Pathmanathan v St John of God Healthcare Inc (No 3)
[2023] FCA 628
•13 June 2023
FEDERAL COURT OF AUSTRALIA
Pathmanathan v St John of God Healthcare Inc (No 3) [2023] FCA 628
File number(s): VID 781 of 2018 Judgment of: MCELWAINE J Date of judgment: 13 June 2023 Catchwords: HUMAN RIGHTS – Discrimination – application pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) – where applicant’s accreditation was suspended at the respondent’s hospital – where applicant alleges unlawful discrimination by the respondent pursuant to the Age Discrimination Act 2004 (Cth), Disability Discrimination Act 1992 (Cth), Racial Discrimination Act 1975 (Cth) and Sex Discrimination Act 1984 (Cth) – where applicant further claims in negligence, fraud, fraudulent misrepresentation, intimidation, unlawful interference with trade or business relations, tortious conspiracy, breach of trust, breach of confidence, constructive trust, invasion of privacy, defamation, breach of contract, torture and “equity in justice” – application dismissed Legislation: Age Discrimination Act 2004 (Cth) ss 14, 15, 16, 18, 20, 28
Australian Human Rights Commission Act 1986 (Cth) ss 46PF(1)(b), 46PH(1)(b), 46PO, 46PR
Disability Discrimination Act 1992 (Cth) ss 4, 5, 6, 11(2), 15, 17, 23, 24,
Evidence Act 1995 (Cth) ss 79, 138
Federal Court of Australia Act 1976 (Cth) ss 37M, 37N
Racial Discrimination Act 1975 (Cth) ss 9, 10, 11, 13, 16, 17, 18
Sex Discrimination Act 1984 (Cth) ss 5, 14, 16, 22
Federal Court Rules 2011 (Cth) rr 1.32, 30.01
Health Practitioner Regulation National Law (WA) Act 2010 (WA) s 237
Defamation Act 2005 (WA) s 30
Limitation Act 2005 (WA) s 15
Surveillance Devices Act 1998 (WA) s 5
Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226
Beaudesert Shire Council v Smith (1966) 120 CLR 145
Bropho v Western Australia (2008) 169 FCR 59; [2008] FCAFC 100
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2014) 45 VR 571; [2014] VSCA 348
Crofter Hand Woven Harris Tweed Company Ltd v Veitch [1942] AC 435
Cumaiyi v Northern Territory of Australia [2020] FCA 1299
Fair Work Ombudsman v Roach (the Melbourne Quarter Case) [2023] FCA 156
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
Izzo v State of Victoria (Department of Education and Training) [2020] FCA 770
Keeble v Hickeringill (1706) 11 East 574; 103 ER 1127
Lord Ashburton v Pape [1913] 2 Ch 469
Magill v Magill (2006) 226 CLR 551; [2006] HCA 51
Maiocchi v Royal Australian and New Zealand College of Psychiatrists [2014] FCA 301
Maloney v The Queen (2013) 252 CLR 168; [2013] FCA 28
Muschinski v Dodds (1985) 160 CLR 583
New South Wales v Paige [2002] NSWCA 235
Northern Territory v Mengel (1995) 185 CLR 307.
Page v Healthscope Operations Pty Ltd [2016] NSWSC 1608
Pathmanathan v Healthscope Operations Pty Ltd [2020] FCA 65
Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460
Pisano v Health Solutions (WA) Pty Ltd [2014] WASC 356
Ponraj v Wycombe Services Pty Ltd [2023] FCA 118
Smethurst v Commissioner of the Australian Federal Police (2021) 272 CLR 177; [202] HCA 14
Walker v State of Victoria (2012) 297 ALR 284; [2012] FCAFC 38
Watson v Foxman (1995) 49 NSWLR 315
Balkin & Davis, Law of Torts, 6th ed (LexisNexis 2021)
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984,1465 UNTS 85 (entered into force 26 June 1987)
Goldblatt, B “Intersectionality in International Anti-discrimination Law: Addressing Poverty in its Complexity” (2015) 21(1) Australian Journal of Human Rights 47Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 388 Date of hearing: 7-20 March, 12 April 2023 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr R Millar Solicitor for the Respondent: HWL Ebsworth Lawyers ORDERS
VID 781 of 2018 BETWEEN: AJINTHA PATHMANATHAN
Applicant
AND: ST JOHN OF GOD HEALTHCARE INC
Respondent
ORDER MADE BY:
MCELWAINE J
DATE OF ORDER:
13 JUNE 2023
THE COURT ORDERS THAT:
1.The applicant’s interlocutory application filed 23 May 2023 is dismissed.
2.The proceeding is dismissed.
3.Any application for consequential orders, including costs, is to be made in writing with supporting submissions strictly limited to no more than five pages, which submissions are to be filed and served within 10 business days of the publication of these reasons, with a right of reply in writing strictly limited to no more than three pages within five business days thereafter.
4.Subject to any further order of the Court, all consequential orders including costs will be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCELWAINE J:
Dr Ajintha Pathmanathan (the applicant) is a highly intelligent, well qualified, confident and articulate individual of Sri Lankan Tamil ethnicity. Her family migrated to Australia in 1985 when she was a child and settled in Perth, Western Australia. She excelled at school, achieving grades in the top 0.1% of all school leavers in her final year and was admitted to the medical school at the University of Western Australia. She completed her medical degree in 2001, graduating with the award of an MBBS. In 2005, she commenced specialist anaesthesia training at the Oxford University NHS Trust in the United Kingdom. A family event caused her to return to Australia, and she completed her training in Sydney.
In 2010, Dr Pathmanathan completed a sub-specialty fellowship in aeromedical medicine and in 2011, a sub-specialty fellowship in cardiac anaesthesia at the Royal Brompton NHS Trust in the United Kingdom, where she held medical registration. In 2011, she was admitted as a fellow of the Australian and New Zealand College of Anaesthetists (ANZCA). In 2016 she was awarded, by the University of Sydney, a Master’s degree in International Public Health. She has since completed her course for a Master’s degree in Health and Medical Law with the University of Melbourne. In 2012, Dr Pathmanathan commenced practice as a specialist anaesthetist in Perth. She has particular expertise in bariatric anaesthesia.
As a consultant Dr Pathmanathan sought and, on 23 February 2012, was granted accreditation rights at the St John of God Hospital, Subiaco (hospital) which is operated by the respondent. In general terms accreditation at the hospital confers authority to provide health care services within approved fields of accreditation. Dr Pathmanathan was accredited as a consultant anaesthetist. She worked with various surgical teams. Her practice experienced success and growth.
Dr Pathmanathan now describes herself, somewhat self-deprecatingly, as a “forcefully retired specialist anaesthetist/anaesthesiologist” which on her case was caused by wrongful and unlawful decision-making by the respondent in late 2014 which resulted in the suspension of her accreditation right, a conduct referral to the Australian Health Practitioner Regulation Agency (AHPRA), loss of her livelihood and self-esteem and which overall has caused her much emotional distress and suffering.
In late 2017, Dr Pathmanathan made a complaint to the Australian Human Rights Commission (the Commission) alleging that the respondent had engaged in unlawful discriminatory conduct contrary to the Age Discrimination Act 2004 (Cth), the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth). A delegate of the President of the Commission terminated those complaints on 28 February 2018 pursuant to ss 46PF(1)(b) and 46PH(1)(b) of the Australian Human Rights Commission Act 1986 (Cth) (Commission Act). The effect of s 46PO(3A) of the Commission Act is that Dr Pathmanathan required leave to commence a proceeding in this Court alleging unlawful discrimination against the respondent.
Dr Pathmanathan commenced this proceeding on 3 July 2018, beyond the 60 day time limit set by s 46PO(2) of the Commission Act and without leave. She then sought leave to commence two proceedings, one against the respondent and another (the subject of a separate complaint) against AHPRA. On 5 September 2019, Steward J granted an extension of time and leave to bring a proceeding against the respondent but dismissed the application for leave to bring a proceeding against AHPRA: Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460 (leave judgment). There is another proceeding that Dr Pathmanathan unsuccessfully sought to pursue. On 6 February 2020, Steward J summarily dismissed her proceeding commenced against the operator of the Mount Hospital in Perth in which Dr Pathmanathan contended that, in September 2015, her accreditation was unlawfully terminated on the grounds of disability, sex, race or age discrimination: Pathmanathan v Healthscope Operations Pty Ltd [2020] FCA 65 (Healthscope).
Dr Pathmanathan is a self-represented litigant. In this proceeding she has demonstrated very high level intellectual achievement, communication skills and organisational capacity to marshal a vast amount of documentary evidence and to present it in the form of many affidavits. A significant amount of that material is not in admissible form, but this does not detract from the very considerable effort that Dr Pathmanathan has exerted in the preparation of her case. She displayed civility and courtesy in the conduct of the trial where evidence was heard over a period of 10 days from 17 witnesses, including from her. In all, 13 witnesses were required for cross-examination. The trial was obviously emotional and stressful for Dr Pathmanathan. The central event concerns the conduct of Dr Pathmanathan who, on 28 October 2014, received an iron infusion whilst an anaesthetised patient of hers was undergoing bariatric surgery at the hospital. This incident led to a decision by the respondent’s Chief Executive Officer Dr Henderson, communicated to her on 11 November 2014, to forthwith suspend her accreditation, pending satisfactory explanation of her conduct. Thereafter two notifications were made to AHPRA, one by Tottle Partners Lawyers (Tottle Partners), then acting for Dr Pathmanathan and the other by the respondent, that initially resulted in the Western Australia Immediate Action Committee of the Medical Board of Australia (Immediate Action Committee and the Medical Board) deciding on 15 December 2014 to propose to take immediate action in relation to Dr Pathmanathan’s registration by imposing a condition on her registration that she must not practice as a medical practitioner until the outcome of a satisfactory health assessment and further decision by the Medical Board. The Immediate Action Committee further resolved to require Dr Pathmanathan to undergo that assessment and invited submissions about the proposed action by 18 December 2014.
Submissions, both written and oral, were made to the Immediate Action Committee, AHPRA and the Medical Board over an extended period. Dr Pathmanathan submitted to a psychological assessment that concluded she was not suffering a mental impairment, although she did display narcissistic personality traits. Certain supervisory conditions were ultimately imposed on her registration, which AHPRA publicly notified.
On 21 October 2015, the Western Australian Board of the Medical Board of Australia (Board) considered an application by Dr Pathmanathan to remove those restrictions. It decided to modify the restrictions by removing some of them. On 6 November 2015, Dr Henderson advised Dr Pathmanathan that, despite the decision of the Medical Board, he was not confident that her skill levels were sufficient to permit her to practice as an independent specialist at the hospital. In the event of removal of all restrictions on her practice, he noted that she may reapply for accreditation.
In the events as they occurred, Dr Pathmanathan’s accreditation expired on 20 February 2015. On 9 December 2015, the Medical Board decided to remove the remaining conditions upon her registration “because the Board acknowledged that the requirement for supervision has impacted upon your ability to sustain full time work and considers that there has been a material change in your circumstances in this regard.”
Despite removal of those conditions, the applicant’s case is that she has been unable to obtain full-time work as a consultant anaesthetist in Australia, or elsewhere, that her professional reputation has been ruined and that in consequence she should receive an award of very substantial damages. Dr Pathmanathan calculates her pure economic loss claim at approximately $120 million.
Dr Pathmanathan in her pleadings, comprising an amended statement of claim filed 13 May 2022 (54 pages) and a reply filed 4 October 2022 (341 pages) asserts a large number of disparate causes of action, some of which are very difficult to understand. In summary, the claims embrace unlawful discrimination on the basis of race, sex, age and imputed disability, negligence, fraud, fraudulent misrepresentation, intimidation, unlawful interference with trade or business relations, tortious conspiracy, breach of trust, breach of confidence, constructive trust, invasion of privacy, defamation, breach of contract, torture and “equity in justice”. The respondent did not pursue an application to strike out the pleadings, in whole or in part, as failing to disclose a reasonable cause of action. Mindful of the obligation at s 46PR of the Commission Act to conduct this proceeding without being bound by technicalities or legal forms, I have proceeded by attempting to ascertain the substance of the various complaints made by Dr Pathmanathan, although as observed by Robertson J in Maiocchi v Royal Australian and New Zealand College of Psychiatrists [2014] FCA 301 at [8], this provision does not dispense with the obligation to adequately inform a respondent of the case that must be met. In this case the pleadings must be read with the very extensive number of affidavits relied upon by Dr Pathmanathan and the documents contained in the agreed court book of 4,615 pages.
For the detailed reasons that follow, I have concluded that the claim must be dismissed. In material respects, I reject the evidence of Dr Pathmanathan where inconsistent with the evidence of other witnesses and contemporaneous documents, some of which were authored by her. I do not find that Dr Pathmanathan deliberately gave false evidence before me. Rather, I am prepared to accept that on material differences, her recollection of events is the result of reconstruction rather than recollection and, to adopt a label that Dr Pathmanathan relied on in submissions to me (as to why I should reject certain evidence given by witnesses for the respondent), in metacognition research it is accepted that false memory can be created over time due to false attribution error. As put by Dr Pathmanathan: “So when you feel that somebody else has done the wrong, and so you attributed all the error to the other person instead of yourself.” Dr Pathmanathan assented to my proposition that one might reach the same conclusion about aspects of her evidence (indeed the evidence of any person) and emphasised that contemporaneous documents tend to be more reliable.
What is clear is that Dr Pathmanathan has spent many years studying, sifting, sorting and analysing the evidence that she relies upon in order to found her overarching contention that her career was ruined by a group of white senior male doctors who were determined to target her as a progressive, young, female doctor of Sri Lankan ethnicity who had managed, despite these attributes, to break through “the glass ceiling” of the medical profession in Perth. That case theory finds no support in any of the evidence before me. To an extent, some of the allegations that Dr Pathmanathan makes against individuals in this case are scandalous.
THE CONDUCT OF THE TRIAL
Despite that the relevant events occurred in Perth and most of the witnesses reside there, Dr Pathmanathan commenced this proceeding in the Victorian registry of the Court. Eventually it was agreed that the trial should proceed in Perth.
The evidence comprised affidavits and a court book. Dr Pathmanathan relies on a total of 24 affidavits made by her between 25 October 2018 and 20 February 2023. A considerable amount of material in those affidavits is argumentative, comprises submissions or is otherwise inadmissible for various reasons. Counsel for the respondent, Mr Millar, adopted a pragmatically sensible attitude and did not engage in the tedious process of identifying individual objectionable paragraphs or sentences. Rather, in the interests of efficiency, he was content for all of the applicant’s affidavits to be read without objection, reserving the right to submit at a later stage that certain material was irrelevant or of little or no weight.
Dr Pathmanathan also filed affidavits from Dr Donald Kane, Dr Michael Kerr, David Cruse, Judith Corbett, Dr Angella Figliomeni (her sister), Professor Ashish Sinha, Professor Jan Mulier, Suresh Lakshmanan, Dr Steve Watts, Dr Nick Ford and Dr Carol Warfield. During the trial and, on the application of the respondent, I ruled as inadmissible or Dr Pathmanathan did not press the affidavits of Dr Kane, Dr Kerr (in part), Mr Cruse, Dr Figliomeni (in part), Mr Lakshmanan, Dr Ford and Dr Warfield. Ultimately, Mr Millar did not require Dr Figliomeni, Professor Sinha or Professor Mulier for cross-examination and their affidavits were read into evidence.
I record that the evidence of Mr Lakshmanan presented particular difficulty for the applicant. He is an accountant by education, training and experience. Dr Pathmanathan believed that his report would be admitted to establish her past and future economic loss claims. In fundamental respects his report failed to comply with the requirements of s 79 of the Evidence Act 1995 (Cth). Moreover, his opinion is expressed in the form of an academic analysis as to the principles that one might apply in assessing damages for past and future economic loss. He was not briefed with a statement of facts to form the basis of his assumptions, his analysis did not proceed by reference to the past historic income earned by Dr Pathmanathan in the conduct of her practice, and nor did he undertake calculations in order to derive a range of future economic loss, discounted to present day values. My rejection of the entirety of his evidence left the applicant without any expert evidence to establish her economic loss claim.
I considered it part of my duty to afford procedural advice to Dr Pathmanathan as a self-represented litigant and as part of my obligation to conduct the trial conformably with the requirement of s 46PR of the Commission Act that I should advise her that there were, at least, two options open to her in consequence. One, to seek an adjournment of the trial and the other to make, albeit at a very late stage, an application to divide the issues of liability and quantum as separate questions pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) (Rules). Dr Pathmanathan made an application for the latter, which Mr Millar opposed. After hearing detailed argument I provided ex tempore reasons on 14 March 2023 and made an order to separate these issues. I adjourned to a date to be fixed the question of damages, if it arises. The trial proceeded limited to the question of liability. The primary reason which informed that exercise of my discretion is that Dr Pathmanathan genuinely did not understand what was required of Mr Lakshmanan in order to produce a report in admissible form on the question of damages. I made it plain that but for the fact that she is a self-represented litigant, I would not have exercised my discretion in her favour.
Shortly prior to the commencement of the trial at a case management hearing, Dr Pathmanathan applied for leave to issue 41 subpoenas addressed to individuals to attend and give evidence at the trial and one to the respondent to produce documents. I refused those applications, save for three subpoenas addressed to Dr David Knox, Professor Constantine Michael, Dr Michael Levitt and to the respondent, respectively. A matter arose during the evidence of Dr Levitt which required a separate evidentiary ruling. Without his knowledge at the time, Dr Pathmanathan electronically recorded a discussion that she had with him on 19 January 2017. When he subsequently became aware of this recording, he did not consent to its use nor to a transcript made from the recording which Dr Pathmanathan attached to one of her affidavits. Mr Millar submitted that I should reject the transcript as illegally obtained evidence contrary to s 5 of the Surveillance Devices Act 1998 (WA) and pursuant to s 138 of the Evidence Act. After hearing argument on the point, I ruled this material inadmissible and for the reasons given ex tempore on 16 March 2023.
The respondent relies on various documents in the court book together with evidence from Karen Morris, Dr Henderson, Michelle McCorkill, Dr Janet Barry, Larissa Johnstone, Mr Harsha Chandraratna, Dr Joseph Pracilio and Dr Ralph Longhorn.
At the commencement of the trial I directed that, despite that it was intended that evidence-in-chief would be given by adoption of affidavits, I would be assisted if the evidence of each witness relevant to disputed conversations and events, be led viva voce. This was agreed. Proceeding in that way significantly assisted my assessment of each witness.
ABBREVIATED CHRONOLOGY
To assist in comprehension of these reasons I set out a chronology of the key events, though there is considerable dispute about what was said during various conversations and whether certain events as alleged by the respondent occurred in the manner alleged.
Date
Event
Scope of dispute, if any
7 November 2011
Dr Pathmanathan applies to the respondent for accreditation in anaesthetics.
23 February 2012
The respondent grants accreditation to Dr Pathmanathan in anaesthetics.
13 November 2013
An incident is reported relating to the conduct of Dr Pathmanathan on 12 November 2013, referred to in evidence as the patient in the corridor incident.
This incident was not raised with Dr Pathmanathan at the time. The reported facts are disputed.
27 May 2014
An incident is reported relating to the conduct of Dr Pathmanathan on 27 May 2014, referred to in the evidence as the lunch incident.
This incident was not raised with Dr Pathmanathan at the time. The reported facts are disputed.
25 June 2014
An incident is reported relating to the conduct of Dr Pathmanathan on 24 June 2014, referred to in the evidence as the distressed patient incident.
This incident was not raised with Dr Pathmanathan at the time. The reported facts are disputed.
28 October 2014
This is the date of the iron infusion incident, which is central to this case. The allegation is that Dr Pathmanathan self-cannulated in order to receive an iron infusion, while a patient of hers was unconscious on an operating table and was being operated on.
This incident was not raised with Dr Pathmanathan until 11 November 2014. It is the incident that primarily caused the respondent to suspend Dr Pathmanathan’s accreditation rights at the hospital. The central facts are disputed.
30 October 2014
Ms Morris discusses the iron infusion incident with Dr Pracilio.
The content of the discussion is disputed.
30 October 2014
Dr Pracilio speaks with Dr Longhorn informally concerning the iron infusion incident.
The content of this discussion is disputed. A further issue to be resolved is whether the discussion occurred on 7 November 2014.
8 November 2014
Dr Pracilio commences an examination of the iron infusion incident.
The adequacy of the investigation and the timeliness of when and how the iron infusion incident was raised with Dr Pathmanathan is in dispute.
10 November 2014
Dr Pracilio discusses with Dr Henderson the outcome of his examination of the facts concerning the iron infusion incident, and other conduct of Dr Pathmanathan. Dr Henderson resolves to suspend Dr Pathmanathan’s accreditation.
The content of the discussion is disputed.
11 November 2014
Dr Pracilio meets with Dr Pathmanathan to notify her of the decision to suspend her accreditation pending further investigation and review. On the evidence of Dr Pracilio, Dr Pathmanathan admitted that she self-cannulated to administer an iron infusion on 28 October 2014.
The content of this discussion is disputed.
11 November 2014
Dr Henderson advises Dr Pathmanathan in writing that her accreditation at the hospital is suspended forthwith, pending satisfactory resolution of concerns regarding her practice. Two incidents are referred to as informing that decision: the iron infusion incident and the patient in the corridor incident.
The factual basis for the suspension is disputed, together with the adequacy of the investigation undertaken by the respondent.
17 November 2014
Tottle Partners, then acting for Dr Pathmanathan and MDA National Insurance (MDA), correspond with Dr Henderson and request certain information relating to the allegations as then framed against Dr Pathmanathan.
25 November 2014
Tottle Partners provide a detailed submission on behalf of Dr Pathmanathan to Dr Henderson, responding to the allegations concerning the iron infusion incident and the patient in the corridor incident. According to the submission, Dr Pathmanathan admitted to the iron infusion incident including that she self-cannulated, did not recall the patient in the corridor incident, but did recollect an undated incident where she paused on the way to the ICU with a post-operative bariatric patient and walked approximately 10m to a change room.
Dr Pathmanathan contends that this correspondence was sent whilst she was under duress, is factually incorrect and was sent without her instructions.
26 November 2014
The respondent provides details of two further incidents relating to the conduct of Dr Pathmanathan: the lunch incident and the distressed patient incident.
The facts concerning the further two incidents are disputed.
1 December 2014
Dr Henderson notifies AHPRA of the iron infusion incident as a mandatory notification of an event that in his opinion placed the public at risk of harm because Dr Pathmanathan practiced in a manner that was a significant departure from accepted professional standards.
The basis for the notification is disputed.
9 December 2014
Tottle Partners correspond with AHPRA to notify it of the additional allegations as set out in the letter from Dr Henderson of 26 November 2014.
Dr Pathmanathan disputes that this notification was provided with her authority.
15 December 2014
The Immediate Action Committee meets to consider whether to take immediate action concerning Dr Pathmanathan and resolves to propose to restrict her right to practice until undergoing a health assessment and further approval from the Medical Board. It also resolves to require the health assessment.
15 December 2014
AHPRA corresponds with Tottle Partners and sets out the proposed condition that Dr Pathmanathan not practice as a medical practitioner until completion of a health assessment and further determination by the Medical Board. Dr Pathmanathan is invited to make submissions relating to the proposed condition by 18 December 2014 (erroneously stated as 18 December 2015).
17 December 2014
Dr Pathmanathan and representatives of Tottle Partners meet representatives of the respondent. Minutes of the meeting record a statement by Dr Pathmanathan that the iron infusion incident was the wrong thing to do.
The content of the matters discussed is disputed.
18 December 2014
Tottle Partners provide a written submission to AHPRA. The events which led to the iron infusion incident are set out, including an admission that Dr Pathmanathan self-cannulated and expressed regret. Responses are also provided to each of the other allegations. It is submitted that Dr Pathmanathan should not be suspended and that in the alternative certain conditions on her right to practice be imposed.
Dr Pathmanathan disputes that the submission accurately records the events, says that it was sent whilst she was under duress and that she was pressured into not mentioning the involvement of others in the iron infusion incident.
19 December 2014
The Immediate Action Committee meets and resolves to impose a condition on Dr Pathmanathan’s registration that she must not practice as a medical practitioner until she has undergone a health assessment and has been deemed fit to return to practice by the Medical Board.
6 January 2015
AHPRA appoints Dr Uzma, psychiatrist, to assess Dr Pathmanathan and provide a report.
6 January 2015
AHPRA advises Dr Pathmanathan of the appointment with Dr Uzma on 14 January 2015 and warns her that if she did not agree to attend, the Medical Board may continue to take proceedings under the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law).
9 January 2015
Clayton Utz Lawyers (Clayton Utz), then acting for Dr Pathmanathan lodge a review application with the State Administrative Tribunal (SAT) against the decision of the Immediate Action Committee of 19 December 2014.
This application was not proceeded with.
23 January 2015
Dr Uzma provides a report to AHPRA regarding the consultation with Dr Pathmanathan on 14 January 2015. The opinion expressed is that Dr Pathmanathan is not currently suffering any psychiatric impairment but does have narcissistic personality features. The recounted history includes a statement apparently made by Dr Pathmanathan that she self-cannulated during the iron infusion incident.
The history as set out is disputed.
28 January 2015
A copy of Dr Uzma’s report is provided to Clayton Utz.
9 February 2015
Dr Pathmanathan and her lawyers meet with a representative of the Medical Board to discuss Dr Uzma’s report.
The content of the discussion was not addressed in evidence
9 February 2015
Clayton Utz correspond with AHPRA and enclose a proposed voluntary undertaking signed by Dr Pathmanathan erroneously dated 10 February 2015. Pursuant to it, Dr Pathmanathan agreed to nominate a senior medical practitioner to act as her mentor, to attend an ethics educational course, to attend medical reviews with her general practitioner and to attend six sessions of psychotherapy.
Dr Pathmanathan disputes that the undertaking was provided with her fully informed consent and of her own free will.
10 February 2015
The Western Australia Health Committee of the Medical Board of Australia (Health Committee) meets and resolves to remove the suspension of practice condition imposed on 19 December 2014. The Committee is satisfied that Dr Pathmanathan does not suffer from any psychiatric impairment. This decision does not finalise the conduct investigation.
11 February 2015
AHPRA advises Clayton Utz of the decision made on 10 February 2015, that the investigation will continue in relation to the notified conduct and that the undertaking offered was not accepted.
12 February 2015
Clayton Utz correspond with Dr Henderson and propose that Dr Pathmanathan surrenders her accreditation on certain conditions.
Dr Pathmanathan disputes that this proposal was the result of her fully informed consent and exercise of her own free will.
19 February 2015
The respondent rejects the voluntary surrender of Dr Pathmanathan's accreditation as proposed.
20 February 2015
Dr Pathmanathan’s accreditation with the hospital expires by effluxion of time.
16 June 2015
The Western Australia Notifications Committee of the Medical Board (Notifications Committee) meets. The Notifications Committee decides to defer making a decision under s 167 of the National Law in order to obtain an independent expert report from a specialist anaesthetist, further information from Dr Pathmanathan and copies of hospital policies.
17 June 2015
Clayton Utz correspond with AHPRA and request that the Medical Board expedite the resolution of the investigation as a matter of urgency and propose, on behalf of Dr Pathmanathan, that she be cautioned in acknowledgement of a lapse in her professional judgement which she conceded occurred in relation to the iron infusion incident.
1 July 2015
The Notifications Committee meets and resolves to caution Dr Pathmanathan and to impose seven conditions upon her entitlement to practice.
10 July 2015
AHPRA advises Clayton Utz of the matter as resolved by the Notifications Committee on 1 July 2015.
24 August 2015
Clayton Utz correspond with the respondent, note the action recently taken by AHPRA and inquire as to whether it will now accept the voluntary surrender of accreditation as offered on 12 February 2015.
4 October 2015
Dr Pathmanathan corresponds with Dr Henderson and withdraws each of her offers to voluntarily surrender her accreditation with the respondent.
15 October 2015
Dr Pathmanathan requests AHPRA remove the remaining conditions upon her right to practice.
21 October 2015
The Board meets. It considers Dr Pathmanathan’s application to remove all of the remaining restrictions upon her registration, and in doing so received a 15 minute oral submission from Dr Pathmanathan. The minutes of the meeting record that Dr Pathmanathan expressed remorse about “her error in self-administering an iron infusion”. The Board rejects Dr Pathmanathan’s application, but resolves to remove some of the restrictions that it had earlier imposed.
The accuracy of some matters recorded in the minutes is disputed.
5 November 2015
AHPRA advises Dr Pathmanathan of the decisions made by the Board on 21 October 2015.
6 November 2015
Dr Henderson advises Dr Pathmanathan that he is not confident that her skill levels are sufficient for her to practice as a specialist anaesthetist at the hospital but that upon removal of the remaining restrictions, she may reapply for accreditation.
3 December 2015
Dr Pathmanathan provides a written and verbal submission to the Medical Board in support of her application to remove the remaining restrictions on her right to practice.
9 December 2015
The Medical Board resolves to remove the remaining restrictions imposed on the right of Dr Pathmanathan to practice medicine.
11 December 2015
AHPRA advises Dr Pathmanathan of the decision made by the Medical Board on 9 December 2015.
17 November 2017
Dr Pathmanathan lodges a complaint with the Commission alleging unlawful discrimination by the respondent on the basis of her age, race and sex.
20 February 2018
Dr Pathmanathan provides additional material to the Commission in support of her complaint.
28 February 2018
A delegate of the President of the Commission advises Dr Pathmanathan of the decision to terminate her complaint pursuant to s 46PH(2) of the Commission Act.
3 July 2018
Dr Pathmanathan commences this proceeding.
5 September 2019
Steward J grants leave to Dr Pathmanathan to bring this proceeding pursuant to s 46PO of the Commission Act.
Many other events were the subject of extensive evidence relied on by Dr Pathmanathan. I limit my findings of fact to those necessary to address the material aspects of Dr Pathmanathan’s claim and the respondent’s defence.
STRUCTURE OF THE CLAIMS
It is not a productive exercise to set out portions of Dr Pathmanathan’s pleaded claims or to explain their protean development in the form of the overly detailed, and in part impenetrable, reply comprising a mixture of hundreds of pages of argumentative contentions, submissions and evidence. As finally resolved and expressed in closing submissions by Dr Pathmanathan her claims are as follows.
Unlawful discrimination claims
First, the basal claims of unlawful discriminatory conduct engaged in by the respondent contrary to the Racial Discrimination Act, the Sex Discrimination Act, the Age Discrimination Act and the Disability Discrimination Act 1992 (Cth). Dr Pathmanathan presses a somewhat novel claim of discrimination on the basis of “the intersectionality of protected attributes violating her human rights in the sphere of economic and social life, as in the discrimination statutes.” How that is put is explained by Dr Pathmanathan in her closing submission:
The applicant has an intersectionality of protected attributes relevant to race, age, sex, and imputed disability discrimination. Scientific and corporate research evidence shows, those with intersection of race, age and sex suffer compounded or heightened discrimination particularly at the higher tiers of leadership.
Delving a little deeper into that claim, Dr Pathmanathan refers me to the Center for Intersectional Justice, a non-profit organisation founded in Berlin in 2017. According to the website homepage of that organisation it:
[I]s dedicated to advancing equality and justice for all by combating intersecting forms of structural inequality and discrimination in Europe. We envision a world free of systemic oppression in which each individual has access to resources, voice, power and safety. Such a world will only emerge if structural institutional and historical barriers that have led to marginalisation, invisibilization and lack of access and opportunity for minority groups … are addressed.
Dr Pathmanathan emphasises the definition of intersectionality promulgated by the Center:
The concept of intersectionality describes the ways in which systems of inequality based on gender, race, ethnicity, sexual orientation, gender identity, disability, class and other forms of discrimination “intersect” to create unique dynamics and effects. For example, when a Muslim woman wearing the Hijab is being discriminated, [sic] it would be impossible to disassociate her female* from her Muslim identity and to isolate the dimension(s) causing her discrimination.
All forms of inequality are mutually reinforcing and must therefore be analysed and addressed simultaneously to prevent one form of inequality from reinforcing another. For example, tackling the gender pay gap alone – without including other dimensions such as race, socio-economic status and immigration status – would likely reinforce inequalities among women.
Dr Pathmanathan did not refer me to any case where this concept has been applied in addressing discrimination claims brought pursuant to any of the statutes upon which she relies. Nonetheless, I note the existence of a considerable body of academic literature where the concept finds discussion, for example: Goldblatt, B “Intersectionality in International Anti-discrimination Law: Addressing Poverty in its Complexity” (2015) 21(1) Australian Journal of Human Rights 47. My research has failed to turn up any case that has considered this issue pursuant to the discrimination statutes relied on by Dr Pathmanathan.
I do not find that the concept is of no assistance in understanding how Dr Pathmanathan frames her discrimination claims, though ultimately I am bound to proceed in accordance with the provisions of each statute and the settled judicial interpretation of the principles to be applied.
This is not to say that Dr Pathmanathan relies only on her intersectionality argument. It is clearly in addition to her apparently more straightforward claims of race, sex, age and imputed disability discrimination. Those claims are difficult to disentangle from an array of contentions that begin with the overarching claim that the respondent “wields significant power and influence in the healthcare, legal and political communities” in Western Australia. Dr Pathmanathan repeatedly references this as the “circuit of power” comprising senior accredited medical practitioners (invariably white males) “anointed with powerful roles and titles” holding various positions in third party organisations thereby enabling the respondent to “effect influence and inducement (implicit or explicit) through the circuit”. Amongst those actors, Dr Pathmanathan names several witnesses in this proceeding: Professor Michael, Dr Levitt, Dr Henderson (the CEO of the respondent at the time), Dr Pracilio and Dr Longhorn. At the outset I should observe that there is no basis in the evidence for those claims against these medical practitioners and others whom I have chosen not to name as they did not give evidence and could not rebut the assertions of Dr Pathmanathan. These untenable contentions should never have been made and are scandalous for detailed reasons that I will later explain.
Returning to Dr Pathmanathan’s narrative, the unlawful discrimination commenced in mid-2013, when she asserts that her work with education committees was interfered with and malicious rumours began to circulate about her in an endeavour, so it is said, to induce others to cease working with her, so that by April 2014 she was requested to leave the Perth Anaesthesia Group by Dr Craig Schwab: which she did of her own accord to practice independently. When I inquired of Dr Pathmanathan in her closing address how this conduct was related to the respondent, Dr Pathmanathan asserted without any evidence that Dr Schwab was induced to act by unnamed senior doctors of the respondent. This is another example of serious allegations made against a plethora of individuals without any basis in fact. There are many others, some of which I later address in these reasons.
Thus in setting out what are the allegations of unlawful discriminatory conduct against the respondent, I focus only on the four key matters of complaint, two of which led to the suspension decision taken by Dr Henderson on 10 November 2014 and two more of which explain subsequent decision-making by the respondent.
The first matter relates to an alleged incident on 12 November 2013, being the patient in the corridor incident, and is the subject of an internal incident report prepared the next day. The reporting system is known as RiskPro. In substance it was reported that at the conclusion of a surgical procedure and when the patient was being transferred to the ICU, Dr Pathmanathan stopped in the corridor to return a quantity of drugs to the Post Anaesthesia Care Unit (PACU) and subsequently in the vicinity of the theatre reception area the following occurred (without correcting for spelling or grammar):
As we were walking through theatre reception area I thought I heard Dr Pathmanathan say “maybe I should grab my clothes” I said “sorry?” She replied “no never mind”. We kept walking and I then heard her say “it will only take a minute” I turned and looked at her and she said “two secs Ill be right back, the patient is stable”. Dr Pathmanathan then quickly walked back towards the theatre reception area. I turned to the orderly (Brad) who was pulling the bed and asked “what the?” as I was surprised. He said “I think she went to get her clothes what do we do?” I said we can’t move without her and so we came to a stop in the area just before the lifts and I advised the Anaes tech (Rob) to let the lift go as the anaesthetist was not with us. Rob and I talked to the patient who said she was uncomfortable, her observations on the ICU transfer monitor remained stable. We waited there for a couple of minutes until I saw her coming and I advised the tech to call the lift and when she reached us I expressed that she was gone a long time. She replied that someone had stolen her shoes. I told the orderly that we should proceed to ICU. In the lift Dr Pathmanathan asked me about security cameras in the changerooms. I advised her that there was no cameras. I did not confront Dr Pathmanathan about her leaving us at this time as I didn’t think it appropriate over the patient and in front of other people. Once in ICU Dr Pathmanathan did her handover and I waited for the ICU nurse. Once she had handed over she asked me how we could report the theft. I said we could do so on the computer and tell shifty. She spoke to the ICU Dr again and then asked me if I would do the report. I said that we could once we got back to main theatre. Dr Pathmanathan then left ICU. On return to Main Theatre I spoke to shift coordinator who advised me that Dr Pathmanathan’s shoes were there in the office. I rang the Dr to advise her of her shoes and to see where she was so as to speak to her. She advised me that she had already left (I assume in her scrubs) and that she would come in tomorrow. There were several other people in the coordinators office so I did not feel comfortable discussing it with her on the phone. I waited until others left and then discussed the situation with the shift coordinator (Aruna Thathiah). We advised Mr Chandraratna of the situation over the phone.
The person reporting this incident is disclosed by name, together with the name of a witness. It is further recorded that patient safety was compromised, but the outcome was not harmful. This incident was not raised with Dr Pathmanathan until November 2014.
The second reported incident, being the lunch incident, is recorded as having occurred on 27 May 2014. The RiskPro in part reads:
Patient in PACU @ 1210 – hypertensive ++, desaturating, oxygen requirements increasing, erratic breathing with LMA.
Anaesthetist Ajintha Pathmanathan contacted - in tearoom - stated she needs to finish her lunch. Gave phone order for Sugammedex, Clonidine and Naloxone - all given.
1245 - Patient still not awake with all above still happening. Anaesthetist phoned in OR and pleased asked to review patient in PACU she stated she couldnt come as had another patient on table - Dr Knox in PACU and attended to patient and stated he would himself go into OR to get Dr Pathmanathan.
1300- Dr Pathmanathan attended to review. Dr Knox told her what he had done and asked how much Fentanyl was given she responded 100 and when he ? it she responded she gave another 50 but not recorded it in OR. She charted further Naloxone (given no improvement in patients condition). ABG also ordered, completed by nursing staff and reviewed by dr. Paperwork also not completed, PCA orders incomplete - not signed and wrong parameters.
1330 - another Naloxone dose given with no improvement.
1340 - paperwork finally completed after asked by PACU coord to fill in.
1346 - patient still remains unresponsive, anaesthetist informed re increasing BSL and stated she would contact ICU.
1400 - Bladder scan 720mls patient still unresponsive so unable to void.
1500- Pt reviewed by Dr for transfer to ICU
The person reporting the incident is disclosed by name together with the name of a witness. This incident was not raised with Dr Pathmanathan until 26 November 2014.
The third reported incident, being the distressed patient incident, is recorded as having occurred on 24 June 2014. The RiskPro in part reads:
Pt. RTW post OT at 1550. On arrival pt. was extremely distressed, crying loudly, clutching at stomach, holding legs up to chest.
Anaesthetist with pt. at time. Nurse asked pt why she was distressed, pt stated she was in extreme pain. PCA Fentanyl not connected. Nil analgesia given to pt by anaesthetist (no medications taken with Dr.?). Nurse checked operation record, appeared to have received minimal analgesia intraoperatively. Medical records documented similar issue with pain tolerance in previous surgery. Nurse asked anaesthetist why PCA not connected, anaesthetist asked where RMO was and departed the room. Over the duration of 1 hour, 3.2mg hydromorphone given, 225mcg clonidine and 12mg of ketamine. PCA connected by OT nurse and ICU nurse, ketamine infusion commenced. BP on arrival- 205 systolic BP (MAP >130) confirmed by manual BP, pt. tachycardic. Nil action taken by anaesthetist. Additional hydromorphone bolus’ required initially. Pt appeared to have settled, and pain decreased more than 2 hours post arrival to ICU.
The person reporting the incident is disclosed by name. No witness is identified. The effect on the patient is described as additional treatment, intervention and temporary harm. Patient pain is noted as having been exacerbated. The potential level of risk is stated as medium. This incident was not raised with Dr Pathmanathan until 26 November 2014.
The fourth, and most prominent incident the subject of the proceeding and the trial, occurred on 28 October 2014. It is the iron infusion incident. There is no dispute that Dr Pathmanathan received an iron infusion while an anaesthetised patient of hers was being operated upon by Mr Chandraratna. What is disputed are the events which led to it and, in particular, the involvement of others who, on the case of Dr Pathmanathan, were not investigated, suspended or subjected to any other disciplinary action. The RiskPro was completed by Karen Morris on 10 November 2014, well after she first reported the incident to Dr Pracilio on 30 October 2014. In part it reads:
Incident Details
When did the Incident/Hazard/Assessment/Inspection OCCUR: 28/10/2014
Incident Time: 08:00
Day of Week: Tuesday
Division: SUBIACO
Area/Department incident/hazard/assessment/inspection occurred: OPERATING SUITE
Describe Incident/Hazard/Assessment/Inspection including site of injury/exposure: (Facts only):
On Tuesday 28 October I was the anaesthetic technician in Mr Chandraratna's bariatric surgery list in Theatre 18. I was assisting Dr Pathmanathan and there was chat between the doctors about Dr P having low blood iron. I heard some of the discussion and I thought they were talking about giving Dr P an iron infusion after the list finished, in Mr C's rooms or elsewhere. I talked to Dr P about the anaphylaxis risk, and that she should have it done in a clinic where she could relax also. I went to the hospital's retail Pharmacy to collect a prescription for this purpose for Dr P. The last case of the day was a sleeve gastrectomy revision on a 100kg patient who was going to ICU following her operation. During this case Dr P cannulated herself and gave herself the iron infusion, and was attached to the set-up while using the tungsten bougie in the patient.
The report further records that patient safety was compromised and the potential level of risk was high. This incident was not raised with Dr Pathmanathan until late in the afternoon of 11 November 2014 when Dr Pracilio advised her of the decision made by Dr Henderson to suspend her accreditation, pending further investigation and review.
The central contention of Dr Pathmanathan is that the respondent has engaged in a “smokescreen” to “create the narrative to explain what had happened” initially to retrospectively justify the suspension of her accreditation rights, the report to AHPRA and the refusal of subsequent requests to remove the suspension or otherwise reinstate full accreditation rights. On her case, I should find that the respondent’s decision-making was motivated by and was taken for reasons related to her race, sex, age or imputed disability even if those reasons were not dominant or substantial reasons. Dr Pathmanathan characterises each of the allegations relied upon by the respondent as fraudulent.
The claim framed pursuant to the Racial Discrimination Act asserts that the respondent treated Dr Pathmanathan as “an incompetent foreign doctor” and thereby engaged in unlawful racial discrimination contrary to ss 9, 10, 11, 13, 16 and 18. Her overall contention is that the respondent’s decision-making was infused by racial prejudice, or at least included considerations of racial prejudice. The case advanced is that the whole of the treatment of Dr Pathmanathan by persons for whom the respondent is legally responsible amounted to an act involving “a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life” within the meaning of s 9(1) of the Racial Discrimination Act. By acting as it did, Dr Pathmanathan contends that the respondent denied to her rights to equality before the law within the meaning of s 10, access to places and facilities contrary to s 11, the provision of goods or services to the public or to any section of the public contrary to s 13, the publication or display or causing to be published or displayed a notice that indicates or could reasonably be understood as indicating an intention to do an act that is unlawful by reason of other provisions of the Racial Discrimination Act, contrary to s 16 and, a matter that was asserted at a late stage during the course of the trial, inciting another person to do an act that is unlawful contrary to s 17.
The difficulty with these various claims commences with the omission of specific pleadings of material facts that are said to establish each claim. However, in adopting a broad and beneficial approach, the case advanced by Dr Pathmanathan invites me to infer that all, or some, of the decisions taken and actions implemented by the respondent, through each of the persons for which it is legally responsible, were because of her race or ethnic origin.
The claims asserted pursuant to the Age Discrimination Act commence with the proposition that when practising as a consultant anaesthetist in Perth, Dr Pathmanathan was relatively young: and most certainly was much younger than each of her senior male colleagues and persons responsible for the administration of the hospital. The applicant pleads reliance on ss 14, 15, 16, 18, 20 and 28. These claims also rely on the drawing of an inference, from all of the relevant circumstances, that the applicant’s relatively young age was a reason (even if not the dominant or substantial reason) which informed decision-making by persons for whom the respondent is legally responsible and for the action taken in consequence of those decisions. Thus, Dr Pathmanathan contends that she suffered discrimination contrary to s 14 on the ground of her age in that she was treated less favourably than, in circumstances that are the same or are not materially different, the respondent treated or would treat a person of a different age and the respondent did so because of her age, a characteristic that pertains generally to the age of persons in her position or one that is generally imputed to persons of the same age as Dr Pathmanathan, as young members of the medical profession.
A claim of indirect discrimination is asserted contrary to s 15, even though at the outset of the trial, I specifically questioned Dr Pathmanathan as to whether her claims were brought for direct or indirect discrimination and she confirmed the former. In any event, and accepting that this matter is at least obliquely pleaded, the claim is that Dr Pathmanathan suffered unlawful discrimination on the ground of her age in that the respondent imposed a condition, requirement or practice upon her which was not reasonable in the circumstances and which had or was likely to have the effect of disadvantaging persons of the same age as Dr Pathmanathan at the time. Adopting her oral closing submission, she had “broken the glass ceiling” of the establishment of the Perth medical profession, was successful and thereby represented a threat either professionally or economically to her more senior (very much older) colleagues and competitors. Her career was effectively terminated because as a young and successful anaesthetist she suffered unlawful direct or indirect discrimination because of her age.
In addition, or in the alternative, Dr Pathmanathan asserts that the decisions made by the respondent and the action taken constituted unlawful discrimination in relation to employment, against contract workers, access to premises or the provision of services and facilities contrary to ss 18, 20 or 28.
Like the claims framed pursuant to the Racial Discrimination Act, Dr Pathmanathan does not distinctly identify the material facts relied upon by her as founding each of these contentions. Her claims rest upon the drawing of certain inferences that she invites based upon all of the evidence that has been adduced and considered objectively. The basal point that she relies upon is that her relatively young age was a reason, it need not be the dominant or substantial reason, for decision-making and action taken by the respondent. If that is so, then her claims of unlawful age-based discrimination are made out.
Turning next to the Sex Discrimination Act, Dr Pathmanathan contends that she continuously suffered discrimination by various persons for whom the respondent is legally responsible because she is female contrary to ss 5, 14, 16 and 22. Like each of her other discrimination claims, her case rests upon drawing inferences that the respondent treated her less favourably than, in circumstances that are the same or are not materially different, the respondent treated or would treat a person who is male and an accredited medical practitioner at the hospital. Anchored by that broad proposition, Dr Pathmanathan asserts unlawful discrimination contrary to s 14 in employment, s 16 in relation to contract workers and s 22 relating to the provision of services or facilities.
Once again, Dr Pathmanathan does not specifically identify the material facts relied upon in order to establish the claims which rest on the broad contention that I should infer from the whole of the evidence that being a successful female anaesthetist was a reason for decision-making and action taken by the respondent. In further support of this claim, Dr Pathmanathan relies upon published research to the effect that there is “significant gender discrimination in the anaesthesia profession and particularly in leadership – higher paying and more powerful positions”.
The final discrimination claim relies upon the Disability Discrimination Act, which Dr Pathmanathan frankly acknowledges was not the subject of her terminated complaint to the Commission, but which she now contends arises out of similar facts in order to establish that the respondent discriminated against her based on an imputed disability, being a belief that she suffered from some form of psychiatric disorder. From that proposition, Dr Pathmanathan contends that various individuals breached her privacy by spreading malicious rumours relating to her personal health, induced AHPRA to refer her to a psychiatrist for a mental health assessment and published material to the effect that her personal health may have impacted her ability to practise as an anaesthetist.
Dr Pathmanathan does not identify how this allegation is put. Although she asserts that the imputed disability relates to her mental health, she does not specify which provisions of the Disability Discrimination Act are said to have been infringed by the respondent or how the conduct identified by it is a disability that it imputed to her within the meaning of disability as defined at s 4. However, by adopting a broad and beneficial approach, I assume that her contentions rest upon unlawful discrimination in the provision of services or the making available of facilities within the meaning of s 24 and on the basis that the respondent unlawfully discriminated on the ground of an imputed mental health disability by refusing to provide services to or to make facilities available to Dr Pathmanathan or in the terms or conditions or the manner in which those facilities or services were made available to her. Even understood in that way, Dr Pathmanathan fails to explain how it can be the case that imputed disability discrimination occurred in making the suspension decision, when this issue was only raised by AHPRA and the Medical Board following notification of the suspension decision.
I should at this point return to how Dr Pathmanathan ultimately framed each of her discrimination claims in her oral closing submissions. It was put to me that a group of doctors within the hospital were working in conjunction with Dr Pracilio in order to identify complaints, group them and then use the complaints as the basis to deny accreditation rights to Dr Pathmanathan with, ultimately, the effect of terminating her career as a specialist anaesthetist. The following exchange then occurred:
HIS HONOUR: So you say I should infer from that that there was this cabal of white, male doctors who had decided that you had to go.
DR PATHMANATHAN: I think - - -
HIS HONOUR: Is that what you’re asking me to find?
DR PATHMANATHAN: Yes. I’ve spoken to Dr Watts, so this isn’t in evidence, so I’m not sure that I can - - -
HIS HONOUR: No. Well, you can’t tell me about that.
DR PATHMANATHAN: Can’t say it. Okay. So let me just say this.
HIS HONOUR: Well, let me just make a note of that, because I want to make certain I understand what you’re putting to me. I should find there was a cabal of white, male doctors - - -
DR PATHMANATHAN: Senior.
HIS HONOUR: - - - who were determined, what, to end my career?
DR PATHMANATHAN: To target me and to get rid of me, to terminate my career. They stated in mid-2013. They’ve been going for a while and they thought this was it. This was enough. This iron infusion was enough to move into the next phase.
HIS HONOUR: I understand what you want me to find. Yes.
A little later Dr Pathmanathan submitted to me that a group of senior doctors, some of which she identified in her evidence, worked in collusion and implemented a strategy which she described as a “playbook”, the foundations of which were laid out in mid-2013 and which was ultimately executed on 11 November 2014 when her accreditation rights were suspended. An immediate difficulty that Dr Pathmanathan must face is that these contentions were not fairly put to a number of senior doctors who gave evidence and who were within the group of alleged bad actors. When questioned by me as to why these serious allegations were not put to individual witnesses, Dr Pathmanathan answered that she did not have “all the evidence” to do so. As I explain later in these reasons there are two straightforward answers to that assertion. One, Dr Pathmanathan produced an extraordinary amount of affidavit and documentary evidence gathered by her between 2015 and 2022 and it is difficult to accept that she failed to turn up evidence within that period to support her overall case theory. The other, that there is simply no credible basis in any of the evidence adduced which lends support to this serious allegation of misconduct.
Breach of contract claims
Dr Pathmanathan contends that she was offered and accepted accreditation and thereby entered into a contract with the respondent pursuant to which she would admit patients or provide anaesthetic services to patients at the hospital, and it would benefit by charging various hospital fees to the patients. There is no suggestion that a fee was required to be paid to either putative party. Material terms of the contract included mutuality of obligation whereby the respondent agreed to act in accordance with its corporate governance documentation to “create a culture that values and supports caregivers, with employment relations based on trust and principles centred on and aligned with” the mission and values of the respondent. Further, the contract was subject to the respondent’s By-Laws for Health Professionals (By-Laws) with clauses to the effect that the applicant would be treated fairly and with respect.
Accordingly, it is submitted that the decision taken to suspend Dr Pathmanathan’s accreditation rights was in breach of contract. Tangentially I have understood this claim as extending to a contractual failure to provide procedural fairness in the conduct of an investigation (which Dr Pathmanathan contends did not take place) and prior to taking the decision to suspend her accreditation rights.
Negligence
The claim is that the respondent was bound by a common law duty to provide a workplace to Dr Pathmanathan that was safe and free from bullying, harassment and discrimination. The duty extended to acting fairly and impartially in the investigation of any complaints made against her and to take “educational rather than punitive action”. The claim is that the respondent breached those respective duties by the manner in which it permitted others to interact with Dr Pathmanathan, failed to fairly and impartially investigate allegations made against her, failed to provide a safe workplace and implemented a punitive disciplinary and suspension process.
A particular aspect of this claim is the somewhat novel contention that the respondent was subject to a common law duty to afford procedural fairness to Dr Pathmanathan by conducting a thorough and objective investigation and was bound to put each allegation to her before deciding to suspend her accreditation.
Fraud and fraudulent misrepresentation
The claim is that the respondent knowingly made various false statements about the applicant to third parties, permitted others to notify fraudulent incidents relating to her conduct as an anaesthetist, permitted malicious and false rumours to be circulated about the applicant within the hospital and took at face value and acted upon each of the fraudulent incident complaints, that I have set out in detail above.
Intimidation
Tortious intimidation is asserted. Dr Pathmanathan accepts, by reference to Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2014) 45 VR 571; [2014] VSCA 348, the elements of the tort require identification of the making of a demand, together with a threat, to commit an unlawful act which then caused the person threatened to comply with the demand. Just how those elements are said to be made out by Dr Pathmanathan in this case is obscure. Put at its highest, she contends that she was:
…compelled into blindly trusting and having faith in the Respondent, the largest private hospital operator in Western Australia. The size of the Respondent in market share and influence enabled them to abuse their power by exploiting third parties known to the Applicant to her detriment.
By way of its position and power, and ability to afford employment or appointments of high reputation, implicitly or [sic] threatens individuals whom it sought to act in its aide [sic] against the Applicant.
As examples of the asserted breach, Dr Pathmanathan contends that Dr Pracilio implicitly threatened another witness in this case, Dr Barry, who was threatened not to provide a witness statement, that Dr Chandraratna was “told” not to become involved in her case and that the respondent interfered with witnesses that the applicant proposed to call, or did call, at the trial.
Unlawful interference with trade or business relations
Dr Pathmanathan contends that there was a business or prospective business relationship between her and the respondent, that she was successful in developing her practice as an independent specialist anaesthetist, the respondent had knowledge of her success and various opportunities that would become available to her over time to be more successful in her career and that knowledge extended to business relationships between the applicant and other hospitals. With that knowledge the respondent by its employees or agents interfered with her professional and business relationships in order to isolate her, reduce her standing in the profession and to prejudice her economic interests, relied on “sham complaints” to suspend her accreditation rights at the hospital and caused her further damage by referring her conduct to AHPRA. It is said that all of this conduct amounted to an unauthorised interference and intentional infliction of economic harm.
Tort of conspiracy
Dr Pathmanathan contends that senior doctors with accreditation rights at the hospital and senior doctors who were executive representatives of the respondent conspired with nursing staff to formulate “sham complaints” and then acted in concert with MDA and lawyers appointed by it to act on its behalf and for Dr Pathmanathan to escalate and publicise the complaints in order to cause injury, both personal and economic, to her. The conspiracy alleged is broad and has very many tentacles extending to, at least: the respondent, individual senior doctors, MDA, Tottle Partners, Clayton Utz, AHPRA and the Medical Board. Each conspirator acted for an unlawful purpose being to interfere with the applicant’s professional and business relationships, to cause harm to her and to end her career.
This claim is said to be established by drawing links between the association of individuals, professional and personal, and steps that were taken which caused harm to the applicant where, in addition, some steps are claimed to have been taken by lawyers for the applicant without her authority or by applying unjustified pressure on her amounting to undue influence.
Breach of trust and other equitable claims
Dr Pathmanathan relies on an array of equitable claims, but fails to grapple with how it is said they may arise on the facts of her case. The first is characterised as a breach of trust which rests on the contention that there was a trust relationship between Dr Pathmanathan and the respondent, the trust property being “reputational and clinical case and practice information (including style of practice)”. Without descending into a plea of material facts, breach of trust is asserted with consequential damage.
The second is framed as a breach of fiduciary duty: a failure to act in the applicant’s best interests by failing to disclose relevant information or misusing trust property. This contention extends to a conflict of interest where it is said that the respondent favoured its interests “over and above” those of the applicant and in consequence is “answerable in equity to a breach of fiduciary duty”.
The third claim is framed as a breach of confidence. The applicant says that medical, dental, commercial and financial information of hers attracts the necessary quality of confidence, comprising information that was not generally known or available to the public, was imparted by her to the respondent in a commercial setting imparting an obligation of confidence and was disclosed to third party hospitals and to her professional colleagues, in breach of that confidence.
The fourth is a generalised claim of unconscionable conduct resting on the contention that the applicant’s circumstances amounted to a special disadvantage by reason of her relatively young age, sex, ethnicity and legal illiteracy – the latter being relevant to her dealings with the respondent from 2014. The particular complaint is that the respondent exploited the applicant’s special disadvantage in that there was no reasonable degree of equality in its dealings with her and it procured her consent to legal representation where she believed (wrongly) that such representation would be independent and free from influence of the respondent. In fact, as the contention is developed, the legal representation provided to the applicant by Tottle Partners and Clayton Utz was not independent and placed her under significant duress. This claim is further asserted somewhat differently as amounting to undue influence exerted by the respondent over her decision-making in responding to the allegations made against her.
Invasion of privacy
The applicant invites this Court to recognise, as part of the law of Australia, the tort of breach of privacy relying upon Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 (Lenah Game Meats). The contention is that the applicant’s privacy was unlawfully exposed by painting her in a false light when the respondent caused to be disseminated information relating to her medical practice, her patients and her health contrary to her human dignity. The specific contention is that the respondent caused to be published “vague or specific personal health information” relating to her such that she was subjected to supervision and mentoring and suffered from a mental health impairment or other form of personality disorder.
Defamation
The claim is that the respondent “and their conspirators” published information about Dr Pathmanathan imputing to her an adverse conduct finding, an adverse performance finding and an adverse health finding, each of which impacted on her ability to practice as an anaesthetist. Very many publications are relied upon at different points in time, commencing with asserted malicious rumours in February 2013, extending through the process of investigating the four complaints made against her and, thereafter, the publication of material relating to the applicant to AHPRA and the Medical Board.
Dr Pathmanathan fails to address the limitation period of one year set by s 15 of the Limitation Act 2005 (WA) (which the respondent relies upon in defence) and the effect of s 237(1) of the National Law which provides immunity for notifications made in good faith to AHPRA.
Torture
The claim that is pressed is that the respondent on and from 11 November 2014, and with knowledge that suspension and referral of allegations concerning the applicant to AHPRA would cause her harm, intentionally acted so as to inflict such harm upon her or otherwise acted recklessly, and unconscionably with “conscious contumelious disregard to the Applicant’s rights”. This conduct was engaged in not only by the respondent but also by MDA and lawyers appointed to act on the applicant’s behalf so as to obtain information or a confession from her by “gaslighting”, soliciting or otherwise obtaining information by way of fabricating submissions and meeting minutes. This conduct, as the allegations develop went so far as to inducing AHPRA “to conduct a prejudiced investigation” into the complaints.
Equity in justice
Finally, just what is meant by this claim is difficult to comprehend. Dr Pathmanathan prays in aid r 1.32 of the Rules which empowers this Court, in procedural case management, to make any orders that it considers appropriate in the interests of justice and in the particular circumstances of individual cases. Reliance is also placed on s 46PR of the Commission Act which as I have noted, dispenses with technicalities or legal forms in the conduct of this proceeding. From there Dr Pathmanathan contends that this Court “should act in the best interest of the proper administration of justice to cure any wrongs and damage caused by the Respondent”. How that amounts to a cause of action was left unexplained by her.
Some observations about the claims advanced and maintained
Dr Pathmanathan has pleaded or attempted to plead her claims first in a statement of claim comprising two parts: one lodged 29 March 2019 and the other on 30 March 2019 and where the second part is in the form of an additional pleading which responds to certain affidavits of the respondent filed on 29 March 2019, relevant to the application for leave to proceed. Pursuant to case management orders that I made, Dr Pathmanathan filed a consolidated and amended statement of claim on 13 May 2022 comprising 54 pages. The respondent delivered an amended defence to that document on 30 June 2022, and addressed many of the contentions of the applicant by pleading a failure to disclose a reasonable cause of action, that many of the allegations were scandalous, frivolous or vexatious and, where relevant, that the pleading was likely to cause delay in this proceeding and amounted to an abuse of process.
In response, Dr Pathmanathan on 4 October 2022 filed a reply comprising 343 pages and without adopting, in the main, sequentially numbered paragraphs. The reply is a very difficult document to read and to understand. It is replete with argumentative contentions, submissions and repeated references to asserted facts.
Acting as a self-represented litigant does not relieve individuals of the obligation to conduct proceedings consistently with the overarching purpose of civil practice and procedure at ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). Dr Pathmanathan’s pleadings are evidence of failure on her part to conduct this litigation as quickly, inexpensively and efficiently as possible. That observation extends to the 24 voluminous affidavits that comprise her evidence–in-chief upon the trial. In many respects those affidavits are replete with scandalous, irrelevant and argumentative material.
The respondent did not move to strike out any component of Dr Pathmanathan’s pleadings on any one or more of the grounds set out at r 16.21 of the Rules.
Managing the trial so as to confine it to relevantly pleaded matters of fact was challenging. I am in no doubt that the hearing was significantly prolonged by reason of these matters.
Nonetheless, I record that Dr Pathmanathan and Mr Millar of counsel for the respondent each conducted themselves with civility and politeness throughout the trial.
As I explain in detail many of the contentions formulated and ultimately pressed by Dr Pathmanathan are hopeless. However, one must be careful not to dismiss the entirety of the proceeding by reference to such generalities as, buried within the morass of material, the argumentative and sometimes illogical propositions relied upon, may lurk the kernel of a cause of action that is of merit.
MY APPROACH TO THE ASSESSMENT OF THE EVIDENCE
The primary events in this matter occurred between 2013 and 2015. A large number of witnesses gave oral evidence as to events witnessed, steps taken and conversations conducted many years ago. As is well understood, that gives rise to difficulty in making findings of fact. I proceed in accordance with the well-known and often cited reasons of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319, albeit in the context of a claim for misleading and deceptive conduct but which in my view is of general application:
Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
As Wheelahan J has recently observed, the evaluation testimony involves much more than evaluation of the impressionistic appearance of a witness. Evidence is more reliably evaluated with the contemporaneous documents and the fact that a conclusion is reached that a witness has given false or knowingly false evidence on one matter is not necessarily a reason to reject evidence as to other matters or the entirety of the testimony: Fair Work Ombudsman v Roach (the Melbourne Quarter Case) [2023] FCA 156 at [187]-[188].
FINDINGS OF FACT
Many findings are required, informed by a large amount of documentary, affidavit and oral evidence. I proceed by addressing the main issues to be resolved.
Dr Pathmanathan is granted accreditation
Dr Pathmanathan’s application for accreditation at the hospital was approved on the terms set out in a letter from Dr Levitt, then Director of Medical Services, dated 23 February 2012. Relevantly it provides:
I am delighted to advise you that your application for accreditation at St John of God Hospital, Subiaco in Anaesthesia has been successful. I believe you have met with Dr Joe Pracilio Head of Anaesthesia and understand the terms of your accreditation specific to this site in regards to an after hours roster commitment. You are expected, at all times, to undertake only those clinical activities which your training and experience make safe and reasonable. It is important to emphasise that any extension of your clinical practice must only be undertaken following your application to, and written authorization from, the Medical Advisory Committee.
All Clinicians accredited at St John of God Hospital, Subiaco are expected to participate fully in the teaching of Medical Students and Junior Medical Officers where called upon to do so. Likewise, it is an expectation of all accredited Medical Practitioners that you will comply with the Hospital’s By-Laws, a copy of which you received with the accreditation application. In particular, you are expected to actively participate in clinical audit, cooperate fully with Hospital Management and Heads of Department and act at all times in concert with the Hospital’s Mission and Values.
Finally, I have enclosed a copy of the document titled “Bringing our values to life through our behaviour” which describes the expectation that every person working within St John of God Health Care will embrace the highest standards of interpersonal behaviour.
Once again, congratulations on being accredited at St John of God Hospital, Subiaco.
In accordance with my findings, the central premise of Dr Pathmanathan’s case – the involvement of others in the iron infusion incident, is not only not made out, but is false. I pause to observe what his Honour said at [22] that, before him, Dr Pathmanathan “otherwise made a very great number of accusations in support of her claims that she has been unlawfully discriminated against” and that the “overwhelming bulk of the affidavit material and exhibits filed by her has, I find, been irrelevant, misconceived, inadmissible and/or scandalous.” As I have explained in detail, I have reached the same conclusion.
It is, of course, the case that the patient in the corridor incident also informed the decision to suspend Dr Pathmanathan’s accreditation rights at the hospital and is also relevant to subsequent decisions and actions of the respondent. I have concluded that this incident did not occur in accordance with the RiskPro complaint form. It does not follow, however, that this finding somehow supports the racial discrimination claims of Dr Pathmanathan. What is clear is that Dr Pracilio and Dr Henderson each believed the complaint as formulated to be true at the time and this is what motivated, at least in part, their decisions and actions. Moreover it is the iron infusion incident which was the predominant reason for the decisions made and action taken. The position is the same in relation to the lunch incident and the distressed patient incident to the extent relevant to decision-making by the respondent after 11 November 2014.
Dealing next with the Age Discrimination Act claims, direct and indirect discrimination is asserted within the meaning of ss 14 and 15 in that Dr Pathmanathan was treated less favourably than a more senior doctor in the events leading up to the suspension of accreditation rights and her treatment thereafter. Although not distinctly identified, I will assume her case on the grounds of direct discrimination is that her treatment over the entire period of her claim was less favourable in circumstances that are the same or are not materially different from how the respondent would have treated a person of a different age, in her case an older specialist accredited medical practitioner. Dr Pathmanathan’s case of indirect discrimination would seem to be that the respondent discriminated against her on the ground of her age in that it imposed (at least) a condition, requirement or practice (suspension of accreditation) which was not reasonable in the circumstances and had the effect or was likely to have the effect of disadvantaging persons of the same or similar age as Dr Pathmanathan.
From those contentions, Dr Pathmanathan asserts unlawful conduct by the respondent in employment (s 18), against her as a contract worker (s 20) and or in the provision for the making available of services or facilities (s 28).
In each case, Dr Pathmanathan relies upon s 16: an act done for two or more reasons, one of which is discriminatory, is taken to be done because of the age of Dr Pathmanathan.
For the same reasons that I have given in relation to the Racial Discrimination Act claim, Dr Pathmanathan has failed to make out any of these contentions. The decision-making of Dr Pracilio, Dr Henderson, the action taken by them and indeed the steps taken by other persons who were responsible for notifying each incident of professional concern (primarily the iron infusion incident) were taken because of concerns relating to the standard of professional practice of Dr Pathmanathan. Her age had nothing whatsoever to do with any decision or action taken by or on behalf of the respondent.
Dr Pathmanathan’s claims pursuant to the Sex Discrimination Act follow the same pattern and fail for the same reasons. Sex discrimination as defined at s 5 extends to both direct and indirect discrimination. Direct discrimination requires a finding that the aggrieved person was treated on the ground of his or her sex less favourably than persons of a different sex would be treated in circumstances that are the same or are not materially different. Indirect discrimination occurs on the ground of sex if the aggrieved person is subject to the imposition or proposed imposition of a condition, requirement or practice that has or is likely to have the effect of disadvantaging persons of the same sex. Dr Pathmanathan contends unlawful discrimination in employment contrary to s 14, discrimination against her as a contract worker contrary to s 16 and/or unlawful discrimination in the provision of services or the making available of facilities on the ground of her sex, contrary to s 22. These claims also fail at the fundamental threshold that Dr Pathmanathan has not established that any of the decision-making or conduct of the respondent of which she complains was because of, or included reasons that related to, her sex.
Dr Pathmanathan also asserts discrimination on the basis of an imputed disability, her psychological state, contrary to the Disability Discrimination Act. This claim fails for two reasons. One, at the factual level Dr Pathmanathan has failed to establish that she was subject to direct or indirect discrimination (ss 5 and 6) in any of the possible areas of operation of the Act: employment discrimination (s 15), discrimination against contract workers (s 17), access to premises (s23) or the provision of services or facilities (s 24). Whilst it is true that the Medical Board and AHPRA formed the view in December 2014 that Dr Pathmanathan may suffer from an impairment, which on the evidence must have been a concern about her psychological state, and that view was unfounded (arguably an imputed disability within the meaning of disability at s 4), the respondent did not act to suspend Dr Pathmanathan’s accreditation by reference to her psychological state. This issue did not arise until well after the suspension decision was made and implemented and it was a view taken by the Medical Board which cannot be attributed to the respondent.
The other is that this claim was not made to the Commission as a component of Dr Pathmanathan’s complaint as lodged on 17 November 2017 or as supplemented on 20 February 2018. Section 46PO(3) of the Commission Act requires that the unlawful discrimination alleged in this proceeding “must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint” or “must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.” The failure to mention unlawful discrimination contrary to the Disability Discrimination Act in the complaint as lodged, or supplemented, with the Commission is fatal for the simple reason that this claim is substantially wider and different in character to the matters initially complained of: Cumaiyi v Northern Territory of Australia [2020] FCA 1299 at [14]-[18] per White J.
Finally, I should deal two other arguments of Dr Pathmanathan. One is the intersectionality of protected attributes contention which is relied on as supporting her individual claims of discrimination. Even if one assumes that the intersection of one or more attributes is relevant to the determination of discrete claims pursuant to the individual statutes, this argument of Dr Pathmanathan does not assist in establishing any of those claims for the reason that each fails at the threshold of discriminatory conduct.
The other is the way in which Dr Pathmanathan framed her discrimination claims, ultimately, in her oral closing submission: that I should find that there was a cabal of white, senior, male doctors who, by unlawful means, were determined to end her career. There is absolutely no basis in any of the evidence to support a finding to that effect. It is untenable and scandalous.
For these reasons, the unlawful discrimination claims fail.
BREACH OF CONTRACT
I am not satisfied that Dr Pathmanathan and the respondent entered into a contractual relationship when the application for accreditation made on 7 November 2011, was granted by the respondent on 23 February 2012. I have set out the respondent’s letter above. Accreditation was granted in accordance with the respondent’s By-Laws. Accreditation is defined at cl 1.1 as a process by which a credentialed practitioner “is granted authority to provide health care services with specified limits” within a division of the hospital. Once accredited, a practitioner may exercise the rights conferred by cl 7.1: to admit patients and to consult and attend to patients within the hospital. Each accredited practitioner remains responsible for the care and treatment of his or her admitted patients in accordance with cl 7.2. A grant of accreditation is liable to suspension or termination in accordance with cl 27.2. No consideration is paid by or to an accredited practitioner for the grant of accreditation, or the subsequent right to admit and to provide medical services to patients at the hospital.
Clause 34 provides that no practitioner has any right, interest or legitimate expectation to any one or more of: the grant of accreditation, re-accreditation, the terms, conditions or privileges of accreditation. It also provides that the By-Laws exist only for the purpose of recording the procedures that will be observed and followed in the accreditation process and they do not exist for the purpose of conferring on any practitioner “any legally enforceable rights”.
In some circumstances it has been concluded that an accreditation process may be contractual: Pisano v Health Solutions (WA) Pty Ltd [2014] WASC 356. The contrary conclusion was reached in Page v Healthscope Operations Pty Ltd [2016] NSWSC 1608 where Wilson J reasoned (at [63]), in the case of an anaesthetist, that the agreement of the practitioner: “to abide by the By-laws was no more than a promise he made to gain conditional access to the [hospital]” and “gave no promise or guarantee of anything of value in return for the plaintiff’s promise”. Justice Steward doubted that a contract existed between Dr Pathmanathan and Healthscope Operations Pty Ltd in a separate claim that she commenced, and which he dismissed summarily for failing to disclose a reasonable cause of action: Healthscope at [75]-[82].
Whether the process of accrediting a medical practitioner with a right to admit and to provide medical services to patients at a hospital is contractual, necessarily in each case turns on a close examination of the facts. In this case, Dr Pathmanathan did not pay a fee to become an accredited practitioner. She was not subjected to an obligation to pay any fees to the respondent in respect of patients of hers admitted to the hospital. The grant of accreditation did not oblige her to admit any, or any minimum, number of patients. Dr Pathmanathan at all times retained her status as an independent medical practitioner, required to exercise her professional judgment but to do so in a way that complied with relevant professional standards and, from time to time, the policies practices and procedures as determined and published by the respondent. There was no promise of any value by the parties to this arrangement. Moreover, cl 34 expressly provides that nothing in the By-Laws, pursuant to which the accreditation was granted, conferred in favour of Dr Pathmanathan any legally enforceable right. These considerations compel the conclusion that there was no contract between Dr Pathmanathan and the respondent. The arrangement was no more than a licence.
In any event, even if there was a contract, or it could be said in favour of Dr Pathmanathan that some form of rights in her favour arose out of the By-Laws, on my findings Dr Henderson was entitled to and did suspend Dr Pathmanathan on 11 November 2014 in accordance with the procedure at cl 27.2 of the By-Laws in that he did not then have confidence in her ability to practise at the hospital because of her practice, her standard of practice, competence or general behaviour or her ability to conduct her practice to an appropriate or proper professional standard.
For these reasons the contract claims fail.
NEGLIGENCE
Assuming favourably to Dr Pathmanathan that the respondent owed to her a common law duty of care to provide a safe work place, as the occupier of the hospital, extending to a duty to ensure that the hospital as a work place was free from bullying, harassment and/or discrimination this claim fails on the basis that Dr Pathmanathan has failed to establish that the respondent, or persons for whom it must accept legal responsibility, engaged in conduct that amounted to bullying or harassment, quite apart from my conclusion that Dr Pathmanathan has failed to establish that she was subject to unlawful discriminatory conduct by reason of her age, sex, race or imputed disability.
To the extent that this claim embraces the contention that the respondent was subject to a duty, actionable in negligence, to afford procedural fairness by conducting a thorough and objective investigation, it fails for two additional reasons. One, a denial of procedural fairness, absent a contractual right to it, does not found a cause of action in negligence: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 45, Deane J; New South Wales v Paige [2002] NSWCA 235 at [158]-[177].
The other is that I have concluded in any event that there was no denial of procedural fairness by the respondent prior to the suspension decision.
FRAUD AND FRAUDULENT MISREPRESENTATION
As explained by Gleeson CJ in Magill v Magill (2006) 226 CLR 551; [2006] HCA 51 at [17] the tort of deceit “provides a legal remedy for harm suffered in consequence of dishonesty”. There is no basis in the evidence that supports a finding that the respondent or any persons for whom it must accept legal responsibility caused fraudulent complaints to be made about Dr Pathmanathan, dishonestly made false statements relating to her professional conduct to third parties, permitted or acquiesced in the circulation of malicious rumours about her or otherwise acted dishonestly in the investigation of complaints about her. As I have explained, these claims by Dr Pathmanathan are scandalous and untenable.
INTIMIDATION
It is exceptionally difficult to understand how Dr Pathmanathan puts this protean claim in her pleadings. In her statement of claim, one sees the contention that the respondent “wields significant power and influence in the healthcare, legal and political communities” and on that premise acted to injure Dr Pathmanathan by suspending her right of accreditation on 11 November 2014. Apparently in support of that contention, one sees another reference to the “circuit of power” whereby it is contended that the respondent caused MDA, Tottle Partners, Clayton Utz, AHPRA and the Medical Board to subsequently impose conditions upon her right to practice which in turn prevented her from seeking or holding accreditation at other hospitals. To this, Dr Pathmanathan adds that the respondent’s “staff and accredited practitioners unlawfully colluded, intimidated, induced and interfered with” her commercial and regulatory relationships with intent to cause her injury and loss. None of this is intelligible.
In her reply, Dr Pathmanathan asserts that the respondent interfered with her right to independent and free legal representation in responding to the allegations made against her by the respondent and AHPRA. It is also said that from 2013 the respondent’s “senior accredited practitioners and staff” acted to intimidate third parties who had a business relationship with Dr Pathmanathan by permitting malicious rumours and false complaints to circulate and be made. From this insecure foundation, Dr Pathmanathan next asserts that the respondent induced its nursing staff “to file fraudulent complaints” about her conduct. Thereafter, the respondent “implicitly threatened” MDA to appoint certain lawyers to act on its and Dr Pathmanathan’s behalf. In support of the contention that the respondent made threats to commit an unlawful act, Dr Pathmanathan goes so far as to allege that it “induced” MDA, Tottle Partners and Clayton Utz “to commit fraud, negligence, unlawful discrimination, defamation, and breach of insurance contract”. Next it is said the person threatened complied by acting to indefinitely suspend Dr Pathmanathan’s accreditation with the consequence that it ended her career.
In her written closing submissions, Dr Pathmanathan did not abandon these claims, though she limited the focus of her attention to an asserted inconsistency in email correspondence between Dr Watts, a consultant anaesthetist who made an affidavit and gave evidence for Dr Pathmanathan, and Daniel Heredia, the Director of Medical Services at Hollywood Hospital, dated 11 November 2014 and his oral evidence which Dr Pathmanathan contends evidences that he was “induced by explicit or implicit threat” to comply with the respondent’s demands. The email commences by referencing a discussion between Dr Watts and Dr Pracilio concerning Dr Pathmanathan. The question of imposing restrictions on the right of Dr Pathmanathan to practice is noted as “a possibility”. Dr Watts then suggests to Daniel Heredia that “we should have a plan if restrictions are put in place” and that it may also be “sensible to consider a follow-up discussion to put in place some more formal guidance” at Hollywood Hospital.
In cross-examination, Dr Watts accepted that he had a discussion with Dr Pracilio, and was briefly informed as to the nature of the allegations made against Dr Pathmanathan. He confirmed that Hollywood Hospital had “similar concerns” with respect to Dr Pathmanathan’s style of practice. Dr Watts accepted that he told Dr Pracilio about those concerns which he described as “not an absolute empty notebook with respect to this doctor.” The concerns that he held were the subject of detailed cross-examination. He was also asked to express his opinion as to whether self-cannulation of an iron infusion during a surgical procedure was in accordance with appropriate professional practice to which he answered, not unexpectedly, that it was not.
In re-examination, Dr Watts was asked why he discussed the subject of the professional conduct of Dr Pathmanathan with Dr Pracilio. Dr Pracilio in his evidence confirmed that he discussed the allegations concerning Dr Pathmanathan with Dr Watts on 8 November 2014. Dr Pracilio denied that he suggested to Dr Watts that the accreditation of Dr Pathmanathan at Hollywood Hospital should be suspended. In re-examination, Dr Watts stated that he discussed the matter with Dr Pracilio because of the notification received from the head of the department at the hospital. In his view there was enough “circumstantial evidence” to raise the matter with Dr Heredia.
I have taken the time to address this issue in a little detail, to simply demonstrate that there is absolutely nothing in this evidence which founds the contention that Dr Pracilio explicitly or implicitly made a demand of Dr Watts together with a threat to commit some form of unlawful act, unless the demand was complied with. The contention of Dr Pathmanathan is nonsensical.
The other specific allegations under this head of claim are that on or about 15 December 2014, Dr Barry was threatened not to provide a witness statement and Mr Chandraratna was “told” not to become involved with Dr Pathmanathan’s case. In cross-examination, Dr Barry was taken to a text message of 15 December 2014 from Dr Pathmanathan asserting that her lawyers had been unable to contact Dr Barry, apparently for the purpose of obtaining a witness statement from her. Dr Pathmanathan then asserted by way of a question that no further response had been forthcoming from Dr Barry and ultimately asked whether there was any reason why Dr Barry had not provided a witness statement in support of Dr Pathmanathan. She answered that she did not recall any further correspondence requesting a witness statement adding:
I was also a bit distressed by an interaction with one of the other anaesthetists and I realised that from him talking to me that I was going to be blamed for the iron infusion and I really didn’t want to be involved.
That anaesthetist was identified by name. He worked at a different hospital operated by the respondent. It was not put to Dr Barry that she was somehow threatened by the respondent not to provide a witness statement.
Dealing next with the specific assertion concerning Mr Chandraratna, on 17 December 2014, he provided an email to Tottle Partners which set out his recollection of the iron infusion incident. He concluded by stating his belief that Dr Pathmanathan “is a competent anaesthetist”. In cross-examination, he was asked whether he or anyone else had been “threatened in terms of giving information about the iron infusion”, to which he answered that he had not been. It was not put to him that he was otherwise “told” not to become involved with Dr Pathmanathan and her case.
Finally a generic submission is made by Dr Pathmanathan that:
A number of documents and evidence record temporal instances where the Respondent had communicated with third parties seeking them to discriminate, boycott, restrict her work, propagate publications of misinformation and disinformation about the Applicant, and/or otherwise placed her under duress to cause loss of career and a severe mental health impairment.
Dr Pathmanathan did not identify any of the evidence relied upon by her as supporting this serious assertion. There is no credible evidence which supports any of the ways in which Dr Pathmanathan contends that the elements of the tort of intimidation are made out. Her contentions, no matter how expressed, are untenable. This claim fails.
UNLAWFUL INTERFERENCE WITH TRADE OR BUSINESS RELATIONS
For this claim, Dr Pathmanathan casts her net to 1706 and the decision of Holt CJ in Keeble v Hickeringill (1706) 11 East 574; 103 ER 1127 at 575: “… [H]e that hinders another in his trade or livelihood is liable to an action for so hindering him.” It is generally accepted that this proposition is stated too widely: Balkin & Davis, Law of Torts, 6th ed (Balkin & Davis) at [20.4]. It is doubtful that the tort is recognised in Australia: Sanders v Snell (1998) 196 CLR 329 at 341. On the assumption that it is, Balkin & Davis at [21.27] state its elements as:
The tort of unlawful interference with trade, is now fashioned by [OBG Ltd v Allan [2008] 1 AC 1) involves three parties and has two distinct elements. The plaintiff must demonstrate (a) that the defendant engaged in wrongful interference with the actions of a third-party in which the plaintiff has an economic interest, and (b) that the defendant’s intention was that the conduct would cause loss to the plaintiff.
Dr Pathmanathan’s attempt to prove these elements fails at the elementary level: there is no evidence that the respondent engaged in some form of “wrongful” interference with the actions of any of the third parties the focus of Dr Pathmanathan’s attention: professional colleagues, MDA, the Medical Board of Australia, AHPRA or other hospitals. To the extent to which the respondent communicated its concerns about the professional practice of Dr Pathmanathan, and/or notified those matters of concern to AHPRA, it acted entirely lawfully and appropriately for the reason that patient care and patient safety is paramount, which point was eloquently made by Professor Michael in his evidence-in-chief when asked about the relative degree of risk arising from the allegations made against Dr Pathmanathan, which evidence I have earlier set out and find according to.
CONSPIRACY
Conspiracy and conspire as a noun and verb feature very prominently in the pleadings and the evidence of Dr Pathmanathan. The conspiracy theories tend to be enveloped within the claims of interference with economic relations and intimidation. An example is the assertion that the respondent conspired with MDA to interfere with Dr Pathmanathan’s legal representation provided by Tottle Partners and Clayton Utz, which is characterised as an “obstruction of justice”. In a further iteration, Dr Pathmanathan contends that the respondent conspired with MDA, Tottle Partners, Clayton Utz, AHPRA and the Medical Board of Australia “to damage the Applicant’s ability to hold medical registration, her broader reputation and ability to gain hospital accreditation at other sites.” Separately there is a contention that an employee of AHPRA conspired with a lawyer at Tottle Partners to coerce Dr Pathmanathan into providing a voluntary undertaking to AHPRA.
Dr Pathmanathan in her written closing submission casts her net even more widely asserting that the respondent interfered with:
…her third-party professional relationships to cause exclusion and boycott by those third parties, creating a hostile workplace by collecting complaints, omitting investigation, suspending as a disciplinary action, forcing voluntary surrender of accreditation at their organisation, interference with the applicant’s medical licensure with AHPRA and MBA to cause regulatory restrictions, publications and loss of licensure, and causing the publication of imputations that she has a severe mental health impairment causing loss of employment and opportunities for employment.
This conduct is then asserted to be part of the plan to indefinitely suspend the practising rights of the applicant as the fruition of an agreed plan put in place some years ago by “a group of doctors with nodal positions at third-party organisations.”
The elements of the tort of conspiracy require proof that the respondent did, by the use of lawful or unlawful means, enter into an agreement with someone else, which was performed and caused damage to Dr Pathmanathan: Crofter Hand Woven Harris Tweed Company Ltd v Veitch [1942] AC 435 at 439 per Viscount Simon LC.
There is simply no evidence that the respondent acted in concert with any of the asserted co-conspirators to cause damage to Dr Pathmanathan. I do not doubt that Dr Pathmanathan believes this to be so, but her belief is neither rational nor supported by any of her extensive evidence. These assertions are no more than wild speculation and are scandalous.
This claim fails.
BREACH OF TRUST AND OTHER EQUITABLE CLAIMS
The foundational premise of these claims is simply not made out. At no point was there a trust relationship between the respondent as trustee and the applicant as beneficiary, either express, implied, resulting or constructive. No property was held by the respondent for the benefit of Dr Pathmanathan.
The related claim of breach of fiduciary duty similarly fails in that there is no category of accepted fiduciary relationship nor, in this case, any evidence that the respondent undertook to act for and on behalf of or in the best interests of Dr Pathmanathan: Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 96-97 per Mason J.
The breach of confidence claim fails for the simple reason that there is no instance of publication by the respondent of confidential information of the applicant that was improperly obtained nor information that was imparted by Dr Pathmanathan to the respondent in confidence and which “ought not to be divulged”: Lord Ashburton v Pape [1913] 2 Ch 469 at 475 per Swinfen Eady LJ.
Whilst it may be in the particular circumstances of this case that Dr Pathmanathan provided to the respondent “medical, dental, commercial and financial information” in accordance with her closing submission, which may have attracted an obligation binding the conscience of the respondent not to misuse such information, the disclosure which is asserted occurred on or about 8 November 2014 when Dr Pracilio communicated the substance of complaints and concerns that he held about those complaints to other hospitals. The flaw in Dr Pathmanathan’s claim is that Dr Pracilio only passed on the fact of certain professional conduct complaints and the substance thereof. None of this information was imparted by Dr Pathmanathan to the respondent in confidence.
The final equitable claim, to the extent to which it is capable of being identified, is that somehow the respondent acted unconscionably in publishing false accusations to AHPRA, designed to place Dr Pathmanathan under duress and otherwise acted to undermine her professional reputation and ability to practise. In formulating these claims, Dr Pathmanathan in a very misconceived way relies on cases that are concerned with an unconscionable denial of equitable interests following the collapse of a personal relationship: Muschinski v Dodds (1985) 160 CLR 583.
Unconscionable conduct is not a freestanding principle that may be invoked because Dr Pathmanathan considers that she has been unfairly treated and disadvantaged: Lenah Game Meats at [17] per Gleeson CJ. Dr Pathmanathan has failed to identify how any recognised equitable principle which applies to address unconscionable conduct is engaged on the facts of this case.
For these reasons, each of the equitable claims fail.
INVASION OF PRIVACY
The tort of invasion of privacy is yet to be recognised in Australia: Smethurst v Commissioner of the Australian Federal Police (2021) 272 CLR 177; [202] HCA 14 at [86]-[88], Kiefel CJ, Bell and Keane JJ. Dr Pathmanathan, acknowledging this difficulty, nonetheless invites me to do so and to formulate the principles of the tort. She asserts that the collection and public dissemination of her “medical activity, patient cases, and personal health information” is “contrary to the interests of preserving human dignity” and is protected by a tort of privacy.
I decline Dr Pathmanathan’s invitation, framed by reference to publicity which paints a person in a false light, which is a recognised category of invasion of a right to privacy in the United States: Lenah Game Meats at [120]-[128], Gummow and Hayne JJ. The evidence does not establish the elements of that tort, even if it were open to me to recognise a tort of invasion of privacy as part of Australian law. There is no basis in the evidence to conclude that the respondent publicised a matter concerning the private life of Dr Pathmanathan, which matter was highly offensive to a reasonable person and not of legitimate concern to the public.
The respondent published to other hospitals, and to AHPRA as the regulator, allegations concerning the conduct of Dr Pathmanathan which it believed to be true. The incidents of concern related to the professional conduct of Dr Pathmanathan. This did not concern the private life of Dr Pathmanathan. Moreover, and to the extent that AHPRA and the Medical Board of Australia became concerned about the psychological health of Dr Pathmanathan, that was not a matter which the respondent raised with either.
This claim fails.
DEFAMATION
Dr Pathmanathan asserts that the respondent caused to be published defamatory matter on 8 November 2014, when Dr Pracilio spoke to representatives of other hospitals, by republishing the letter of 11 November 2014 of Dr Henderson and by publishing further allegations in the letter of 26 November 2014. It is further asserted that when AHPRA published on its website the restrictions imposed upon Dr Pathmanathan, it did so “in aid or as a channel for” the respondent and that on other unspecified occasions, publications relating to Dr Pathmanathan were apparently made to prospective employers or other hospitals.
The defamation claims have no merit whatsoever. Dr Pathmanathan ignores s 15 of the Limitation Act which imposes a statutory time bar or one year to the commencement of a proceeding following the publication of defamatory matter. The respondent pleads this defence. Each of the identified publications occurred well outside of that time.
Dr Pathmanathan also ignores the qualified privilege defence relied upon by the respondent pursuant to s 30 of the Defamation Act 2005 (WA): that each of the recipients of the information published by it clearly had an interest or an apparent interest in receiving the information, the respondent published the information for that purpose and the conduct of the respondent was reasonable in the circumstances of each publication. Plainly on my findings of fact each of these elements is made out.
Further, Dr Pathmanathan does not address another defence that the respondent relies upon: s 237(1)(d) of the National Law provides for immunity from suit, and in particular there is no liability for defamation, incurred by a person who makes a notification or gives information in the course of an investigation for the purposes of the National Law in good faith.
Despite these matters being pointed out to Dr Pathmanathan by Steward J in relation to her claims for defamation against another hospital in Healthscope at [109]-[114], the defamation claims were maintained throughout this proceeding.
These claims fail.
TORTURE
Manifestly, Dr Pathmanathan has not been tortured by the respondent. That she feels aggrieved by the consequences of the events that she has closely interrogated in the course of this proceeding, which at times resembled a Royal Commission of Inquiry into the respondent’s practices, procedures and operation of the hospital, does not amount to the infliction of severe physical or mental suffering in order to obtain information from Dr Pathmanathan within the meaning of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In any event, these elements do not form a standalone tort, although aspects of torture may amount to, for example, battery.
This claim is of no merit and fails.
EQUITY IN JUSTICE
This claim sits at the conclusion of Dr Pathmanathan’s submissions, it would seem as some form of safety net in the event that each of her other claims fail. It does not amount to a recognised cause of action and it is not open to me to proceed, as Dr Pathmanathan submits I should to:
…[A]ct in the best interest of the proper administration of justice to cure any wrongs and damage caused by the Respondent. To bring equity to the matter where the Applicant as an individual has limited resources and although has expert medical literacy has limited legal literacy and the Respondent as a multibillion-dollar [sic] corporation has abundant resources and a team with both expert medical and legal literacy.
Plainly that aspirational claim is not open as a matter of law, since the overruling of Beaudesert Shire Council v Smith (1966) 120 CLR 145 by the High Court in Northern Territory v Mengel (1995) 185 CLR 307
A LATE INTERLOCUTORY APPLICATION
After I reserved my decision following completion of oral submissions on 12 April 2023, Dr Pathmanathan filed an interlocutory application together with an affidavit of hers in support on 23 May 2023. It is in form an application for leave to amend her written closing submissions, in the form of 22 pages of amendments by way of additions, alterations to and elaboration of her written closing submission that was filed in accordance with my orders on 11 April 2023. Dr Pathmanathan at least understands that it is not open to a litigant to file a further closing submission without leave of the Court, but misunderstands that it is wrong in principle to manoeuvre around that obstacle by attaching the submission to the application. My Chambers advised Dr Pathmanathan and the solicitors for the respondent that I would not list this application for hearing, but rather that I would determine it on the papers subject to affording the respondent a right to make submissions in relation to the application.
On 24 May 2023, the respondent’s solicitor submitted that the application is opposed, adding that:
There are no matters raised by the Applicant which could not have been put before the Court at the hearing, nor are any matters raised which are capable of having any material impact upon the issues in dispute on the causes of action pursued by the Applicant.
Dr Pathmanathan was afforded substantial time at trial to make out her case. The evidence concluded on 20 March 2023 at which time I adjourned to receive written and oral closing submissions on 12 April 2023. Dr Pathmanathan filed extensive closing submissions on 11 April 2023 and elaborated her contentions orally for some hours on 12 April 2023. She had every opportunity to put her case in closing.
Various courts have long deprecated the filing of further submissions after judgment is reserved. Speaking of an appeal, but in terms equally applicable to a trial, in Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226, Allsop P, Giles JA and Tobias AJA said at [60]-[61]:
The appeal is not an occasion merely for a discussion of the issues so that the parties can go away to marshall and develop their ideas further, bearing in mind the discussion with the court. It is the time and place when and where argument, and sometimes decision, occurs. Once the appeal is reserved, the parties' rights to argument and to be heard have been exhausted.
The consequence of this is not only that sending submissions to the court is wrong, but also the court may (and generally will) ignore what has been sent.
The application was filed at a time when the drafting of these reasons was substantially advanced. It is not appropriate to grant leave to Dr Pathmanathan to re-agitate her arguments with different or new emphasis. I dismiss the interlocutory application, noting that I have not read the new submission.
CONCLUSION
There is no merit in any of the claims made by Dr Pathmanathan. The proceeding must be dismissed. I order as follows:
1.The applicant’s interlocutory application filed 23 May 2023 is dismissed.
2.The proceeding is dismissed.
3.Any application for consequential orders, including costs, is to be made in writing with supporting submissions strictly limited to no more than five pages, which submissions are to be filed and served within 10 business days of the publication of these reasons, with a right of reply in writing strictly limited to no more than three pages within five business days thereafter.
4.Subject to any further order of the Court, all consequential orders including costs will be determined on the papers.
I certify that the preceding three hundred and eighty-eight (388) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine. Associate:
Dated: 13 June 2023
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