Plaintiff v Defendant

Supreme Court of Victoria|2009-11-16|Before: KAYE J

ADMINISTRATIVE LAW - Defendant intending to name plaintiff in report to Parliament - Whether status of plaintiff as health service provider a jurisdictional fact - Procedural fairness - Whether defendant obliged to give plaintiff oral hearing - Health Services (Conciliation and Review) Act 1987.

1 The plaintiff, by originating motion, seeks an injunction to restrain the defendant, the Health Services Commissioner ("the Commissioner"), from placing before each House of Parliament a report naming the plaintiff, pursuant to of the ("the Act"). The plaintiff also seeks a declaration that the naming of him by the defendant in that report is ultra vires.

2 The primary issue in the case is whether the plaintiff is a "provider" of health services under the Act. Section 3 of the Act defines "provider" to include (inter alia) "a person providing a health service" (subparagraph (a)) and "a person or body which holds himself, herself or itself out as providing a health service" (subparagraph (ab)). The definition of "health service", in that section, includes fifteen categories of services, including the following:

"...

(g) health education services;

...

(ha) therapeutic counselling and psychotherapeutic services;

...

(k) services provided by practitioners of naturopathy, acupuncture and in other alternative health care fields."

3 Section 15 of the Act entitles a "user" to complain to the Commissioner that a "provider" has acted unreasonably (inter alia): by not providing a health service for the user; in the manner of providing a health service for the user; or in providing a health service for the user. Section 3 defines "user" to mean a person who uses, or receives, or has used or received, a health service, and includes a person who complains that a provider has acted unreasonably by not providing a health service for that person.

4 Where a complaint is made, s 21 of the Act empowers the Commissioner to investigate the complaint, and to decide whether or not it is justified. Section 21(3) provides that, in conducting that investigation, the Commissioner's procedure is in the Commissioner's discretion, the Commissioner must proceed with as little formality and technicality as the requirements of the Act and proper investigation permit, and the Commissioner is not bound by the rules of evidence, but is bound by the rules of natural justice. Section 21(5) and s 22(6) provide that if a Commissioner decides that a complaint is justified, the Commissioner must give written notice of that decision (including the reasons for the decision and any action which the Commissioner considers ought to be taken to remedy the complaint) to the user and to the provider. Under s 22(9), the provider is required, within 45 days after receipt of that notice, to report in writing to the Commissioner about what action the provider has taken upon the complaint. Section 22(12) provides that after the 45 day period referred to in s 22(9), the Commissioner may, by notice in writing, require the provider to produce to the Commissioner information about what action the provider has taken upon the complaint, including action to remedy the complaint, within the period specified in the notice. The provider is obliged, by s 22(14), to comply with such a notice within the period specified in the notice. Failure to comply with such a notice is prescribed as an offence.

5 Sections 11(2) and 11(5) are central to the issues in this case. They provide:

"(2) The Commissioner may at any time place a report before each House of Parliament on any matter the Commissioner considers necessary arising from an individual complaint or in relation to the Commissioner's operations.

...

(5) A report made by the Commissioner under subsection (1) or (2) may name a person if -

(a) the Commissioner believes on reasonable grounds that naming the person is reasonably necessary to prevent or lessen the risk of a serious threat to -

(i) the life, health, safety or welfare of any person; or

(ii) the health, safety or welfare of the public; or

(b) the person is a provider who has unreasonably failed to take action that has been specified in a notice under section 22(6) to remedy a complaint and has been given a notice under section 22(12)."

6 Section 11(6) provides that at least fourteen days before naming a person in such a report, the Commissioner must notify the person in writing that the Commissioner intends to name that person in a report, and give the person an opportunity to object to being named in the report within the period specified in the notice.

7 The plaintiff advertises himself as a "Shaman Psychic Spiritualist, Healer, Counsellor". He has described himself to his clients as "Shamir Zion Thunder Eagle", and has conducted his practice at his home address in York Street, St Kilda West.

8 In July and August 2008, the defendant received separate complaints against the plaintiff from two persons who had consulted him, and to whom I shall refer as "Ms A" and "Ms B". Each complainant stated that they had consulted the plaintiff for healing services, and that, in the course of providing those services, the plaintiff had initiated a sexual relationship with each of them. In addition Ms A stated that the plaintiff had claimed to her that he was a North American Indian by birth, and that he was an American Indian Shaman Initiate.

9 As a result of those complaints, the Commissioner wrote letters to the plaintiff, attaching a summary of the complaint, and requesting the plaintiff to meet with her to discuss the complaints. On 24 October 2008, the Commissioner wrote a further letter to the plaintiff, stating that she intended to investigate the complaints under s 21 of the Act. The letter identified, as the issue for investigation, that the plaintiff had acted unreasonably in the manner of providing health services to Ms A and Ms B in that, first, he had falsely represented himself as a North American Shaman healer, and, secondly, that in the course of treatment, the plaintiff had breached professional boundaries, by initiating sexual relationships with both women.

10 The plaintiff responded by sending to the Commissioner two facsimile messages, denying that he was a health service provider, and thus, in effect, contending that the Commissioner did not have jurisdiction to investigate him. In response, the Commissioner wrote a letter to the plaintiff stating that she considered that the plaintiff did come within her jurisdiction for three reasons, namely, because each of the complainants had consulted him for the purpose of healing, the plaintiff's advertisements described him as a "healer" and a "counsellor", and the plaintiff's registered business name stated that the nature of his business was "Educative and Healing".

11 The Commissioner then proceeded to conduct an investigation of the two complaints. She appointed an investigating officer to undertake the investigation. At the conclusion of the investigation, she forwarded to the plaintiff a draft report dated 19 December 2008 prepared by the investigator, in order to give the plaintiff an opportunity to make any comments before the final report was produced. The draft report (as amended by a further letter on 12 February 2009) contained three recommendations, namely: that the plaintiff undergo a psychiatric assessment; that the plaintiff only practise in the field of Shamanic Education and Healing in accordance with the Practice Code of Ethics developed by the Australian Shamanic Practitioners Association; and that the plaintiff revise his advertising material, so as to only make claims as to his cultural background and qualifications, which could be supported by documentary evidence.

12 On 23 February 2009, the plaintiff's solicitor responded to the draft report with a number of comments on it.

13 On 26 February 2009, the Commissioner wrote a letter to the plaintiff stating that she had found the complaints of Ms A and Ms B were justified, in that the plaintiff had acted unreasonably in the manner of providing health services to each of them. She enclosed a copy of her report, setting out her findings and recommendations, and notified the plaintiff that he had a period of up to 45 days to respond in writing, outlining what action he had taken in relation to the recommendations contained in the report. In her letter, the Commissioner also advised the plaintiff that if he unreasonably failed to take action as required, she had the power, under s 11(5)(b) of the Act, to name the plaintiff in her annual report, and in a report to Parliament.

14 On 4 May 2009, the plaintiff's solicitor sent a facsimile message to the Commissioner, stating that the plaintiff was willing to comply with the recommendations contained in the investigation report, subject to some changes. On 14 May 2009, the Commissioner responded to the plaintiff's letter, stating that she was satisfied that the plaintiff was willing to take reasonable action to address her recommendations, but noting that his suggestion of a "short course" in Shamanism was inadequate to enable him to comply with the practice code.

15 Subsequently, on 15 June 2009, the plaintiff telephoned the office of the Commissioner and advised an officer, to whom he spoke, that he intended to continue to practise in activities which he considered to be outside the jurisdiction of the Commissioner, such as teaching meditation. The officer responded by advising the plaintiff that the recommendation of the Commissioner was that he should not practise at all until he was qualified, and that he would be named, if he did not comply with the recommendations contained in the report.

16 On 18 June 2009, the Commissioner wrote a letter to the plaintiff, stating that she was not satisfied with the plaintiff's response, and that she considered that the plaintiff had unreasonably failed to take action as required in her investigation report. In her letter, the Commissioner further stated that, as a result of the plaintiff's failure to take reasonable action, she was providing the plaintiff with fourteen days' notice, as required under s 11(6) of the Act, of her intention to provide a report, under s 11(5)(a)(b) of the Act, to the Minister of Health naming the plaintiff, and to request that the Minister table the report in Parliament, in accordance with s 11(2) of the Act. The Commissioner reminded the plaintiff that he had the opportunity, under s 11(6)(b) of the Act, to object to being named in the report, and that any objection must be received no later than 3 July.

17 As a result, on 1 July 2009 the plaintiff's solicitor sent the Commissioner a letter, advising that the plaintiff objected to being named under s 11 of the Act on the following grounds: the plaintiff did not provide health services within the meaning of the Act; the plaintiff believed that the information, on which the Commissioner relied, derived from sources which are inherently unreliable; and the plaintiff denied that he had engaged in sexual activity or misconduct with the complainants. The plaintiff's solicitor stated that the plaintiff confirmed that he was willing to make himself available immediately for psychiatric assessment, and maintained that the plaintiff "now" works only in the field of psychic detection and not as a Shamanic practitioner or educator.

18 On 12 August 2009, the Commissioner received a copy of a report prepared by Dr Douglas Bell, a psychiatrist, who the Commissioner had arranged to examine the plaintiff. Dr Bell's report stated that it was likely that the explanation for the plaintiff's deceptive behaviour and overall presentation was not the result of any mental disorder, and that it was difficult to have any confidence that the plaintiff would be able to satisfactorily respect the trust placed in him by emotionally vulnerable clients, or to observe the professional interpersonal boundaries required of any health practitioner.

19 On 18 August 2009, the Commissioner sent a copy of Dr Bell's report to the plaintiff. In that letter she stated that she considered it was likely that the welfare of vulnerable members of the public was at risk, and she believed that naming the plaintiff was reasonably necessary to prevent or lessen the risk of a serious threat to the welfare of the plaintiff's clients, or potential clients. The plaintiff did not respond in writing to that letter.

20 The plaintiff commenced these proceedings on 16 September. In his originating motion, and in submissions before me, the plaintiff based his claim for an injunction on three grounds, namely:

(1) The plaintiff is not a "provider" of health services as defined by s 3 of the Act. Accordingly, the defendant did not have power to investigate the complaints referred to in the defendant's report, to prepare the report, or to name the plaintiff, in her report to Parliament, under s 11(5) of the Act.

(2) In breach of s 21(3)(d) of the Act, the defendant had failed to comply with the rules of natural justice in investigating the complaints against the plaintiff, and in formulating the report which the defendant intends to place before Parliament.

(3) In the absence of cross-examination of the complainants, it was not open to the defendant to formulate the belief, on "reasonable grounds", specified in s 11(5)(a), and accordingly the defendant did not have power to name the plaintiff based on any such belief.

21 In support of the first ground, Mr Lowry, who appeared on behalf of the plaintiff, submitted that, on the evidence before the Court, the plaintiff could not be characterised as a "provider" of a health service. Accordingly, he contended, the defendant did not have power to investigate a complaint in respect of the plaintiff, or to name him in a report to Parliament. Mr Lowry submitted that the requirement that the plaintiff be a "provider" of a health service was a "jurisdictional fact", which must be proven, in the present proceedings, in order to found the jurisdiction of the defendant to investigate the plaintiff and make a report naming him. Mr Lowry contended that it is not sufficient that the Commissioner formed the belief or conclusion, on reasonable grounds, that the plaintiff is a provider of health services. Rather, he contended, the jurisdiction of the defendant to take any action in respect of the plaintiff depended on the establishment, in Court, of the relevant "jurisdictional fact", namely, that the plaintiff, in fact, is a provider of health services. In support of that proposition he referred me to the decision of the High Court in Craig v State of South Australia[1] and Minister for Immigration and Cultural Affairs v Yusuf[2].

22 Mr Lowry further submitted that the evidence, which is admissible in the present proceeding, does not establish that the plaintiff is a provider of health services. He referred me to the affidavit of the plaintiff, in which the plaintiff denied providing health services as defined by s 3 of the Act. Mr Lowry submitted that the plaintiff's denial, that he is a provider of health services, had not been tested in cross-examination before me, nor was it the subject of any evidence to the contrary. Accordingly, he submitted that the defendant had failed to establish the critical jurisdictional fact on which the defendant's powers, to investigate and name the plaintiff, depended.

23 In response, Ms Mortimer SC, who appeared with Mr G Hill for the defendant, submitted that the Commissioner's powers of investigation, and report, do not depend on proof, in this proceeding, that the plaintiff was, in fact, a "provider" of "health services". Rather, she submitted, the "trigger" for the Commissioner's powers of investigation and report depended upon whether the Commissioner had received a "complaint". Ms Mortimer referred me to the decision of the Court of Appeal in Byrne v Marles & Anor[3]. She submitted that, based on the reasoning of the Court in that decision, it is sufficient if the Commissioner believed, on reasonable grounds, that the defendant was a health service provider.

24 In support of those submissions, Ms Mortimer referred to a number of provisions of the Act. She pointed out that by s 9 of the Act the primary function of the Commissioner is to receive and investigate complaints. She then referred to Part 3 of the Act (which concerns the making, and investigation, of complaints). She drew my attention to s 15 (as to who may complain), s 16 (as to what may be included in a complaint), s 19 (relating to the preliminary assessment by the Commissioner of complaints), and s 20 (which provides for the Commissioner to refer a complaint to a conciliator). Ms Mortimer then referred to s 21, which relates to the powers of the Commissioner to investigate a complaint. In essence, she submitted that the basic "jurisdictional" fact, which found the power of a Commissioner to undertake such investigations, derives from the existence of a complaint.

25 Similarly, Ms Mortimer noted that s 11(2) empowers the Commissioner to place before Parliament a report on any matter, which the Commissioner "considers necessary arising from an individual complaint". Thus, the power to make such a report is dependent on the Commissioner forming the view that it was necessary to make it; however, what is essential is that the report, and the Commissioner's formulation of that view, must arise from a particular "individual complaint". She noted that subsection (5) is contingent on the Commissioner making a report under subsection (2); thus, she submitted, that the critical jurisdictional fact, for the power of the Commissioner under subsection (5), is not the fact that the person, named in the report, is a provider of health services, but, rather, that the Commissioner had received a relevant complaint about that person.

26 Ms Mortimer further submitted that the various powers of the Commissioner, as contained in the provisions to which she referred me, are, in a number of instances, based on the Commissioner forming judgments or assessments on the material before her. Similarly, she submitted that in determining whether to reject a complaint, or to investigate it or refer it to conciliation, the Commissioner is only required to form a view, on reasonable grounds, that the subject of the complaint is a provider of health services. The power of the Commissioner does not depend on whether the person, who is the subject of the complaint, is proven, in fact, to be the provider of health services. She submitted that the procedures under the Act would be rendered unworkable, if, at any time, they could be subjected to a review, in which the Commissioner was required to establish that the subject of a particular complaint is in fact a provider of health services. In making that submission, she relied on the reasoning contained in the decision in Byrne v Marles[4].

27 The first question, then, is whether the power of the Commissioner, under s 11 of the Act, is dependent on the establishment, in this Court, that the plaintiff is a provider of health services. The authorities dealing with "jurisdictional fact" are somewhat difficult to reconcile. However, it is accepted that the question, as to whether a fact is a "jurisdictional fact", is essentially resolved by reference to the ordinary principle of statutory construction. In Timbarra Protection Coalition Inc v Ross Mining NL & Ors[5] Spigelman CJ (with whom Mason P and Meagher JA agreed) stated:

"[37] The issue of jurisdictional fact turns, and turns only, on the proper construction of the statute. ... The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact ('objectivity') and that the legislature intends that the absence or presence of the fact will invalidate action under the statute ('essentiality') ...

[39] Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by Parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes 'jurisdictional fact' as some kind of 'doctrine' is, in my opinion, misconceived. The appellation 'jurisdictional fact' is a convenient way of expressing a conclusion - the result of a process of statutory construction.

[40] Where the process of construction leads to the conclusion that Parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a Court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.

[41] Where the process of construction leads to the conclusion that Parliament intended that the primary decision maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of Parliament, or as the application of a rule of a common law to the exercise of a statutory power ... a Court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision maker (in the Wednesbury sense), but not itself determine the actual existence or non-existence of the relevant facts."

28 Notwithstanding that the issue is, essentially, one of statutory construction, nevertheless assistance may be gained from a number of recent authorities as to some of the factors which inform the construction of the statute in question. Those principles have been helpfully compiled in the judgments of the Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL & Ors[6], of Weinberg J in Cabal v Attorney-General of the Commonwealth[7], and of Chesterman J in Chancellor Park Retirement Village Pty Ltd v Retirement Villages Tribunal[8]. The factors identified in the authorities[9] include the following:

(1) As usual, the logical starting point is the actual language of the legislative provision. Where the power, contained in the statute, is not expressed to be dependent on the formulation by a decision maker of a particular opinion or judgment, it is more likely that the existence of the particular fact in question was intended, by Parliament, to be a "jurisdictional fact"[10].

(2) If the statute requires an authority to form a judgment based on a number of facts, or to reach a conclusion which is substantially evaluative, it is likely that Parliament intended that the statutory authority have power to make a conclusive determination, based on those facts.[11]

(3) An important indication of Parliamentary intention is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision maker, or whether it necessarily arises in the course of the consideration by the decision maker of the exercise of the power. A factual reference in a statutory formulation, relating to the instigation of a statutory decision making process, is more likely to turn on the existence of the fact as an objective fact, than is a factual reference arising in, or in relation to, the conduct of the actual decision making process itself.[12]

(4) In the case of an inferior court or tribunal, references as to fact are generally not construed as being jurisdictional, unless an intention to the contrary is clearly expressed. However, no such rule of construction applies to the exercise of a statutory power by an administrative decision maker.[13]

(5) Another relevant factor is the inconvenience, which may arise from classifying a factual reference, in a statutory formulation, as a jurisdictional fact, rather than as a fact, the existence of which is to be determined by the decision maker, rather than the court.[14] It is presumed that Parliament would not intend the legislation to operate in a manner whereby the powers and functions of a particular authority were susceptible to substantial disruption resulting from frequent challenges to the authority's jurisdiction.

(6) On the other hand, a factor which militates in favour of a fact being a jurisdictional fact is the question whether what has been described as "transcendent" or "important" values are affected by the exercise of the statutory power.[15] In the absence of clear language, a statutory authority, possessing powers which might infringe important rights, is presumed not to have the ability to conclusively determine, for itself, a fact which is critical to the exercise by it of those powers.

(7) Finally, the role and function of the particular fact in the relevant statutory scheme is an important consideration. In Timbarra Protection Coalition Inc v Ross Mining NL, Spigelman CJ considered that, in that case, the particular purpose of the relevant fact in the legislative scheme was of critical importance in determining that that factor was a jurisdictional fact. His Honour concluded that the role of the "species impact statement", in the statutory scheme then under consideration, was so significant that it was appropriate to consider it an "essential" condition or "jurisdictional fact", the existence of which must be proven on review.[16]

29 Bearing those principles in mind, I turn to the question of the correct construction of the Act, with which this case is concerned. The starting point, of course, is the plain language of the relevant provisions of the statute. Ms Mortimer is correct in pointing out that the fundamental powers of the Commissioner, both to investigate complaints (under s 21) and to make a report (under s 11), are founded on the receipt by the Commissioner of a complaint. In the absence of a relevant complaint, the Commissioner would not have jurisdiction to investigate a health service provider; nor would the Commissioner have power to make a report under s 11(2), or to name a person in such a report under s 11(5). In that sense, it seems clear that, at least prima facie, the existence of a relevant complaint, and the receipt of that complaint by the Commissioner, could be properly described as a "jurisdictional fact", the existence of which must be proven, on review, in court.

30 However, it is fundamental to note that the Commissioner's relevant powers do not derive simply from the receipt by the Commissioner of any complaint. Section 15 of the Act defines who may make a complaint to the Commissioner, by providing that a "user" may make such a complaint. As I have already noted, s 3 defines a "user" to be a person who uses, or receives, or has used or received, a "health service". Further, s 16 defines what may be included in such a complaint. Relevantly, s 16(1)(a)(b) and (c) concern a complaint that a "provider" has acted unreasonably in providing, or failing to provide, a "health service" for the user. Thus, the Commissioner's jurisdiction and powers are dependent upon the receipt by the Commissioner of a complaint from a user of a health service, relating to the conduct of a provider of that health service to the user.

31 Further, as noted by the authorities to which I have referred, it is significant that the jurisdiction of the Commissioner is not defined, by the Act, to be dependent upon the formulation of a conclusion or opinion by the Commissioner that the subject of the complaint was the provider of health services. On the contrary, the relevant provisions of the Act are expressed in terms of a requirement that there be a complaint, by a person who uses (or receives or has used or has received) a health service, concerning the conduct of a provider of a health service. As the authorities, to which I have referred, have noted, if Parliament had intended the powers of the Commissioner to be based on an assessment by the Commissioner that the person, who is the subject of the complaint, was the provider of health services, the statute could have been expressed differently.[17]

32 In this context, it is significant that the Act does, in a number of other respects, express a power or function of the Commissioner to be dependent, not on the existence of a particular fact, but, rather, on the formation by the Commissioner of a particular opinion, conclusion or determination.[18] In particular, it is material that the powers in s 11(2) and s 11(5)(a) are each expressly conditioned on the Commissioner attaining a particular state of conclusion or belief. By contrast, neither those provisions, nor other key provisions in the Act, purport to condition the Commissioner's powers on a belief, or judgment, formed by her that the person, who is the subject of a complaint, is a health service provider. That contrast in the language of the relevant provisions adds force to the proposition that the status of a person, as a health service provider, is a jurisdictional fact, as contended by the plaintiff.

33 Further, a review of the scheme of the Act, and particularly the defined purposes and objects of the Act, militate in favour of the proposition that the status of the person, who is the subject of a complaint, as a health service provider, is a jurisdictional fact, the independent existence of which must be established by admissible evidence.

34 Section 1 of the Act defines the purposes of the Act (inter alia) to include the provision of an independent and accessible review mechanism "for users of health services", and to provide a means for reviewing and improving "the quality of health service provision". Section 4 of the Act states that the objectives of the legislation are: to set up a "health services review system", which will enable users of Victorian health services to have their complaints "about those services" resolved by an independent and accessible mechanism; to encourage "health service providers" to follow "the guiding principles"; and to lead to improvements in the quality of health care and in the extent to which the guiding principles of "providers" and "users" are followed. Thus, the specified purposes and objectives of the Act are expressed in terms of being directed to the provision of health services (as defined) in the Act.

35 Similarly, the functions of the Commissioner, specified in s 9 of the Act, include (inter alia): the investigation of "complaints relating to health services" (paragraph (a)); the review and identification of the causes of "complaints" (paragraph (b)); the conciliation between "users" and "providers" (paragraph (d)); the taking of steps to bring to the notice of users and providers details of complaints procedures under the Act (paragraph (g)); the recording of all "complaints" (paragraph (i)); the determination of action taken by "providers", where complaints have been found to be justified (paragraph (h)); and the suggesting of ways in which providers may follow the guiding principles (paragraph (n)). In other words, the primary functions of the Commissioner are directed to dealing with users (of health services) and reviewing and investigating conduct of "providers" (of health services).

36 Thus, the concept of a "health service" lies at the centre of the functions and powers of the Commissioner under the Act.[19] The Commissioner only has power to investigate complaints concerning "providers" of the "health services", as defined in the Act. The Commissioner is not invested with power to investigate, or take action in relation to, complaints which relate to persons, who do not provide such health services, but who the Commissioner may consider (albeit on reasonable grounds) to provide those services. The whole purport of the legislation is to invest the Commissioner with the power of investigation, and review, of the conduct of providers of health services, but not otherwise.

37 Those considerations militate further against the proposition relied upon by the defendant in this case, and tend in favour of the conclusion that the characterisation of the subject of the complaint as a health service provider is a jurisdictional fact upon which the powers of the Commissioner depend.

38 Furthermore, it is relevant that the characterisation of a practitioner, as a health service provider, is not ordinarily a matter which would arise in relation to the decision making processes involved in the course of an investigation by the Commissioner. Rather, that characterisation is an issue which might reasonably be expected, at least ordinarily, to arise at the threshold of the inquiry. Moreover, while the role of the Commissioner is investigative, it is not adjudicative in the sense of the function of, for example, an administrative tribunal.[20] Each of those factors tend further against the proposition relied on by the defendant, namely, that the question whether the plaintiff was a health service provider was not a jurisdictional fact.

39 In those circumstances, and particularly in light of the plain language of the legislation, the defendant would need to establish a strong reason to justify departing from the plain language of the statute, and for importing into the Act a qualification, that the Commissioner's jurisdiction depends on, and derives from, a judgment by the Commissioner that a particular complaint relates to the provision by a person of health services. As I stated, if Parliament had intended the jurisdiction of the Commissioner to be dependent on her assessment as to whether the complaint related to the provision of health services, the Act could have simply been expressed in such terms. In light of the considerations to which I have already referred, however, the Commissioner would need to establish a pressing reason why the statute should be otherwise construed.

40 The primary proposition relied upon by the defendant is the inconvenience argument. Ms Mortimer submitted that if, at each step of the investigative processes undertaken by the Commissioner, her functions were subject to review, on the basis that the subject of the investigation or complaint was not a health service provider, the functions and roles of the Commissioner would be significantly disrupted, and the fundamental purposes and objectives of the legislation would be thereby frustrated. Accordingly, Ms Mortimer submitted that the legislature could not have intended that, in each case, the powers of the Commissioner depended upon the subject of the complaint and investigation, undertaken by her, being, as a matter of objective fact, a health service provider.

41 In this context, Ms Mortimer relied principally on the recent decision of the Court of Appeal in Byrne v Marles & Anor[21]. In that case, the plaintiff, a solicitor, sought to review a decision by the Legal Services Commissioner to treat, and investigate, a complaint, against him, as a disciplinary complaint. One of the grounds, relied upon by the plaintiff on appeal, was that the complaint relating to him was not a disciplinary complaint but, rather, a civil complaint. Part 4.2 of the Legal Profession Act 2004 defined both a "civil complaint" and a "disciplinary complaint". Section 4.2.11 provides that a complaint is to be dealt with by the Legal Services Commissioner, to the extent that it is a civil complaint, in accordance with Part 4.3 of the Act, and to the extent that it is a disciplinary complaint, in accordance with Part 4.4 of the Act. On appeal, the plaintiff contended that the question, whether a complaint was a civil complaint or a disciplinary complaint, was a jurisdictional fact, to be determined objectively by the court. The Court of Appeal rejected that submission. It held that the decision of the Commissioner, to treat a complaint as a disciplinary complaint, was not liable to be reviewed, unless the characterisation of the complaint was unreasonable in the "Wednesbury" sense.[22] In the course of his judgment Nettle JA (with whom Dodds-Streeton JA and Coghlan AJA agreed) held that a literal construction of the legislative provisions would be likely to result in considerable inconvenience and disruption, should any decision by the Commissioner, to treat a complaint as a disciplinary complaint, be liable to review as a jurisdictional fact. His Honour held that Parliament did not intend to cause inconvenience of that kind, and accordingly he considered that the words of the relevant statutory provision were open to be construed as meaning that the Commissioner was required to investigate each complaint, which the Commissioner "had reason to believe" was a disciplinary complaint.[23]

42 There are important differences between Byrne's case and the present case. In Byrne, the Court was not concerned with the question whether the subject of the complaint was a solicitor. It was not in dispute that he was a solicitor. Rather, Byrne's case was involved with the question of the characterisation, by the Commissioner, of the complaint. As noted by Nettle JA[24], the assessment by the Commissioner of the nature of the complaint (whether as a disciplinary complaint or a civil complaint) was necessarily undertaken at the threshold of the inquiry, and was a subjective assessment, in the sense that different minds might reach different conclusions in relation to the same question. In particular, the characterisation of a complaint, as a disciplinary complaint, depended upon a preliminary assessment as to whether the conduct of the legal practitioner, complained of, may amount to "unprofessional misconduct or misconduct", a matter as to which opinions can and do differ. Further, his Honour noted that the characterisation of the complaint, as a disciplinary complaint (rather than as a civil complaint), was merely one step in the process to be undertaken by the Commissioner. It was but one step along the way to the ultimate sanctions which could be visited upon a practitioner under the Act, not by the Commissioner, but, rather, by an independent tribunal.

43 By contrast, in the present case, the question, whether a subject of a complaint is a provider of health services, is not "subjective", in the sense that it does not involve the application of concepts such as professional misconduct and unprofessional conduct, as was the case in Byrne. The characterisation of the subject of a complaint as a health service provider is not merely an initial step along the path towards an independent adjudication of an issue (as was the case in Byrne). By contrast, that characterisation lies at the heart of the powers of the Commissioner under the Act. Critically, it is fundamental to the power of the Commissioner to exercise the ultimate sanction specified in the Act, in naming a person in a report to be placed before Parliament.

44 Thus, there are important differences between this case and Byrne. No doubt, some inconvenience may arise if each investigation, undertaken by the Commissioner, were to be subject to a challenge on the basis that the relevant practitioner is not a health service provider. However, the scope for such a challenge would be more limited than in Byrne, where the challenge would be based upon the question whether the complaint concerned, potentially, unprofessional conduct or misconduct. Thus, the question of inconvenience, while relevant, does not carry the same weight or cogency as it did in the case of Byrne.

45 Finally, it is important to balance the issue of inconvenience against the nature and extent of the powers invested in the Commissioner under the Act. Although the Commissioner's powers are basically investigative, nevertheless the Commissioner is invested with powers which can affect, significantly, basic common law and civic rights. Under s 22(9) and s 22(12), the Commissioner has power, under threat of penal sanction, to require a health service provider to provide particular reports, and information, to her. Pursuant to s 25, the Commissioner has the coercive powers, under ss 14, 15 and 16 of the Evidence Act 1958, to summons witnesses, and to examine persons on oath. Under s 27, the Commissioner is entitled to apply for a warrant from a magistrate. Each of those powers enable the Commissioner, under threat of penal sanction, to require the provision of information and evidence to her in a coercive manner.

46 Further, and most significantly, the power of the Commissioner to name a person in a report under s 11(5) of the Act is far reaching, and capable of causing significant harm to the reputation of an individual. It would be particularly unlikely that Parliament intended that the Commissioner have such a power to name a person, unless that person was, as a matter of objective fact, a health service provider. In other words, it is improbable that Parliament intended that the Commissioner could put before Parliament a report, naming an individual, on the basis that the Commissioner considered (reasonably) that the person was providing health services, when, in point of fact, the individual was not such a provider.

47 The factor, to which I have just referred, is of some importance in this case. In Cabal v Attorney-General of the Commonwealth[25], Weinberg J considered that, in the case before him, the protection of long standing rights and values prevailed over the question of "inconvenience", when determining the legislative intent of the statute in question. In my respectful view, that approach is correct. It is unlikely that Parliament intended that the jurisdiction of the Commissioner to exercise the powers, to which I have referred, should depend solely on her assessment as to whether a particular individual is a health service provider. Rather, as I have already demonstrated, the powers in the Act, the purposes and objectives of the Act, and the functions of the Commissioner, each relate to the issue of the provision "health services" to "users" as defined in the Act. They are not, and are not expressed to be, dependent upon an assessment by the commissioner, as to whether a health service is being provided; rather, the purposes, objectives and functions, stated in the Act, are all expressed to be contingent on, and to relate to, the actual provision of health services. Given the nature of the powers of the Commissioner, I do not consider that the inconvenience argument would justify a conclusion that Parliament intended that the powers and functions of the Commissioner depended, not on the fact that a particular person was providing a health service, but, rather, on an assessment by the Commissioner that the person was providing that service.

48 Accordingly, for the foregoing reasons, I consider that Mr Lowry is correct in submitting that the provision of a health service by the plaintiff is a necessary jurisdictional fact, the existence of which must be proven by the defendant, in order that she be demonstrated to have the power to name the plaintiff in a report to be submitted by her to Parliament under s 11(5) of the Act.

49 The next question, therefore, is whether it has been proven, in this proceeding, that the plaintiff is a "provider" of health services, as defined in s 3 of the Act. In support of her submission that the plaintiff is a provider, the defendant relies on three parts of the definition of "health service", contained in s 3, to which I have earlier referred[26], namely, that the plaintiff is a provider of health education services (under subparagraph (g)), that the plaintiff is a provider of therapeutic counselling and psychotherapeutic services (subparagraph ha)), and that the plaintiff is a provider of naturopathy, acupuncture, or "in other alternative health care fields" (subparagraph (k)).

50 In his affidavit, the plaintiff specifically denies that he provides "health services" as defined in the Act. The plaintiff states that he was born a "Shaman", but that he does not practise as a Shamanic practitioner. In particular, he denies that he practises Shamanism, as it is understood according to the "western definition". The plaintiff admits that he registered the business name "The World Shaman Peace Temple Academy" in October 2007. In his affidavit (paragraph 5), he states:

"I do not do the work of a Shaman. A Shamanic practitioner has visions, but I do not. I utilise my psychic abilities to 'channel' material, which I do in meetings for clients and when giving discussion papers. I become a reference whereby clients can make decisions about the future of their businesses and personal lives through revelations that I channel. I otherwise do not provide any form of therapy or counselling to address a client's emotional or psychological issues, but from the experiences a client has with me they are often in a better position to determine whether or not they need or desire to see a qualified counsellor or other qualified practitioner in relation to their grievances."

51 The defendant did not cross-examine the plaintiff. However, the defendant did rely on material, tendered in evidence, in support of the conclusion that the plaintiff provides a health service, or has held himself out as providing a health service as defined in s 3 of the Act.

52 In considering that material, it is important to bear in mind the way in which the defendant contends that the plaintiff has been a provider of a health service as defined in s 3. First, the defendant contends that the plaintiff has either provided, or held himself out as providing, health education services (subparagraph (g)). Secondly, the defendant has contended that the plaintiff has provided, or held himself out as providing, therapeutic counselling and psychotherapeutic services (subparagraph (ha)). Thirdly the defendant contends that the plaintiff has provided, or held himself out as providing, services in "other alternative health care fields" (subparagraph (k)). While the phrase "other alternative health care fields" is to be construed ejusdem generis, nonetheless the inclusion of that undefined category, in the definition, is, in my view, important. It is evident that, by including that category, the legislature intended to capture those who provide, or profess to provide, particular services concerned with the healing or alleviation of physiological or psychological distress, but which defy more specific definition or categorisation. That construction is, in my view, consonant with the defined purposes and objectives of the legislation.

53 I turn, then, to the material which was relied upon by the defendant. First, and significantly, the plaintiff, in correspondence with the defendant, has admitted to registering the business name "The World Shaman Peace Temple Academy". In the certificate of registration of that name (contained in the investigation report which was tendered by the plaintiff), the "nature of the business", registered by the plaintiff, was described (by the plaintiff) as "educative and healing". It is also relevant, for reasons which will appear hereunder, that the plaintiff gave a list of names, which included the title "Thunder Eagle".

54 On 4 December 2008, the Commissioner sent to the plaintiff a letter referring to the business name extract, and also referring to advertisements placed by the plaintiff in "Living Now Magazine", in which he described himself as "(Wakinan) Thunder Eagle, Shaman, psychic, spiritualist, healer, counsellor". The report (tendered by the plaintiff) contains other advertising material which, in substance, attributes to "Thunder Eagle" the same capacities and services.

55 In response, the plaintiff wrote a lengthy letter to the defendant dated 8 December 2008, which was also tendered in evidence. That letter contained three important admissions by the plaintiff. First, the plaintiff admitted that he registered the business name. Secondly, in respect of the advertisements referred to by the defendant in her letter, the plaintiff admitted to holding himself out as a healer and counsellor. He stated:

"... I am not a healer - counsellor and the manner in which it has been used in any ads of mine was used in a loose term to attract those who do not know they are the true healers and counsellors of themselves ... ."

56 Thirdly, in his letter, the plaintiff described his services in terms which characterised them as either "health education services" (under subparagraph (g)), or services in "other alternative health care fields" (subparagraph (k)). Without setting out the whole of the letter, the following extract is instructive:

"Under my business name, educative is healing, anything that offers education is automatically causing a deep healing mechanism of survival techniques and the methodologies of self-healing. ... therefore the student is the healer not me. All forms of higher learning realms if orientated towards addressing the particular person's encoding of the luminous body which houses the Astral body thereby the spirit within is being focused and the words which are preventing the person from expanding in their learning capacities, then deeper senses of educative journeys are necessary. Thereby my position/function ability is as a the [sic] Shaman spiritual sage/teacher and not as a healer ... ."

57 Pausing there, the above paragraph contains an admission by the plaintiff that, at the least, he was providing health education services. Further, according to his description, his technique involves him purporting to assist a "healing" process in the subject, in the manner described by him. That conclusion is reinforced by the next paragraph in the letter, in which he states:

"... On the level of which I work the healer and counsellor are illusions. I teach the student to transmute their chemical reactions of the so called negative emotions ie anger, hatred etc in their bodies and mind and if necessary I instruct them to go to a psychologist counsellor ... ."

"My correct positioning is as a tantric Shaman ... one who teaches the methodologies of freedom of the soul and the way to teach this is to allow the student to erase their awareness of the abyss of has (sic) the multifaceted dimensions of higher learnings".

59 Finally, on the last page of his letter, the plaintiff states:

"My job is to teach them to balance the transmutational tantric energy into a natural state of a safer more effective manner in approaching their higher learning journeys with me as the way of the dualistic I AM CONSCIOUSNESS ... for I am not a doctor nor a psychologist but a spiritual tantric teacher of the teachings of a multifaceted and multidimensional cosmic eldership and creator consciousness directly channelling a certain spirit language through the methodologies of standing one's ground amidst their Karmic learnings from life to life ... ."

60 The admission by the plaintiff, in the foregoing material, that he was providing health education services, is also reinforced by the earlier letter which he had sent to the Commissioner, dated 9 November 2008, in response to the Commissioner's initial letter to him concerning the complaints of Ms A and Ms B. In his letter of 9 November, the plaintiff denied that he was a healer. Instead he stated:

"3 I am not a healer, I do not conduct healing sessions, I teach healers.

4 Before someone comes to me and or on the phone in the preliminary understandings I clearly state to them that they seek other methods appropriate for their levels of healing ie counselling etc elsewhere.

5 I am a spiritualist teacher/sage for higher learning of the luminous astral spirit body.

6 I conduct spiritual teachings to aspire to higher spiritual learnings of the particular person concerned given their spiritual level."

61 In addition, the correspondence, which passed between the plaintiff (and his solicitor) and the defendant in 2009, contained further admissions that the plaintiff was a provider of health services as defined in s 3. In the plaintiff's solicitor's letter dated 23 February 2009, in response to the draft report, the plaintiff accepted the definition of Shamanic practices contained in the draft report. In paragraph 4.4 of the letter, the plaintiff disputed holding himself out as providing a health service, but admitted that he did conduct "Shamanic activities". In the last sentence of the letter, the plaintiff's solicitor referred to the plaintiff's "activities as a Shamanic practitioner". In the plaintiff's solicitor's letter dated 4 May 2009, the plaintiff undertook "only to practise in the fields of Shamanic education and healing", in accordance with the code of ethics developed by the Australian Shamanic Practitioners Association. In my view, that part of the letter constituted an implied admission that the plaintiff had (inter alia) practised in those fields hitherto.

62 I am mindful that the plaintiff was not cross-examined in relation to his denial that he has acted as a health service provider. However, his assertion in paragraph 5 of his affidavit, that he is not a Shaman healer, is contradicted by the admissions made by him, to which I have referred, and by the content of the certificate of registration of his business name, which he has admitted. His description of his techniques, in paragraph 5 of the affidavit, is brief and uninformative. The more detailed description, contained in his letter dated 8 December 2008, does reveal, in my view, that the plaintiff has been providing, or purporting to provide, health education services, and alternative health care services. In particular, his description of his activities indicates that, however he may characterise those activities, they are designed to enable a person, to whom they are directed, to attain emotional or physiological wellbeing, or at least to gain a learning as to how he or she might attain that state. Those activities, as admitted by the plaintiff, shed a more detailed light on the description of his functions, and constitute admissions by him, which I accept, that he has provided, or held himself out as providing, a health service as defined in subparagraph (g), and subparagraph (k), of the definition of health service. Accordingly, I reject the first ground of the originating motion relied on by the plaintiff, namely, that the defendant did not have jurisdiction to investigate the complaints in respect of him, or to name him in the report to be submitted to Parliament, because he is not a health service provider.

63 The second ground, on which the plaintiff relies, is that the defendant has not afforded the plaintiff procedural fairness, before making a decision to name him pursuant to s 11(5) of the Act. Mr Lowry submitted that when investigating complaints in the course of determining whether or not it is reasonable to name a person in a report to Parliament, the Commissioner must afford procedural fairness to the person under investigation. In particular, Mr Lowry submitted that, as part of that requirement, the defendant was required to conduct an oral hearing, at which the plaintiff would be represented, and in the course of which the plaintiff, by his representative, would be entitled to cross-examine the complainants.

64 As I have already stated, s 21(3) of the Act provides that in conducting an investigation the Commissioner's procedures are in the Commissioner's discretion, the Commissioner must proceed with "as little formality and technicality and with as much expedition" as the requirements of the Act and proper investigation permit, and the Commissioner is not bound by the rules of evidence. Section 21(3)(d) provides that the Commissioner is bound by the rules of natural justice.

65 It is, of course, trite law that the specific content of an obligation to provide procedural fairness (or natural justice) depends essentially on the facts and circumstances of the particular case. In Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation[27], in a passage which has been quoted on numerous occasions subsequently, Kitto J stated:

"... The books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity ['to correct or contradict any relevant statement prejudicial to their view'] in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place."[28]

66 The particular legislative framework, within which a decision maker exercises statutory power, is of fundamental importance when considering what the principle of procedural fairness requires in any particular case. On the other hand, the steps prescribed by the statute may not necessarily constitute an exhaustive or exclusive repository of the steps required to be undertaken by the relevant authority, in order to comply with the principle of procedural fairness. In Veal v Minister for Immigration and Multicultural and Indigenous Affairs & Anor[29], the High Court expressed that principle as follows:

"The statutory specification of the tribunal's duty and power to conduct the review was to be read as conditioned upon the tribunal's observance of the requirements of procedural fairness. The content to be given to that obligation to accord procedural fairness must, of course, accommodate the particular provisions made in the Act which regulated how the tribunal was to go about his task. Nonetheless, in the form the Act took at the times relevant to this matter, the particular provisions made in the Act to regulate the way in which the tribunal went about conducting its review were not to be understood as an exhaustive statement of the steps that the tribunal may have to take in any particular case in order to accord procedural fairness to the applicant for review."[30]

67 In considering this issue, the first relevant consideration is that the Act provides for a comprehensive procedure, whereby the Commissioner is to investigate complaints, and by which, at particular stages, the Commissioner is to give certain notices of her investigation to the provider about whom the complaint is made. The legislative regime is quite comprehensive. Section 17 prescribes how a complaint may be made. Section 19 contains a number of provisions concerning the preliminary assessment by the Commissioner of complaints. The Commissioner (inter alia) has power to reject a complaint summarily, to refer it to an appropriate registration Board, or to refer it to conciliation. Section 19(8) provides that the Commissioner must, within 28 days after receiving the complaint (or within a further period fixed under subsection (9AA)), decide whether to reject or accept a complaint, or to refer it to another board or agency. Section 20 contains a number of provisions enabling the Commissioner to refer a complaint to conciliation.

68 Section 21 of the Act specifies how the Commissioner may undertake an investigation. As I have already noted, under s 21(5) and s 22(6), if a Commissioner decides that a complaint is justified, the Commissioner must give written notice of the decision to the user and also to the provider. Subsection (9) then requires a provider, within 45 days of receiving such notice, to report in writing to the Commissioner about what action the provider has taken upon that complaint. Section 22(12) provides that after the expiration of that 45 day period the Commissioner may, by notice in writing, require the provider to produce to the Commissioner, information about what action the provider has taken upon the complaint.

69 Pausing there, a number of observations may be made about the procedures prescribed by the Act. First, the procedures are quite comprehensive. Secondly, they require, at various stages, the Commissioner to give particular notices to the provider (and to the user). Thirdly, the Act does not, in terms, require the Commissioner to hold an oral hearing in relation to any aspect of the complaint. Fourthly, the times prescribed by the statute for each step are quite tight. As Ms Mortimer has submitted, the time limits, specified in the Act, militate against any legislative intention that, as part of the obligation to provide natural justice to a provider, the Commissioner hold an oral hearing in which a provider is entitled to cross-examine the complainant or complainants, and (presumably) give evidence himself or herself.

70 That analysis brings me to the critical provision in question in this case, namely s 11(5). Subparagraph (b) of that subsection is expressly predicated upon the provision by the Commissioner of a notice to the provider under s 22(12), and thus necessarily assumes that the Commissioner has undertaken an investigation under s 22. Subparagraph (a) is not, however, necessarily conditioned on such an investigation. However, subsection (5) only applies to a report which is to be made under subsections (1) or (2). By its terms, subsection (2) (on which the Commissioner relies in this case) is only operative after the Commissioner has considered an "individual complaint". Thus, apart from naming a person in an annual report, where (as in this case) the Commissioner intends to place a report before Parliament naming a person, the legislative regime requires the Commissioner, first, to undertake an investigation under s 22. Section 11(6) prescribes one further step, which must be taken by the Commissioner before naming a person in a report, namely, by requiring the Commissioner to notify the person in writing of the Commissioner's intention, and to give the person an opportunity to object to the naming of him or her in the report within the period specified in the notice. Significantly, s 11 does not prescribe any other step, which must be undertaken by the Commissioner, on completion of an investigation, before naming a person in a report under subsection (5).

71 It can therefore be seen that the statutory regime in this case is quite comprehensive and structured. While that regime does not, necessarily, contain an exclusive or exhaustive definition of what constitutes procedural fairness in each individual case, nonetheless the steps prescribed by the statute do play a significant role in informing an assessment as to what is required, in a particular case, to ensure that a provider be afforded natural justice under s 21(3)(c) of the Act. It is important to bear in mind that the Commissioner is not constituted as a tribunal, or as a quasi judicial body. The functions of the Commissioner are, essentially, investigative and administrative. That consideration does not, of course, preclude the Commissioner affording a particular provider a right to test or challenge a complaint by cross-examination, or by giving oral evidence before the Commissioner. Indeed, s 25 of the Act, by investing the Commissioner with powers under the Evidence Act, contemplates that the Commissioner may, in an appropriate case, summons witnesses and require them to give evidence under oath. Nevertheless, the basic structure of the Act does not, in general, envisage an oral hearing, and in particular it does not stipulate such a hearing, as a precondition to the power in s 11(5). In my view, there is nothing about the processes prescribed by the Act which would, necessarily, require the Commissioner to provide an oral hearing to a provider, in order that the provider be afforded natural justice.

72 The question, therefore, is whether the particular facts of this case required the Commissioner to afford the plaintiff the opportunity to cross-examine the complainants, and to give evidence himself, before the Commissioner concluded her investigations, and decided to name the plaintiff in a report to be placed before Parliament under s 11.

73 In my view, the circumstances of this case were not such as to give rise to any such requirement. On the contrary, at no stage during the correspondence and notices which passed between the plaintiff and the Commissioner, was anything stated by the plaintiff which necessitated the Commissioner to hold an oral hearing, in order to comply with the rules of natural justice. As observed by Ms Mortimer, initially, when the Commissioner wrote to the plaintiff requesting to meet with him to discuss the two complaints, the plaintiff was resistant, and did not do so. After the Commissioner wrote to the plaintiff, referring him to the complaints which she had received, he sent a long reply (dated 8 December 2008) to which I have referred. There is nothing in that reply which, in my view, required the Commissioner to afford the plaintiff an oral hearing. Indeed, the tenor and contents of the reply would have militated against the holding of such a hearing. Similarly, the plaintiff's solicitor's response to the draft report did not indicate that the plaintiff needed to test the evidence of the complainants, in order that he be able to respond, nor in order for the Commissioner to be able to complete her investigation report. Rather, that response contained a bare denial by the plaintiff that he had engaged in any sexual misconduct with the complainants, or that he had made false or misleading claims about himself or his qualifications.

74 Similarly, after the Commissioner wrote to the plaintiff, stating that she had found that the complaints of the two complainants were justified, the plaintiff, through his solicitors, responded by stating that he was willing to comply with the recommendations contained in paragraph 8 of the investigation report. Thus, by the conclusion of the investigation, nothing had emerged which, in my view, required the Commissioner to afford the plaintiff an oral hearing, before she reached the conclusions contained in the report, and acted on them.

75 The Commissioner's decision, to name the plaintiff in a report to be tabled before Parliament, was triggered by the telephone call made by the plaintiff to the Commissioner's office, in which, contrary to his written response to the Commissioner's report, he stated that he considered himself at liberty to practise in his activities, because he considered that they were outside the Commissioner's jurisdiction. As a result, the Commissioner concluded that she was not satisfied with the plaintiff's response, and provided him with fourteen days' notice, as required under s 11(6) of the Act, of her intention to provide a report naming him under the Act. The plaintiff's solicitors responded to that notice by a letter dated 1 July. Apart from stating a bare denial that the plaintiff had ever engaged in sexual activity or misconduct with the complainants, the letter did not contain anything of substance which, at that stage, enlivened a right in him to have an oral hearing before the Commissioner.

76 Thus, the pattern of correspondence between the plaintiff and the defendant, and in particular the nature of the plaintiff's responses, were not such as to require the defendant to afford the plaintiff an oral hearing of the type now contended for, in order that the plaintiff be accorded procedural fairness in the investigation by the defendant, and in her decision to name him in a report to be placed before Parliament. In my view, there is nothing about the individual facts or circumstances of the case which establish that the Commissioner, in not offering and affording to the plaintiff an oral hearing, breached the rules of natural justice. On the contrary, the Commissioner at all times kept the plaintiff properly informed of her concerns about his conduct, and of what she required of him. She made her decision, to name the plaintiff in Parliament, only after concluding her investigation, and after she had determined that the plaintiff's responses to her concerns were inadequate. For those reasons, I reject the second basis relied upon by the plaintiff, namely, that he had been denied natural justice by the defendant.

77 The third basis, upon which the plaintiff seeks to impugn the decision of the Commissioner, is based on the reasonableness of the decision by the Commissioner to name the plaintiff in her report to be placed before Parliament. In particular, Mr Lowry submitted that it was not open for the Commissioner to hold the requisite belief under s 11(5)(a), unless and until the complainants had been cross-examined before her.

78 The submissions made by Mr Lowry, on this aspect of the case, did not proceed, in substance, beyond the submissions he made relating to the alleged failure of the defendant to afford his client natural justice. It is undesirable for me to canvass the contents of the report, before it is tabled in Parliament. It is sufficient for me to indicate that the material, which is contained in the exhibits, is sufficient to provide a basis for the conclusions made by the Commissioner in her report. It is true that some of those conclusions are based on the statements of the complainants, and that those complainants were not cross-examined. However, it does not follow that the Commissioner was acting unreasonably, in the "Wednesbury" sense, by reaching the requisite conclusions, under s 11(5)(a), without first having the complainants cross-examined before her. Nor does it follow that the absence of such cross-examination has the effect that a notional jury could not consider that the findings made by the Commissioner were not open. For those reasons I reject the third ground advanced by the plaintiff.

79 In the course of her submissions, Ms Mortimer also referred to s 31(2) of the Act, which provides (inter alia) that a proceeding or decision of the Commissioner cannot be quashed, declared invalid, reviewed, appealed against, challenged or otherwise called into question, unless it is a proceeding or decision "in exercise of the powers of investigation or inquiry conferred by this Act". However, Ms Mortimer accepted that if the plaintiff's characterisation as a health service provider is a jurisdictional fact, or if there was a failure to afford natural justice to the plaintiff, s 31(2) would not oust the jurisdiction of the court to provide the plaintiff with relief. Accordingly, given the conclusions which I have reached in this case, it is not necessary for me to consider the effect of s 31(2) any further.

80 Finally, and for the purpose of completeness, I note that Ms Mortimer drew to my attention that s 11(5)(b) of the Act specifies that a provider be given a notice under s 22(12), before the Commissioner made a decision to name the provider in a report to be placed before Parliament. She told me that, notwithstanding s 11(5)(b), the Commissioner had not given to the plaintiff a notice under s 22(12).

81 Ms Mortimer submitted that the reference, in s 11(5)(b), to the provision of a notice under s 22(12), did not have the result that, before the Commissioner could place a report, naming the plaintiff, before Parliament, the Commissioner must, in each case, give the provider, to be named, a notice under s 22(12). She pointed out that s 22(12) prescribes a step which the Commissioner "may" take at the conclusion of the investigative process. However, s 22(12) does not require the Commissioner to give the provider such a notice. Thus, she submitted, it would be otiose for the Commissioner to give a notice under s 22(12), in order to fulfil a condition under s 11(5)(b), if the Commissioner came to the conclusion that such a notice would not serve any useful purpose. In this case, she submitted that clearly the Commissioner had formed the view that she did not need to give such a notice, in light of the response already made by the plaintiff to the Commissioner's letter to him dated 14 May 2009. In essence, Ms Mortimer submitted that s 11(5)(b) should be interpreted to construe the phrase "a notice" as "any notice".

82 In my view the submission made by Ms Mortimer has substantial force. However Mr Lowry did not raise, or rely on, the absence of any notice under s 22(12), as a basis for relief in this case. Nor did he address the submissions made by Ms Mortimer on this point. Thus it is not necessary for me to express a concluded view on it.

83 In summary I express the conclusions which I have reached as follows:

(1) The characterisation of the plaintiff, as a health service provider, is a jurisdictional fact, which must be established.

(2) I am satisfied that, on the evidence, that the plaintiff is a provider of health services as defined by s 3 of the Act.

(3) The defendant did not act in breach of the principles of natural justice in the investigation of the complaints relating to the plaintiff, or in deciding, under s 11(5) of the Act, to name the plaintiff in a report to be placed before each House of Parliament.

(4) The defendant has not acted unreasonably in deciding to name the plaintiff in a report to be placed before each House of Parliament under s 11(5) of the Act.

84 For the foregoing reasons the claim by the plaintiff for relief by way of injunction and declaration must fail, and the plaintiff's originating motion should be dismissed.

[4] Above, especially at paragraph [53] to [54].

[9] See also Uniting Church in Australia Property Trust (NSW) v Industrial Relations Commission of New South Wales [2004] NSWCA 183; (2004) 60 NSWLR 602, [53] (Mason P); Barrick Australia Ltd v Williams [2009] NSWCA 275, [26] (Basten JA).

[10] Cabal v Attorney-General [73].

[11] Cabal v Attorney-General [74]; Timbarra Protection Coalition Inc v Ross Mining NL & Ors, 72 [88]-[89] (Spigelman CJ); Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; (1997) 187 CLR 297, 303-304.

[12] Timbarra Protection Coalition Inc v Ross Mining NL & Ors, 65-66 [44]-[52]; Chancellor Park Retirement Village Pty Ltd v Retirement Villages Tribunal (above) [21]; Re City of Joondalnga; Ex parte Mullaloo Progress Association Inc [2003] WASCA 293, [45]-[46] (Pullin J).

[13] Southern Shire Council v Finch (1970) 71 SR (NSW) 315, 325 to 326 (Mason JA); Timbarra Protection Coalition Inc v Ross Mining NL, 67 [58]; Chancellor Park Retirement Village Pty Ltd v Retirement Villages Tribunal [22]-[26]; Wade v Burns [1966] HCA 35; (1966) 115 CLR 537, 552 (Barwick CJ); State of Queensland v Wyvill [1989] FCA 485; (1989) 90 ALR 611, 618 (Pincus J).

[14] Cabal v Attorney-General of the Commonwealth [74]; Timbarra Protection Coalition Inc v Ross Mining NL, 72 [91]; Byrne v Marles (above) [53] (Nettle JA).; Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369, 391 (Dixon J).

[15] Cabal [74]; Buck v Comcare [1996] FCA 1485; (1996) 66 FCR 359, 364-365 (Finn J).

[16] See especially at paragraphs [81], [94].

[17] Corporation of the City of Enfield v Development Assessment Commission & Anor [2000] HCA 5; (1999) 199 CLR 135, 149 to 150 (Gleeson CJ, Gummow, Kirby and Hayne JJ).

[18] See for example, ss 15(3), 15(3A), 19(1), (3), (5), 19A(2), 20(4A), 20(8), 21(1)(a), 21(3)(c), 21(4), 21(5), 22(5A), 23(1)(c).

[19] Cf Timbarra Protection Coalition Inc v Ross Mining NL & Ors (above).

[20] Compare Southern Shire Council v Finch (1970) 71 SR (NSW) 315, 325 to 326 (Mason J).

[22] Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 229 to 230 (Lord Greene MR).

[28] See also, for example, Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584-585; Minister for Immigration and Multicultural Affairs v JIA Legeng (2001) 205 CLR 507, 463 (Hayne J); Re Minister for Immigration and Multicultural Affairs & Anor; ex parte Miah (2001) 206 CLR 57, 115 [190] (Kirby J).

[30] See also Szebel v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152, 160 to 161 [26].

Services (Conciliation and Review) Act 1987

At a glance

Court

Decision date

Before

Source

Judgment (140 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (19)