Francis v Cole - [2019] SASC 179

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
FRANCIS v COLE & ANOR
[2019] SASC 179
Judgment of Judge Bochner a Master of the Supreme Court
30 October 2019
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PLEADINGS
Application seeking to dismiss or alternatively strike out the plaintiff's statement of claim.
Held: statement of claim dismissed.
Supreme Court Civil Rules 2006 (SA); Motor Vehicles Act 1959 (SA) s 80, s 148; Post and Telegraph Act 1901-1973 (Cth) s 139B; Criminal Law Consolidation Act 1935 s 20, s 251; Defamation Act 2005 , referred to.
Plenty v Attorney-General of South Australia [2013] SASC 35; Proude v Visic & Ors (No 4) [2013] SASC 154; Pillay v Lloyd [2000] SASC 208; Slinko v Guardianship and Administration Tribunal [2006] 2 Qd R 279; Anders v NACS Nominees Pty Ltd [2013] SASC 152; Holcon Australia Pty Ltd v Corporation of Town of Walkerville [2007] SASC 437; Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303; Australian Telecommunications Commission v Elmec Pty Ltd (1993) 117 FLR 185; Pacific Century Production Pty Ltd v Watson [2001] FCA 1139; The Ten Group Pty Ltd & Ors v Cornes [2012] SASCFC 99; ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti [2008] VSCA 274; White v Johnston [2015] NSWCA 18; Ferguson v State of Queensland [2007] QSC 322, considered.

FRANCIS v COLE & ANOR
[2019] SASC 179

I have two interlocutory applications before me, from each of the defendants, seeking to dismiss or alternatively strike out, the plaintiff’s statement of claim, FDN2, (SOC) pursuant to Rules 193 and 104 respectively of the Supreme Court Civil Rules 2006 (SA) (SCR).
Background
On 16 January 2018, the plaintiff incurred an expiation notice alleging she had exceeded the speed limit when driving her motor vehicle.[1]
[1] FDN13(p), Second Affidavit of Janette Gail Francis, Ex JGF15(1) p 85.
On or about 14 February 2018 the plaintiff lodged a request for review of the expiation notice.[2] The reasons cited for exceeding the speed limit included:
I don’t have cruise control on my 1998 Holden Barina.
I have a illegal implants in the shin of my right leg which make it very painful to press the accelerator accuratly.
These illegal implants have been detected by radiologists.
[2] FDN13(p), Second Affidavit of Janette Gail Francis, Ex JGF15(3) p 88.
The review was not successful.[3] On 7 March 2018, the Licence Regulation Manager of the Department of Planning, Transport & Infrastructure (DPTI) received a ‘Referral for Medical Review for SA Driver’s Licence’ from the South Australia Police (SAPOL). It stated:
Francis has written in the Review Section of Expiation Notice Branch that the speed was due to having illegal implants placed in the shin of her right leg which controls her leg movements as well as having illegal implants in her head. Francis states that doctors decline to remove the implants and that the Labor Party have intervened to have her criminally defamed.
Believe Francis’s mental comprehension to drive may be impaired and that she is not fit to drive.
[3] FDN13(p), Second Affidavit of Janette Gail Francis, Ex JGF15(4) p 89.
On 7 March 2018 an officer of DPTI wrote to the plaintiff indicating that SAPOL had raised concern that she may no longer meet the medical standards required to drive a motor vehicle. The letter required her to ‘undergo a medical examination and provide a medical report from [the plaintiff’s] medical practitioner’ pursuant to s 80(1) of the Motor Vehicles Act 1959 (SA) (MVA).[4]
[4] FDN13(q), Second Affidavit of Janette Gail Francis, Ex JGF16(1) p 91.
Section 80 of the MVA states:
If in the opinion of the Registrar it is desirable that the ability or fitness of an applicant for the issue or renewal of a licence or learner's permit, or of the holder of a licence or learner's permit, to drive a motor vehicle should be tested, the Registrar may require the person to undergo such tests or to furnish such evidence of ability or fitness to drive as the Registrar directs.
…
Medical tests required by the Registrar under this section must be conducted in accordance with guidelines published or adopted by the Minister by notice in the Gazette and the results of the tests must be applied by the Registrar, in accordance with any policies published or adopted by the Minister by notice in the Gazette, in assessing the person’s competence to drive motor vehicles or motor vehicles of a particular class.
The plaintiff made an appointment for 16 March 2018 with the first defendant, Dr Cole. Two days prior to the scheduled appointment a Senior Licence Regulation Officer of DPTI faxed Dr Cole a copy of a proforma certificate of fitness to be completed for the purposes of the medical examination.[5]
[5] FDN9(b), FDN9(c), Second Affidavit of David James Rostron, Ex DJR-2, DJR-3.
The correspondence, enclosing the proforma certificate and a copy of the SAPOL referral, stated:
[Francis] has recently been involved in a motor vehicle incident and South Australia Police is concerned that the licence holder may have a medical condition that could have contributed to the incident.
Please find enclosed a copy of the report from the South Australian Police.
Therefore, pursuant to section 80(1) of the Motor Vehicles Act 1959, I require the licence holder to be medically examined by her medical practitioner to determine her fitness to drive a motor vehicle.
I understand that the licence holder has already made an appointment to see you on Friday 16^th March 2018 in relation to this matter.
Enclosed is a certificate of Fitness form which needs to be completed in accordance with the guidelines contained in the National Transport commission publication “Assessing Fitness to Drive”…
On 16 March 2018, the plaintiff attended the medical clinic which was owned or operated by the second defendant, GP Axis Pty Ltd. This is where Dr Cole practised. Prior to 16 March 2018, the plaintiff had consulted with Dr Cole and other practitioners at the clinic on a handful of occasions between 2008 and 2018.
The clinical notes from 16 March 2018 state:
Surgery
Recorded by: Dr Alison Cole on Friday 16/03/2018 at 13:32:48
Denies having other GP
No medical records between 2011 and 2018
I have seen her on one occasion
Said she has implants in her leg initially and then when questioned further she she made it up to get the police to investigate her allegations about the labour government
She also said that she has an implant in her head which is painful unless she presses on it.
I advised that the likely cause was a tension headache. ‘Ok, that must be it’ after discussion that did not feel able to sign fitness form
Brief look at Website – at picture of ‘rash’ on forehead
Discuss PMH of ear infection and alleged did not received mediation
Informed pt that CT scan of head did not show up everything and medication was prescribed
CT scan in 2011 in notes
Examination:
General:
BP (sitting): 139/74
Pulse: 101
Shortsighted – wears gls
LL fine hairs only. Bruise and superficial wound on R shin
Knee/ankle NAD
Power 5/5
Sensation nomral
reflexes normal
MSE
Clean/well presented
Attitude: Hostile/confrontational at times
Behaviour – suspicious
Mood – no overt signs of depression/anxiety
Delusion thoughts as above
No Hallucinations
Cognition – lucid, oriented in TPP, normal attention, memory,
No insight into delusions
Judgment – pt unfamiliar, clear delusional thoughts regarding her reason for speeding, but unable to make firm conclusion about ability to drive
Summary
Although delusional, she is lucid and orientated in TPP
Declined any mental health assessment.
Advised I would need to take advise from DV medical practitioner
Telecon with DVA
Nick - advised if unable to make a decision, then to record reasons on Form and to send back to DVA
Form completed[6]
[6] FDN 12 at EAI-2.
The completed certificate of fitness was faxed to DPTI on the same day.[7] It contained the following:
·a question mark next to question 8 at page 7 ‘does the patient have a mental health/nervous disorder?’; and
·handwritten comments at page 7 under additional notes that:
Patient unfamiliar to me, but has clear delusional thoughts regarding implants in her brain and legs. Although no other psychiatric symptoms elucidated today, I am unable to declare she is fit to drive without further psychiatric assessment which she refuses.
·A handwritten note at page 8 of the certificate of fitness, that Dr Cole was
Unable to make a decision based on presentation today.
·A note by Dr Cole that it was sensible for the plaintiff to undergo a practical driving test.
[7] FDN12, at Ex EAI-3 p 27.
The certificate also contained the Medical Practitioner’s Declaration which refers practitioners to s 148 of the MVA.
Section 148 of the MVA provides that:
Duty of health professionals
(1)     Where a health professional has reasonable cause to believe that -
(a)     a person whom he or she has examined holds a driver’s licence or a learner’s permit; and
(b)     that person is suffering from a physical or mental illness, disability or deficiency such that, if the person drove a motor vehicle, he or she would be like to endanger the public,
the health professional is under a duty to inform the Registrar in writing of the nameand address of that person, and of the nature of the illness, disability or deficiency from which the person is believed to be suffering.
(2)Where a health professional furnishes information to the Registrar in pursuance of subsection (1), he or she must notify the person to whom the information relates of that fact and of the nature of the information furnished.
(3)A person incurs no civil or criminal liability in carrying out his or her duty under subsection (1).
By letter dated 17 April 2018, the plaintiff was advised by a Delegate of the Registrar for Motor Vehicles that her licence had been suspended.[8]
[8] FDN13(q), Second Affidavit of Janette Gail Francis, Ex JGF16(2) p 92.
The plaintiff’s claim
On 8 April 2019, the plaintiff commenced these proceedings, seeking relief on the following causes of action against the defendants:
·Conspiracy (government fraud and defamation with malice) (first and second defendants);
·Trespass to the person – assault (first defendant);
·Trespass to the person – battery (first defendant);
·Trespass to the person – false imprisonment (first defendant);
·Trespass by intruding upon privacy (first and second defendants);
·Breach of confidence (first and second defendants);
·Breach of contract (first and second defendants);
·Intentional infliction of physical injury or nervous shock or severe emotional distress (first defendant) and
·Misfeasance in public office (first defendant).
The plaintiff has sought remedies including injunctions requiring the defendants to destroy records which claim that the plaintiff has a mental illness. She is also seeking damages (compensatory, aggravated and exemplary) and has set out particulars of injuries that she says have been sustained as a result of the defendants’ actions.
In response to Dr Cole’s application, the plaintiff also seeks summary judgment although no formal application has been filed.[9]
[9] FDN7, Reply of Plaintiff.
The application to dismiss or strike out
The defendants have each sought to have the plaintiff’s proceedings dismissed, or alternatively, that the SOC be struck out. There is significant overlap between the submissions of the first and second defendants. Save for any key differences, I deal with them together in these reasons.
The defendants submit that the SOC discloses no reasonable cause of action and should be dismissed or struck out on the basis that it does not comply with the rules, is frivolous, vexatious and an abuse of process by the court. They also submit that the pleadings prejudice the proper conduct of this action.
The defendants rely on Rules 193 and 104 of the SCR.
Rule 193 empowers the Court to dismiss a proceeding if the pleadings disclose no reasonable cause of action or the proceedings are frivolous, vexatious or an abuse of process.
Stanley J, in Plenty v Attorney-General of South Australia,[10] explained the application of Rule 193 as follows:
[20] 6SCR 193 confers power upon the court to dismiss proceedings if the pleadings disclose no reasonable cause of action, or the proceedings are frivolous, vexatious or an abuse of the process of the court. The power to dismiss will only be used with great caution and in clear and obvious cases. An action should not be struck out if there is a real question of fact or law to be determined. A claim will be dismissed on the basis that the pleadings disclose no reasonable cause of action only where the claim is obviously unsustainable, such that the defect cannot be cured by amendment to the pleadings. [Emphasis added]
[10] [2013] SASC 35.
Blue J, in Proude v Visic & Ors (No 4),[11] put it this way:
Rule 193 empowers the Court to dismiss proceedings if the pleadings disclose no reasonable cause of action. The test for dismissal is very high. The claim must be obviously unsustainable and so bad that no legitimate amendment could cure the defects. The power to dismiss will only be used with great caution and in clear and obvious cases.[12]
(citations omitted)
[11] [2013] SASC 154.
[12] [2013] SASC 154 at [20].
In Pillay v Lloyd,[13] the Court considered the meaning of “reasonable cause of action”. Lander J said:
[70] In Egan v Commonwealth Minister for Transport (1976) 14 SASR 445 this Court was called upon to consider an application under the 1947 Rules to strike out a Statement of Claim as disclosing no reasonable cause of action.
[71] After pointing out the difference between such an application and an application to have an action stayed, dismissed or judgment entered because a pleading is frivolous or vexatious Bray CJ said at 448:
“A reasonable cause of action means one with some chance of success, however small, when only the allegations and the pleadings are considered: Drummond-Jackson v British Medical Association [1971] WLR 688, per Lord Pearson at 698. If it has none, and if there is no chance that it can be endowed with one by amendment, then it can be struck out.”
[72] The test then to be applied is whether either both of these two Particulars of Claim discloses a reasonable cause of action in the sense that it is not so obviously untenable that it cannot possibly succeed no matter what amendments are made.
[13] [2000] SASC 208.
In Slinko v Guardianship and Administration Tribunal,[14] de Jersey CJ defined “frivolous or vexatious” as:
…meaning paltry, not warranting serious attention, manifestly futile.[15]
[14] [2006] 2 Qd R 279.
[15] [2006] 2 Qd R 279 at [28].
Peek J, in Anders v NACS Nominees Pty Ltd,[16] provided a useful summary of the various authorities which consider what will constitute an abuse of process. While his Honour was considering these issues in the context of Rule 117, there is no suggestion that they are not equally applicable to the use of the term “abuse of process” in Rules 193 and 104. He relevantly stated: [MM(1]
[16] [2013] SASC 152.
[39] The meaning of the phrase “abuse of process” has been subject to a good deal of consideration and the categories are not closed. In Walton v Gardiner, the High Court identified key categories of proceedings which may constitute an abuse of process. Mason CJ, Deane and Dawson JJ observed:
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail….
[40] In the State Bank Case Ruling, Olsson J gave the following guidance as to the types of proceedings which may constitute an abuse of process:
…I accept that, for present purposes, the article written by the former Master Jacob “The Inherent Jurisdiction of the Court” (1970) 23 CLP 23 contains an accurate summation of the circumstances in which an abuse of process may be dealt with, by stay, dismissal or striking out (as appropriate), as I have always understood them to be.
Without attempting to be fully exhaustive, he postulates the categories of proceedings susceptible of categorisation as an abuse as including any one or more of the following –
(a)    proceedings which involve a deception on the court, or are fictitious or constitute a mere sham;
(b)    proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way;
(c)    proceedings which are manifestly groundless or without foundation or which serve no useful purpose;
(d)    multipole or successive proceedings which cause or are likely to cause improper vexation or oppression.[17]
[17] [2013] SASC 152 at [39] – [40].
Rule 104 empowers the Court to strike out a pleading, in whole or in part, if the pleading does not comply with the SCR and is an abuse of the process of the Court or prejudices the proper conduct of the action. As explained by White J in Holcon Australia Pty Ltd v Corporation of Town of Walkerville,[18] both of these criteria must be satisfied for Rule 104 to operate.
[18] [2007] SASC 437.
Consideration
Before I address each of the causes of action pleaded by the plaintiff, it is necessary to examine the operation of s 148(3) of the Act, to determine the extent of the protection afforded by it to the defendants. Both defendants submit that Dr Cole completed the certificate of fitness based on a genuine and reasonably held belief, such that s 148(3) of the MVA is a complete defence to the causes of action pleaded. I note that, despite making this submission, neither of the defendants addressed me on the operation of s 148(3), and how it should be applied in this matter. The plaintiff did not address the operation of the MVA at all.
Section 148(3) provides a shield against civil and criminal liability for health professionals where they carry out their duty under s 148(1). The duty under s 148(1) (as is relevant to this matter) requires a legally qualified medical practitioner to provide the Registrar of Motor Vehicles with certain information once the medical practitioner:
·Has examined a person who holds a driver’s licence; and
·Has reasonable cause to believe that the person is suffering from a physical or mental illness, disability or deficiency so as to be likely to endanger the public of she drove a motor vehicle.
It appears that this section has not previously been subject to judicial scrutiny. In determining its meaning, I have gained assistance for authorities dealing with similarly worded legislation.
In Australian Telecommunications Commission v Krieg Enterprises Pty Ltd,[19] Bray CJ considered the terms of the Post and Telegraph Act 1901-1973 (Cth), the relevant section being s 139B, which reads:
139B. (1) Subject to this section, where-
(a) a person does work (whether by himself or by his servants) in circumstances in which the person or a servant of the person has reasonable cause to believe that the doing of the work is likely to interfere with or damage property under the control of the Postmaster-General; and
(b) in the course of doing that work, the person or a servant of the person acting in the course of his employment by the person interferes with or damages (whether by a negligent act or omission or otherwise) the property under the control of the Postmaster-General referred to in the last preceding paragraph, the person is liable to pay the Commonwealth compensation for that interference or damage.[20]
[19] (1976) 14 SASR 303.
[20] (1976) 14 SASR 303, 307.

In discussing the meaning of “reasonable cause to believe”, Bray CJ said:
Clearly the words are objective and the actual state of mind of the person in question is immaterial. The question is whether there was in fact a reasonable cause to believe, ie whether a reasonable man in the circumstances and with the knowledge and means of knowledge of Field would have believed that the doing of the work in question was likely to interfere with or damage property under the control of the Post-Master General.[21]
[21] (1976) 14 SASR 303, 309.
Bray CJ considered at length the meaning of “likely”, and examined the treatment the word had received in a range of authorities, both in England and in Australia. He concluded:
…Here we are concerned with the word “likely” in a statue. As I have said, the ordinary and natural meaning of the word is synonymous with the ordinary and natural meaning of the word “probable” and both words mean, to adopt the expression of Lord Hodson in the passage previously quoted, that there is an odds-on chance of the thing happening. That is the way in which statutes containing the words have usually been construed: see, for example, Re Bayer Products Ltd’s Application, per Lord Greene M.R. at p. 191, per Asquith L.J. at p. 193; Dowling v. South Canterbury Electric Power Board, Transport Ministry v. Simmonds. Particularly is this so when the statute is a penal statute (see Transport Ministry v. Simmons) or, I think, where, as here, an additional liability in tort beyond the common law liability is being imposed.
I think that is the meaning which should be attached to the word “likely” in sub-s (1) (a). It is the natural and ordinary meaning and there is nothing to show that another meaning was intended. Like the learned Special Magistrate, therefore, I think that “likely” in the sub-section means “probable” and I think that that means that there is more than fifty per cent chance of the thing happening.[22]
[22] (1976) 14 SASR 303, 312-313.
These meanings were adopted by Kearney J in Australian Telecommunications Commission v Elmec Pty Ltd,[23] which was dealing with the same legislation.
[23] (1993) 117 FLR 185.
In Pacific Century Production Pty Ltd v Watson,[24] Kiefel J, as she then was, considered the meaning of “likely”, in the context of legislation designed to introduce quarantine measures for:
“… the prevention or control of the introduction, establishment or spread of diseases or pests that will or could cause significant damage to human beings, animals, plants, other aspects of the environment or economic activities.”[25]
[24] [2001] FCA 1139.
[25] [2001] FCA 1139 at [25].
She said:
It is clear, and the applicant accepts, that the meaning to be given to the word “likely” will be affected by its statutory context. Its ordinary meaning has however been taken to be a “‘real and not remote’ chance regardless of whether it is less or more than 50 per cent”: Boughey v The Queen (1986) 161 CLR 10, 21 per Mason, Wilson and Deane JJ. Gibbs CJ in Sheen v Fields Pty Ltd (1984) 58 ALJR 93, 95 endorsed the description of a “likelihood” as “something less than probability but more than a remote possibility”.
…
The degree of harm that can be inflicted by the spread of diseases brought into the country can be readily appreciated, as can the high level of risk of infection that many imported diseases pose. In some cases the existence of a disease will not be apparent and examination or testing required. The prevention or control of diseases would, it seems to me, be rendered difficult and in some cases not possible if a quarantine officer in every case needed evidence to support a probability of the existence of disease in imported plants or goods. No basis for such a level of satisfaction can be found in the Act and its objects. “Likely” in my view is here to be understood in its ordinary sense. The cases, to which Senior Counsel for the respondent has referred me, support the interpretation, in an analogous context of environmental legislation, of “likely” as involving a “real chance” of pollution or affect (Jarasius v Forestry Commission of New South Wales (No 1) (1988) 71 LGRA 79; Bailey v Forestry Commission of New South Wales(1989) 67 LGRA 200; Drummoyne Municipal Council v Roads and Traffic Authority of New South Wales (1989) 67 LGRA 155).
It is of course obvious that quarantine orders may be productive of great harm to individuals and businesses. The prospect of the existence of the disease must therefore be real and not only a remote possibility. To require more however would seem to me to put the individual above the wider stated objects of protection from disease which may affect many persons and enterprises, and perhaps the environment itself.
It seems to me (and noting that I did not have the benefit of submissions from counsel on this point) that the clause “reasonable cause to believe”, and the word “likely” in the clause “he or she would be likely to endanger the public” should be given their ordinary meaning. Adopting the words of Bray CJ, this means that the question to be asked may be framed as: Would a reasonable medical practitioner, on examining the plaintiff, believe that the plaintiff was suffering from a physical or mental illness, disability or deficiency such that, if the plaintiff drove a motor vehicle, she would be likely to endanger the public?
Taking into consideration the legislation, I am of the view that the analysis by Keifel J as set out above, is apt. The intention behind s 148 of the MVA is clearly to protect members of the public from a risk of harm. This is evident in the parliamentary debates which accompanied the passage of the amendments which led to the inclusion of s 148 in its current form, during which it was said:
I refer, finally, to the duty of a medical practitioner, registered optician or registered physiotherapist to notify the Registrar if he believes that a patient is unable, for some reason, to drive safely on the road. This provision, which has been the subject of much discussion, had to come. Indeed, the Minister and I have for some years referred to the possibility of its introduction. This is a duty in relation to which medical practitioners will co-operate. They are only too willing to discharge their duty to the public. It is, however, difficult for medical practitioners to balance their public duty against their duty to their patients. Traditionally, over the centuries, doctors have not in any way divulged details of their patients’ illnesses.[26]
[26] South Australia, Parliamentary Debates, House of Assembly, 21 November 1973, 1901, D Tonkin.
In the Legislative Council, support for the amendment was expressed in the following terms:
Perhaps the most important amendment consists of the inclusion of a provision imposing a duty on a medical practitioner, optician or physiotherapist to inform the Registrar when one of his patients is found to be suffering from some bodily or mental disease or disability that would seriously impair his ability to drive a motor vehicle. A number of responsible medical practitioners have already felt themselves obliged, in the public interest, to give this kind of information to the Registrar in order to avert the possibility or probability of tragedy arising if a person subject to this kind of disability continued to drive a motor vehicle. This amendment should remove doubts about the legal or ethical propriety of medical practitioners following this course of action.[27]
[27] South Australia, Parliamentary Debates, Legislative Council, 22 November 1973, 1922, D H L Bandfield.
The cancellation of a person’s driver’s licence is a serious matter, and something which should only occur if there is a real possibility of harm to members of the public through the person’s continuing to drive. However, the duty of the medical practitioner is to do just this, and not to elevate the rights of the driver over the interests of the members of the public who may be harmed. Thus, “likely”, in this context, means “a real chance”, or in the words of Bray CJ, a more than 50 per cent chance of harm occurring.
In my view, therefore, Dr Cole attracts the protection afforded by s 148(3) of the MVA if she is able to show that a reasonable medical practitioner, on examining the plaintiff, would believe that the plaintiff was suffering from a physical or mental illness, disability or deficiency such that, if the plaintiff drove a motor vehicle, there would be a more than 50 per cent chance of danger to the public.
It is also important to identify exactly what Dr Cole conveyed to the DPTI, and what information the DPTI already had in its possession prior to receiving Dr Cole’s report.
The information that was already in the DPTI’s possession included:
·The plaintiff believed that she had illegal implants in the shin of her right leg and in her forehead;[28]
·The concern of the delegate of the Registrar of Motor Vehicles that the plaintiff was suffering from a medical condition which might impair her ability to drive;[29] and
·The concern of the South Australian Police that the plaintiff was suffering from a medical condition which might impair her ability to drive.[30]
[28] FDN 12 at EAI-3.
[29] FDN 12 at EAI-3.
[30] FDN 12 at EAI-3.
After examining the plaintiff, Dr Cole conveyed the following information to the DPTI:
·The plaintiff has delusional thoughts regarding implants in her brain and leg;
·That she was unable to make a decision as to whether the plaintiff met the relevant medical standard to drive;
·That a practical driving test would be sensible; and
·That she was unable to declare that the plaintiff was fit to drive without psychiatric assessment.
Thus, the new information that Dr Cole conveyed to the DPTI was that the plaintiff’s beliefs about implants in her brain and leg were delusional, and that she could not certify the plaintiff’s fitness to drive without the plaintiff undergoing a psychiatric assessment. It is important to note that the DPTI was already aware of the plaintiff’s belief that she has implants in her leg and brain, and it was on the basis of the knowledge that the referral for medical assessment was made. What Dr Cole did, in effect, was to express a qualified opinion that there would be a more than 50 per cent chance of danger to the public should the plaintiff continue to drive. I further note that at least one radiological report of a CT scan of the plaintiff’s head was contained in the notes held by the second defendant in relation to the plaintiff. This report, dated 28 June 2011, did not identify any type of implant in the plaintiff’s head.
This leads to the question, whether a reasonable medical practitioner, having examined the plaintiff, would have formed that view.
The plaintiff’s case is predicated on the existence in her leg and brain of illegal implants. Indeed, she put to me in submissions that I should look at the radiology reports myself, as I would be able to see the implants on the images, and that I should ignore the reports by specialist radiologists which reported that no such implants were present.[31] The images are found in the plaintiff’s second affidavit (FDN 13) at JGF 9 and 10. A large number of radiology reports are found in FDN 13 at JGF 2 and JGF 3. None of these reports identified implants in any of the areas of the plaintiff’s body that were investigated. These areas include her head, spine, hands, shoulder and jaw.
[31] T39.20 – T40.27.
I am unable to accede to the plaintiff’s request. The interpretation of radiological images is a highly technical skill, which requires many years of specialist study. I am not in a position to examine the images and to form my own view of what they show. I can only rely on the opinion of a specialist radiologist in interpreting the images.
In the circumstances, I am of the view that a reasonable medical practitioner who had examined the plaintiff, and had access to some or all of the radiological reports would have formed the view that, subject to a consultation with a psychiatrist, that there was a more than 50 per cent chance of danger to the public should the plaintiff continue to drive. The plaintiff was adamant that she had implants in her head and leg despite clear radiological evidence to the contrary. Dr Cole appropriately qualified her opinion in that she recommended review by a specialist psychiatrist, prior to the DPTI reaching a final view. Dr Cole is entitled to the protection of s 148(3) of the MVA.
Despite this conclusion, and for completeness, I will address each of the causes of action alleged by the plaintiff.
Defamation
The plaintiff’s defamation claim against Dr Cole rises from the publication of the certificate of fitness by Dr Cole, to employees of the second defendant. The case against the second defendant is that it, through its employees published the certificate to DPTI without the plaintiff’s consent.[32]
[32] FDN2, SOC [7.1]-[7.3], [8], [14.4].
The plaintiff pleads that the statements made by Dr Cole in the certificate of fitness are false and could give rise to a variety of false defamatory inferences, innuendo or imputations. I do not set out the allegations in full as they are voluminous.
The plaintiff alleges that Dr Cole and the second defendant participated in an illegal conspiracy to cancel the plaintiff’s driver’s licence and cause her intentional harm, and that the certificate of fitness is evidence of this.[33] She also says that the fact that DPTI sent proforma documents directly to Dr Cole is evidence of a conspiracy. She contends the proforma documents are usually sent by DPTI to the licensed driver.[34]
[33] FDN2, SOC [3.8], [6.1].
[34] FDN2, SOC [3.5.1]-[3.5.2].
The test of what is considered defamatory depends on the standards of the community as a whole and has been outlined in many authorities. Kourakis CJ in The Ten Group Pty Ltd & Ors v Cornes[35] summarised the principles as follows:[36]
The meaning of the words is to be determined by the sense in which fair-minded ordinary reasonable persons in the general community would understand the published words.
The meaning of the words cannot be determined by evidence from the plaintiff or the defendant, but only by the interpretation reached through the ordinary reasonable person’s understanding of the words. In determining this issue, it is vital that the tribunal of fact focuses only on the publication complained of and puts out of its mind the evidence relating to other issues at the trial.
The ordinary reasonable person is taken to be a person of average intelligence who approaches the interpretation of the publication in a fair and objective manner. The person is neither perverse nor suspicious nor ‘avid for scandal’. There is a limit of reasonableness, so that the ordinary reasonable person does not interpret the publications in a strained for forced or utterly unreasonable way.
The ordinary reasonable person does not live in an ivory tower, but approaches the interpretation of the publication in the light of the person’s general knowledge and experience of worldly affairs.
The ordinary reasonable person does not interpret the publication in a precise manner and does not formulate reasons for the meaning which is understood, but rather forms a general impression of the meaning from the words used. As a result, the ordinary reasonable person may imply meanings quite freely and will be prone to do so when the publication is derogatory. The interpretation is not approached in the same way that a lawyer might interpret the words, which would be in a logical, precise or analytical manner, or only draw implications if they are both necessary and reasonable.
[35] [2012] SASCFC 99, (2012) 114 SASR 46.
[36] Ibid at [51] citing P George, Defamation Law in Australia (Butterworths, 2006) 131.
On this basis, I do not consider the imputations asserted by the plaintiff can be reasonably drawn from the statements of Dr Cole in the certificate of fitness. In my view, no reasonable person would consider that the words set out by Dr Cole contained any of the imputations set out in paragraph 7 of the statement of claim. Even if I am wrong about this, I consider that the relevant defences under the Defamation Act 2005, namely the defences of qualified privilege and of honest opinion, would be open to the defendants. The plaintiff has pleaded that the statements were actuated by malice; however, there is nothing in the pleadings that would support this allegation, save for the fact that Dr Cole did not accept the plaintiff’s statement that she had illegal implants in her leg and head. Dr Cole’s position in this regard is supported by the radiological reports.
I note that, in fact, Dr Cole declined to make a formal diagnosis as to the plaintiff’s mental health and recommended a psychiatric assessment. She reached a view that she could not determine whether the plaintiff was fit to drive on her consultation with the plaintiff and the previous clinical notes held by the second defendant.
In my view, the plaintiff has no reasonable cause of action in respect of defamation or any conspiracy in relation to defamation. Any allegation of conspiracy is defeated by s 80 of the MVA, which empowers the Registrar of Motor Vehicles to require the plaintiff to undergo medical assessment.
Trespass to the person - assault
The plaintiff has pleaded that, upon receiving a copy of the certificate of fitness completed by Dr Cole, the sight of the handwritten words amounted to assault, as they caused her “to apprehend relatively imminent interference with her body on the basis of past actions of state government public officers or medical doctors…”.[37]
[37] FDN2, SOC [9].
I note that Dr Cole referred me to s 20 of the Criminal Law Consolidation Act 1935 in relation to the requirements of the offence of assault. I do not consider that this is relevant, as the plaintiff is clearly referring to the tort of assault, having given that section of the statement of claim the heading “Trespass to the person Assault”.
In ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti,[38] Hargrave AJA set out the elements of the tort of assault as follows:
[38] [2008] VSCA 274.
A plaintiff seeking to establish a cause of action for the tort of assault, in circumstances where no physical contact or battery in fact takes place, must prove the following elements:
(1)A threat by the defendant, by words or conduct, to inflict harmful or offensive contact upon the plaintiff forthwith. It is enough if the threat is to make contact to the body of the plaintiff without the plaintiff’s consent or without any legal justification.
(2)A subjective intention on the part of the defendant that the threat will create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith. It is not necessary to prove that the defendant in fact intends to carry out the threat.
(3)The threat must in fact create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith. It is not necessary for the plaintiff to fear the threat, in the sense of being frightened by it. It is enough if the plaintiff apprehends that the threat will be carried out without his or her consent.
(4) The apprehension in the mind of the plaintiff must be objectively reasonable.
(5)The plaintiff’s reasonable apprehension caused injury, loss or damage to the plaintiff. This requirement attracts the ordinary common law concept of causation by reference to commonsense and, where appropriate, consideration of normative factors such as value judgments and policy considerations.[39]
(citations omitted)
[39] [2008] VSCA 244 at [16].
The plaintiff has failed to plead any of the elements of the tort of assault, and there is nothing in the affidavit material before me to establish those elements. In particular, there is no material before me which would form the basis of the subjective intention required of Dr Cole, nor is there any material before me that would allow me to be satisfied that it was reasonably arguable that any apprehension on the part of the plaintiff was reasonable.

The plaintiff has no reasonable cause of action in respect of this ground.
Trespass to the person – battery
The battery claim is on the basis that any consent on the part of the plaintiff to the examination by Dr Cole was wrongfully obtained, as Dr Cole misrepresented the purpose for the examination. Thus, in the absence of consent, Dr Cole’s examination of the plaintiff amounted to a battery on her. Alternatively, she alleges that the battery arose through Dr Cole’s participation in a criminal conspiracy with government officials.[40]
[40] FDN2, SOC [10].
The question of the vitiation of a patient’s consent through fraud or fraud like conduct on the part of a medical practitioner was examined by the New South Wales Court of Appeal in White v Johnston.[41] In that case, Leeming JA held:
If a medical practitioner performs treatment with the undisclosed intention of achieving no therapeutic purpose, then there is a knowing deceit practised upon the patient.[42]
However, if the validity of a patient’s consent is to be impugned by a finding which is tantamount to fraud by the medical practitioner, then the legal onus remains borne by the patient...[43]
… at least in the case where a patient’s consent is said to have been rendered invalid by reason of the fraud, or conduct tantamount to fraud, the onus remains with the patient to establish fraud. If what I have outlined above be correct, then the broader position is straightforward: a patient who sues in assault and battery in all cases bears the legal burden of establishing an absence of consent on his or her part...[44]
[41] [2015] NSWCA 18.
[42] [2015] NSWCA 18 at [82].
[43] [2015] NSWCA 18 at [86].
[44] [2015] NSWCA 18 at [130].
I accept that the statements in relation to onus are obiter; nonetheless, I am of the view that they hold true.
The plaintiff has specifically pleaded that her consent to Dr Cole was on the basis that Dr Cole was “participating as a medical examiner for the purpose of determining if plaintiff was fit to drive in compliance with Australian law.” Because Dr Cole mispresented her intention and acted under false pretences or through a criminal conspiracy, her consent was not valid.
Given my previous finding that, in providing the report to DPTI, Dr Cole was acting within the duty imposed by the Act, the allegations of misrepresentation and false pretences cannot be maintained. Even in the absence of the protection afforded by the MVA, there is no reasonable basis for the allegation that Dr Cole was motivated by any factor other than the request from the Registrar of Motor Vehicles. Nor is there any pleading or particularisation of the elements required to prove a criminal conspiracy.
The plaintiff has no reasonable cause of action in battery.
False Imprisonment
The plaintiff alleges that unlawful imprisonment arose because Dr Cole was attending on her under a false pretext.[45] There is no allegation that the plaintiff was in any way restrained from leaving Dr Cole’s consulting room, physically or by threats of violence or other harm.
[45] FDN2, SOC [11].
In Ferguson v State of Queensland,[46] the Court described the tort of false imprisonment in the following way:
An action for false imprisonment is essentially a trespass to the person and an action lies where a plaintiff has been wrongfully restrained. To establish the tort it is necessary to show that the plaintiff has submitted to the defendant’s power. It is not necessary however for the defendant to have used force and acts or words are sufficient where a plaintiff believes that force would be used if he does not submit. The imprisonment must also be intentional.[47]
[46] [2007] QSC 322.
[47] [2007] QSC 322 at [13].
In the absence of any allegation that the plaintiff was prevented from leaving Dr Cole’s consulting room, no action in false imprisonment can be maintained.
Breach of confidence and breach of privacy
The plaintiff has asserted that both defendants have intruded upon her privacy and breached her confidence by unlawfully disclosing information to state government officials.[48] She also asserts that the second defendant breached the plaintiff’s confidence by publishing her medical record amongst practitioners within its clinic, without her consent or giving her an opportunity to comment on the validity of those records.[49] These allegations are set out in paragraphs 4.1, 13 and 14.5 of the SOC. Without setting out these paragraphs in full, I do not consider that they found an action for breach of confidence or privacy. Paragraph 4.1 appears to contemplate a future breach of confidence in that it refers to “consent to share her medical information…with all future GP AXIS doctors…”. This cannot be the basis for such an action. In paragraph 13, the plaintiff says that both defendants breached her right to confidence as a result of Dr Cole “purporting to render a private medical service funded by Medicare Australia…”. The mere provision of a medical service funded by Medicare cannot amount to a breach of confidence. Paragraph 14.5 pleads that the defendants breached the term of the contract with her when they published her medical record “to any other”. There is no suggestion that the plaintiff’s medical record was published to any person, save for the report being sent to DPTI. Given that the report provided DPTI only with information of which they were already aware, namely the plaintiff’s belief that she had implants in her leg, this cannot amount to a breach of contract, privacy or confidence.
[48] FDN2, SOC [12]-[13].
[49] FDN2, SOC [4.1], [13], [14.5].
There is no basis for any action in breach of confidence or privacy.
Breach of contract
The plaintiff alleges that both defendants breached their contract with her for failing to provide medical services in accordance with Australian law, and by publishing defamatory material about her.[50]
[50] FDN2, SOC [14].
There is no evidence of any contract between the plaintiff and the second defendant.
As to the contract with Dr Cole, the plaintiff has not pleaded the terms of that contract, and how she says that those terms were breached. The evidence before the Court is that the plaintiff engaged Dr Cole for the purpose of carrying out an examination for the provision of the report requested by DPTI. This is what Dr Cole did.
In the circumstances, there is no basis for any allegation of breach of contract. Any such claim must be dismissed.
Intentional infliction of physical injury or nervous shock or severe emotional distress
The plaintiff has claimed that she has suffered quantifiable physical injury, nervous shock or severe emotional distress as a consequence of the defendants’ actions of 16 March 2018.[51] The allegations made in this regard are broad ranging, and are predicated on the basis that there are illegal implants within the plaintiff’s head. The majority of the issues raised in paragraph 15 appear to relate to problems caused by the implants, rather than to any effect of the consultation with Dr Cole. The exception to this are the allegations in paragraphs 15.11 to 15.13, which make allegations of injuries caused as a result of the plaintiff’s losing her driver’s licence. In the absence of any cause of action on which to pin this injury, the injury in itself does not ground a cause of action.
[51] FDN2, SOC [15].
Misfeasance in Public Office
The plaintiff has asserted that Dr Cole has contravened s 251 of the Criminal Law Consolidation Act 1935.[52] She has claimed that Dr Cole was acting as a public officer, ‘informally’ contracted to provide the certificate of fitness to DPTI, and in her role improperly exercised power or influence causing injury or detriment to the plaintiff.[53]
[52] FDN2, SOC [16].
[53] FDN2, SOC [16].
To be successful on such a claim the onus is on the plaintiff to show that:
a)   there must be an invalid or unauthorised act;
b)     the act must be done maliciously;
c)   the act must be done by a public officer;
d)     the act must be done in the purported discharge of the public officer’s public duties; and
e)   the act must cause loss or harm to the plaintiff.[54]
[54] Northern Territory v Mengel (1995) 185 CLR 307 at 370 (per Deane J).
To establish malice, the plaintiff must also demonstrate that the public officer intended to cause harm, was recklessly indifferent as to whether harm was caused or knowingly acted in excess of his or her power.[55]
[55] Ibid at 347-348.
There is no material currently before me that suggests that Dr Cole was acting as a public officer, and that she was acting maliciously.
This cause of action cannot be sustained.
I note that paragraphs 3-5 of the SOC contain a litany of allegations against the defendants and a range of other individuals and service providers. These paragraphs are irrelevant to the causes of action pleaded against the defendants, are discursive and scandalous. They must be struck out.
Similarly, in paragraphs 17 and 18 of the statement of claim, the plaintiff lists many pieces of legislation, both State and Commonwealth, with section numbers and brief descriptions of various offences and provisions, and authorities. It is not clear to me if, by this, the plaintiff seeks to indicate that the defendants have breached all of the provisions referred to. Paragraphs 17 and 18 are meaningless and must be struck out.
For the reasons above, the plaintiff’s claim should be dismissed pursuant to Rule 193. Whilst there is no need for me to consider the application of Rule 104, I am also of the view that the plaintiff’s SOC does not comply with the SCR.[56] It is long, it contains much irrelevant material and lacks particularity in relation to relevant matters, and pleads matters of law. I am conscious that the plaintiff is self-represented. Nonetheless, this Court must ensure that pleadings are drafted in a way that does not prejudice the parties that have to meet the case. On the basis of the SOC filed by the plaintiff, it is extremely difficult, if not impossible, for the defendants to identify the case they are to meet. If the SOC were allowed to stand, they would be seriously prejudiced thereby.
[56] See eg SCR 98.
The plaintiff’s claim is dismissed, on the basis that the causes of action pleaded are obviously unsustainable and have no chance of success. Were the claim not dismissed, it would amount to a serious abuse of the processes of the Court.

[MM(1]Would normally omit citations but may be relevant to keep Walton v Gardiner and State Bank Ruling case