Australia: Procedural fairness in investigations

Last Updated: 16 February 2016
Article by Julien Fraccaro and Andre Wyman

Case Study: Where doctor subject of investigation - Court emphasised need for natural justice/procedural fairness – Hospital found to have fallen short of disclosure requirements.

The recent Supreme Court decision in Vega Vega v Hoyle & Ors [2015] QSC 111 emphasises the requirement that a staff member who is the subject of an investigation be afforded natural justice and procedural fairness.

The Facts

On 22 January 2014 Dr Vega Vega, a specialist urologist, performed a left nephrectomy (removal of a kidney) on a patient with a complex anatomy as a consequence of spina bifida. Unfortunately following a difficulty surgery with complications, the wrong kidney (which was also compromised) was removed. On 29 April 2014, following the discovery that the wrong kidney had been removed, Dr Vega Vega's employment was suspended.

Solicitors were engaged by Queensland Health to coordinate and assist with three concurrent investigations; a Root Cause Analysis ("RCA"), a Clinical Review ("CR") and a Health Service Investigation ("HIS"). These investigations are administered under the Hospital and Health Boards Act 2011 (Qld) ("the Boards Act").

Separate to these investigations, on 9 May 2014 the Medical Board of Australia ("MBA") suspended Dr Vega Vega's registration. On 27 June 2014, following proceedings in QCAT, this decision was set aside and it was held that Dr Vega Vega did not pose a serious risk to persons and there should be no suspensions or conditions placed on his registration.

The three parallel Queensland Health investigations continued. The HSI Report which included the CR Report was delivered on 5 September 2014. On 12 September 2014 Dr Vega Vega filed application for a statutory order of review contending that there was a breach of the rules of natural justice (procedural fairness) in relation to the HSI Report.

The principles of natural justice require decision makers to make their decisions and conduct investigations without a reasonable apprehension of bias and to afford the person a fair hearing. Dr Vega Vega argued that the reports were invalid as they had been written in contrast to natural justice, and that the investigators had denied him access to information and documents relied upon, thereby preventing him from being able to properly respond. Justice Lyons agreed and found there had been a breach of natural justice.


One lawyer was engaged to give advice in relation to the initiation of the investigation but within weeks was appointed as an investigator of that very review. The Court considered that a reasonable observer may have concerns about the closeness of that association. However, the Court determined that a reasonable apprehension of bias could not be sustained. This was on the basis that the lawyer was involved at an early point in time and it did not follow that the lawyer had formed a view in relation to the doctor's actions.

Sufficient Information

The Court found that there was a consistent failure to supply the interview notes and investigation information of one of the Investigators, Dr Philip Hoyle, to Dr Vega Vega. This was despite repeated requests made by Dr Vega Vega for those documents on the basis that the information was considered significant. The requests were rejected on the basis that it was not considered necessary to provide access to the materials collected during the investigation in order to respond to the issues and questions.

The respondents submitted that sufficient disclosure had been made and that interview notes were not included on the grounds of confidentiality. However, in considering the view formed by Dr Hoyle about the failure to communicate, the Court determined that it was critical to know what evidence Dr Hoyle was relying on and the source of that information. Further, the Court found that providing extracts of interview statements rather than the entire content of the interviews was insufficient disclosure. For these failures the Court was satisfied there had been a breach of the rules of natural justice.

Additionally, it was determined that the delivery of the final HSI Report in the face of repeated requests for information and requests for time to consider that information was a breach of the rules of natural justice.

The Court emphasised that the rules of natural justice mean a doctor, or indeed any staff member, who is subject to investigation must be afforded access to full witness statements, not mere summaries, which also include the identity of the witness. It was determined that Dr Vega Vega was also entitled to receive the draft report before it was finalised to assess whether the investigator had used the evidence fairly.

The Court reaffirmed that in circumstances where a person's rights might be affected due to being assigned blame for an adverse outcome, that person must be provided with disclosure of all information, including that which is both positive and negative. A person must have the opportunity to see the source documents, statements, and assessments, in order to rigorously scrutinise then properly respond to and, if necessary, contest the conclusions drawn.


Workplace investigations require consideration to be given to what is considered fair and proper procedure. It must be ensured that the person who is subject to the investigation is not subject to pre-determined outcomes or disadvantaged by information being withheld, particularly when their careers and livelihood are at risk. At the commencement of any investigations, employers should always consider whether the process that is adopted will be upheld by courts.

A copy of the full decision can be found on the website of the Supreme Court Library Queensland at: QSC/2015/111

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Julien Fraccaro
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.