Pathmanathan v Healthscope Operations Pty Ltd

Case [2020] FCA 65

FEDERAL COURT OF AUSTRALIA

Pathmanathan v Healthscope Operations Pty Ltd [2020] FCA 65

File number: VID 133 of 2018
Judge: STEWARD J
Date of judgment: 6 February 2020
Catchwords: PRACTICE AND PROCEDURE – application for summary judgment – application for summary dismissal – where applicant accredited at a hospital owned and operated by the respondent – where hospital terminated the applicant’s accreditation – unlawful discrimination – where applicant alleged discrimination on the basis of race, sex, age and imputed disability – where complaint to the Australian Human Rights Commission terminated on the basis that there was “no reasonable prospect of the matter being settled by conciliation” – where applicant alleged breach of contract – whether a contract existed between the applicant and respondent – whether the respondent breached the terms of alleged contract – whether the respondent failed to afford procedural fairness – where applicant alleged breach of confidence – where applicant alleged breach of the Privacy Act 1988 (Cth.) – where applicant alleged invasion of privacy – where applicant alleged respondent is liable for defamation – where applicant alleged respondent is liable for negligence – whether the respondent has no reasonable prospect of successfully defending the proceeding – whether the applicant has no reasonable prospect of successfully prosecuting the proceeding
Legislation:

Age Discrimination Act 2004 (Cth.)

Australian Human Rights Commission Act 1986 (Cth.) ss. 11, 46PO

Disability Discrimination Act 1992 (Cth.)

Federal Court of Australia Act 1976 (Cth.) s. 31A

Privacy Act 1988 (Cth.)

Racial Discrimination Act 1975 (Cth.)

Sex Discrimination Act 1984 (Cth.)

Federal Court Rules 2011 (Cth.) rr. 16.21, 26.01

Limitation Act 2005 (W.A.)

Limitation of Actions Act 1958 (Vic.)
Cases cited:

Australian Securities and Investments Commission v. Cassimatis (2013) 220 FCR 256

Crayford Freight Services Ltd v. Coral Seatel Navigation Co (1998) 82 FCR 328

Crowe v. Mercy Health and Aged Care Central Queensland Ltd [2001] QSC 384

Day v. Lynn [2003] FCA 879

Fortron Automotive Treatments Pty Ltd v. Jones (No 2) [2006] FCA 1401

Grosse v. Purvis [2003] QDC 151

Jefferson Ford Pty Ltd v. Ford Motor Company of Australia Ltd (2008) 167 FCR 372

Page v. Healthscope Operations Pty Ltd [2016] NSWSC 1608

Pathmanathan v. St John of God Healthcare Inc [2019] FCA 1460

Pisano v. Health Solutions (WA) Pty Ltd [2014] WASC 356

Smith Kline & French Laboratories (Australia) Ltd v. Secretary, Department of Community Services and Health (1990) 22 FCR 73

Spencer v. Commonwealth (2010) 241 CLR 118

Wride v. Schulze [2004] FCAFC 216

Zippo Manufacturing Co v. Jaxlawn Pty Ltd [2011] FCA 1125
Date of hearing: Determined on the papers
Date of last submissions: 6 September 2019
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 121
Counsel for the Applicant: The applicant filed written submissions on her own behalf
Counsel for the Respondent: Ms. N. Hickey
Solicitor for the Respondent: MinterEllison

ORDERS

VID 133 of 2018
BETWEEN:

DR AJINTHA PATHMANATHAN

Applicant
AND:

HEALTHSCOPE OPERATIONS PTY LTD

Respondent

JUDGE:

Continue reading Pathmanathan v Healthscope Operations Pty Ltd

Sign in free to access the full text

Details
AGLC
Pathmanathan v Healthscope Operations Pty Ltd [2020] FCA 65
Case
[2020] FCA 65
Decision Date

CaseChat Overview and Summary

The case of Pathmanathan v Healthscope Operations Pty Ltd involves a medical practitioner, referred to as the Doctor, who sought summary judgment against Healthscope Operations Pty Ltd, a private hospital operator, over the termination of her accreditation. The Doctor claimed unlawful discrimination based on race, sex, age, and imputed disability, breach of contract, breach of confidence, invasion of privacy, defamation, and negligence. The Federal Court was required to decide whether the Doctor had a reasonable prospect of successfully prosecuting her proceeding and whether the hospital had a reasonable prospect of successfully defending the proceeding. The court examined the evidence and arguments presented, considering the mutual recognition and respect outlined in the hospital's By-Laws and the specific circumstances of the Doctor's accreditation termination. The court found that the Doctor's claims lacked merit and did not meet the threshold for a reasonable prospect of success. Consequently, the court dismissed the Doctor's application for summary judgment and struck out her proceeding. The court also dismissed the Doctor's interlocutory application and application for an extension of time to file a defamation claim. The name of the respondent was amended to reflect the current name of the company, Healthscope Operations Pty Ltd. The parties were directed to confer on the issue of costs, with specific instructions on the format of any submissions if an agreement could not be reached.

Orders

Orders of the court

1. Pursuant to s. 31A of the Federal Court of Australia Act 1976 (Cth.) and r. 26.01 of the Federal Court Rules 2011 (Cth.), the proceeding be dismissed.

2. The applicant’s interlocutory application dated 6 October 2018 be dismissed.

3. The applicant’s application for an extension of time to file a defamation claim be dismissed.

4. The name of the respondent be amended to “Healthscope Operations Pty Ltd”.

5. Order 2 of the orders made on 8 March 2019 be vacated.

6. The parties are to confer on the issue of costs and within 14 days they are to file agreed orders or, if no agreement is reached, submissions of no more than two pages in length.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Based on the September Filings, it appears the Doctor now wishes to bring her claim against both Healthscope Ltd and Healthscope Operations Pty Ltd. As will become apparent, it is unnecessary for me to form any concluded view concerning whether the parent of the company that owns and operates Mount Hospital should be joined as a party to this proceeding. I am otherwise satisfied that an order should be made to amend the name of the respondent to “Healthscope Operations Pty Ltd” to reflect the change in company name that occurred on 7 November 2014. This was the name of the company which was the subject of the complaint made to the Commission. Background I now turn to a chronology of the events that culminated in the commencement of this proceeding. The facts are drawn from documentary evidence which was not seriously challenged save for where I specifically note that the parties are in dispute. At the relevant time, the Doctor was an accredited medical practitioner in Western Australia across several hospitals owned and operated by different entities. On or around 7 November 2011, the Doctor applied for accreditation at Mount Hospital in order to obtain authorisation to treat patients at that hospital. In making that application, the Doctor acknowledged that she had received a copy of the By‑Laws and agreed to abide by them. Additionally, she acknowledged that Mount Hospital’s General Manager(s), its officers and the Medical Advisory Committee(s) and its/their Credentials Committee(s) could seek information about her “past experience, clinical performance, current fitness and current insurance/indemnity status”. On 9 November 2011, Ms Jade Phelan, the then general manager of Mount Hospital, advised the Doctor by letter that she had been granted temporary accreditation in a particular area of specialisation, subject to her signing and returning a copy of the letter as confirmation of her acceptance and agreement to abide by the By-Laws. The Doctor signed the letter and then returned it to Ms Phelan. On 24 February 2012, Ms Phelan advised the Doctor by letter that she had been granted permanent accreditation at Mount Hospital. The letter similarly required the Doctor to confirm her acceptance and agreement to abide by the By-Laws. It is undisputed that she accordingly did so. The aforementioned By-Laws (adopted on 1 July 2012) form an important plank of the Doctor’s claims. It is common ground that the By-Laws played a significant role in governing the relationship between the parties. The legal characterisation of the By-Laws is, however, a matter of controversy. The By‑Laws are set out in a lengthy document. The “Foreword” to the By-Laws relevantly provides:The Healthscope Limited Hospital By-Laws are the formal expression of the relationship between the accredited health professionals and the hospital …The relationship between Healthscope Hospitals and accredited doctors is based on mutual recognition of, respect for and support for each other’s clinical and commercial objectives.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Rule 26.01(1) of the Federal Court Rules 2011 (Cth.) (the “Rules”) relevantly provides:Summary judgment(1)A party may apply to the Court for an order that judgment be given against another party because:(a)the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or(b) the proceeding is frivolous or vexatious; or(c) no reasonable cause of action is disclosed; or(d) the proceeding is an abuse of the process of the Court; or(e)the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding. It has been said that the tests under s. 31A and r. 26.01 concerning the availability of summary judgment are, in the main, identical: Zippo Manufacturing Co v. Jaxlawn Pty Ltd [2011] FCA 1125 at [20] per Gordon J. In that respect, the following principles guide a consideration of an application for summary judgment or summary dismissal:(1)the legislative purpose of s. 31A is to strengthen “the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases”: Second Reading Speech of the Migration Litigation Reform Bill 2005 (Cth.);(2)the moving party bears the onus of persuading the court that the opponent has no reasonable prospect of success: Australian Securities and Investments Commission v. Cassimatis (2013) 220 FCR 256 at 271 [46] per Reeves J.; Crayford Freight Services Ltd v. Coral Seatel Navigation Co (1998) 82 FCR 328 at 333 per Burchett, Ryan and Marshall JJ.; (3)assessment of whether a proceeding or a part of a proceeding has no reasonable prospect of success will necessarily require: (i) identification of the cause of action pleaded; (ii) identification of the pleaded facts said to give rise to that cause of action; (iii) a review of the evidence (if any) tendered in support of the claim for judgment; (iv) identification of the defence pleaded; (v) identification of any facts pleaded which are said to give rise to the defence; and (vi) a review of the evidence (if any) tendered in defence of the claim: Jefferson Ford Pty Ltd v. Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at 406-407 [126] per Gordon J.;(4)once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary; general or non-particularised denials will be insufficient to defeat the motion; Jefferson Ford Pty Ltd at 407 [127] per Gordon J. citing Fortron Automotive Treatments Pty Ltd v. Jones (No 2) [2006] FCA 1401 at [22] per French J. (as his Honour then was);(5)summary disposition of a proceeding is authorised on a variety of bases. It will, for example and without limitation, be appropriate in a case: (i) in which the pleadings disclose no reasonable cause of action and their deficiency is incurable; (ii) in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and in any case which might be propounded by permissible amendment; or (iii) that is “frivolous or vexatious or an abuse of process”: Spencer v. Commonwealth (2010) 241 CLR 118 at 131 [22] per French C.J. and Gummow J.;(6)the determination of a summary dismissal application does not require a mini‑trial based upon incomplete evidence to decide whether a proceeding is likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial: Cassimatis at 271 [46] per Reeves J.; and(7)an application for summary dismissal is likely to succeed if the moving party is able to demonstrate that the applicant’s success in the proceeding relies upon a question of fact that can be truly described as “fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials”: Cassimatis at 272 [47] per Reeves J.Strike Out

Ratio Decidendi

Legal Principle Established

Later that evening, the Doctor sent an email to Ms Phelan and Dr McGrath which relevantly provided:As you may be aware [the Agency] had removed my suspension a while back however have been reviewing/investigating my practice since with reference to [the Event].We have come to the final stages of this process with them and they will be making a decision today. I believe they will advise me of the outcome within the next two weeks. The Mount Hospital has also been listed as a practice location and as such they may be in touch directly with yourselves. In any case I will advise you of the outcome as soon as I hear. There will be at the very least some undertakings which I have voluntarily offered for a period of time. Further conditions on the Doctor’s registration On 18 August 2015, the Doctor was informed that the Board had imposed further conditions on her registration. Those conditions were published online by the Agency on the National Register of Health Practitioners as follows: Effective 11 August 2015, this registration is subject to conditions that relate to personal health. Further details are not publicly available due to privacy considerations.Effective 11 August 2015, this registration is subject to the following conditions:1.The Practitioner must nominate a registered medical practitioner to act as her supervisor, for approval by the Board, who must be senior to her by position or years of experience (Supervisor).2.The Practitioner must only practise as a medical practitioner under indirect supervision by the Supervisor. For the purposes of this condition, indirect supervision is defined as being primarily in person and, in circumstances where the Supervisor is not physically present, they must always be contactable by telephone.… (the “August Conditions”)The Doctor’s registration details (including the August Conditions) were downloaded, printed and placed on Mount Hospital’s accreditation file relating to the Doctor. On 20 August 2015, Ms Phelan sent an email to Mr Richard Townsend, the perioperative services manager at Mount Hospital, which stated:Due to recent conditions imposed on [the Doctor’s] medical board registration, she can no longer anaesthetise at the Mount Hospital.Can you please communicate this with your theatre managers so they are aware. The Doctor contends that on the same day, during a telephone call, Ms Phelan suspended her accreditation at Mount Hospital immediately without any discussion. Healthscope does not concede that the Doctor’s accreditation was suspended on this date. On or around 1 September 2015, Ms Phelan forwarded to Dr Coglin, the Chief Medical Officer of Mount Hospital, email correspondence from the Doctor concerning the removal of the condition imposed on 19 December 2014. In response, Dr Coglin wrote:None of this gives me any idea of the reasons why [the Agency] imposed conditions on 11 August 2015. We need to ask her. Ms Phelan responded:Good point. I will formally ask her via letter.