CYB v Health Ombudsman [2025] QSC 301

ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - GROUNDS OF REVIEW - FAILURE TO OBSERVE STATUTORY PROCEDURE - where the applicant is a general practitioner - where a complainant made a health service complaint about the applicant to the respondent - where the respondent decided to accept the complaint and undertake an assessment and investigation of the complaint - where the respondent decided to withhold notice under s 284(c) of the Health Ombudsman Act 2013 (Qld) - where the applicant has applied for a statutory order of review under s 21(2)(b) of the Judicial Review Act 1991 (Qld) and seeks declarations and injunctions in respect of the respondent's assessment and investigation of the complaint - where the application is concerned with a decision proposed to be, but not yet, made under s 90 of the Health Ombudsman Act 2013 (Qld) - where the applicant alleged that the respondent has failed to observe procedures required by law to be observed in relation to conduct for the purpose of making the decision proposed to be made under s 90 - where conduct engaged in for the purpose of making a decision extends to the doing of anything preparatory to the making of the decision - where the conduct must be shown to be reasonably proximate to the proposed making of the decision - whether the procedures particularised by the applicant's grounds of review are properly described as procedures that were required by law to be observed in relation to conduct for the purpose of making the proposed decision under s 90 - whether, if the procedures were required by law to be observed, the respondent has failed to observe those procedures

ADMINISTRATIVE LAW - JUDICIAL REVIEW - POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION - GENERALLY - where the principal claims the subject of the application are injunctions permanently restraining the respondent from continuing to conduct the investigation and from dealing with the complaint - where the injunctions are sought in circumstances where the applicant complains that he was not given notice of decisions made under the Health Ombudsman Act 2013 (Qld) and was not provided with notice of the progress of the investigation - where non-observance of a condition bearing upon the exercise of a statutory power would work to the material disadvantage of individuals for whose protection the condition exists, considerations of justice and convenience tell strongly in favour of holding invalid acts done in neglect of the condition - whether the applicant has established any actual prejudice or inferred prejudice suffered as a result of any non-compliance with the notice requirements - whether the applicant has established a basis for the permanent restraints sought by the application - whether the claimed declarations would lack utility - whether the court should grant the injunctions and make the declarations sought by the applicant

Acts Interpretation Act 1954 (Qld), s 27B

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 3, s 5

Health Ombudsman Act 2013 (Qld), s 3, s 4, s 35, s 35C, s 38, s 50, s 90, s 278, s 284

Judicial Review Act 1991 (Qld), s 4, s 8, s 13, s 21

Aurukun Bauxite Development Pty Ltd v Queensland [2016] QSC 263; (2016) 222 LGERA 107, cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, considered

Australian National University v Lewins (1996) 68 FCR 87, considered

Braun v Health Ombudsman [2021] QSC 209, considered

Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214, cited

Earl of Dysart v Hammerton & Co [1914] UKLawRpCh 34; [1914] 1 Ch 822; [1916] 1 AC 57, cited

EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; (2019) 272 FCR 409, considered

Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510, cited

Fuller v Lawrence [2024] HCA 45; (2024) 99 ALJR 103, cited

Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99, cited

Karmakar v Minister for Health (No 2) [2021] FCA 916; (2021) 177 ALD 83, cited

Module2 Pty Ltd v Brisbane City Council (2006) 153 LGERA 120, cited

New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369, considered

Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465, considered

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355, considered

Schlaepfer v ASIC [2017] FCA 1122, cited

• [1] The applicant ("the doctor") is a general practitioner. A complainant ("the complainant") made a complaint about the doctor to the office of the respondent ("the Ombudsman"). The complaint was a "health service complaint" within the meaning of s 31 of the Health Ombudsman Act 2013 (Qld) ("the HO Act"). The doctor has applied for a statutory order of review under s 21(2)(b) of the Judicial Review Act 1991 (Qld) ("the JR Act") and seeks declarations and injunctions in respect of the Ombudsman's assessment and investigation of the complaint. Ms J Baker ("Ms Baker") was joined to the proceeding "in her capacity as an authorised person" under the HO Act. By an order dated 11 November 2025, she was removed from the proceedings.

The Ombudsman deals with a complaint without giving notice to the doctor

• [2] On Friday 1 March 2024, the office of the Ombudsman received a telephone call from the complainant. During that call, the complainant made separate complaints about the doctor and a hospital. As to the doctor, her complaints were broadly as follows. The complainant had begun receiving treatment from the doctor in 2007 for various health concerns. In 2015 or 2016, the doctor had prescribed her "copious amounts of codeine and lexotan". In 2018, she had telephoned the doctor to make an appointment. He had told her that he could visit her home and suggested they might engage in sexual intercourse. In 2020, the complainant had arranged a home visit from the doctor because of hip, toe and calf pain. The doctor arrived at her home inexplicably, and without consent, performed a breast examination and then left. The complainant later arranged an appointment at the doctor's practice. She had been told by the doctor to "make sure she was the last appointment". During that appointment, the doctor put gloves on and had inserted part of his hand into the complainant's vagina and had moved his hand quickly in a thrusting way. The complainant was speechless and in shock. Six months later she had made an appointment with the doctor. During this appointment they discussed having sex and she had performed oral sex on the doctor in a bathroom at his practice. The doctor said to the complainant that he had "done this with a few other women". After relating that complaint about the doctor, the complainant indicated that her desired outcome was for the Ombudsman to "charge the [doctor]". As to the hospital, her complaint was broadly as follows. She had been admitted to the hospital at the beginning of 2023 for a period of seven weeks during which she had been diagnosed with bipolar disorder, placed on a treatment authority and been advised that she was required to take a regular dose of olanzapine 20ml medication. She complained that she had been "held" at the hospital for more than seven days.
• [3] During the telephone conversation on 1 March 2024, the complainant advised that she was "suffering with memory loss", did not have any support and had been "stuck in the house for 10 years". The written record of the complaint notes that, during the telephone conversation, the complainant "would often flit between life events, dates would be second guessed and incidences confused". She said that she suffered with amnesia, was illiterate and believed she needed counselling. She had said that she "[was] not insane", mentioned that her daughter was pregnant and trying to kill her baby and that her husband had committed suicide. In respect of the house visit, she had initially said she did not know why the doctor was at her house, but later said that he had been there for an appointment.

(a) to protect the health and safety of the public; and

(i) professional, safe and competent practice by health practitioners; and

(ii) high standards of service delivery by health service organisations; and

(c) to maintain public confidence in the management of complaints and other matters relating to the provision of health services.

(2) The objects are to be achieved mainly by establishing a transparent, accountable and fair system for effectively and expeditiously dealing with complaints and other matters relating to the provision of health services, including by -

(a) establishing the health ombudsman with the functions set out in section 25; and

(b) providing for the effective and efficient interaction of this Act and the National Law; and

(c) providing for the system to be effectively monitored by the Minister and the parliamentary committee.

(1) The main principle for administering this Act is that the health and safety of the public are paramount.

(2) Without limiting subsection (1), the health and safety of the public is the main consideration for -

(a) the health ombudsman, when deciding what relevant action to take to deal with a complaint or other matter; and

(b) the director of proceedings, when deciding whether to refer a matter to QCAT; and

(c) QCAT, when deciding a matter referred to it under this Act."

• [5] Section 35(1)(a) of the HO Act required the Ombudsman, within seven business days after receiving the complaint, to decide to act in one of three ways. The Ombudsman could decide "to accept the complaint and take particular relevant action to deal with the matter of the complaint", "to accept the complaint and take no further action in relation to it" or "not to accept the complaint". Section 38 specified the relevant actions that might be taken for dealing with a health service complaint. Section 38(1) described "relevant action" as follows:

"(1) Each of the following is a relevant action for dealing with a

(b) facilitating local resolution of the complaint under

(d) investigating the subject matter of the complaint under

(f) referring the complaint to the National Agency or an

entity of the State, another State or the Commonwealth

(g) for a health service complaint concerning a registered

health practitioner, referring the complaint to the

director of proceedings under part 10, division 2 for

decision about whether to refer the complaint to QCAT;

(i) carrying out an inquiry into the subject matter of the

• [6] Section 35C(1) of the HO Act required the Ombudsman, as soon as practicable after accepting the complaint, to notify the National Agency[1] that the complaint had been accepted and to provide a copy of the complaint, or the Ombudsman's record of the details of the complaint, to the National Agency, together with any other information the Ombudsman had that was relevant to the complaint. Under s 35C(2), within five business days of being notified of the complaint, the National Agency might give the Ombudsman the National Agency's preliminary view about how to deal with the complaint.
• [7] The Ombudsman was entitled to delegate his or her functions under the HO Act to an appropriately qualified staff member of the Ombudsman's office.[2] Ms B Mackenzie, a senior complaints officer employed by the Ombudsman, was delegated the Ombudsman's function to make the decision required by s 35(1)(a) of the HO Act.
• [8] Ms Mackenzie was aware that a decision under s 35(1)(a) to accept a complaint had to be notified to the National Agency and the National Agency might provide its view as to how to deal with the complaint. On 4 March 2024, for the purpose of complying with s 35C, she notified the National Agency that she had decided to accept the complaint and provided her preliminary view that it was most appropriate for the Ombudsman to deal with the complaint by undertaking an assessment. She requested that the National Agency respond to her preliminary view. On 5 March 2024, she received notification from the National Agency to the effect that the National Agency agreed that the Ombudsman should retain the complaint. On 6 March 2024, she "completed the s 35(1)(a) decision".
• [9] The record of Ms Mackenzie's decision made under s 35(1)(a) is in evidence. Under a heading "Decision Details", the record states that the s 35(1)(a) decision was "Accept the complaint and take particular relevant action s 35(1)(a)(i)". The relevant action is then described as "Assess under Part 5". Under a heading "Reason for decision", the following appears:

"The complainant has raised allegations of sexual assault against the [doctor] pertaining to a number of incidences during the treating relationship, together with prescribing concerns. The complainant appears vulnerable and may have history of mental health concerns. The [doctor] has some prior notifications history in relation to prescribing and conduct concerns but no regulatory action to date. The allegations are serious and the matter is considered suitable for retention by the [Ombudsman] to progress to Ax, to gather further information."

• [10] Section 35(1)(b) of the HO Act required the Ombudsman, again within seven business days after receiving the complaint, to give notice of the decision made under s 35(1)(a) to the complainant and the doctor. The notice to be given was notice "under s 278". Section 278(1) relevantly provided that the notice under that provision was to state "the decision" and, if the Ombudsman had decided to take "relevant action", the particular relevant action and "the reasons for the decision". Section 284 then provided:

"A requirement under this Act for the health ombudsman to give notice of a decision or other matter to a health service provider does not apply to the extent that the health ombudsman considers that doing so may -

(a) put at serious risk a person's health or safety; or

(b) put a complainant or other person at risk of being

• [11] Ms Mackenzie was delegated the Ombudsman's function to make any decision under s 284 of the HO Act. The record of Ms Mackenzie's decision reveals that on 4 March 2024 she made a decision under s 284 to withhold notice from the doctor. In making that decision, Ms Mackenzie relied on s 284(c), namely that giving notice of the s 35(1)(a) decision in her consideration "may prejudice an investigation or inquiry". Under a heading "Reason(s) to withhold notice under s 284", the record states "Notice withheld under s 284(c) to avoid prejudicing investigation of the concerns raised".
• [12] The complaint then proceeded to what was described as "the assessment phase". The assessment of complaints is dealt with by Part 5 of the HO Act. The purpose of an assessment is to obtain and analyse information relevant to the complaint and decide the most appropriate way to deal with the complaint.[3] The assessment may be made in the ways the Ombudsman considers appropriate. By way of example, the Ombudsman may, during the assessment, analyse information provided with the complaint,[4] consider submissions which the Ombudsman may invite under s 47 from a complainant or the doctor,[5] analyse information obtained by the Ombudsman under s 48,[6] communicate with the complainant or the doctor[7] and consult with an entity with relevant technical expertise about the complaint.[8] The Ombudsman is to complete any assessment within 22 business days after deciding to carry out the assessment.[9] Section 50(a) of the HO Act provided that after completing an assessment, the Ombudsman was required to make one of two decisions, namely "to take particular relevant action to further deal with the complaint" or "to take no further action in relation to the complaint". Section 50(b) required the Ombudsman to give notice of the decision under s 50(a) to the complainant and the doctor. The notice was to be given "under s 278".
• [13] During the assessment phase of the complaint, the Ombudsman:

(a) requested information from Medicare;

(b) issued a notice under s 48(1) to the Chief Executive of Metro North Hospital and Health Service;

(c) issued a notice under s 48(1) to the Monitored Medicines and Compliance Unit;

(d) sent a letter to the National Agency requesting information under s 206B of the Health Practitioner Regulation National Law (Queensland).

• [14] On 2 April 2024, the Ombudsman received a response from the Monitored Medicines and Compliance Unit and the National Agency. On 9 April 2024, the Ombudsman received a response from the Royal Brisbane and Women's Hospital. On 11 April 2024, the Ombudsman received a response from Medicare.
• [15] Mr S Robinson, a senior complaints and operations officer employed by the Ombudsman, was delegated the Ombudsman's function to make any decision under ss 50(a) and 284 of the HO Act. On 10 May 2024, Mr Robinson made a decision under s 50(a) to take particular relevant action. The relevant action was to investigate under Part 8 of the HO Act. The record of that decision contains a section headed "Reason for decision". The section relevantly reads as follows:

Further, the complainant advised in 2015 and 2016, the practitioner prescribed her copious amounts of Codeine and Lexotan (120 tablets at a time).

The complaint relates to the practitioner ... allegedly sexually assaulting the complainant (a patient when the practitioner was in sole practice ...) over an extended period of time (2007-2021). The complainant noted that she had breast cancer in 2004 caused by silicone implants and calcification forming.

The complainant stated she had amnesia previously but is now able to remember everything which happened to her. Initially the complainant reported the practitioner over prescribed her codeine in 2015-6, however upon a further follow-up phone call with the complainant due to lack of information being found, the complainant stated this was in relation to the over prescription of valium and other relaxant medication between 2012 and 2014."

• [16] On 10 May 2024, Mr Robinson made a decision that he considered that giving notice under s 278 might prejudice an investigation or inquiry. That decision was made in reliance upon s 284(c). The record of that decision contains a heading "Reason(s) to withhold notice under s 284". Under that heading the following appears:

"The [Ombudsman] has only obtained a statement at this time. Providing notice of decision to the practitioner [at] this time could prejudice the [Ombudsman] investigation."

• [17] The investigation of a complaint is dealt with by Part 8 of the HO Act. An "authorised person" has the function to carry out the activities for the purpose of an investigation by the Ombudsman under Part 8.[10] The Ombudsman may, by instrument in writing, appoint an appropriately qualified person, including an appropriately qualified staff member of the Ombudsman's office, as an authorised person.[11] The powers that may be exercised for the purpose of conducting an investigation are dealt with by Part 15 of the HO Act. A relevant power conferred upon an authorised person by s 228(3) is to give a notice to a person to give information or attend to answer questions where, inter alia, the authorised person reasonably believes that the person may be able to give information about the matter being investigated. An investigation is to be conducted as quickly as is reasonable in all the circumstances and, in any case, by one year, or any extended time decided under s 85(2), after the decision to carry out the investigation.[12] Under s 85(2), the Ombudsman may extend the period of one year if the Ombudsman reasonably considers that, in all the circumstances (including, for example, the size and complexity of the matters being investigated), it is not possible to properly complete the investigation within the year.[13] The Ombudsman may extend the period more than once under s 85(2) but each extension may not be for more than three months.[14] After completing an investigation, the Ombudsman may prepare a report on the investigation containing information, or recommendations for action.[15]
• [18] There are two notice provisions that arise in the context of an investigation. Section 82 applies if an investigation concerns a particular health service provider and notice of the decision to carry out the investigation has not been given to the provider under s 278. In that case, s 82(2) requires the Ombudsman to notify the provider about the investigation "before or when it is started". Section 84 relevantly provides that the Ombudsman must, at not less than three monthly intervals, give a notice of the progress of an investigation to any health service provider being investigated and the complainant.
• [19] On 20 May 2024, Ms A Ward, an investigations officer employed by the Ombudsman as an authorised person under s 188 of the Act, was appointed as the investigator for the complaint. Ms Ward subsequently left the employment of the Ombudsman and Ms Baker, a senior investigations officer employed by the Ombudsman, was allocated the complaint and appointed as the investigator of the complaint.

(a) on 29 May 2024, the Ombudsman issued a notice pursuant to s 228 of the HO Act to a Dr Z requesting documents;

(b) on 29 May 2024, the Ombudsman issued a notice to a Dr D requesting documents;

(c) on 5 June 2024, Dr D responded to the s 228 notice;

(d) on 9 September 2024, Ms A Ward interviewed the complainant;

(e) on 12 September 2024, the Ombudsman issued a s 228 notice to the Royal Brisbane and Women's Hospital;

(f) on 2 October 2024, the Royal Brisbane and Women's Hospital responded to the notice;

(g) on 14 October 2024, the Ombudsman issued a s 228 notice to a medical practice;

(h) on 17 October 2024, the medical practice responded to the notice;

(i) on 29 October 2024, a s 228 notice was issued to a Dr P;

(j) on 6 November 2024, Dr P responded to the s 228 notice.

• [21] On 6 December 2024, a Mr P Bergin, an employee in the Ombudsman's office, rescinded the decision to withhold notice from the doctor under s 284 and directed that the doctor be notified of the complaint. The material does not reveal the position held by Mr Bergin. The record of that decision relevantly reads:

As delegate for the [Ombudsman], I rescind the decision to withhold notice from the practitioner under s 284 and direct that the provider now be notified in accordance with the Act.

Can you please ensure investigators set relevant reminders to comply with our notification obligations pursuant to s 84.

6.12.2024 Paul, decision please to rescind 284(c) decision as no longer applies, and to progress the investigation. Steve M

5.12.24 - Steve, the medical records relating to the treatment provided by the [doctor] to the consumer have now been obtained. The [doctor] has closed his own clinic and at the beginning of 2024 he commenced work at [another practice]. It has been confirmed with the clinic manager that the consumer has never attended the clinic. As such s 284(c) no longer appears to apply and the decision to withhold notice should be rescinded. Thanks. Jane."

• [22] The reference to "Jane" is to Ms Baker. The reference to "Paul" is to Mr Bergin. The reference to "Steve" is to another employee of the Ombudsman, Mr S Martin. The material does not reveal the position held by Mr Martin.

The doctor is notified of the complaint and subsequent material events

• [23] On 6 December 2024, the doctor received correspondence from Ms Baker notifying him that on 1 March 2024 the Ombudsman had received the complaint, a delegate of the Ombudsman had assessed the complaint and, on 10 May 2024, had decided to investigate the complaint. Notably, the 6 December 2024 letter stated in terms that the Ombudsman had received a complaint from the complainant "about a health service [the doctor] provided to her between 2015 and 2021".
• [24] On 10 December 2024, Ms Baker gave notice to the doctor under s 228(3)(a) which sought information about the details for all staff working at the doctor's clinic during the period of 1 January 2020 to 31 December 2021, including their full name, telephone number(s), residential address, email address, their role at the medical practice and their commencement and cessation date. The notice also sought information about the appointment time for each appointment attended by the complainant during the period 1 January 2020 to her final appointment with the doctor. The 10 December 2024 notice stated that the "matter" related to "the allegation that you failed to maintain professional boundaries with [the complainant] and prescribed her excessive amounts of codeine and lexotan".
• [25] On 7 January 2025, Ms Baker gave a further notice under s 228 to the doctor which required him to attend to answer questions related to "the matter" on 29 January 2025 at 12.30pm at the Ombudsman's office. The notice described the matter as relating to "the allegation that you failed to maintain professional boundaries with [the complainant] and prescribed her excessive amounts of codeine and lexotan".
• [26] On 24 January 2025, the doctor's lawyers wrote to Ms Baker and contended that the doctor was "unable to properly understand the nature of the allegation that has been made against him, or the basis upon which it is alleged that he has committed an offence under the HO Act because he does not know what conduct he is alleged to have engaged in." The letter incorrectly stated that an unknown person had made the complaint. The letter went on to variously state that the "nature of the alleged boundary violation is unclear" and it was "also unclear how it is alleged that [the doctor] has prescribed the patient excessive amounts of codeine and lexotan". The letter requested a copy of the complaint.
• [27] On 24 January 2025, Ms Baker sent an email to the doctor's lawyers which referenced a telephone conversation between Ms Baker and one of the doctor's lawyers that morning. The email refused to provide a copy of the complaint or of any complaint material but confirmed that on the allegations made by the complainant and the information gathered, the proposed interview would cover these allegations:

"1. [The doctor] conducted a breast examination on [the complainant] without consent

1. During a vaginal examination, [the doctor] inserted his whole hand into [the complainant's] vagina
2. [The doctor] and [the complainant] engaged in oral sex during a clinical appointment, and
3. [The doctor] offered to engage in sexual intercourse with [the complainant]."

• [28] The 24 January 2025 email went on to state that whilst the complainant was understood to be a "complex patient", the Ombudsman was obliged to put the allegations made by her to the doctor to provide him with an opportunity to respond. The letter noted that during the interview, Ms Baker intended to refer to clinical records created and maintained by the doctor which related to the complainant and offered to provide copies of those records to the doctor's lawyers.
• [29] On 28 January 2025, by agreement reached between Ms Baker and the doctor's lawyers, the notice given on 7 January 2025 was rescinded. A decision was made not to interview the doctor, however it was understood, as between Ms Baker and the doctor's lawyers, that a new notice would be issued in due course which would require a written response from the doctor.
• [30] On 29 January 2025, the doctor's lawyers sent a letter to Ms Baker which materially contended that, by reason of the nature of the allegations proposed to be covered in the abandoned interview, the doctor had been misled about the seriousness of the allegations. The 29 January 2025 letter described those allegations as not being "mere breaches of professional boundaries" but rather "allegations of very serious criminal offences". The 29 January 2025 letter observed that the allegations were "so lacking in detail" as to render them impossible to properly understand and requested particulars of each allegation. The 29 January 2025 letter asserted that the notices issued pursuant to s 228 were liable to be set aside.
• [31] On 7 February 2025, Ms Baker issued a further notice under s 228 of the HO Act which required the doctor to answer 10 written questions by reference to "the matter". The matter was described as involving these allegations:

"Between 2015 and 2021, [the doctor] prescribed excessive amounts of codeine and lexotan to [the complainant].

Between 2018 and 2021, [the doctor] failed to maintain professional boundaries with [the complainant].

In 2020, [the doctor] conducted a breast examination without [the complainant's] consent.

In 2020, [the doctor] conducted a vaginal examination in an inappropriate and sexual manner."

• [32] On 10 February 2025, Ms Baker sent an email to the doctor's lawyers which was in the following relevant terms:

As you are aware, the [Ombudsman] is investigating a complaint about the alleged conduct of [the doctor] ...

Under section 84 of the [HO Act], we must provide a progress report every three months.

Should you not wish to receive progress reports please let me know and our records will be amended accordingly. You may change your mind and request progress reports be provided again at any stage.

The investigation remains in the evidence gathering stage and we intend to complete the investigation as soon as possible.

If you have any questions about the investigation, please contact me by phone ... or by email ..."

• [33] On 27 February 2025, the doctor's lawyers wrote to Ms Baker in relation to the 7 February 2025 notice. The 27 February 2025 letter contended that the notice was defective because it failed to provide sufficient particulars of the matter being investigated and also failed to identify documents or information sought with sufficient particularity so that the doctor might see that those documents or information related to the relevant investigation. The 27 February 2025 letter contended that the four points identified as comprising the "matter" being investigated were inconsistent with the 6 December 2024 letter and the earlier s 228 notices. The 27 February 2025 letter repeated the request for the doctor to be provided with a copy of the complaint.
• [34] On 7 March 2025, Ms Baker sent a letter to the doctor's lawyers which asserted that the doctor had received sufficient information to understand the allegations and the nature of the matter being investigated. The 7 March 2025 letter stated that the Ombudsman did not "consider it appropriate, or required, to provide your client with the full complaint at this investigation stage".
• [35] On 15 April 2025, the doctor filed an application for a statutory order of review. On 7 May 2025, consent orders were made which effectively stayed the investigation. On 27 June 2025, the doctor filed an amended application for a statutory order of review. On 7 November 2025, he filed a further amended application for a statutory order of review. On 10 November 2025, he filed a further, further amended application for a statutory order of review ("the application").

The doctor applies to review the Ombudsman's conduct under s 21(2)(b) of the JR Act

• [36] The application seeks to review "the conduct of [Ms Baker and the Ombudsman] in undertaking and conducting an assessment and investigation of a complaint under Part 8 of the [HO Act]" ("the investigation").[16] That language is inapt as it is only the investigation which is being conducted under Part 8 of the HO Act. The assessment was conducted under Part 5 of the HO Act. The doctor's submissions made it plain that for the purposes of the application, the "only relevant 'decision to which the Act applies' is the decision to be made following the investigation of the complaint under s 90 of the HO Act".[17] That is, the application is concerned with a decision proposed to be, but not yet, made under s 90. The application does not rely upon s 20 of the JR Act. The doctor did not seek to review the decisions in fact made by the Ombudsman's delegates under ss 35(1)(a) and 50(a) of the JR Act. Nor did the doctor seek a statutory order of review in respect of any consideration made by the Ombudsman's delegates under s 284 that giving notice might prejudice an investigation or inquiry within the meaning of s 284(c), to the extent that any such consideration might be regarded as "a decision" to which the JR Act applies.
• [37] The grounds of the application are described by paragraphs 6, 7 and 8 of the application.
• [38] Paragraph 6 of the application alleges that a procedure that was required by law to be observed in relation to "the assessment of the complaint" was not observed within the meaning of s 21(2)(b) ("the first ground"). The particulars of the first ground are as follows:

(a) ss 35 and 278(1) of the HO Act required the Ombudsman, as soon as practicable and no later than five business days after making a decision to accept and assess a complaint, to give notice to the complainant and the doctor stating the decision and the reasons for the decision;

(b) s 27B of the Acts Interpretation Act 1954 (Qld) ("the Interpretation Act") required the reasons for the decision to set out findings on material questions of fact and refer to the evidence or other material on which those findings were based;

(c) no notice complying with s 278(1) has been given to the doctor;

(d) in failing to give notice under s 278(1), the Ombudsman "unlawfully relied on a belief" that the Ombudsman was excused by s 284(c) from giving the notice because notice would "prejudice an investigation or inquiry";

(e) contrary to the Ombudsman's belief, the Ombudsman was not excused from giving notice under s 284 because:

(i) there was, at the time, no "investigation or inquiry" that was capable of being prejudiced by complying with the notice requirements;

(ii) accordingly, on its proper construction, s 284(c) did not excuse the Ombudsman from the notice requirements;

(iii) further and alternatively, there was "no apparent basis for [the Ombudsman's] belief" that complying with the notice requirements would prejudice an investigation or inquiry.

• [39] Paragraph 7 of the application alleges that a procedure that was required by law to be observed in relation to "the making of the investigation of the complaint" was not observed within the meaning of s 21(2)(b) of the JR Act ("the second ground"). The particulars of the second ground are as follows:

(a) ss 50 and 278(1) of the HO Act required the Ombudsman, as soon as practicable and no later than five business days after assessing and making a decision to investigate a complaint, to give notice to the complainant and the doctor stating the decision and the reasons for the decision;

(b) s 27B of the Interpretation Act required the reasons for the decision to set out findings on material questions of fact and refer to the evidence or other material on which those findings were based;

(c) no notice complying with s 278(1) has been given to the doctor;

(d) in failing to give notice under s 278(1), the Ombudsman "unlawfully relied on [a] belief" that the Ombudsman was excused from giving notice because it would prejudice an investigation or inquiry;

(e) contrary to the unlawful belief of the Ombudsman, the Ombudsman was not excused from the notice requirements because there was "no apparent basis for the Ombudsman's belief" that complying with the notice requirements would prejudice an investigation or inquiry.

• [40] Paragraph 8 of the application contends that a procedure that was required by law to be observed in relation to "the conduct of the investigation" has not been, and is not being, observed within the meaning of s 21(2)(b) of the JR Act ("the third ground"). The particulars of the third ground are as follows:

(a) s 84(1) of the HO Act required the Ombudsman, at not less than three monthly intervals, to give notice of the progress of the investigation to the doctor;

(b) the doctor has never waived his right to be given a progress report;

(c) since the Ombudsman decided to investigate the complaint on 10 May 2024, the doctor has only been provided with one purported progress report and that was not until 10 February 2025;

(d) in failing to give the doctor any progress reports between the period from 10 May 2024 and 10 February 2025, the Ombudsman has failed to observe a procedure in relation to the conduct of the investigation;

(e) the purported progress report of 10 February 2025 was not a progress report for the purposes of s 84(1) of the HO Act because it did not "meaningfully inform [the doctor] of the progress of the investigation".

• [41] By way of final relief, the application seeks declaratory relief and injunctions. As to the declaratory relief, declarations are sought in terms that the Ombudsman's "conduct" in failing to comply with the requirements that the doctor be given notice of the decision to accept and assess the complaint and be given notice of the decision to investigate the complaint has been contrary to law. A further declaration is sought to the effect that the "conduct" of Ms Baker and the Ombudsman in failing to notify the doctor of the investigation before or when it started and to provide him progress reports at least every three months from that time was contrary to law. In terms of the injunctive orders, an order is sought that the Ombudsman and Ms Baker be permanently restrained from continuing to conduct the investigation and permanently restrained from dealing with the complaint.
• [42] The application makes no complaint about any breach of the rules of natural justice. The application makes no complaint about any breach of s 82(2).
• [43] Each of the first to third grounds are framed by reference to s 21(2)(b) of the JR Act. Reading ss 21(1) and 21(2)(b) together, s 21(2)(b) is directed to procedures required by law to be observed in relation to conduct, not being observed. The conduct is conduct engaged in "for the purpose of making a decision". The relevant decision is "the decision to be made following the investigation of the complaint under s 90 of the HO Act."[18]
• [44] As to that decision, s 90(a) provides that after completing an investigation under Part 8, the Ombudsman must make one of two decisions, "to take particular relevant action to further deal with the matter" or "to take no further action in relation to the matter". Section 90(b) provides that notice of a decision under s 90(a) is to be given to the complainant and the doctor under s 278. According to the instrument of delegation of the Ombudsman's powers, the decision contemplated by s 90(a) of the HO Act is a decision which might be delegated to the Executive Director Investigations or Executive Director Assessment and Resolution. The function of giving notice contemplated by s 90(b) is a function which might be delegated to Executive Director Investigations, Executive Director Assessment and Resolution, Director Investigations, Director Compliance, Principal Investigations Officer or Principal Systemic Investigations Officer (Lead). Ms Mackenzie, Mr Robinson and Ms Baker did not hold any of these positions. As will be apparent, the doctor's essential contention is that delegates of the Ombudsman have failed to observe procedures required by law to be observed in relation to conduct for the purpose of making the decision proposed to be made under s 90 of the HO Act.

Is the decision proposed to be made under s 90, a decision to which the JR Act applies?

• [45] Section 4 of the JR Act relevantly defines a "decision to which this Act applies" as meaning "a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)". The Ombudsman submitted that the decision yet to be made under s 90(a)(i) would "lack the necessary quality of finality and impact on legal rights" to be a decision to which the JR Act applies. That submission was explained in terms that a decision made "under s 90(a) to take relevant action under s 38(1) [is a finding] along the way to any ultimate decision that may affect [the doctor]".[19]
• [46] In Australian Broadcasting Tribunal v Bond,[20] Mason CJ said:

"... a reviewable 'decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s 3(2)(g), the instances of decision mentioned in s 3(2) are all substantive in character ... In this context the reference in s 3(2)(g) to 'doing or refusing to do any other act or thing' (emphasis added) should be read as referring to the exercise or refusal to exercise a substantive power."

• [47] Mason CJ was referencing s 3(2) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). At the time of Bond, s 3(2) of the ADJR Act was in the following terms:

"In this Act, a reference to the making of a decision includes a reference to:

(a) making, suspending, revoking or refusing to make an order, award or determination;

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d) imposing a condition or restriction;

(e) making a declaration, demand or requirement;

(f) retaining or refusing to deliver up an article; or

(g) doing or refusing to do any other act or thing;

and a reference to a failure to make a decision shall be construed accordingly."

• [48] In Griffith University v Tang,[21] the plurality[22] observed:

"The determination of whether a decision is 'made ... under an enactment' involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must arrive from the enactment. A decision will only be 'made ... under an enactment' if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing, rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law of statute will suffice."

• [49] In an earlier passage, the plurality said:[23]

"The decision so required or authorised must be 'of an administrative character'. This element of the definition casts some light on the force to be given by the phrase 'under an enactment'. What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?

The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? To adapt what was said by Lehane J in Lewins, does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute?"

• [50] In Fuller v Lawrence,[24] the High Court noted that the criteria stated by the joint judgment in Tang for determining whether a decision of an administrative character is made under an enactment have been applied by numerous Australian courts in construing statutory judicial review regimes.
• [51] The plurality in Tang made reference to ANU v Lewins.[25] In that case, the University had promulgated a statement on policy and procedures in the exercise of general powers of administration conferred by the Australian National University Act 1991 (Cth). The statement provided for criteria to be applied in determining applications for promotions and established procedures for dealing with such applications. The procedures involved applications being considered by a series of committees and if a committee determined not to support an application, the application advanced no further. Mr Lewins had applied for promotion and been recommended by the first committee, but a later committee had resolved not to support his application. He applied under s 13 of the ADJR Act for a statement of reasons for the decision not to promote him. The Full Federal Court found that the decision was not a decision made "under an enactment" because the statement on policy and procedures did not contain terms and conditions of employment to which the relevant Act gave the capacity to affect legal rights and obligations.
• [52] The decision proposed to be made under s 90(a)(i) is clearly a decision expressly required by the enactment. By s 90(a)(i), the Ombudsman is required to decide "to take particular relevant action to further deal with the matter" or "to take no further action in relation to the matter". A number of provisions of the HO Act make it clear that the subject of a heath service complaint is "a matter".[26] In the circumstances of this case, the decision contemplated by s 90(a)(i) is a decision which will fall to be made in circumstances where the Ombudsman has already decided to accept the complaint and to take relevant action comprising an assessment and investigation of the complaint.

Are the procedures in relation to conduct for the purpose of making the decision proposed to be made under s 90?

• [56] The doctor has confined his application to reliance upon procedures, which he contends were required by law to be observed in relation to the assessment or ongoing investigation and which he says have not been observed. The doctor styles the assessment and ongoing investigation as the relevant conduct for the purpose of making the decision proposed to be made under s 90(a). In those circumstances, the doctor submits that both the "assessment of the complaint and the investigation of it"[34] comprise conduct preparatory to the making of any decision under s 90(a) and, hence, conduct engaged in for the purpose of making that decision. The real issue is whether the procedures particularised by the first to third grounds are properly described as procedures in relation to conduct for the purpose of making the decision proposed to be made under s 90.
• [57] In its setting in s 21, the word "conduct" points to action taken, rather than a decision made, for the purpose of making a reviewable decision.[35] In Bond, Mason CJ relevantly said:[36]

"In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character. Accordingly, s.3(5) refers to two examples of conduct which are clearly of that class, namely, 'the taking of evidence or the holding of an inquiry or investigation'. It would be strange indeed if 'conduct' were to extend generally to unreviewable decisions which are in themselves no more than steps in a deliberative or reasoning process.

Accordingly, there is a clear distinction between a 'decision' and 'conduct' engaged in for the purpose of making a decision. A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision. It is not a challenge to decisions made as part of the decision-making process except in the sense that if the decisions are procedural in character they will precede the conduct which is under challenge. In relation to conduct, the complaint is that the process of decision-making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous".

• [58] Mason J was referring to s 3(5) of the ADJR Act. Section 8 of the JR Act is in similar terms to s 3(5) of the ADJR Act and extends what is "conduct engaged in for the purpose of making a decision" to the doing of anything preparatory to the making of the decision including the taking of evidence or the holding of an inquiry or investigation. Section 8 does not extend the meaning of "conduct engaged in for the purpose of making a decision" to conduct which does not form part of the process for making the decision by the decision maker.[37] There must be some degree of proximity and nexus between the impugned procedural conduct and the decision to which it is said to relate.[38] The conduct must be shown to be reasonably proximate to the making of the decision or the proposed making of the decision.[39] I accept the doctor's submission that, in the factual circumstances of this case, the Ombudsman's conduct involving the investigation of the complaint is conduct reasonably proximate to the making of the proposed decision under s 90. I do not accept that in the circumstances of this case, the Ombudsman's conduct involving the assessment is conduct reasonably proximate to the making of the proposed decision under s 90.
• [59] In Bond, Mason CJ went on to observe that "substantive decisions, findings of fact and inferences from findings of fact generally are not capable of review as 'conduct' unless what is alleged is some breach of procedural requirements in the course of the conduct involved in reaching the relevant conclusion ...".[40] Bond was concerned with the review of a decision of a Tribunal rather than with the review of a decision of a decision maker in a less formal context. It was also concerned with a challenge to what was a finding of fact. The finding was not one which the Tribunal was required by the legislation to make. It was rather a step in a process of the Tribunal making an intermediate finding of fact required by the statute to be made as to the fitness of a licensee. It has been said that where a question arises as to conduct of a Tribunal leading to the decision of the Tribunal, it is perhaps easier to differentiate between the substantive decision and the procedural process pursuant to which the decision was reached than it might be in other less formal settings.

"Where the decision-maker is not a Tribunal it will ordinarily be easy to determine what the decision is which is capable of review under the ADJR Act. In the present case, as I have said, it would be the decision to make a grant or to refuse to make a grant to a particular applicant. The conduct in which the decision-maker engages for the purpose of making that decision may be referred to as the decision-making process, just as the Tribunal's hearing was the decision-making process of the Tribunal in Bond.

In my view, and consistently with what the Chief Justice said in Bond, the conduct which then is reviewable is the procedure which the decision-maker engages in for the purpose of making the relevant decision. This has two implications for the present case. The first is that it is necessary, before there can be review of conduct under s 6(1) of the ADJR Act, that there be able to be identified decisions of the relevant kind, not yet made, in circumstances where the Tribunal has embarked upon, or proposes to embark upon, the decision-making process leading up to the making of these decisions. The second matter is that the review must be concerned with the procedure adopted by the decision-maker as the decision-making process leading up to the making of the relevant decision, the making of a decision in the course of the process not being, conformably with Bond, relevant conduct."

• [61] It may be accepted that the words "in relation to" as they appear in s 21(2)(b) of the JR Act are words of wide import. In Our Town FM Pty Ltd v Australian Broadcasting Tribunal,[43] Wilcox J considered that the expression "in connection with the making of the decision" as contained in s 5(1)(b) of the ADJR Act, the ADJR Act's equivalent provision to s 21(2)(b), did "not import any particular temporal relationship" and "may cover the relationship between some present event and a contemplated sequel of that event". His Honour then said:

"In its s 5(1)(b) context, I think that the words extend to any procedure required by law to be followed as part of the decision-making process; and whether that procedure is required, or happens, to precede or to follow the actual making of the decision. Questions of degree may arise; but if, in a particular case it can be seen that a particular procedure is part of the decision-making process prescribed by law, it must be regarded as a procedure required 'in connection with' that decision."

• [62] In Minister for Immigration v Yusuf,[44] the joint judgment[45] appears to have doubted that a procedure following the actual making of the decision could be considered a procedure to be observed in connection with the decision. The joint judgment relevantly said that it "may greatly be doubted that an obligation to set out findings could be said to be a procedure which is to be observed in connection with the making of the decision in question, as the setting out the decision and reasons assumes that the decision has already been made".
• [63] When regard is had to the particulars of the first to third grounds of the application, the "procedures" called in aid by the doctor's case are the notification requirements contained in ss 35(1)(b), 50(b) and 84.
• [64] The requirement in s 35(1)(b) is a requirement to give notice of "the decision", being the decision made under s 35(1)(a). That decision is a decision to "accept the complaint and take particular relevant action to deal with the matter of the complaint", "to accept the complaint and take no further action in relation to it" or "not to accept the complaint". In this case, the decision made under s 35(1)(a) was to accept the complaint and assess the complaint under Part 5. That decision was not made as part of the assessment which was to follow. Section 46 of the HO Act provided for how the assessment was to be made. The requirement to give notice of the s 35(1)(a) decision was not a procedure required by law to be followed as part of the assessment. Further, the requirement to give notice under s 35(1)(b) is not any part of the procedure adopted by the decision maker under s 90 as the decision-making process leading up to the making of a decision under s 90. It is not part of the decision-making process prescribed by law.
• [65] The requirement in s 50(b) is a requirement to give notice of "the decision", being the decision made under s 50(a). A decision made under s 50(a) is made after the assessment has been completed. It is not made as part of the assessment. The decision is "to take particular relevant action to further deal with the complaint" or "to take no further action in relation to the complaint". In this case the decision under s 50(a) was to investigate the subject matter of the complaint under Part 8. That decision was not made as part of the investigation which was to follow. The decision to investigate was not made by an "authorised person" with powers to conduct the investigation. The requirement to give notice of the s 50(a) decision was not a procedure required by law to be followed as part of the investigation. The requirement to give notice under s 50(b) is not any part of the procedure adopted by the decision maker under s 90 as the decision- making process leading up to the making of a decision under s 90. It is not part of the decision-making process prescribed by law.

• [68] If it were to be assumed, contrary to my findings, that the notice requirements relied upon by the doctor are properly described as forming part of the procedure which a decision maker engages in for the purpose of making a decision under s 90, the doctor failed to establish that the procedures were not observed.
• [69] The first and second grounds of the application each contend that the Ombudsman "unlawfully relied on a belief" and that there was "no apparent basis for the belief".
• [70] As to the first ground, a particular of the unlawful belief is that on 4 March 2024, when Ms Mackenzie considered that giving notice may prejudice an investigation or inquiry, there was no extant investigation or inquiry in relation to the complaint. That submission was directed to the proper construction of s 284 and involved construing "an investigation or inquiry" as an existing investigation or inquiry concerning the complaint.
• [71] I reject the doctor's suggested construction of s 284 for the following reasons:

(a) The HO Act[46] contemplates that the functions of the Ombudsman include taking relevant action to deal with health service complaints, which action might include conducting an investigation or inquiry, and also dealing with health service issues by undertaking investigations and inquiries. The Minister may give a direction to the Ombudsman to undertake an investigation or inquiry.[47] The Ombudsman may decide to carry out an investigation or inquiry.[48] The Ombudsman is an authorised person to carry out activities for the purposes of an investigation under Part 8, investigating compliance with the Act and investigating the activities of a person the subject of immediate registration action or an interim prohibition order while the action or order is in effect.[49] Hence, the HO Act contemplates a wide variety of investigations or inquiries that might be conducted by the Ombudsman for a variety of purposes. Section 284(c) does not contain words which demand the conclusion that the expression "an investigation or inquiry" refers to an investigation or inquiry being undertaken in respect of a matter comprising a health service complaint or a health service complaint concerning the particular health practitioner the subject of the complaint.

(b) Section 284(c) contains no words of limitation as to the specific type of investigation or inquiry encompassed by the expression "an investigation or inquiry". The absence of such words may be contrasted with the presence of words of limitation in other sections of the HO Act. By way of example, other provisions of the Act speak in terms of "an investigation under Part 8"[50] and an "inquiry under Part 12".[51]

(c) Section 284(c) contains no words of temporal limitation. There are no words which suggest that "an investigation or inquiry" must be an investigation or inquiry which has started, commenced or is being conducted. The absence of such words may be contrasted with the presence of such words of temporal limitation in other sections of the HO Act. Relevantly, one section of the HO Act refers to a situation where the Ombudsman "starts an investigation".[52] Other sections of the HO Act refer to a matter "being investigated".

• [72] I find that on the proper construction of s 284(c), the expression "an investigation or inquiry" contemplates any investigation or inquiry which might be conducted by the Ombudsman under the HO Act and is not limited to an existing investigation or inquiry. The HO Act contemplates that relevant action for dealing with a health service complaint may evolve to include an investigation in the period during which the Ombudsman deals with the complaint. Having regard to the HO Act's implicit recognition of evolving relevant action, the paramount guiding principle of the health and safety of the public does not warrant limiting the expression "an investigation or inquiry" to an existing investigation or inquiry.
• [73] Apart from that construction argument which forms part of the first ground, the first and second grounds of the application maintain that the Ombudsman "unlawfully relied on a belief" and that there was "no apparent basis for the belief". The reference to "belief" is to the state of mind of the Ombudsman contemplated by s 284(c), namely a state of mind by which the Ombudsman "considers that [giving notice] may ... prejudice an investigation or inquiry". That is, the doctor submits that the Ombudsman's consideration under s 284 was unlawful because there was no apparent basis to consider that giving notice under ss 35(1)(b) or 50(b) would prejudice an investigation or inquiry.
• [74] In EHF17 v Minister for Immigration,[54] Derrington J comprehensively explained the nature of subjective jurisdictional fact review and observed that the scope for this kind of review is necessarily more limited. The following matters may be discerned from his Honour's reasons. A subjective jurisdictional fact may be ethereal or incorporeal, so that its actual existence is incapable of being accurately assessed. The various states of mind on which powers are frequently conditioned are concerned with matters which contain inherent value judgments and, necessarily, evaluative judgments are matters on which reasonable minds might differ and may include a not insignificant subjective element. There may not be an absolute conclusion or state of mind which might be reached in every case, a range of views might be held. Derrington J considered that "the permissible grounds for subjective jurisdictional fact review should be reasonably limited by clear definition and not be left open to a wide range of unfortunate arguments claiming invalidity". After having conducted a detailed review of the authorities, his Honour then said:

"Thus, in conformity with the manner in which the legislature has granted power, any review by the Court, as to the existence of a subjective jurisdictional fact must be limited to determining whether the state of mind actually reached is one within the range which the legislature intended to be formed as a pre-requisite to the exercise of power. If there are errors in the process by which a state of mind is reached, such as by considering extraneous or irrelevant considerations or by excluding relevant considerations, the state of mind will not be that which the legislature impliedly requires. Similarly, if, in reaching the state of mind, the repository of power has asked themselves the wrong question as a consequence of a mistake of law, the state of mind is not that on which the exercise of power is conditioned. It might also be noted that the Parliament implicitly intends the requisite state of mind should be one which has been formed logically and rationally upon findings of fact which are logically formed upon probative evidence. Further, even if it cannot be detected that an error occurred in the application of law or consideration of the correct matters, if the conclusion is one which is wholly unreasonable, it can, nevertheless, be inferred that one of the identified error has occurred. In [Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353] at 360, Dixon J identified the range of errors which might vitiate a claimed state of mind on which a power is conditioned in the following manner:

If he does not address himself to the question which the [statute] formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law."

• [75] There is no requirement under the HO Act for the Ombudsman to give reasons for the state of mind reached under s 284(c). By reason of the doctor having proceeded under s 21(2)(b) of the JR Act, there has been no request for a statement of reasons in respect of the formation of the Ombudsman's consideration or state of mind. In this case it is unnecessary to decide whether the consideration called for by s 284(c) is a decision to which the JR Act applies. The statutory language in s 284(c) is significant. There is no requirement that the Ombudsman "reasonably considers". By way of contrast, the language "if the [Ombudsman] reasonably considers" appears in s 85(2). Section 284(c) also speaks in terms of "may" not "will". Hence, the language of s 284(c) merely requires the Ombudsman to consider that giving notice may prejudice an investigation or inquiry. The language references a state of mind or consideration which is the result of an evaluative judgment, does not involve or require an absolute conclusion and contemplates a range of views.
• [76] The doctor sought to impugn the subjective opinions variously formed by Ms Mackenzie and Mr Robinson. I am not satisfied that on a full consideration of the material before each respective delegate that their respective opinions are capable of explanation only on the ground of some misconception as described by Dixon J in Avon Downs. The record reveals that the complaint was made orally by a complainant who advised that she suffered "memory loss". The complainant's oral account was confused and in parts contradictory. It was apparent from the content of the oral complaint that the complainant was isolated, vulnerable and might have had a history of suffering from mental health issues, including bipolar disorder. The complaint made very serious allegations of criminal conduct against the doctor. The complainant advised that as an outcome she wanted the Ombudsman to "charge the doctor". It is apparent from the record that Ms Mackenzie's state of mind was directed to an investigation of the complaint. The record relevantly speaks of "prejudicing investigation of the concerns raised". At the time of the s 35(1)(a) decision, Ms Mackenzie considered an assessment was necessary to "gather further information". It is apparent from the record that Mr Robinson's state of mind was directed to the investigation under Part 8, the subject of his decision made on the same day under s 50(a). Mr Robinson had noted that the Ombudsman had "only obtained a statement at this time", being the time of the s 50(a) decision. At that time, the complainant was stating that she had previously suffered amnesia but was now able to remember everything. The complainant had previously said that she had been over prescribed codeine but had later changed her account to having been over prescribed valium. Mr Robinson had noted in relation to what had been prescribed a "lack of information being found". In all of these circumstances there could well have been many valid reasons why the Ombudsman's delegates considered that notifying the doctor of the complaint at the times of the decisions under ss 35(1)(a) and 50(a), "may" have prejudiced an investigation or inquiry. On the face of the record, obtaining the complainant's medical records and then conducting an interview with the complainant appear as prudent steps to take to facilitate the provision of further information to reveal or clarify the particulars of the complaint so that the complaint could be understood and intelligibly communicated to the doctor. On the face of the record, a plausible reason for delaying notice was because the complaint was yet to be fully and accurately explained by the complainant to the Ombudsman. It may well have been thought that it was important to any fair investigation that the doctor was only given notice of accurate details of the complaint.

No case for permanent injunctions and no utility in the declarations

• [80] The doctor has not established that any procedure required by law to be observed in relation to conduct engaged in for the purpose of making the proposed decision under s 90 was not observed. He has no entitlement to relief under the JR Act. Had the doctor established that procedures required by law to be observed in relation to conduct engaged in for the purpose of making the proposed decision under s 90 had not been observed, as particularised by the first to third grounds of the application, I would not have been prepared to grant him the relief sought by the application.
• [81] An issue would have arisen as to whether the effect of the non-compliance was to invalidate the conduct engaged in for the purpose of making the proposed decision. In Project Blue Sky Inc v Australian Broadcasting Authority,[55] the plurality[56] provided the following statement of principle:

"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

• [82] Later, the plurality observed that:[57]

"A better test for determining the issue for validity is to ask whether it was a purpose of the legislation that an act done in breach of the provisions should be invalid ... In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'.

• [83] In Clayton v Heffron,[58] the plurality noted that:

"... commonly no express declaration is to be found in the statutory powers as to the effect on validity of departures from the procedure laid down. The question is then determined by reference to the nature of the power conferred, the consequences which flow from its exercise, the character and purpose of the procedures prescribed."

• [84] Where non-observance of a condition bearing upon the exercise of a statutory power would work to the material disadvantage of individuals for whose protection the condition exists, considerations of justice and convenience tell strongly in favour of holding invalid acts done in neglect of the condition.[59] Ultimately, the question is always one of statutory construction; whether the legislative purpose was to invalidate any act that failed to comply with the statutory requirements.[60]
• [85] The HO Act does not expressly provide for the consequence of any contravention of the procedures identified by the doctor. In Braun v Health Ombudsman,[61] Jackson J was careful to note that s 3 of the HO Act has more objects than just the object of protecting the health and safety of the public. His Honour noted that the objects as contained in s 3 "do not aways pull in the same direction," a matter which is expressly recognised in s 4 which identifies the main principle for administering the HO Act as being that the health and safety of the public are paramount. One of the objects of the Act is establishing a transparent, accountable and fair system for effectively and expeditiously dealing with health service complaints. On the appeal, in Health Ombudsman v Braun,[62] McMurdo JA recognised that there was a need to "balance the different objects and interests affected by the operation of the Act".
• [86] It may be observed that the requirement to give notice under s 278 is not absolute. Section 278(3) provides that the requirement to give notice does not apply if the relevant decision is to take no further action in relation to the matter and the Ombudsman has not previously given a notice to or otherwise communicated with the relevant health service provider about the matter. Further, as is already apparent, s 284 provides that any requirement under the Act for the Ombudsman to give notice of a decision or other matter to a health service provider does not apply to the extent that the Ombudsman considers that doing so may put at serious risk a person's health or safety, put a complainant or other person at risk of being harassed or intimidated or prejudice an investigation or inquiry. Hence, the transparent, accountable and fair system for effectively and expeditiously dealing with complaints and other matters contemplated by the objects of the HO Act is a system which, in certain circumstances, countenances notice not being given to a health practitioner about a complaint or its outcome. By way of contrast, other aspects of the transparent, accountable and fair system are more absolute. For example, in circumstances where an investigation is started, the investigation is to be completed within certain timeframes and the Ombudsman "must keep a register on a publicly accessible website of ... investigations that have not been completed within one year after the decision to carry them out". The register must list the general nature of the matter being investigated, the day on which it was decided to carry out the investigation, the current due day for completing the investigation and the reason for each extension of the due day. The register must not include information that identifies a complainant, health service provider or individual to whom a health service was provided. Further, the state of mind required to exempt notice, "the ... Ombudsman considers that doing so may" is not expressed "reasonably considers" and does not require any conviction as to outcome beyond "may".

(a) The further, further amended application for a statutory order of review filed 10 November 2025 is dismissed.

(b) I will hear the parties as to costs.

[1] A term defined by Schedule 1 of the HO Act by reference to s 5 of the Health Practitioner Regulation National Law (Queensland).

[17] Applicant's Further Outline of Submissions dated 29 October 2025 [4].

[18] Applicant's Further Outline of Submissions dated 29 October 2025.

[19] Respondents' Second Further Outline of Submission dated 6 November 2025 [25].

[21] [2005] HCA 7; (2005) 221 CLR 99 at 130-1.

[23] Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 at 128 [79] to [80].

[24] [2024] HCA 45; (2024) 99 ALJR 103 at 107 [15].

[25] (1996) 68 FCR 87.

[26] Braun v Health Ombudsman [2021] QSC 209 at [63].

[27] Karmakar v Minister for Health (No 2) [2021] FCA 916; (2021) 177 ALD 83 at 92 [18].

[28] Unlike the position of the "Director" in Health Care Complaints Commission v Hill [2022] NSWCA 270 at [56].

[33] [2021] QSC 209 at [59].

[34] Applicant's Further Outline of Submissions [4].

[35] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341-2.

[37] Aurukun Bauxite Development Pty Ltd v Queensland [2016] QSC 263; (2016) 222 LGERA 107 at 116 [52].

[38] Schlaepfer v ASIC [2017] FCA 1122 at [52].

[40] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 343.

[41] New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369 at 380.

[42] (1995) 59 FCR 369 at 380-1.

[43] [1987] FCA 301; (1987) 16 FCR 465 at 480.

[48] For example, ss 35(1) and 38 of the HO Act.

[50] ss 90AA(1)(a)(ii), 90C(1)(a), 275(1)(b) and 320C(3)(b) of the HO Act.

[51] ss 275(1)(b) and 285(2)(c) of the HO Act..

[53] ss 203(1)(a), 203(2)(c), 212(2)(a), 213(2)(a), 213(4)(a), 228(2)(a) and 320A(1) of the HO Act.

[54] [2019] FCA 1681; (2019) 272 FCR 409 at 424-9 [53] to [71].

[55] [1998] HCA 35; (1998) 194 CLR 355 at 388-9 [91].

[56] McHugh, Gummow, Kirby and Hayne JJ.

[57] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355 at 390-1 [93].

[58] [1960] HCA 92; (1960) 105 CLR 214 at 246.

[59] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 at 535 [85].

[60] Module2 Pty Ltd v Brisbane City Council (2006) 153 LGERA 120 at 123 [12].

[61] [2021] QSC 209.

[63] ss 85(1), (2) and (3) of the HO Act.

[67] A court will usually decline to grant a declaration where the proposed claim to an injunction fails: Earl of Dysart v Hammerton & Co [1914] UKLawRpCh 34; [1914] 1 Ch 822; [1916] 1 AC 57 at 64-5; P W Young, Declaratory Orders (2nd ed, Butterworths, 1984) at [704]; Sydney CC v Waker [1974] ACLD 74.