Chandrasekaran v Western Sydney Local Health District (No 7)

[2019] NSWSC 567

Supreme Court

New South Wales

Medium Neutral Citation:

Chandrasekaran v Western Sydney Local Health District (No 7) [2019] NSWSC 567

Hearing dates:

13 May 2019

Decision date:

15 May 2019

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

See paragraph [78]

Catchwords:

CIVIL PROCEDURE – claims for expedition and allocation of hearing date – proceedings not ready for hearing – claims refused

 

CIVIL PROCEDURE – application for gross sum costs order – no evidence adduced of amounts paid – order declined

 

CIVIL PROCEDURE – plaintiff’s application for apology regarding first defendant’s withdrawal of notice of motion for appointment of tutor – application refused

 

CIVIL PROCEDURE – application for joinder of Medical Council – statutory scheme provided for scheme of review as precondition to seeking judicial review – application dismissed

  CIVIL PROCEDURE – application to set aside notices to produce – notices oppressive and amount to “fishing”

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), s 41
Civil Procedure Act 2005 (NSW), Pt 6, ss 57, 58, 68, 98
Federal Court of Australia Act 1976 (Cth), s 23
Health Practitioner Regulation National Law (NSW), ss 41B, 150, 150A, 150C, 150F, 159, 159B, 159C, 161
Industrial Relations Act 1996 (NSW), s 179
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), Pt 59, rr 6.19, 6.24, 7.18, 13.4, 14.28, 15.3, 15.4, 21.10, 34.1, 42.1, 59.10

Cases Cited:

Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14
Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; [1979] FCA 21
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Magill v Magill (2006) 226 CLR 551; [2006] HCA 51
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Wotton v Queensland (No 5) [2016] FCA 1457; (2016) 157 ALD 14

Category:

Procedural and other rulings

Parties:

Sujatha Chandrasekaran (Plaintiff)
Western Sydney Local Health District t/as Westmead Hospital (First Defendant)
Charterhouse Medical Pty Ltd (Second Defendant)
Medical Council of NSW (Respondent)

Representation:

Counsel:
P E King (Plaintiff)
T Wong (First Defendant)
K Petch (Second Defendant)
F T Roughley (Respondent)

  Solicitors:
McKell’s Solicitors (Plaintiff)
Crown Solicitor for NSW (First Defendant)
Norton Rose Fulbright (Second Defendant)
Crown Solicitor for NSW (Respondent)

File Number(s):

2018/177874

Judgment

Introduction

1. In proceedings commenced by statement of claim in 2018, Sujatha Chandrasekaran (the plaintiff) seeks damages against Western Sydney Local Health District, trading as Westmead Hospital (the first defendant) and Charterhouse Medical Pty Ltd (the second defendant). In substance, the plaintiff alleged that there was an agreement with the second defendant, a locum agency, made on 11 December 2017 whereby she would work at Westmead Hospital, a hospital administered by the first defendant. She alleged that the first defendant terminated her services on 15 January 2018 “without lawful justification and without notice”. Her claims include claims for damages for alleged misleading or deceptive conduct, for breach of contract and for injurious falsehood and defamation.

2. There have been various iterations of the pleadings. The latest, entitled “Further Second Amended Statement of Claim”, was filed without leave on 5 April 2019. The amendments purport to include a claim for damages for deceit against the second defendant. The plaintiff also seeks leave to join the Medical Council and the State of New South Wales as defendants, as will be referred to in more detail below.

3. Various notices of motion were listed for hearing on 13 May 2019: the plaintiff’s amended notice of motion filed in Court on 29 March 2019; the first defendant’s notice of motion to set aside notices to produce filed on 5 April 2019; and the second defendant’s notice of motion to set aside notices to produce filed on 5 April 2019. Although I made some orders and gave some reasons in the course of the oral hearing on 13 May 2019, it is convenient to incorporate all orders made as a consequence of the notices of motion and all reasons in a single judgment. The first defendant’s notice of motion was resolved by agreement, apart from costs. I propose to address the notices of motion in turn.

Relevant facts for the purposes of the applications heard on 13 May 2019

4. The plaintiff is a qualified psychiatrist who was first registered in New South Wales in 2000 following completion of her studies at the University of Sydney. By arrangement between the plaintiff and the defendants, the plaintiff worked as a locum at Westmead Hospital from 27 December 2017 at Redbank Acute Adolescent Unit (Redbank House). Her services were terminated on 15 January 2018. She has never been employed by the second defendant.

5. Following the termination of the plaintiff’s services, Dr Ashwini Padhi, Clinical Director, Child and Youth Mental Health Service, made a complaint concerning the plaintiff to the Medical Council. The consequential proceedings, brought under s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law), were heard by the Medical Council on 24 October 2018. The plaintiff did not attend that hearing. On 20 December 2018 the Medical Council gave reasons for its decision to impose the following conditions on the plaintiff’s registration effective from 24 October 2018:

“(1)   Not to practise medicine.

(2)   To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions.”

6. The Medical Council also referred the matter to an Impaired Registrants’ Panel subject to the consultation provisions of s 150F of the National Law.

7. The Medical Council’s reasons included the following paragraphs:

“APPEAL AND REVIEW RIGHTS

Dr Sujatha Chandrasekaran has the right to appeal these conditions to the NSW Civil and Administrative Tribunal.

An appeal must be lodged with the Tribunal within 28 days after notice of the action taken by the Council under section 150 of the National Law (NSW) has been given to the practitioner.

Dr Sujatha Chandrasekaran also has the right to seek a review by the Medical Council of this decision, under section 150A of the National Law (NSW).

Under section 150C of the National Law (NSW) the Council may also, at any time, alter or remove conditions imposed on Dr Sujatha Chandrasekaran's registration as a result of these proceedings.”

The plaintiff’s amended notice of motion filed in court on 29 March 2019

8. The plaintiff still pressed her claims for relief in paragraphs 2, 4, 5, 6, 7 and 8, as follows:

“2   Application for Expedition.

. . .

4   Costs generated as a consequence of the reports generated by Dr Rosalise Wilcox and the motion for a tutor and then withdrawn be incurred by the Defendants.

5   Should no hearing date be set at directions for a hearing date to be set for the substantive claim [sic].

6   Leave to add the Medical Council of New South Wales as a party or, in lieu thereof, the State of New South Wales.

7   Leave to amend the Further Second Amended Statement of Claim.

8    Leave to add Mr Kannan Navaratnem as a party.”   

The claims for expedition and a hearing date (prayers 2 and 5 of the plaintiff’s amended notice of motion)

9. Mr King, who appeared on behalf of the plaintiff, contended that the Court should expedite the hearing of the claim as the plaintiff had wrongfully been deprived of her livelihood by the defendants. He submitted that she was in dire financial straits and that any delay in the determination of the proceedings would be prejudicial to her. He argued that the defendants had unreasonably delayed the proceedings and that there was a degree of urgency associated with the plaintiff’s claims because of the harm suffered by her.

10. A hearing date is generally allocated when the matter is ready for hearing. The reason for this is that it is disruptive to the administration of justice if hearing dates, once allocated, have to be vacated. Late vacation of dates commonly results in those allocated dates not being able to be used by the court for other listings. Many proceedings which are commenced in the Common Law Division involve individual litigants whose lives are affected in a substantial way by the events the subject of the proceedings and the proceedings themselves. Further, it is difficult, if not impossible, for an accurate assessment of the length of the hearing to be made until the pleadings are closed and witness statements or affidavits have been exchanged. Until those matters have been completed it cannot be known how many witnesses will be called by the parties and the likely length of cross-examination cannot be predicted.

11. The present proceedings are far from ready for hearing. The plaintiff again seeks to amend her pleading. No defences have been filed to the Further Second Amended Statement of Claim (because it was filed without leave). Although the plaintiff has sworn various affidavits in support of her claims, the defendants have not filed their evidence and cannot be expected to do so until the pleadings have closed. This is the plaintiff’s second application for expedition, the first having been refused by Fagan J on 21 November 2018.

12. In deciding whether to grant expedition the Court is obliged to take into account the interests of justice and the matters provided for in Part 6 of the Civil Procedure Act 2005 (NSW) (the Act), and in particular those listed in ss 57 and 58, as well as the overriding purpose of the Act, which is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”. A relevant matter in s 58(2)(b) is “the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities”. The lengthy procedural chronology on which the defendants rely indicates that there have been several directions hearings before the Registrar as well as hearings before judges of this Division. As referred to above, the plaintiff’s pleading has not yet been finalised. She has already served six different versions of the statement of claim, not counting the further amendments proposed on 13 May 2019.

13. I am not persuaded that this case is entitled to expedition in the circumstances referred to above. It is premature for a hearing date to be allocated, for the same reasons. Accordingly, I refuse the prayers sought in 2 and 5 of the plaintiff’s notice of motion.

The application for costs of the first defendant’s notice of motion for the appointment of a tutor (prayer 4 of the plaintiff’s amended notice of motion)

14. On 15 February 2019 the first defendant filed a notice of motion seeking the appointment of a tutor for the plaintiff pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.18 on the ground that the plaintiff was a person “under legal incapacity”. The motion was subsequently withdrawn on 21 March 2019, some five weeks later.

15. Ms Wong, who appeared on behalf of the first defendant, indicated that the first defendant would consent to an order for costs in the following terms:

“Order that first defendant to pay the plaintiff’s costs of the first defendant’s notice of motion filed on 15 February 2019 as agreed or assessed, such costs to be limited to:

(a)   the legal costs incurred by the plaintiff in defending the notice of motion filed on 15 February 2019 as agreed or assessed, being costs incurred in retaining a solicitor and/or barrister in relation to that notice of motion; and

(b)   out of pocket expenses (if any) actually, necessarily and reasonably incurred by the plaintiff in relation to that motion, as agreed or assessed.”

16. Mr King consented to an order in that form, save for the words “(if any)” in (b), which Ms Wong did not press.

17. Mr King also sought a gross sum costs order pursuant to s 98(4) of the Act in the sum of $4,000. I declined to make such an order as Mr King adduced no evidence of whether, and to whom, such amount had been paid, or to what services or expenses it related. Nor did he have any explanation of the amount or documentation to support the contention that it was a reasonable sum. I note that, although Mr King has appeared on behalf of the plaintiff from time to time in the proceedings, for the most part the plaintiff has acted on her own behalf. Accordingly, no inference can be drawn that she expended any sums or incurred any expenditure in opposing the first defendant’s notice of motion. In so far as the plaintiff has represented herself in the proceedings, she is not entitled to professional costs for her time spent preparing for and appearing in the proceedings: Bechara t/as Bechara and Company v Bates [2016] NSWCA 294 at [22] (Beazley P, Meagher and Payne JJA), following Cachia v Hanes (1994) 179 CLR 403 at 410-411 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ); [1994] HCA 14.

18. For these reasons, I am satisfied that it is appropriate to make an order in the terms set out above with the words “if any” deleted but to refuse the plaintiff’s application that costs be specified in a gross sum.

The plaintiff’s application for an order requiring the first defendant to apologise to the plaintiff for making the application (now withdrawn) for the appointment of a tutor

19. Mr King also made an application in the course of oral argument for an order requiring the first defendant to apologise to the plaintiff in open court for making the application to have a tutor appointed. He submitted that the order for costs in his client’s favour (set out above) was insufficient to ameliorate the hurt caused to the plaintiff by the application. He submitted that the plaintiff deserved an apology on the basis of the “principles of courtesy, of decency and fundamental principles of citizenship”.

20. Ms Wong made the following statement in open court, in the presence of the plaintiff, on 13 May 2019:

“There are three propositions. The first is that I have instructions to say that the first defendant regrets that the plaintiff found the motion hurtful. The first defendant's intention in filing the motion which it did so in its capacity as a model litigant for the proper purpose of ensuring that the plaintiff's interests were appropriately represented in this Court and to avoid the plaintiff incurring unnecessary expense. The first defendant is opposed to the Court ordering the first defendant to make a formal apology.”

21. The first defendant accepted, on the basis of Wotton v Queensland (No 5) [2016] FCA 1457; (2016) 157 ALD 14 (which concerned s 23 of the Federal Court of Australia Act 1976 (Cth)) that this Court had power to order it to apologise to the plaintiff. It is a power which should, in my view, be sparingly exercised. There is no proper basis for inferring that the first defendant’s conduct in seeking that a tutor be appointed for the plaintiff was other than responsible. That the plaintiff interpreted the application as a reprehensible and heinous attempt to remove from her the conduct of her litigation is not, even if relevant, determinative. By withdrawing the notice of motion, shortly after it was filed, the first defendant can be taken to have thought better of its initial stance. Forensic decisions may be taken competently and in good faith and later reversed, either because of a change of mind or a change in circumstances. Generally speaking, the moving party in such circumstances is obliged to compensate the opposing party by paying their legal costs and any out-of-pocket expenses which have been incurred reasonably and necessarily. To require a formal apology would indicate, contrary to the fact, that the court has formed an adverse judgment about the first defendant’s conduct. I accept the explanation given by Ms Wong in the passage extracted above. I refuse the plaintiff’s application for a formal apology.

Application for joinder of the Medical Council (prayer 6 of the plaintiff’s amended notice of motion)

22. The plaintiff alleged, in her affidavit of 1 May 2019, that there was a “direct causal link” between the first defendant’s conduct and the creation of “fabricated and vexatious complaints that have led to the unlawful suspension of [her] medical registration [by the Medical Council]”. I note that the actual decision of the Medical Council, as referred to above, was to impose conditions on her registration, including that she not practise medicine.

23. At the hearing before me, Mr King handed up a document, headed “Plaintiff’s Memorandum Re Amendments”, which was marked for identification MFI 1, which set out the proposed amendments to the Further Second Amended Statement of Claim to claim relief against the Medical Council as follows:

“1.   Particulars of Unlawful Decision - Para 19, p8

(i)    The decision was based on false complaints by Dr Padhi regarding the Plaintiff, such complaints being defensive and harassing in nature made after he or Dr Bowman or persons unknown wrongfully accessed the Plaintiffs personal online information.

(ii)    No hearing occurred before the Council.

(iii)    There was no investigation prior to the hearing or at all by the Council.

(iv)    The Plaintiff received no adequate notice sufficient for the Plaintiff to obtain legal representation before the Council.

(v)    The Plaintiff was suspended by email.

(vi)    The Plaintiff had excellent references before and after her employment at Westmead not taken into account by the Council.

2.   Additional Order 6, p22

(vii)    Order in the nature of Certiorari quashing the decision of the Medical Council of NSW suspending the Plaintiff indefinitely.”

24. Mr King submitted that the Medical Council was a necessary and proper party to the proceedings to permit the plaintiff to seek an order in the nature of certiorari to quash the decision of the Medical Council “suspending the Plaintiff indefinitely”.

25. Ms Roughley, who appeared on behalf of the Medical Council, submitted that the order for joinder ought not be made as this Court had no jurisdiction to grant the order sought by the plaintiff which was an order falling within the Court’s jurisdiction conferred by s 69 of the Supreme Court Act 1970 (NSW). Ms Roughley submitted that not only was there no question of law competent to be litigated in this Court (UCPR, r 6.24), but also there was no common question of law and fact (UCPR, r 6.19).

26. In order to address the parties’ submissions, it is necessary to outline the relevant statutory scheme under the National Law. The Medical Council is a statutory instrumentality established by s 41B of the National Law. The relevant provisions, which are contained in Subdivision 7 of Division 3 (Complaints), entitled “Powers of a Council for protection of public” are as follows:

“150   Suspension or conditions of registration to protect public

(1)  A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest—

. . .

(b)  by order impose on a registered health practitioner’s registration the conditions relating to the practitioner’s practising the health profession the Council considers appropriate; or

. . .

(6)  A Council must give written notice of action taken under this section to the registered health practitioner or student concerned.

. . .

150A   Review of certain decisions

(1) A registered health practitioner . . . may apply to a Council for the review of a decision of the Council under section 150 to—

. . .

(b)  impose conditions on the practitioner’s . . . registration or alter conditions imposed on the practitioner’s . . . registration.

(2)  On receiving an application for review, a Council -

(a)  may refuse to reconsider its decision if, in the Council’s opinion, the application is frivolous or vexatious; or

(b)  must otherwise reconsider its decision, and in so doing must consider any new evidence or material submitted by the practitioner or student that the Council reasonably considers is relevant.

(3)  Following its reconsideration of a decision, a Council may—

(a)  affirm or vary the decision; or

(b) set it aside and take any action the Council has the power to take under section 150.

(4)  A Council may vary or set aside a decision only if the Council is satisfied there has been a change in the registered health practitioner’s or student’s circumstances that justifies the variation or setting aside of the decision.

. . .

150C   Power to remove or alter conditions or end suspension

(1)  A Council may, at any time—

. . .

(b)  alter or remove conditions imposed under this Subdivision.

(2) A Council may, at any time after taking action under section 150 with respect to a registered health practitioner . . . (the original action), take any other action it could have taken under that section at the time of taking the original action.

(3)  The Council must give written notice of the action it takes under this section to the registered health practitioner or student concerned.”

27. Subdivision 2 of Division 6 of Part 8, entitled “Appeals against actions by Councils” relevantly provides:

“159   Right of appeal

(1)  A person may appeal to the [Civil and Administrative] Tribunal against any of the following decisions of a Council for a health profession—

. . .

(b)  against conditions imposed by the Council for the health profession on the person’s registration under section 127AA or Division 3 or 4 or the alteration of the conditions by the Council;

(c)  against a refusal by the Council for the health profession to alter or remove conditions imposed by the Council under Division 3 in accordance with a request made by the person under section 150I;

. . .

(e)  against a refusal by the Council for the health profession to alter or remove conditions imposed on the person’s registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K.

Note.

An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013.

. . .

(3)  The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given.

159B   Appeals on point of law

(1) A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Tribunal.

Note.

An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013.

(2) Subsection (1) does not limit a right of appeal under section 159.

(3)  The Council must not make a decision that is inconsistent with the Tribunal’s decision with respect to a point of law under this section.

(4) A registered health practitioner . . . may not make an application to the Supreme Court for judicial review of action taken by a Council under section 150, 150A or 150C, being an application alleging any error of law, until an appeal under this section in respect of the point of law concerned has been made and disposed of.

159C   Tribunal’s powers on appeal

(1)  On an appeal against a decision of a Council, the Tribunal may by order—

(a)  confirm the decision; or

(b)  set aside the decision; or

(c)  set aside the decision and make a new decision (being a decision that the Council could have made).

. . .”

28. The effect of these provisions is that a person such as the plaintiff who has had conditions of registration imposed by the Medical Council pursuant to s 150 of the National Law has various avenues by which to challenge the conditions as follows:

1. the person may apply to the Medical Council for internal review of the conditions imposed pursuant to s 150 of the National Law by applying under s 150A;

2. the person may appeal to the Civil and Administrative Tribunal (the Tribunal) under s 159 of the National Law against the imposition of conditions on her registration. Such appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given: s 159(3) of the National Law.

3. the person may appeal to the Tribunal “with respect to a point of law” under s 159B(1) of the National Law; and

4. the person may approach this Court for relief under s 69 of the Supreme Court Act but not until an appeal under s 159B in respect of the point of law concerned has been made and disposed of.

29. There is no time limit for the avenue in (1) above. The applicable time limit for the avenues in (2) and (3) above is 28 days: s 161 of the National Law. This period may be extended by the Tribunal under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW). For avenue (4), the proceedings must be commenced within 3 months of the decision of the Tribunal disposing of the point of law: UCPR, r 59.10(1), read with s 159B(4) of the National Law. This time limit may be extended by the Court under UCPR, r 59.10(2).

30. There is no evidence that the plaintiff has sought any of these avenues of review, apart from the fourth (by her present application to add the Medical Council as a party). Mr King said from the bar table, at tr. 32:

“My instructions are that [the plaintiff] did write to them, and they told her that she could not appeal . . .”

31. Bridget Andersons, a Senior Legal Officer of the Medical Council deposed in her affidavit of 10 May 2019:

“To my knowledge, [the plaintiff] has not availed herself to [sic] the rights of review set out at p. 7 of the Medical Council.”

32. Although Mr King said, as referred to above that the plaintiff had written to “them” (without identifying whether he meant the Medical Council or the Tribunal), he did not provide any details of what, if anything, the plaintiff had done to challenge the conditions on her registration. Section 159B(4) of the National Law makes it a condition precedent to commencement of proceedings in this Court under s 69 of the Supreme Court Act that an appeal under s 159B(1) in respect of the point of law concerned has been made and disposed of. Mr King has not established that the condition precedent has been fulfilled. Further, as the Medical Council would be a necessary respondent in an appeal under s 159B, I infer that Ms Andersons would be aware if any such appeal had been commenced in the Tribunal. It follows that, if s 159B(4) is valid, this Court is not presently competent to hear the plaintiff’s claim in the nature of certiorari against the Medical Council.

33. Mr King contended that s 159B(1) of the National Law was invalid as it was inconsistent with the High Court’s decision in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (Kirk). He submitted that Parliament could not limit a party’s access to this Court and that, to the extent to which s 159B(4) purported to authorise such limitation, it was invalid. Further, Mr King submitted that the decision of the Medical Council to impose conditions on the plaintiff’s registration did not fall within s 159B(4) of the National Law because it was not “an action taken by the Council . . . under s 150” within the meaning of that section as it was not taken validly. Mr King also submitted that the plaintiff was out of time for the avenues of review identified in (1), (2) and (3) above and, accordingly, she was entitled to seek review from this Court under avenue (4).

34. Mr King also sought that the plaintiff’s application for leave to add the Medical Council be adjourned so that he could make further submissions on Kirk and Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2.

35. Ms Roughley submitted that Kirk was concerned with “islands of power immune from supervision and restraint” ([99] of Kirk (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ)) and that the application of the principles enunciated in Kirk did not result in the invalidity of s 159B(4). She contended that it was open to the legislature to limit access to a State Supreme Court, although access for a remedy arising from jurisdictional error could not be denied.

36. Ms Roughley also submitted that there was no utility in granting the adjournment sought by Mr King as the limitations on this Court’s jurisdiction were plain. She contended that his submission that the Tribunal would not have jurisdiction because the imposition of conditions had not been done validly under s 150 of the National Law was inconsistent with Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; [1979] FCA 21.

37. Kirk relevantly turned on the construction of s 179 of the Industrial Relations Act 1996 (NSW), a privative clause which provided that a decision of the Industrial Court was final and might not be appealed against or called into question in any court or tribunal. The High Court held that s 179 validly precluded the grant of orders in the nature of certiorari for error of law on the face of the record but could not validly exclude the grant of orders on the basis of jurisdictional error. At [100] the plurality in Kirk said:

“This is not to say that there can be no legislation affecting the availability of judicial review in the State Supreme Courts. It is not to say that no privative provision is valid. Rather, the observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non-jurisdictional error in the Australian constitutional context. The distinction marks the relevant limit on State legislative power. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.”

38. Section 159B(4) does not deny the availability of an appeal to this Court on the ground of jurisdictional error. Rather, it defers this Court’s jurisdiction to deal with any error of law (whether on the face of the record or jurisdictional) until the Tribunal has disposed of any appeal on a point of law. In other words, a person such as the plaintiff may not commence proceedings for judicial review in this Court until she has first brought proceedings in the Tribunal which have been finally disposed of. This is the effect of s 159B(4). Nothing in Kirk indicates that the provision is invalid. Indeed the validity of such a provision was specifically considered in [100], set out above.

39. It follows that this Court cannot entertain the plaintiff’s claim in the nature of certiorari as she has not established that she has brought proceedings in the Tribunal which have been finally disposed of. This is sufficient to defeat the plaintiff’s application to join the Medical Council. However, as further arguments were raised, I will add further reasons to address with them.

40. I reject Mr King’s submission that the plaintiff is out of time to challenge the conditions on her registration. As referred to above, there is no time limit for an application under s 150A. If she applied to the Tribunal under s 159B(1) of the National Law, she would need an extension of time. Subject to such extension being granted, she is entitled to appeal to the Tribunal on a point of law. If she does so and is dissatisfied with the result, then, when the proceedings are finally disposed of, she will be entitled to file a summons in this Court pursuant to s 69 if she contends that there is an error of law on the face of the record or a jurisdictional error.

41. It was established in Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd that a purported decision under an enactment could be challenged under a statute which provided that a decision under an enactment was subject to review. Thus, even if the conditions imposed by the Medical Council were found to be invalid and outside jurisdiction, the Medical Council’s decision to impose conditions could still be the subject of an appeal under s 159B(1) of the National Law. Thus, there is no reason to read down the clear intent of s 159B(4) that an applicant must first obtain a decision from the Tribunal before invoking this Court’s jurisdiction under s 69 of the Supreme Court Act.

42. In any event, the plaintiff has failed to demonstrate that there are any common issues of law or fact which would make it appropriate to join the Medical Council. Nor has the Medical Council been shown to be a necessary or proper party to the proceedings. This Court’s jurisdiction to grant relief in the nature of certiorari derives from s 69 of the Supreme Court Act. The review under that section is judicial review and does not permit the Court to review the merits of the decision under review. At least one of the “particulars” in MFI 1 would appear to touch on the merits of the decision, (vi), which refers to the plaintiff’s “excellent references”.

43. Further, the proposed proceedings against the Medical Council for an order in the nature of certiorari would need to be commenced separately from the present proceedings. Part 59 of the UCPR makes particular provision for applications for judicial review. Proceedings are to be commenced by summons; the decision-maker is required to be identified; and the grounds are to be stated. The proceedings must, by definition, not be commenced before the date of the decision sought to be reviewed. It is generally inappropriate that such proceedings be incorporated into a statement of claim which makes allegations of material fact and seeks relief such as damages.

44. For these reasons, I dismiss the plaintiff’s application to join the Medical Council. The Medical Council sought the costs of its appearance before me on 13 May 2019, including costs occasioned by the application for joinder. Mr King submitted that the application raised matters of public interest and it was, accordingly, appropriate that there be no order as to costs.

45. The pleading to which the Medical Council was sought to be joined was the Further Second Amended Statement of Claim. No allegation was made, or relief sought, against the Medical Council in that document. Upon the commencement of the hearing on 13 May 2019, Mr King provided MFI 1 to Ms Roughley, which set out the relief sought and the grounds on which the relief was sought, for the first time. There was no arguable basis for the Medical Council to be joined to the Further Second Amended Statement of Claim. I have rejected the plaintiff’s application for leave to amend to add the Medical Council to claim relief in the nature of certiorari. I infer that the Medical Council has incurred costs in instructing its solicitors, briefing Ms Roughley, preparing the affidavit of Ms Andersons and appearing at the hearing of the notice of motion. All such costs have been incurred because the plaintiff or those advising her have misapprehended the applicable principles of law. I am not satisfied that there is any particular point of public interest raised such as would make it appropriate that there be no order as to costs. I am not persuaded that there is any reason why costs ought not follow the event in accordance with the general rule: UCPR, r 42.1.

Application for leave to join the State of New South Wales as a defendant (also in prayer 6 of the plaintiff’s amended notice of motion)

46. Mr King submitted that the joinder of the State of New South Wales was necessary for more abundant caution since the first defendant and the Medical Council were both governmental instrumentalities the employees of which were paid by the State of New South Wales. Ms Wong submitted that none of the employees of these instrumentalities had been joined as defendants and contended that there was no reason to join the State of New South Wales when the first defendant was the relevant and necessary party in respect of the allegations made against the Westmead Hospital, for which the first defendant was responsible.

47. Mr King has failed to persuade me that there is any need or utility for the State of New South Wales to be joined to these proceedings. Accordingly, the application is refused.

Application for leave to amend the Further Second Amended Statement of Claim (prayer 7 of the plaintiff’s amended notice of motion)

48. As referred to above, the plaintiff filed the Further Second Amended Statement of Claim on 5 April 2019, notwithstanding that leave to do so had not been granted. The defendants objected to the inclusion of paragraphs [42]-[48]. Mr King confirmed that the plaintiff did not press paragraphs [45]-[48]. Paragraphs [42]-[44] remained in issue between the plaintiff and the second defendant, for whom Ms Petch appeared.

49. The allegations in [42]-[44] purport to be based on the affidavit of Daniel Harvey of 9 October 2018 (the Harvey affidavit). Mr Harvey is employed by the second defendant as a Senior Principal Consultant in the Specialist Psychiatry Division. He swore an affidavit in support of a notice of motion filed by the second defendant on 21 September 2018 that the proceedings be dismissed as against the second defendant pursuant to UCPR, r 13.4(1)(b). The affidavit was relied upon for that limited procedural purpose and is not relied upon by the second defendant in the substantive proceedings.

50. In paragraph [42] of the Further Second Amended Statement of Claim, the plaintiff alleged that the Harvey affidavit “contains falsified evidence constituting fraud” which is alleged to have caused the plaintiff financial loss, damage to her reputation, personal trauma and emotional distress. In paragraph [43] of the Further Second Amended Statement of Claim, the plaintiff alleged that the Harvey affidavit “contains falsified evidence consistent with a conspiracy”. In the “particulars” to this paragraph, the plaintiff repeats the particulars to paragraphs [39]-[42], paragraphs [39]-[41] being relevant to her claim for damages in defamation. In paragraph [44] of the Further Second Amended Statement of Claim, the plaintiff alleged that the Harvey affidavit “contains falsified evidence consistent with harassment”. The particulars to this paragraph allege that the “falsifications” were intended to inflict emotional distress”. I do not discern any arguable cause of action in paragraphs [42], [43] or [44].

51. Paragraph [42] amounts to an allegation of fraud and also makes allegations regarding a condition of mind. Accordingly, UCPR, rr 15.3 and 15.4 apply and the party alleging fraud of any condition of mind must give particulars. Neither the draft pleading nor the “particulars” comply with UCPR, rr 15.3 and 15.4.

52. The allegations in paragraph [42] do not correspond with the elements of the tort of deceit identified in Magill v Magill (2006) 226 CLR 551; [2006] HCA 51 at [114] (Gummow, Kirby and Crennan JJ), namely: that the defendant made a false representation, either with knowledge that it was false or was reckless as to whether the representation was false or not, with the intention that it be relied upon by the plaintiff; that the plaintiff relied on the representation; and suffered loss as a consequence. Mr King accepted that he was unable to identify any false representation in the draft pleading. Nor was he able to explain how a statement in an affidavit which was not to be relied on in the substantive proceedings could amount to a fraudulent representation for the purposes of the tort of deceit.

53. The allegation in paragraph [43] is confusing. A conspiracy is mentioned but not alleged. A conspiracy is an agreement between two or more people to carry out an unlawful act. There is no connection alleged between any such conspiracy (the parties to which are not identified) and any loss suffered by the plaintiff.

48. There is no tort of harassment known to the law as alleged in paragraph [44] of the draft pleading.

49. Had paragraphs [42]-[44] of the Further Second Amended Statement of Claim been contained in a pleading which had been filed regularly or with leave, they would have been susceptible to being struck out as not disclosing a reasonable cause of action and tending to cause prejudice and embarrassment under UCPR, r 14.28. As leave to file this pleading has not been granted, I propose to make an order confirming the limitations on the leave with respect to this pleading to exclude [42]-[44].

Application for leave to add Mr Kannan Navaratnem as a party (prayer 8 of the plaintiff’s amended notice of motion)

56. The plaintiff has not provided to the Court or to any of the defendants a proposed draft pleading to indicate what allegations she would make against Mr Navaratnem were she granted leave to join him as a party. Accordingly it has been necessary to have resort to the extant pleading and to the plaintiff’s affidavit of 1 May 2019, which I have admitted as a submission only.

57. In order to understand the basis for the plaintiff’s application for joinder of Mr Navaratnem as a party to the proceedings, it is necessary to consider the references to Mr Navaratnem in the Further Second Amended Statement of Claim. In paragraph [12] of the Further Second Amended Statement of Claim, it is alleged that there was a conversation between the plaintiff and Dr Padhi on 30 March 2019 about Mr Navaratnem, who provides psychoanalysis to psychiatrists, including, according to Dr Padhi, Dr Padhi himself. In paragraph [13], the plaintiff alleged that a conversation she had with Mr Navaratnem in London was repeated back to her by Dr Padhi. According to the plaintiff’s affidavit of 1 May 2019 the subject of the conversation was Dr Padhi’s own experience with Mr Navaratnem.

58. Ms Wong submitted that there was no information alleged to have been disclosed by Dr Padhi to the plaintiff that is capable of amounting to a breach of confidence since all that was disclosed was information that Dr Padhi relayed to the plaintiff about his own experience. According to the plaintiff’s affidavit of 1 May 2019 the alleged cause of action against Mr Navaratnem is “harassment”, which is not a cause of action known to the law.

59. Mr King identified the forensic purpose of the proposed joinder of Mr Navaratnem as being to require him to give evidence on affidavit so that he could be cross-examined. Mr King accepted that the plaintiff sought no relief against Mr Navaratnem.

60. I reject the plaintiff’s application for joinder of Mr Navaratnem. There is nothing to indicate that he is either a necessary or proper party to these proceedings: no allegations are made against him; and no relief is sought against him. Further, it would be an abuse of process to seek to join a party for the sole purpose of trying to induce that party to give evidence so that the party could be cross-examined. The costs of the application ought follow the event, there being no reason to depart from the general rule: UCPR, r 42.1.

The first defendant’s notice of motion to have notices to produce set aside

61. The first defendant filed a notice of motion on 5 April 2019 seeking to set aside parts of two notices to produce. Immediately prior to the luncheon adjournment on 13 May 2019, Mr King indicated that he did not press the balance of the notices to produce. Ms Wong indicated that she did not press the balance of the notice of motion but sought an order that the plaintiff pay the first defendant’s costs of the motion.

The costs of the first defendant’s notice of motion

62. Mr King contended that it would be appropriate to make no order as to the costs of the first defendant’s notice of motion as an accommodation had been reached between the parties. In support of the first defendant’s application for its costs Ms Wong drew my attention to over eight pages of submissions contained in the plaintiff’s affidavit of 1 May 2019 in which she addressed each of the paragraphs of the notices to produce to the first defendant and set out why she needed the documents.

63. I accept Ms Wong’s submission that the plaintiff ought bear the costs of the first defendant’s notice of motion, having regard to her capitulation after the first defendant had expended costs to advance its application to have the notices to produce set aside.

The second defendant’s notice of motion filed on 5 April 2019

64. By notice of motion filed on 5 April 2019, the second defendant sought orders to set aside three notices to produce served by the plaintiff which were dated 24 January 2019 (the first notice to produce), 1 February 2019 (the second notice to produce) and 11 February 2019 (the third notice to produce) respectively. Mr King indicated that the plaintiff no longer pressed the second notice to produce. The first notice to produce sought, in paragraph 1, Mr Harvey’s mobile phone records for a particular number for the period from 1 July 2017-31 December 2018. In paragraph 2, the notice sought:

“All emails, documents, memoranda, and any other records (including references) whether electronic or hard copy that are or have been in the possession, custody or power of Charterhouse Medical relating to the plaintiff including publications and distribution of such documents.”

65. The third notice to produce sought production of Mr Harvey’s mobile phone.

66. Ms Petch read the affidavit of Sally Woodward sworn on 5 April 2019 in support of the notice of motion. In the affidavit, Ms Woodward deposed to a conversation she had with Mr Harvey in which he said:

“The mobile phone number [provided] is my personal mobile phone number. The mobile phone is my personal mobile phone. Although I use it for some work-related calls, I pay the bills for it and it is my personal mobile phone and my mobile phone number.”

67. Ms Woodward also deposed that Mr Harvey’s mobile number is not attached to any of the second defendant’s corporate mobile phones and that neither the records nor the phone itself are within its custody or control and are therefore not required to be produced. Ms Petch explained that there had been “so much agitation between the plaintiff and the second defendant” about the notices that, rather than simply announce that nothing was produced in answer to the notice to produce, the second defendant sought to have the notices to produce set aside.

68. Ms Woodward annexed to her affidavit a letter from the second defendant’s solicitors dated 7 February 2019 in which they objected to production of documents in paragraph 2 of the first notice to produce unless the category was narrowed but offered to provide the plaintiff’s “Candidate Record” file within its system the following day. By response also dated 7 February 2019, the plaintiff refused to narrow the scope of the notices to produce or to accept the second defendant’s suggestions.

69. On 8 February 2019 the plaintiff filed a notice of motion seeking orders against the defendants for contempt for not complying with the notices to produce which she had served. By letter dated 14 February 2019 the second defendant repeated the arguments and offers that it had made in its letter of 7 February 2019. There was further correspondence between the parties. The notices to produce were stood over at directions hearings.

70. Ms Petch submitted that the documents and things sought in the first and second notices to produce did not fall within UCPR, r 21.10(a), in that they were not referred to in a pleading, witness statement or evidence. She also submitted that they did not fall within UCPR, r 21.10(b) in that they were not “any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue”. Further, she submitted that the second defendant was not obliged to produce anything to the court in answer to paragraph 1 of the first notice to produce or the second notice to produce since the documents and phone were not in its possession or control: UCPR, r 34.1.

71. Ms Petch submitted that none of the items, whether documents or things, could be relevant to a fact in issue, having regard to the causes of action against the second defendant. She referred to the pleading in support of her submission that the plaintiff’s claim in respect of misleading or deceptive conduct was based on an alleged misrepresentation made to the plaintiff about the location of the locum services which the second defendant had arranged for the plaintiff to provide. Ms Petch contended that no document that the second defendant could provide could advance that cause of action. She also referred to the second allegation of misrepresentation which was based on an alleged representation of different pay scales and made a similar submission. She contended that the breach of contract claim was based on alleged promises in the form of the alleged misrepresentations referred to above. Ms Petch also referred to the claim for damages for defamation and injurious falsehood.

72. Mr King submitted that the documents produced could be relevant to Mr Harvey’s credit and that he might be called as a witness in the proceedings. He argued that the plaintiff was entitled to the documents and items sought for this purpose. He submitted that, if there was a technical difficulty with any of the notices, this could be remedied by the court making an order under s 68 of the Civil Procedure Act to require the second defendant to produce the documents and items sought.

73. I am not persuaded that the plaintiff has identified any legitimate forensic purpose for the documents and items she seeks in the first and third notices to produce. Such notices ought not be used either to create oppression or to engage in a fishing expedition. The plaintiff’s refusal to narrow the documents in paragraph 2 of the first notice to produce is an indication that she does not know what she wants from the second defendant. I accept Ms Petch’s analysis of the pleadings. Such analysis makes it difficult to conceive of any legitimate forensic purpose advanced by the notices to produce, except in so far as the second defendant has offered to provide to the plaintiff her Candidate Record file. For these reasons I am persuaded that it is appropriate to set aside the first and third notices to produce. Had it been pressed, the second notice to produce would also have been set aside.

74. I am not persuaded that there is any reason why costs ought not follow the event.

Other matters

75. On 29 March 2019 Registrar Bradford made an order that no further notice of motion be filed before 13 May 2019, being the hearing date before me of all extant notices of motion. At the hearing of the motions, I extended the time for this order to 24 May 2019, in order that the parties can have the opportunity to consider these reasons before making any further applications. I note that the matter is listed for directions before Registrar Bradford on 31 May 2019.

76. The defendants sought a guillotine order “that the plaintiff not be permitted to file any further evidence in chief in the proceedings without leave, which will not be given save in exceptional circumstances”. I am not persuaded that it is appropriate to make this order before the pleadings have closed. As the defendants have yet to file defences to the latest pleading, it is desirable that the appropriateness of such an order be raised with the Registrar after the pleadings have closed.

Costs

77. The defendants have been almost wholly successful in resisting the orders sought by the plaintiff in her amended notice of motion. While some of the orders sought by the plaintiff have been made, they have been made in circumstances where the relevant defendant has consented to the order, either in terms or substantially. In these circumstances, I am satisfied that the plaintiff should pay the defendants’ costs of her motion. For the reasons given above, I am not persuaded that there is any reason why costs ought not follow the event for the notices of motion filed by the defendants.

Orders

78. The orders disposing of the notices of motion referred to above, including the orders made orally on 13 May 2019 are as follows:

The plaintiff’s amended notice of motion filed on 29 March 2019

1. Order the first defendant to pay the plaintiff’s costs of the first defendant’s notice of motion filed on 15 February 2019 as agreed or assessed, such costs to be limited to:

1. the legal costs incurred by the plaintiff in defending the notice of motion filed on 15 February 2019 as agreed or assessed, being costs incurred in retaining a solicitor and/or barrister in relation to that notice of motion; and

2. out of pocket expenses actually, necessarily and reasonably incurred by the plaintiff in relation to that motion, as agreed or assessed.

2. Dismiss the plaintiff’s application for an order that the cost order in (1) above be fixed in a gross sum pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW).

3. Refuse the plaintiff’s application for the first defendant to give a formal apology in open court for having filed the notice of motion referred to in (1) above.

4. Grant leave to the plaintiff to file an amended pleading in the form of the document entitled Further Second Amended Statement of Claim which was filed without leave on 5 April 2019, on condition that paragraphs [42]-[48] are deleted, as leave to amend to add paragraphs [42]-[44] is refused and paragraphs [45]-[48] were not pressed.

5. Otherwise dismiss the plaintiff’s amended notice of motion filed on 29 March 2019.

6. Order the plaintiff to pay the first and second defendants’ costs of the plaintiff’s amended notice of motion filed on 29 March 2019, including the costs thrown away by the amendments made in the Further Second Amended Statement of Claim filed on 5 April 2019.

7. Order the plaintiff to pay the Medical Council’s costs of resisting the plaintiff’s application for joinder made in the amended notice of motion filed on 29 March 2019.

The first defendant’s notice of motion filed on 5 April 2019

1. Note that, upon the plaintiff indicating that she did not press outstanding production of documents in respect of the first defendant’s notice of motion filed on 5 April 2019, the first defendant did not press the relief sought in the motion to have the notices to produce set aside.

2. Order the plaintiff to pay the first defendant’s costs of the first defendant’s notice of motion filed on 5 April 2019.

The second defendant’s notice of motion filed on 5 April 2019

1. Set aside the plaintiff’s notices to produce dated 24 January 2019 and 11 February 2019.

2. Note that the plaintiff no longer presses her notice to produce dated 1 February 2019.

3. Order the plaintiff to pay the second defendant’s costs of the second defendant’s notice of motion filed on 5 April 2019.

Further orders and directions

1. Subject to further order, extend the time of the order made by Registrar Bradford on 29 March 2019 that no further notices of motion be filed in the proceedings before 13 May 2019 to 24 May 2019.

2. Confirm the directions hearing before the Registrar on 31 May 2019.

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Decision last updated: 16 May 2019