ombudsman in the relevant investigation amounts to an abuse of process and that a referral made as a consequence of that abuse of process is not authorised by the HOA. Upon these premises, the appellant submits that, reading the statutory power conferred by s 47 with s 94(1)(b) of the HOA, the referral is made subject to the Tribunal forming an opinion about the legal validity of the Director’s decision to make that referral. The argument assumes, but does not establish, the correctness of the conclusions asserted in those premises. The appellant submits that his argument is assisted by Basten AJA’s judgment in Hill.  In that case, however, Basten AJA regarded the relevant tribunal’s power to strike out a proceeding as an abuse of process as an indication that the validity of the decision of the Director to refer a matter to the tribunal was not amenable to judicial review either in the tribunal or in the Supreme Court.[66]

   [66]See Health Care Complaints Commission v Hill [2022] NSWCA 270, [31] per Basten JA.

8. If the legislature had intended for a condition of the kind contended for by the appellant to be met, it could have used clear words to that effect. In this respect, nothing in the HO Act requires that a decision by the Director to refer a matter to the Tribunal can only be made where the Health Ombudsman’s investigation has been conducted in accordance with that Act. Nor is there any requirement that the Director be satisfied that the provisions dealing with the Health Ombudsman’s investigation have been complied with. To the contrary, s 102 of the HO Act provides that when the Health Ombudsman refers a matter to the Director, the Health Ombudsman “must” give to the Director “all the relevant information” that the Health Ombudsman has about the matter. No rider limits that obligation to information lawfully obtained.

9. It is sufficient to enliven the Tribunal’s jurisdiction under s 94(1)(b) that the Director’s decision under s 103 is one which appears formally valid and has not been quashed by judicial review in a court of competent jurisdiction.

10. For those reasons, the appeal should be dismissed.  It is unnecessary to consider the Director’s notice of contention.  Costs ordinarily would follow the event but at the hearing of the appeal the Court acceded to the appellant’s request that the parties be given an opportunity to make written submissions about costs.  The following orders should be made:

    1.The appeal is dismissed.

    2.The parties have leave to make written submissions upon costs in accordance with the Practice Direction.