Pisano v South Metropolitan Health Service - [2023] WASCA 80

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   PISANO -v- SOUTH METROPOLITAN HEALTH SERVICE [2023] WASCA 80
CORAM:   BUSS P
VAUGHAN JA
HALL JA

HEARD:   8 MARCH 2023
DELIVERED          :   23 MAY 2023
FILE NO/S:   CACV 115 of 2021
BETWEEN:   GIGLIETTO PISANO
Appellant
AND
SOUTH METROPOLITAN HEALTH SERVICE
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MASTER SANDERSON
File Number            :   CIV 1124 of 2021

Catchwords:

Tort - Misfeasance in public office - What constitutes 'public office' - Whether chief executive officer of private hospital providing health services to public patients a 'public officer' - Whether power to recognise status as credentialed medical practitioner was a 'public power' for purposes of tort of misfeasance in public office

Practice and procedure - Application by defendant for summary judgment - Whether it is clear there is no real question to be tried - Order 16 of Rules of Supreme Court 1971 (WA)

Legislation:

Health Services Act 2016 (WA), s 32, s 32(2), s 32(3), s 234, s 237(2), s 237(5), s 238, s 265
Hospitals and Health Services Act 1927 (WA), s 5A(1), s 5A(3), s 7, s 26C
Public Sector Management Act 1994 (WA)
Rules of the Supreme Court 1971 (WA), O 16, O 16 r 1(1), O 16 r 1(2), O 16 r 1(3), O 16 r 2(1), O 16 r 2(1a)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	C Stokes
Respondent	:	A J Sefton SC

Solicitors:

Appellant	:	Chris Stokes & Associates
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Anderson v Effexseven (1998) 10 ANZ Ins Cas 61-424
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317
Cockman v Gorman [2022] WASC 125; (2022) 366 FLR 284
Cordinup Resorts v Terana Holdings Pty Ltd (1997) 143 FLR 18
Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17; [2014] AC 366
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Eng Mee Yong v Letchumanan [1980] AC 331
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Forsayth NL v Northern Gold NL (Unreported, FCSCWA, Library No 940012, 20 January 1994)
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Henly v Mayor of Lyme (1828) 5 Bing 91; (1828) 130 ER 995
LCLA Pty Ltd v Barkay Pty Ltd [2018] WASC 400
Leerdam v Noori [2009] NSWCA 90; (2009) 227 FLR 210
Neilson v City of Swan [2006] WASCA 94; (2006) 147 LGERA 136
Northern Territory of Australia v Mengel (Mengel) [1995] HCA 65; (1995) 185 CLR 307
NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107
Obeid v Lockley [2018] NSWCA 71; (2018) 98 NSWLR 258
Pisano v Health Solutions (WA) Pty Ltd [2014] WASC 356
Pisano v South Metropolitan Health Service [2021] WASC 402
R v McCann [1998] 2 Qd R 56
Roddan v Shore [2001] WASCA 373
Sanders v Snell (No 2) [2003] FCAFC 150; (2003) 130 FCR 149
Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329
Scaffidi Nominees Pty Ltd v Buswell (Unreported, FCSCWA, Library No 960588, 11 October 1996)
Society of Lloyd's v Henderson [2007] EWCA Civ 930; [2008] 1 WLR 2255
Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Stewart v Ronalds [2009] NSWCA 277; (2009) 76 NSWLR 99
Sutton Investments Pty Ltd v Realistic Investment Pty Ltd [2017] WASCA 14
Tampion v Anderson [1973] VicRp 70; [1973] VR 715
Three Rivers District Council v Bank of England [No 3] [2001] UKHL 16; [2003] 2 AC 1
Wallingford v Mutual Society (1880) 5 App Cas 685
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Zaghoul v Bayly [2021] WASCA 125

JUDGMENT OF THE COURT:

Overview

This is an appeal against a decision of Master Sanderson[1] providing for the summary dismissal of the appellant's action for an alleged tort of misfeasance in public office.
[1] Pisano v South Metropolitan Health Service [2021] WASC 402 (primary reasons).
The action concerned conduct by the chief executive officer (CEO) of a private hospital operated by a proprietary limited company pursuant to a services agreement with the Minister for Health (Minister) of the State of Western Australia. The hospital provided health services to public and private patients in Mandurah, Western Australia. The appellant complained about the CEO's failure to recognise the appellant's status as a credentialed medical practitioner at the hospital - this omission being contended to constitute an exercise of a public power by a public officer for the purpose of the tort of misfeasance in public office. The master found that it was not arguable that the CEO held public office or that the CEO was exercising a public power for the purpose of the tort of misfeasance in public office. On that basis the master was satisfied that the action could not succeed and should be dismissed with costs.
For the reasons that follow the master was correct to hold that the appellant's action could not succeed. On the facts as alleged by the appellant the CEO did not hold a public office, and was not exercising a public power, for the purpose of the tort of misfeasance in public office. The proposition that the CEO relevantly held such a public office and was exercising a public power is not reasonably arguable. The appeal must be dismissed.

Background

As the appeal is in the context of a defendant's summary judgment application, it is appropriate to develop the background facts largely by reference to the appellant's pleaded case. This is with one significant exception. The appellant's statement of claim dated 26 February 2021 (SOC) proceeded, erroneously, on the basis that the respondent was constituted by the Minister in his capacity as the board of the hospitals formerly comprised in the Metropolitan Health Services Board under s 7 of the Hospitals and Health Services Act 1927 (WA)[2] (SOC par 2(a)). In what follows, rather than perpetuate that error, we have identified the legislative provisions and instruments which explain why it is that the respondent is the relevant legal entity against which the appellant took his proceedings.
[2] Section 7 of the Hospitals and Health Services Act was repealed by s 265 of the Health Services Act 2016 (WA) with effect from 1 July 2016.
The background facts have also been supplemented, where appropriate, by unchallenged affidavit evidence adduced by the respondent in support of its summary judgment application.
The appellant is a medical practitioner specialising in orthopaedic surgery (SOC par 1).
In June 2016 the respondent was established as a health service provider for a health service area that included Mandurah by operation of s 32 of the Health Services Act 2016 (WA) and cl 9 of the Health Services (Health Service Providers) Order 2016 (WA). The respondent is a body corporate with perpetual succession.[3] Proceedings may be taken by or against the respondent in its corporate name.[4]
[3] Health Services Act, s 32(2).
[4] Health Services Act, s 32(3).
On or about 28 February 2012, by an agreement made between the appellant and Health Solutions Pty Ltd (HSWA), the appellant was recredentialed at Peel Health Campus (PHC) as a credentialed practitioner with clinical privileges as a specialist medical practitioner in the fields of adult and paediatric orthopaedics for a term of three years expiring on 1 March 2015 (SOC par 5).
The appellant pleaded that the PHC is and was at all material times a major hospital at which a wide range of medical services were (and are) provided to members of the public - those services including the services of specialist orthopaedic surgeons (SOC par 2(b)).
More specifically, the PHC is a private hospital located in Mandurah, Western Australia. It operates under a licence granted pursuant to the Health Services Act. Prior to the coming into operation of the Health Services Act the relevant licence was granted under the Hospitals and Health Services Act. HSWA was the operator of the PHC until 1 June 2013. From 1 June 2013 the operator of the PHC was Ramsay Healthcare Australia Pty Ltd (Ramsay).[5]
[5] Affidavit of C J Shaw affirmed 22 April 2021 par 33. See also SOC pars 2(b) - (c).
The evidence on the summary dismissal application included some of the annual licences granted to HSWA[6] and Ramsay.[7] It will be necessary to return to the terms of the annual licence for 2015 so far as that licence was relied on by counsel for the appellant in his oral address. The appellant pleaded that, by the licence, the respondent (in fact the respondent's statutory predecessor) imposed conditions on Ramsay concerning the operation and management of the PHC and was responsible for ensuring compliance by Ramsay with the conditions (SOC par 9). More specifically, the appellant pleaded that it was a condition of the licence that Ramsay comply with all relevant requirements and responsibilities relating to the credentialing of new and existing medical practitioners at the PHC (SOC par 9).
[6] Attachment 'CS-6' to affidavit of C J Shaw affirmed 22 April 2021 (licence for the period 1 January 2012 to 31 December 2012); Attachment 'CS-2' to affidavit of C J Shaw affirmed 6 May 2021 (licence for the period 1 January 2013 to 31 December 2013).
[7] Attachment 'CS-3' to affidavit of C J Shaw affirmed 6 May 2021 (licence for the period 1 January 2014 to 31 December 2014); Attachment 'CS-4' to affidavit of C J Shaw affirmed 6 May 2021 (licence for the period 1 January 2015 to 31 December 2015).
In relation to the PHC:
1.By an agreement dated 18 June 1997 (Services Agreement) between the Minister (acting for and on behalf of the State of Western Australia) and HSWA, the State granted HSWA the right to operate the PHC.[8]
2.By an asset sale agreement made in or about April 2013 (ASA) between, among others, HSWA and Ramsay, HSWA agreed to sell certain assets (including the benefit of the Services Agreement) to Ramsay so that Ramsay could carry on the PHC in succession to HSWA (SOC par 4). By cl 2.1 of a deed of assignment dated 28 May 2013 Ramsay assumed the rights and obligations of HSWA under the Services Agreement.[9] The assignment took effect from on or about 1 June 2013 (SOC pars 2(b) - (c), 4).
3.It was a material term of the ASA that Ramsay would be responsible for all of HSWA's obligations under the terms of any third-party contract existing in respect of the PHC as at 1 June 2013 (SOC par 6). Accordingly, the appellant's rights as against HSWA were extended to and bound Ramsay (SOC par 7).
4.By a deed of novation dated 17 June 2014, the parties to the deed, with effect from 1 January 2014, agreed to substitute the Minister in his incorporated capacity as the board of 'the Metropolitan Health Service' as a party to the Services Agreement in place of the Minister (acting for and on behalf of the State of Western Australia).[10]
5.With effect from 1 July 2016,[11] by operation of s 234 of the Health Services Act, the Metropolitan Health Service was abolished. At the same time, by operation of s 237 and s 238 of the Health Services Act and Transfer Order No 2 (Metropolitan Health Service) 2016 (WA), the respondent was substituted for the Metropolitan Health Service as a party to the Services Agreement.
[8] Attachment 'CS-1' to affidavit of C J Shaw affirmed 22 April 2021.
[9] Attachment 'CS-3' to affidavit of C J Shaw affirmed 22 April 2021.
[10] Attachment 'CS-4' to affidavit of C J Shaw affirmed 22 April 2021.
[11] See Health Services Act 2016 Commencement Proclamation (No 2) 2016 (WA).
The Health Services Act makes provision for the transmission of the liabilities of a hospital board specified in a transfer order. In particular, by s 237(2) of that Act, on the transition day the liabilities of a hospital board specified in a transfer order were assigned to and became liabilities of the health service provider specified in the order. By s 237(5), any proceedings or remedy that might have been commenced or might have been available against a hospital board in relation to the liabilities so assigned may be commenced against or are available against the health service provider. In these respects, by the Transfer Order No 2 (Metropolitan Health Service), all liabilities of the Metropolitan Health Service arising wholly or in part from any acts, omissions or matters in the health service areas allocated to the respondent transferred to the respondent.
Accordingly, the respondent was properly joined to the appellant's action as the statutory successor to the relevant alleged liability contended for by the appellant in the primary proceedings.
The appellant specifically pleaded (SOC par 10) various provisions of the Services Agreement on which it relied:
The [Services Agreement] provided, inter alia, that:
a)Ramsay as the Hospital operator [of the PHC] must ensure that the person presenting at the Hospital, whether as a Public Patient or a Private Patient requiring urgent or essential treatment is not denied appropriate care - cl 10.1(g).
b)Ramsay as the Hospital operator must ensure that access to the provision of Services is based on clinical need - cl 10.1(h).
c)If at any time during the Term the Operator fails to provide the Services to the Quality Standards the Operator must promptly notify the State of that failure - cl 10.11.
d)If a Public Patient seeks or requires treatment at the Hospital with a condition which is either not included in the Activity Profile or which requires a level of treatment or facilities which are not available at the Hospital, the Operator must, following assessment and initial stabilisation, transfer the patient to a facility with an appropriate level of treatment or facilities - cl 10.19(b).
e)An Event of Default occurs if, inter alia:
i)the Operator fails to attain or maintain Accreditation in accordance with cl 5.2 - cl 16.1(g);
ii)the Operator fails to observe the Quality Standards - cl 16.1(h);
iii)there is a Change of Control of the Operator without the prior written consent of the State (to be determined in the State's absolute discretion) - cl 16.1(k).
f)The Operator acknowledges that the State must ensure continuous provision of the Services to Public Patients to the Quality Standards at the Hospital and that upon the occurrence of an Event of Default under cl 16.1 which results in the Operator failing to provide the Services or the Services to the Quality Standards, the State may, upon notice to the Operator, exercise the rights set out in clause 17 (Step in Rights) during the period of the Event of Default - cl 17.1.
g)The State must, in exercising the Step In Rights, ensure the continuity of delivery of essential goods and services to the Facility at commercial rates and in accordance with all statutory obligations of the State relating to the supply of goods and services - cl 17.9(b).
h)The Operator has taken all necessary action to authorise the entry into, and the observance and performance of the Operator's Covenants to be observed and performed by the Operator - cl 25.5.
i)The execution, observance and performance by the Operator of the Operator's Covenants to be observed and performed by the Operator will not violate:
i)inter alia, any judgement, binding on the Operator - cl 25.8(a);
ii)any other document or agreement which is binding on the Operator - cl 25.8(b).
j)The Operator undertakes to the State that it will, inter alia, comply fully with all laws binding on it in relation to the Facility and the provision of the Services and will ensure that it and the Facility complies with all statutes - cl 27.2 (a).
In oral submissions, the appellant's counsel also relied on cl 10.1(n) of the Services Agreement. By cl 10.1(n), in providing the services under the Services Agreement, the operator (relevantly Ramsay) had to ensure that the By-Laws were complied with. The By-Laws were contained in sch 11 to the Services Agreement. Among other things, the By-Laws provided for the credentialing of medical practitioners to practice at the PHC. Part B of the By-Laws was headed 'Visiting Practitioner Appointments'. There were various categories of visiting practitioners (by-law 15). A practitioner seeking appointment or re-appointment as a visiting practitioner was to complete a medical application form and provide it to the senior executive of the PHC (referred to as the 'Chief Executive Officer') (by-law 19). The CEO then referred the form to a Credentials Committee who, after making a recommendation, was to forward its recommendation to a Medical Advisory Committee. The Medical Advisory Committee, in turn, made its recommendation to the Board; and the Board made a final determination on the application (by-law 20). The CEO notified the applicant of the Board's decision (by-law 21). There was no right of appeal against a decision not to make an initial appointment (by-law 22(a)). However, where an applicant held an appointment, and the Board's decision was to reject or vary an existing appointment in whole or in part, there was a right of appeal as set out further in the By-Laws (by-laws 22(b), 29).
As already mentioned, in oral submissions on the appeal the appellant relied on the terms of the licence granted to Ramsay to operate the PHC. Reference was made to HSWA's licence for the year commencing 1 January 2012 and Ramsay's licence for the year commencing 1 January 2015.[12] It is sufficient to refer to the terms of Ramsay's licence for the year commencing 1 January 2015.[13]
[12] Appellant's submissions pars 9 - 19.
[13] See Attachment 'CS-4' to affidavit of C J Shaw affirmed 6 May 2021.
The licence was granted pursuant to s 26C of the Hospitals and Health Services Act. It was a licence to conduct a private hospital subject to specified conditions. The classes of patients that could be treated included major and minor orthopaedic patients. In the additional licence terms and conditions it was specified that, if the PHC did not already have one, Ramsay must establish and maintain a medical advisory committee for the facility (cl 4). Similarly, if one was not already in place, Ramsay must establish and maintain a credentialing committee for the PHC (such credentialing committee to be separately constituted from the medical advisory committee) (cl 5).
The licence specified the PHC's management team. A Dr Margaret Sturdy was mentioned as both CEO and medical director of the facility. The additional licence terms and conditions required Ramsay to notify the Chief Executive Officer, Director General of Health if any change was proposed or occurred as to the CEO of the PHC (cl 1(A)(h)).
The appellant did not identify how, as he had pleaded (see [11] above), it was a condition of the licence that Ramsay comply with all relevant requirements and responsibilities relating to the credentialing of new and existing medical practitioners at the PHC. The only relevant condition was to establish and maintain a credentialing committee. However, as discussed at [16] above, it is clear that the Services Agreement imposed requirements as to the credentialing of medical practitioners to practice at the PHC.
The appellant pleaded that, by reason of the Services Agreement and the licence, Ramsay was obliged to recognise that as at 1 June 2013 (ie on Ramsay becoming the operator of the PHC) the appellant was a credentialed practitioner with clinical privileges at the PHC (SOC par 11(a)); and the respondent[14] was responsible for supervising Ramsay's compliance in that respect (SOC par 11(b)).
[14] Which, consistently with what is stated in [4] above, should be understood as the respondent's statutory predecessor rather than the respondent. See also [27] below.

In his pleaded case the appellant then referred to Dr Sturdy. Dr Sturdy was, at all material times, employed by Ramsay as the CEO and medical director of the PHC. The appellant pleaded that Dr Sturdy was thereby responsible for Ramsay's compliance with the ASA, the Services Agreement and the licence. The appellant further pleaded that, at all material times, Ramsay was vicariously liable for the acts of Dr Sturdy (SOC par 12).
There was uncontradicted affidavit evidence that Dr Sturdy had never been employed by the respondent.[15] Rather, from the time that Ramsay took over as operator of the PHC in June 2013, Dr Sturdy had been appointed as CEO of the PHC for Ramsay.[16]
[15] Affidavit of C J Shaw affirmed 22 April 2021 pars 25 - 26; Affidavit of C J Shaw affirmed 6 May 2021 par 6.
[16] Affidavit of C J Shaw affirmed 6 May 2021 par 5.
In the SOC Dr Sturdy and Ramsay were alleged to have breached the ASA and the Services Agreement in two ways. First, by failing to recognise that the appellant was a credentialed practitioner with clinical privileges at the PHC as at 1 June 2013 (ie on Ramsay becoming the operator of the PHC). Second, in February 2015, by failing to recognise the appellant's entitlement to apply for recredentialing at the PHC. In the latter respect the appellant pleaded that on 18 February 2015 he lodged his application for recredentialing. The appellant said that Dr Sturdy failed to comply with the due process set out in the By-Laws for the recredentialing of the appellant's clinical privileges (SOC par 14).
In relation to the alleged failure to recognise that he was a credentialed practitioner at the PHC, with an entitlement to apply for recredentialing, the appellant referred to the decision of McKechnie J in Pisano v Health Solutions (WA) Pty Ltd.[17] In those proceedings, in reasons delivered on 26 September 2014, McKechnie J accepted that there was an agreement whereby the appellant was a credentialed practitioner of the PHC. His Honour accepted that the credentialing agreement was for a three-year term expiring on 1 March 2015.[18]
[17] Pisano v Health Solutions (WA) Pty Ltd [2014] WASC 356.
[18] Pisano v Health Solutions (WA) Pty Ltd [7], [26] - [28], [37], [40], [42], [54].

The pleaded causes of action

At the heart of the appellant's claim for the tort of misfeasance in public office was the following plea (SOC par 15):
By reason of the fact that:
a)Ramsay had statutory obligations as the operator of [the PHC] pursuant to the provisions of the Hospitals and Health Services Act to comply with all laws, bylaws, statutes and covenants;
b)[Dr Sturdy], as the clinical director and [CEO] of [the PHC], [was] responsible for ensuring Ramsay [sic] compliance with all laws, bylaws, statutes and covenants,
[Dr Sturdy] was a public officer of [the respondent] and [the respondent] was thereby responsible for Ramsay's compliance with its statutory obligations under the [ASA], the [Services Agreement] and the licence.
For reasons which will be apparent from the recitation of the basis on which the respondent was joined as a defendant to the appellant's action, it makes no sense to refer to Dr Sturdy as being a public officer of the respondent. The appellant complains about the failure to recognise that he was a credentialed practitioner with clinical privileges at the PHC. That occurred, at the latest, in late February 2015 - the appellant's previous term as a credentialed practitioner expiring on 1 March 2015 (see SOC par 5). The respondent did not come into existence as a body corporate until the following year (see [7] and [12] - [13] above). Accordingly, at the relevant time Dr Sturdy could not have been a public officer of the respondent - the respondent did not then exist as a legal entity. In the circumstances the plea must be understood as referring to the respondent's statutory predecessor. Ultimately, nothing turns on the appellant's misconception in this respect. Both before the master and in this court the question for determination was approached in terms of principle rather than pleading niceties. The relevant question was whether Dr Sturdy was a public officer for the purpose of the tort of misfeasance in public office.
The question whether Dr Sturdy was a public officer arose in the context of Dr Sturdy's alleged failure[19] to recognise the appellant's status as a credentialed medical practitioner at the PHC. The appellant claimed that this was the relevant power which constituted an exercise of public power.[20]
[19] This alleged 'failure' was asserted by the appellant. Conformably with the parties' approach to the summary dismissal application and the appeal, such an alleged failure may be assumed for the purpose of these reasons. However, there has been no examination of the underlying evidence. In the circumstances, while it is convenient to adopt the appellant's reference to 'failure', there is no final determination of the court that there was in fact such a failure which should be attributed to Dr Sturdy. That is all the more so where Dr Sturdy is not a party to the primary proceedings or the appeal and has not been heard in relation to the appellant's pleaded allegations.
[20] Appeal ts 5, 16.
The appellant claimed that Ramsay's conduct, by Dr Sturdy, in failing to recognise the appellant's status as a credentialed practitioner with clinical privileges and an entitlement to apply for recredentialing, was a breach of Dr Sturdy's obligations as a public officer, constituted misfeasance as a public officer, was vitiated by bad faith amounting to abuse of Dr Sturdy's power as a public officer and involved conscious maladministration in the operation of Dr Sturdy's obligations as a public officer to ensure that the PHC complied with its accreditation obligations pursuant to the ASA, the Services Agreement and the licence. The appellant said that at all relevant times the respondent was vicariously liable for those wrongful acts (SOC par 19).
The appellant also pleaded causes of action based on alleged unconscionable conduct (SOC pars 21 - 22) and breach of obligations under the ASA and the licence - this apparently being framed as a claim alleging breach of contract (SOC pars 23 - 24). How such a breach was actionable in contract at the behest of the appellant - a non-party to the relevant instruments - went unexplained.

The master's decision

The respondent made application, by chamber summons dated 22 April 2021, for summary judgment pursuant to O16 r 1(1) of the Rules of the Supreme Court 1971 (WA) (RSC). The application was filed out of time and required leave. The appellant did not oppose leave in circumstances where the application was brought just out of time and an explanation was provided for the delay.[21]
[21] Primary reasons [17].
The master identified that the summary judgment application raised the question whether Dr Sturdy, as the CEO of the PHC, could be regarded as a 'public officer' for the purpose of the tort of misfeasance in public office.[22]
[22] Primary reasons [1].
Before turning to that question, the master outlined the appellant's pleaded case.[23]
[23] Primary reasons [2] - [11].
On appeal the appellant took issue with three aspects of the master's recitation of the pleaded case. First, in relation to the appellant's plea that it was a material term of the ASA that Ramsay would be liable for all of HSWA's obligations under the terms of any third-party contract, the master said there was no suggestion that Ramsay did not comply with the terms of that agreement.[24] As will be seen, this was challenged by ground 1(a)(i). Second, as to a plea that it was a condition of the licence that Ramsay would comply with all relevant requirements and responsibilities relating to the credentialing of medical practitioners, the master said that there was 'no dispute' that such a condition was in the licence.[25] By ground 1(a)(ii) the appellant contended that this was an erroneous finding that Ramsay had complied with the condition. Third, by ground 1(b), the appellant complained that the master ought to have found that Ramsay had not recognised that the appellant was a credentialed practitioner, which failure was a breach of one or more of the ASA, the Services Agreement or the annual licence.
[24] Primary reasons [6].
[25] Primary reasons [6].
Having considered the pleaded case, and identifying the question that arose as to whether Dr Sturdy was a public officer for the purpose of the tort of misfeasance in public office, the master clarified the nature of the appellant's case. The master stated:
During the course of counsel for [the appellant's] submissions, I sought to clarify with him precisely what [the appellant] was arguing. It amounts to this. Ramsay, pursuant to a contractual arrangement with the State government (represented by its agent [the respondent]), provides medical services to the public. It provides private services for which it charges a fee and it provides public services for which no fee is charged. So by way of example, a person who requires a hip replacement can present at [the PHC] and in due course will undergo surgery. In days past, [the PHC] would have been run by the State government - even if the actual party running [the PHC] was an agency such as [the respondent]. In those circumstances, the Chief Executive Officer of the public corporation running the hospital was a 'public officer'. It was [the appellant's] position [that] a private operator, which assumed the public service, which would otherwise have been provided by the government, rendered the private enterprises run by the Chief Executive Officer, a public officer.
In this respect, as will be seen, the appellant's argument on appeal was consistent with what was advanced before the master.
The master then referred to the Public Sector Management Act 1994 (WA) and the decision of the New South Wales Court of Appeal in Obeid v Lockley.[26] After doing so the master concluded it was not reasonably arguable that Dr Sturdy, as the CEO of Ramsay in respect of the PHC, held 'public office' or that she was exercising a 'public power'.[27] The master stated that Dr Sturdy was an employee of Ramsay and was responsible according to the terms of her contractual engagement to Ramsay - and just to Ramsay. Dr Sturdy was, in the master's view, a 'private officer' and the circumstance that Ramsay had written obligations to the respondent's statutory predecessor, and that certain consequences would follow if Ramsay breached those obligations, did not make Dr Sturdy a public officer.[28]
[26] Obeid v Lockley [2018] NSWCA 71; (2018) 98 NSWLR 258.
[27] Primary reasons [1], [14].
[28] Primary reasons [14].
The master's finding that it was not reasonably arguable that Dr Sturdy held 'public office' or that she was exercising a 'public power' is challenged by ground 2.
The master also considered the plea that the respondent (ie the respondent's statutory predecessor) was vicariously liable for the alleged wrongful acts of Dr Sturdy. The master held:
Ramsay employed Ms Sturdy. There is nothing to suggest [the respondent] had any say in Ms Sturdy's employment, nor is there anything pleaded to the effect that [the respondent] could in any way control the discharge by Ms Sturdy of her contractual obligations to Ramsay. That being so, there is no basis upon which [the respondent] could be liable for any wrongful acts of Ms Sturdy.[29]
[29] Primary reasons [15].
This finding is challenged by ground 3.
It will be recalled that the SOC raised other causes of action in addition to the claim of the tort of misfeasance in public office. The master held that the plea of unconscionable conduct was not reasonably open.[30] That conclusion is not challenged on appeal. The master did not address the cause of action based on breach of contract (see [30] above). However, that omission was not the subject of any ground of appeal and may thus be put aside.
[30] Primary reasons [16].

Grounds of appeal and notice of contention

The grounds of appeal are unnecessarily prolix and obscure the appellant's essential contentions in support of the appeal. Accordingly, so as not to disrupt the course of these reasons, we will not reproduce the grounds in full. Instead it is convenient to describe the general nature of the alleged errors the subject of the grounds of appeal.
Ground 1 concerns alleged errors by the master in his appreciation of the appellant's pleaded case (see [34] above). In substance ground 1 is in three parts. At bottom the appellant contended that the matters of fact pleaded in the statement of claim had to be accepted for the purpose of the summary judgment application. In that respect the appellant submitted that the master erred in not making findings in terms of the appellant's pleaded case.
Grounds 2 and 3 challenged the master's basal conclusions which meant that, in the master's opinion, the action could not succeed:
1.By ground 2 the appellant alleged that the master erred in law in finding that Dr Sturdy was not a public officer discharging a public duty. According to the appellant, the master should have held that it was arguable that Dr Sturdy was a public officer exercising a public power when Dr Sturdy failed to recognise the appellant's credentialing contract for the three years to 1 March 2015.
2.By ground 3 the appellant alleged that the master erred in fact and in law in finding that the respondent could not be vicariously liable for Dr Sturdy's alleged wrongful acts. According to the appellant, the master should have held that, by reason of the step in rights in the Services Agreement, the respondent (more correctly the respondent's statutory predecessor) was in a position to control the discharge by Dr Sturdy and Ramsay of Ramsay's contractual obligations and in particular Ramsay's obligation to recognise that the appellant had a credentialing contract for the three years to 1 March 2015.
The appellant must succeed on both ground 2 and ground 3 to succeed on the appeal.
The respondent denied that there was any error as alleged. The respondent also relied on a notice of contention. Notice of contention ground 1(a) is bound up with ground 3. The respondent contended it had a good defence to the appellant's claim that the respondent was vicariously liable for the actions of Dr Sturdy on the basis that, even if Dr Sturdy was a public officer exercising a public power, the respondent could not be vicariously liable for the tortious act of an independent public officer. Notice of contention ground 1(b) was concerned with the breach of contract claim apparently advanced by par 23 of the appellant's SOC. The appellant did not rely on the breach of contract claim in his appeal. In the circumstances nothing more needs to be said as to notice of contention ground 1(b).
Before considering the merits of the grounds it is necessary to say something of the applicable legal principles.

Applicable legal principles: defendant's application for summary judgment

Summary judgment is a procedure designed to deal with cases that are not fit for trial.[31]
[31] Three Rivers District Council v Bank of England [No 3] [2001] UKHL 16; [2003] 2 AC 1 (Three Rivers (No 3)) [95].
Order 16 r 1(1) RSC allows a defendant to an action to apply to the court for summary judgment. The application may be made without leave at any time up to 21 days after the defendant enters an appearance. Subsequent to 21 days after appearance the application requires leave of the court. The court may order that judgment be entered for the defendant, with or without costs, if satisfied that: (1) the action is frivolous or vexatious; (2) the defendant has a good defence on the merits; or (3) the action should be disposed of summarily.
In substance, each of those three matters amounts to the same thing - that the plaintiff's action is so clearly untenable that it could not possibly succeed at a trial in the ordinary way.[32]
[32] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [52].
The application is to be made by summons supported by an affidavit or affidavits verifying the facts on which the application is based (O 16 r 1(2) RSC). The plaintiff may show cause against the application by affidavit (O 16 r 2(1) RSC). Unless the court otherwise directs, the parties' affidavits may contain statements of information or belief provided that the sources and grounds for the information or belief are disclosed (O 16 r 1(3) & r 2(1a) RSC).
The general principles that apply on a defendant's application for summary judgment under O 16 r 1(1) RSC are well-established:
1.The power to order summary judgment is one that should be exercised with great care (sometimes expressed as 'exceptional caution'). A party should not ordinarily be denied the opportunity to have its case determined following trial. It is only in the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the proceedings if they were to go to trial, that summary judgment ought properly to be granted. Accordingly, summary judgment will be granted only where it is clear there is no real question to be tried.[33]
2.Put alternatively, the relevant question for summary dismissal is whether, on the materials before the court, it has been demonstrated that the plaintiff's action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail.[34]
3.At all times the defendant retains the legal onus of demonstrating that the application for summary judgment ought to succeed. The defendant must establish that there is no real question to be tried on any cause of action raised by the plaintiff.[35]
4.If a defendant's affidavit material establishes the basis for the summary judgment application, the plaintiff may assume an evidentiary onus to show why summary judgment should not be given.[36] The plaintiff may, by an affidavit to show cause pursuant to O 16 r 2(1) RSC, seek to demonstrate the existence of a triable issue. The plaintiff's affidavit must condescend to particulars - it must set out facts which establish that it is reasonable to allow the plaintiff to pursue the action.[37]
5.Actions should not be disposed of summarily where the material factual issues between the parties are in dispute. Similarly, summary dismissal should not be awarded simply because the court has formed the view that the plaintiff is unlikely to succeed on the factual issues.[38] Unless the evidence is inherently incredible, where there is a conflict in the affidavit evidence the court should approach the summary judgment application on the basis that the facts set out in the affidavits of the party resisting judgment will be accepted at trial.[39] But the court is not bound to accept uncritically, as raising a factual dispute calling for further investigation, every statement in an affidavit however inherently improbable in itself or equivocal, lacking in precision or inconsistent with undisputed contemporary documents or other statements by the deponent.[40]
6.Where a plaintiff's claim depends on propositions of law apparently precluded by existing authority that may not always be the end of the matter. The court should be careful not to risk stifling the development of the law by summarily rejecting a claim if there is a reasonable possibility that the law is developing. Summary processes must not be used to stultify the development of the law where existing authority may be overruled, qualified or further explained.[41]
7.It is not the case that summary judgment will only be given where the action is so hopeless as to not require argument. Extensive argument may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot possibly succeed.[42]
8.On an application under O 16 r 1(1) RSC the plaintiff is confined to the causes of action pleaded in the statement of claim (although the statement of claim will be construed broadly and generously, with ambiguities assumed in favour of the plaintiff, and a reasonable application to amend will be permitted). It is not for the court to identify or accept possible causes of action which are arguably available on the evidence but are not pleaded.[43]
[33] Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 90 - 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129 - 130; Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99; Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 602 - 603, 611 - 612, 619; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55]; Sutton Investments Pty Ltd v Realistic Investment Pty Ltd [2017] WASCA 14 [24]; Zaghoul v Bayly [2021] WASCA 125 [116] - [117].
[34] Webster v Lampard (602).
[35] Anderson v Effexseven(1998) 10 ANZ Ins Cas 61-424, 74,757.
[36] Scaffidi Nominees Pty Ltd v Buswell (Unreported, FCSCWA, Library No 960588, 11 October 1996), 8 (Murray J); Cordinup Resorts v Terana Holdings Pty Ltd(1997) 143 FLR 18, 23 - 24; Anderson v Effexseven(74,757).
[37] Wallingford v Mutual Society (1880) 5 App Cas 685, 704.
[38] Spencer v The Commonwealth of Australia [25].
[39] Webster v Lampard (604), (608), (611), (614).
[40] Eng Mee Yong v Letchumanan [1980] AC 331, 341.
[41] Spencer v The Commonwealth of Australia [25].
[42] General Steel Industries Inc v Commissioner for Railways (NSW) (130).
[43] Forsayth NL v Northern Gold NL (Unreported, FCSCWA, Library No 940012, 20 January 1994), 7 (Franklyn J); Anderson v Effexseven(74,757); Roddan v Shore [2001] WASCA 373 [31] - [32]; Zaghoul v Bayly [80] - [82].

In addition to these general principles, the appellant contended that matters of fact pleaded in the statement of claim must be accepted for the purpose of a summary judgment application, ie for the purpose of determining a summary dismissal application it is assumed that the facts as pleaded will be proved.[44]
[44] Appellant's submissions par 30.
There is support for that proposition in some first instance decisions.[45] Certainly, as a matter of practice, it is ordinarily appropriate on a O 16 RSC summary judgment application to proceed on the basis of an assumption that the facts alleged in the statement of claim can be established at trial. We would not, however, embrace and adopt the proposition in the broad and unqualified terms as advanced by the appellant. For example, in the same way that, as has been explained above, the court is not bound to accept uncritically every statement in an affidavit, so too there will be occasions on a defendant's summary judgment application where the court is not bound to accept all matters of fact pleaded in a statement of claim.
[45] See eg LCLA Pty Ltd v Barkay Pty Ltd [2018] WASC 400 [2]; Cockman v Gorman [2022] WASC 125; (2022) 366 FLR 284 [7], [22].
It is not necessary for the disposition of this appeal to further examine the circumstances in which the court might properly not accept a matter of fact as pleaded for the purpose of an O 16 RSC summary judgment application. It suffices to state that, as will be seen, to the extent that the appellant contended that the master erred by not accepting the facts as pleaded in the statement of claim, there was no substance in the appellant's allegations.

Applicable legal principles: tort of misfeasance in public office

The appellant's claim is founded on the contention that Dr Sturdy was a public officer who committed misfeasance in public office and the respondent's statutory predecessor is vicariously liable for her wrongful act.
In 1995 five members of the High Court described the tort of misfeasance in public office as well-established albeit that its precise limits were undefined.[46] It is not necessary to examine the nuances of the tort in these reasons or to delve into the various aspects of the tort that remain contentious. It will be apparent from the grounds of appeal that the matters in issue on this appeal are relatively confined. It will be necessary, in due course, to give more detailed consideration to the two aspects of the tort raised by ground 2 of the appeal. For now, however, it is intended to do no more than provide a brief overview of the nature of the tort of misfeasance in public office.
[46] Northern Territory of Australia v Mengel (Mengel) [1995] HCA 65; (1995) 185 CLR 307, 345.
Misfeasance in public office is concerned with the performance of public duties - in particular with the misuse of public power.[47] The core concept is one of dishonest abuse of power.[48] The rationale of the tort is that in a legal system based on the rule of law, executive or administrative power may be exercised only for the public good and not for ulterior and improper purposes.[49]
[47] Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329 [37], [39].
[48] Three Rivers (No 3) (235); Sanders v Snell (No 2) [2003] FCAFC 150; (2003) 130 FCR 149 [97], [108].
[49] Three Rivers (No 3) (190).
The tort of misfeasance in public office is an intentional[50] (or deliberate)[51] tort. It consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to the plaintiff. The tort has a mental element. While, on the authorities, there is some debate as to the precise limits of the mental element, it is clear that the mental element is satisfied where the public officer engages in the impugned conduct with malice (ie an intention to injure) or knowledge that there is no power to engage in that conduct and that the conduct is calculated to produce injury. It has also been said that reckless indifference as to those matters will suffice as being inconsistent with an honest attempt to perform the functions of a public office. So understood the tort is concerned with conduct which is properly characterised as an abuse of office and with the results of that conduct.[52]
[50] Sanders v Snell [42].
[51] Mengel (345).
[52] Mengel (356 - 358), (370 - 371). But, as to reckless indifference, compare Mengel (347).
Conformably with this broad summary, Allsop P (as his Honour was then) has described the tort as being concerned with the exercise of governmental or executive power vested in a person with a power or duty to exercise it.[53] This echoes an observation of Lord Hobhouse of Woodborough in Three Rivers (No 3). His Lordship stated that the tort concerned 'the acts of those vested with governmental authority and the exercise of executive powers'.[54] Also in the United Kingdom, Buxton LJ has summarised the nature of the wrong as one where a public official, who is given powers for public, governmental purposes, misuses them for a different purpose, conscious that in doing so he or she may injure the claimant.[55]
[53] Leerdam v Noori [50]. To similar effect see: Three Rivers (No 3) (229); Society of Lloyd's v Henderson [2007] EWCA Civ 930; [2008] 1 WLR 2255 [23]; Leerdam v Noori [104].
[54] Three Rivers (No 3) (229).
[55] Society of Lloyd's v Henderson [24]. See also [21].
The authorities identify various elements to be proved to make out the tort.[56] For present purposes it is enough to say that, among other things, the alleged tortfeasor must hold a public office and the act complained of must be an exercise of public power.[57]
[56] See eg Mengel (370); Three Rivers (No 3) (191 - 196); Sanders v Snell (No 2) [95] - [96]; Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317 [34], [40]; Society of Lloyd's v Henderson [22].
[57] Obeid v Lockley [103].

Disposition: Ground 1 - the alleged misapprehension of the appellant's pleaded case

Ground 1(a)(i) focused on a statement in the primary reasons to the effect that '[t]here is no suggestion that Ramsay did not comply with the terms of that agreement'.[58]
[58] Primary reasons [6].
There is, with respect, some uncertainty about the agreement being referred to in that sentence. The appellant contended that it referred to the ASA. This, it was said, meant there was appealable error as the appellant pleaded there was a breach of the ASA (SOC par 14) and the master was bound to accept the facts as contended by the appellant. Against that, the impugned sentence followed a sentence that 'Ramsay was bound to respect the credentials [the appellant] had with [HSWA]'. It was possible that this was what the master was referring to when he stated that there is no suggestion that Ramsay did not comply with the terms of that agreement.
If the appellant is correct, and the master was referring to the ASA in the impugned passage, we are not satisfied that there was a material error. Later in the primary reasons the master reproduced the plea at SOC par 14.[59] The master then recorded that the respondent, for the purpose of the summary judgment application, accepted the matters as pleaded in SOC par 14. It is plain, on a fair reading of the primary reasons as a whole, that the master proceeded to determine the summary judgment application on the basis of the facts as pleaded in par 14 of the SOC. The master accepted, for the purpose of the summary judgment application, that Ramsay breached the ASA and the Services Agreement by failing to recognise that the appellant was a credentialed practitioner with clinical privileges and an entitlement to apply for recredentialing. There was, in the circumstances, no material error as alleged by ground 1(a)(i) even if the impugned passage bears the meaning ascribed to it by the appellant.
[59] Primary reasons [9]. See also [24] above.
When, during the appeal hearing, this was raised with the appellant's counsel, counsel accepted - quite properly - that ground 1(a)(i) could not be taken any further.[60] It should, however, be observed that even if ground 1(a)(i) had been made out there was no attempt to show how the impugned passage impacted on the master's finding that it was not arguable that Dr Sturdy held public office, or was exercising a public power, for the purpose of the tort of misfeasance in public office. So, even if established, ground 1(a)(i) could not have resulted in the appeal being upheld.
[60] Appeal ts 4.
Ground 1(a)(i) fails.
Ground 1(a)(ii) was also without merit. The ground asserted that the master found that Ramsay had complied with a condition of the licence that it comply with all relevant requirements and responsibilities relating to the credentialing of new and existing medical practitioners at the PHC. The master made no such finding as to compliance with the condition. The master found only that, consistently with the appellant's pleaded case, there was no dispute that such a condition was in the licence.[61] Ground 1(a)(ii) fails.
[61] Primary reasons [6].
Ground 1(b) again ignores the master's acceptance of the facts pleaded in the appellant's SOC. The complaint is that the master ought to have found, for the purpose of the summary judgment application, that Ramsay, by Dr Sturdy, did not recognise that the appellant was a credentialed practitioner at the PHC and that this was in breach of the ASA, the Services Agreement and the licence. The simple fact is that, as has been seen, the master determined the summary judgment application on the basis that there was an acceptance of the facts as pleaded in par 14 of the SOC. This, in substance, meant that the master made findings for the purpose of the summary judgment application to the effect of those raised by ground 1(b) with one exception. The exception was that the master did not accept, expressly, that the failure to recognise the appellant's status and entitlements was in breach of the licence. But this was not part of the pleaded allegations in SOC par 14. In the circumstances the absence of an express finding in relation to a breach of the licence was not in error.
Ground 1(b) fails.

Disposition: Ground 2 - the appellant's contention that it is arguable that Dr Sturdy, as CEO of the PHC, was a public officer exercising a public power

The appellant's case on appeal

By ground 2 the appellant contended that the master was in error in not holding that there was a real question to be tried as to whether, for the purpose of the tort of misfeasance in public office: (1) Dr Sturdy held a public office as CEO of the PHC; and (2) Dr Sturdy was exercising a public power when she failed to recognise the appellant's status as a credentialed medical practitioner at the PHC.
In support of ground 2 the appellant referred to a number of the recent leading authorities concerning the tort of misfeasance in public office.[62] The appellant sought to extract a principle that the essential question was not concerned with the trappings of the relevant office, if any, or indeed 'whether or not it is a public office', but rather whether the putative officer was performing a public duty or function.[63] The argument that was then advanced as being at the heart of the appellant's proposition that Dr Sturdy was a public officer exercising public power was that:[64]
1.The Minister, through the various health providers, was responsible for the provision of health services in each of the health service areas. In this respect the appellant relied on s 32 of the Health Service Act.
2.The Minister established the respondent to be the health service provider for a number of areas including Mandurah.
3.The Minister, initially, and the respondent, subsequently, as part of the remit to provide health services in Mandurah, entered into the Services Agreement appointing HSWA and then Ramsay to provide health services in Mandurah.
4.The Services Agreement set out a number of obligations, for HSWA and Ramsay as operator, consistent with the efficient, effective and economic provision of health services in Mandurah.
5.Each of HSWA and Ramsay was paid a fee for the provision of health services in Mandurah to public patients.
6.Ramsay appointed Dr Sturdy as its CEO and medical director to implement Ramsay's obligations under the Services Agreement.
7.The respondent accordingly divested to Ramsay and Dr Sturdy the public duty for the provision of health services in Mandurah insofar as those health services related to public patients.
[62] The appellant referred to: Three Rivers (No 3); Cannon v Tahche; Neilson v City of Swan [2006] WASCA 94; (2006) 147 LGERA 136; Leerdam v Noori [2009] NSWCA 90; (2009) 227 FLR 210; Obeid v Lockley.
[63] Appeal ts 10 - 12, 15 - 16.
[64] Appeal ts 4 - 5; appellant's submissions par 46.
There is an obvious problem with the appellant's analysis that underpinned the argument as so advanced. It relied, as can be seen from the appellant's references to the respondent and s 32 of the Health Services Act, on the statutory framework and circumstances post-1 July 2016 despite the alleged wrongful actions of Dr Sturdy occurring in or about February or early March 2015. When, at the appeal hearing, this was pointed out to counsel for the appellant, counsel quite properly accepted that insofar as this was the position these matters did not advance the appellant's case.[65]
[65] Appeal ts 6 - 7.
Counsel for the appellant also accepted that nowhere did the appellant plead the Minister's duties to the public were relied on for the purpose of the claim.[66] However, when the provision was pointed out to the appellant's counsel by the court, counsel relied on s 5A(1) of the Hospitals and Health Services Act as it stood in 2015:
It shall be the duty of the Minister to provide, to such extent as he considers necessary to meet all reasonable requirements:
(a)hospital accommodation; and
(b)hospital service, whether at a public hospital or, if necessary on medical grounds, elsewhere; and
(c)health services.
[66] Appeal ts 9.
By s 5A(3) of the Hospitals and Health Services Act (again as it stood in 2015) the duty of the Minister under s 5A could be discharged by making arrangements on such terms as the Minister thought fit (which might include the payment of charges) for securing the performance of any service on behalf of the Minister.
It is evident that, consistently with s 5A(3), the Minister entered into the Services Agreement in discharge of the Minister's duty under s 5A(1). This does not mean that - in terms of the appellant's submission (see [71.7] above) - the Minister 'divested' to Ramsay and Dr Sturdy the public duty for the provision of health services to public patients in Mandurah. The Act does not provide for the Minister to divest the Minister's duty under s 5A(1) by assigning or delegating the duty to another. Rather, by entering into the Services Agreement the Minister was satisfying and fulfilling the Minister's statutory duty by carrying out one means of performing the duty under s 5A(1) of the Hospitals and Health Services Act. There is no proper basis in the statutory scheme to conclude that there is, by discharge of the Minister's duty under s 5A(1) through the means provided in s 5A(3), the assumption of a correlative public duty by the Minister's counterparty to the arrangements securing the performance of services on behalf of the Minister.
The appellant contended that, in the relevant legislative framework and the contractual relationship under the Services Agreement, the CEO position occupied by Dr Sturdy was a public office and Dr Sturdy was exercising public power.[67] The appellant said that this followed from the nature of the public functions and duties that Ramsay was performing in providing health services in Mandurah pursuant to the Services Agreement.[68] In this connection, so as to bring in Dr Sturdy in particular, the appellant relied on the licence granted to Ramsay to operate the PHC and the licence's identification of Dr Sturdy as the CEO of the PHC.
[67] Appeal ts 10 - 11.
[68] Appeal ts 19.
The appellant submitted that, on the authorities, there were some circumstances in which a privately employed person could be considered to be a public officer. Here the contention was that, as Dr Sturdy and Ramsay were exercising duties and functions of a public nature - the provision of health services to the public in the Mandurah region - it was arguable that Dr Sturdy was a public officer for the purpose of the tort of misfeasance in public office. The appellant cautioned that the development of the law as to what might constitute a public office ought not to be stifled by the summary dismissal of the primary proceedings.[69]
[69] Appellant's submissions pars 62 - 63.
Insofar as the exercise of power being challenged concerned the failure to recognise that the appellant was a credentialed medical practitioner, the appellant's counsel argued that the omission the appellant complained about was a public power as it was concerned with the provision of services to public patients that Ramsay had to comply with.[70]

The authorities as to 'public office' and 'public power' for the tort of misfeasance in public office

[70] Appeal ts 17, 21 - 22.

It is important to recognise that the term 'public office' is used in areas other than the tort of misfeasance in public office. For example, in R v McCann[71] the Court of Appeal in Queensland considered the meaning of the term 'the holder of any public office' for the purpose of an offence of official corruption contrary to s 87(1) of the Criminal Code (Qld). Byrne J observed that the meaning of the expression was dependent on its context.[72] That is also true in examining the breadth of the concept of 'public office' or 'public officer' for the purpose of the tort of misfeasance in public office. The concept is informed by the nature of the tort and the rationale that underpins it.
[71] R v McCann [1998] 2 Qd R 56.
[72] R v McCann (68).
In Neilson v City of Swan Buss JA (as his Honour was then), with Wheeler & Pullin JJA agreeing, observed that 'the authorities have not established definitively the nature and characteristics of a "public office" for the purpose of the tort'.[73] Indeed, as said elsewhere, general authority on how a 'public officer' is defined for the purpose of the tort is not easy to find.[74] However, Buss JA did identify the following statements in the authorities:
1.In Henly v Mayor of Lyme Best CJ identified the class of public officers as follows:
Then, what constitutes a public officer? In my opinion, everyone who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the Crown or otherwise, is constituted a public officer.
…
It seems to me that all these cases establish the principle, that if a man takes a reward, - whatever be the nature of that reward, whether it be in money from the Crown, whether it be in land from the Crown, whether it be in lands or money from any individual, - for the discharge of a public duty, that instant he becomes a public officer; and if by any act of negligence or any act of abuse in his office, any individual sustains an injury, that individual is entitled to redress in a civil action.[75]
2.In Three Rivers District Council v Governor and Company of the Bank of England (No 3) Lord Steyn and Lord Hobhouse stated respectively:
It is the office in a relatively wide sense on which everything depends. Thus a local authority exercising private-law functions as a landlord is potentially capable of being sued. In the present case it is common ground that the Bank satisfies this requirement.[76] (citations omitted)
It is a broad concept and has been further extended by recognising that there may be a vicarious liability of the relevant governmental authority for the acts of the public official.[77]
[73] Neilson v City of Swan [37]. To similar effect see Leerdam v Noori [47].
[74] Society of Lloyd's v Henderson [23].
[75] Henly v Mayor of Lyme (1828) 5 Bing 91, 107 - 108; (1828) 130 ER 995, 1001.
[76] Three Rivers (No 3) (191).
[77] Three Rivers (No 3) (230). Lord Hobhouse had earlier observed that the tort concerned the acts of those 'vested with governmental authority and the exercise of executive powers': Three Rivers (No 3) (229).

Buss JA also referred to what was stated by Smith J, delivering the judgment of the Full Court of the Supreme Court of Victoria, in Tampion v Anderson:
The precise limits of the tort have yet to be defined, but certain things are clear. Employment with the Crown is not necessarily a public office for this purpose. The office must be one the holder of which owes duties to members of the public as to how the office shall be exercised …[78]
[78] Tampion v Anderson [1973] VicRp 70; [1973] VR 715, 720.
However, subsequently the Victorian Court of Appeal has said that the criterion of the carrying out of a public duty will not be an appropriate guide in every case.[79]
[79] Cannon v Tahche [54].
While, as Buss JA has stated, there is no definitive test to determine what constitutes public office for the purpose of the tort of misfeasance in public office, it has also been said that an authoritative statement of a test for determining what constitutes a public officer is not needed as '[i]n almost all cases the answer will be obvious'.[80] So too it has been suggested that where there is doubt about whether a person occupies a public office for the purpose of the tort it will ordinarily be enough to approach the matter on the basis that the tort is concerned with the misuse or abuse of public power or that the tort is concerned with the performance of public duties.[81] This was not the approach of counsel for the appellant in the present appeal. Counsel for the appellant instead relied on what had been said and found in a number of intermediate appellate cases. In deference to counsel's argument we now turn to those authorities on which the appellant particularly relied in written and oral submissions, the first of which is the Victorian Court of Appeal decision in Cannon v Tahche.
[80] Leerdam v Noori [3]. To similar effect see Society of Lloyd's v Henderson [23].
[81] Leerdam v Noori [4].
Cannon v Tahche involved a claim of misfeasance in public office against a prosecutor (a barrister at the independent bar) and an instructing solicitor (an employee of the Director of Public Prosecutions). The claimant, who was convicted of rape, had his conviction quashed following evidence that the complainant had fabricated similar allegations. The claimant alleged that the barrister and solicitor had committed the tort of misfeasance in public office by withholding evidence that the complainant had fabricated her allegations. On a trial of preliminary issue it was held that the prosecutor and the instructing solicitor were each a public officer for the purpose of the tort. On appeal that finding was reversed.
The Court of Appeal considered the criteria for determining whether an office is a public office for the purpose of the tort. The claimant's case was that this was to be resolved by reference to whether the alleged tortfeasor was required to perform public duties. The defendants contended that it depended on whether the necessary power attached to their positions. The Court of Appeal held that the relevant power (which it described as 'a public power or one which must be exercised for the "public good"')[82] must attach to (or be an incident of) the office held by the alleged tortfeasor.[83] The Court of Appeal stated:
[S]ince the tort is essentially concerned with the misuse of a relevant power which is an incident of a public office, it follows as a matter of practicality that an office cannot be characterised as a public office for the purposes of the tort if no relevant power is attached to it. Put another way, an essential feature of such a public office is that a relevant power is an incident of it.[84]
[82] Cannon v Tahche [28].
[83] Cannon v Tahche [28], [33], [40(a)], [49], [53], [55], [61], [73].
[84] Cannon v Tahche [49].
It was accepted, nevertheless, that there are other criteria by which the existence of a public office might be determined.[85] It was accepted, by way of example, that in the authorities various courts had identified a public office by reference to the public duties that its holder was required to discharge.[86] But this was said to be not surprising insofar as the occupier of a public office would often be required to discharge duties so that, in speaking of the hallmarks of a public office, courts had sometimes spoken in terms of public duties, and sometimes in terms of relevant powers, and on other occasions in terms of both public duties and relevant powers.[87] The Court of Appeal then stated:
[I]t may be appropriate in some (but certainly not all) circumstances to assess whether an office is a public office by reference not only to the public duties that are attached to it but also to the trappings of the office. If, however, an essential element of the tort is the misuse by the holder of the public office of a relevant power that is attached to it, it must follow that the elements of the tort are not sufficiently established unless there is a relevant power attached to the office in question. A plaintiff who sues for misfeasance in public office must therefore establish, inter alia, that the office has a relevant power attached to it. Having thus established that the office is a public office for the purposes of the tort, it would be unnecessary for the plaintiff to rely on the trappings or other criteria of a public office for the purpose of determining whether a particular position is such an office.[88] (emphasis added)
[85] Cannon v Tahche [50].
[86] Cannon v Tahche [50].
[87] Cannon v Tahche [52].
[88] Cannon v Tahche [53].
By 'trappings of office' the Court of Appeal evidently meant various indicia of office as relied on by counsel for the claimant in that case. These included: the title given to the position; the fact that the position was not an occasional one; the circumstance that the office existed separate from its holder; the appointment of the person to the position; the appointment having tenure; remuneration for the position coming from public funds; the office requiring the performance of specific functions for the benefit of the public; the holder being the repository of specific conferred powers which attached to the office; the exercise of the powers not being subject to the direction of others; and the position being one of responsibility.[89]
[89] Cannon v Tahche [51].
Other accepted indicia of public office have been identified in the authorities. There is, for example, a comprehensive survey of American and other authorities discussing the characteristics of a public office by Byrne J in R v McCann.[90] Among other things Byrne J reproduced the following passage as to the characteristics of a public officer:
The key considerations in determining whether one is a public officer are the nature of the office, the powers wielded, and the responsibilities which are carried out … The characteristics of a public office include: (1) creation by statute or constitution; (2) exercise of some portion of the sovereign power; (3) a continuing position not occasional or contractual; (4) a fixed term of office; (5) an oath requirement; (6) liability for misfeasance or nonfeasance; and (7) the official has an independence beyond that of employees. A public officer may be either appointed or elected; customarily will perform a public or governmental duty; the enforcement of governmental regulations or the control of the general interest of society will be confided in him; usually he will have general duties as part of the regular administration of government; and the right to emoluments.[91]
[90] R v McCann (70 - 74).
[91] R v McCann (72).
The sixth characteristic is of little assistance for present purposes. Saying that a public officer is a person who will be liable for the tort of misfeasance in public office does not assist in identifying whether a person is the holder of a public office and thus a public officer for the purpose of the tort. It merely describes a consequence of being a public officer for the purpose of the tort. Otherwise the list provides a useful collection of the kind of characteristics to be expected of the holder of a public office for the purpose of the tort.
Returning to Cannon v Tahche, in determining whether the barrister and the solicitor were public officers for the purpose of the tort the Court of Appeal considered the nature and extent of the powers and duties which attached to the positions the defendants held. The Court of Appeal differentiated such powers and duties from the functions being performed:
[E]ven the Director [of Public Prosecutions] and a statutorily appointed Crown Prosecutor, each of whom is, probably, a holder of a public office, are not invested with any relevant powers in respect of the conduct of a prosecution. Whatever powers may be said to attach to the office of the Director, for example, when appearing in court to prosecute at a trial, he or she does not thereby exercise any relevant power but, rather, performs a function of the office, that being to represent the Crown at a criminal trial.[92] (emphasis added)
[92] Cannon v Tahche [61].
While the prosecutor had a duty of disclosure, it was a duty owed to the court not to the public generally or the accused.[93] Otherwise in deciding whether to disclose information the prosecutor, like the DPP in the example in the preceding quotation, was doing no more than fulfilling his function having been briefed to act as a prosecutor. The barrister did not assume any office and did not acquire any relevant power as prosecutor.[94] Thus a prosecutorial function did not carry any relevant power so that it could be found that a prosecutor appearing at trial occupied a public office for the purpose of the tort of misfeasance in public office.[95] That was all the more so for the instructing solicitor - her obligations could rise no higher than those imposed on prosecuting counsel. The solicitor, as a member of the staff of the Director, occupied no office and her position had no relevant power attached to it.[96]
[93] Cannon v Tahche [56] - [59].
[94] Cannon v Tahche [61].
[95] Cannon v Tahche [54], [72].
[96] Cannon v Tahche [73].
Leerdam v Noori concerned a claim against solicitors engaged by a Commonwealth minister in proceedings in the Administrative Appeals Tribunal. The AAT proceedings challenged the minister's refusal to grant the claimant a visa. The claimant failed in the AAT but, after an appeal was allowed, was granted a protection visa. The claimant subsequently commenced proceedings for, among other things, the tort of misfeasance in public office in connection with the conduct of the AAT proceedings. The claimant alleged that the solicitors failed to adequately answer a claim for particulars. It was held that the solicitors were not public officers for the purpose of the tort. Spigelman CJ stated:
In answering, or rather failing to adequately answer, the request for particulars, and in the other respects complained of, the appellants [ie the solicitors] were not discharging a public duty, nor were they exercising a public power, nor in any other way did they occupy a public office.
In the present case there is no 'office' or governmental power of any character. The concept of an 'office', in the context of liability for abuse of power, connotes an official position to which continuing functions or duties are assigned. Those duties or functions must be of a 'public' nature. It is not sufficient merely to be employed by a public authority for public purposes.[97] (original emphasis) (citations omitted)
[97] Leerdam v Noori [15] - [16].
Spigelman CJ had earlier observed that the identification of a power to act was a necessary step in determining whether the conduct complained of occurred in the purported performance of the functions of a public office.[98] The alleged wrongful conduct had to involve the exercise of power as a public officer.[99] His Honour concluded that the impugned conduct the subject of Leerdam v Noori was not capable of constituting the exercise of a public power or the discharge of a public duty. The role of the solicitors was entirely contractual. Moreover, the function performed was not itself a public function. It followed that the solicitors held no 'office' for the purpose of the tort of misfeasance in public office.[100]
[98] Leerdam v Noori [6].
[99] Leerdam v Noori [8].
[100] Leerdam v Noori [19], [21]. See also [26].
Allsop P observed that two different approaches were discernible in the authorities. There were cases which emphasised the existence of an office by which the holder thereof owed duties to members of the public as to how the office was to be exercised. Other cases emphasised a functional approach by performance of a public duty or power.[101] His Honour reasoned that the tort was concerned with the exercise of governmental or executive power vested in a person with a power or duty to exercise it.[102] No governmental or executive power or duty, nor any other public duty, was vested in the solicitors; they simply agreed, by contract, to provide their professional skill and expertise in representing the minister.[103] Allsop P thus concluded that the solicitors were not public officers for the purpose of the tort of misfeasance in public office: they held no office and relevantly carried out no public duties.[104]
[101] Leerdam v Noori [48].
[102] Leerdam v Noori [50].
[103] Leerdam v Noori [51], [53], [56].
[104] Leerdam v Noori [58].
Macfarlan JA identified the deficiency in the claimant's case as being that the solicitors did not have the right or duty to exercise any power or authority of a public nature.[105] His Honour agreed with the Victorian Court of Appeal in Cannon v Tahche that an office could not be characterised as a public office if no relevant power attached to the office.[106] So far as the courts have sometimes referred to 'public duties' Macfarlan JA said that those references did not mean it was enough to point to the existence of a public duty unassociated with the exercise of a public power or authority - persons entitled to exercise public powers or authorities will often have a duty to exercise them to fulfil the requirements of their office.[107]
[105] Leerdam v Noori [70].
[106] Leerdam v Noori [100]
[107] Leerdam v Noori [105]. Spigelman CJ made a similar observation: [4]. See also Cannon v Tahche [52].
The solicitors were said to have done no more than perform functions which their retainer obliged them to perform - a private, contractual role. They did not exercise any relevant public power or authority conferred by statute or the common law. This, in Macfarlan JA's view, meant that an essential element of the cause of action for misfeasance in public office was absent from the claim.[108]
[108] Leerdam v Noori [106], [116], [120].
The final authority referred to was Obeid v Lockley. In Obeid two investigators employed by the Independent Commission Against Corruption of New South Wales caused a video recording to be made of two documents in the course of executing a search warrant. The investigators knew the documents were outside the scope of the warrant. Mr Obeid brought proceedings against the investigators for the tort of misfeasance in public office. The trial judge dismissed the proceedings. Among other things the trial judge held that the investigators were not public officers for the purpose of the tort. While the appeal was dismissed the Court of Appeal in New South Wales was satisfied that the investigators were relevantly public officers and that the execution of the warrant involved the exercise of public power.
Bathurst CJ (Beazley P and Leeming JA relevantly agreeing)[109] identified the necessity that the alleged tortfeasor be the holder of a public office and that the act complained of be the exercise of a public power. However, in the Chief Justice's view, the authorities provided no clear statement of what constituted the holding of a public office. That was also the position with whether the power had to attach to the public office or whether it sufficed that the public officer by virtue of his or her position was entitled or empowered to perform the public acts in question. That said, Bathurst CJ preferred the view that the power did not have to be expressly attached to the office.[110]
[109] Obeid v Lockley [206], [208] - [212].
[110] Obeid v Lockley [103]. As to Bathurst CJ's qualifier of 'expressly' see Obeid v Lockley [97]. Bathurst CJ, after referring to the view of the Victorian Court of Appeal in Cannon v Tahche that the office must have a power attached to it, stated that 'the degree of "attachment" which is required is not entirely clear'.
Bathurst CJ conducted an extensive review of the Australian and United Kingdom authorities. In respect of the latter his Honour noted an observation by Lord Sumption JSC, albeit in a dissenting judgment, that the tort may be committed by any person performing a public function notwithstanding that he or she is not actually employed in the public service.[111] Bathurst CJ considered that, while the concept of a public officer would not include all public employees (particularly those with minimal responsibilities), it was also the case that the tort was not confined only to a person appointed to a particular statutory office which expressly conferred statutory powers and responsibilities.[112] Bathurst CJ stated:
[A] 'public officer' would at least include persons who, by virtue of the particular positions they hold, are entitled to exercise executive powers in the public interest. If such an entitlement is conferred on them and they misuse the power, they may have committed the tort and be liable for damage which results from their conduct.[113]
[111] Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17; [2014] AC 366 [134].
[112] Obeid v Lockley [113].
[113] Obeid v Lockley [114].
It can be seen from this review of the authorities that it remains the case that there is no exhaustive definition of the concept of a 'public officer' for the purpose of the tort of misfeasance in public office. Similarly, it remains difficult to identify the nature and characteristics of a person's position or function which are essential to constitute the person a public officer.
There is a danger in attempting to define that which has hitherto proved elusive and has been best addressed incrementally by evaluating whether, on the facts and circumstances of the particular case, the alleged tortfeasor is or is not a public officer for the purpose of the tort. That is all the more so where, as has been acknowledged in the authorities, a public officer for the purpose of the tort of misfeasance is easier to recognise than define. There are, however, some conclusions of a general nature that we will venture to assist in deciding whether there is an arguable case that Dr Sturdy was a public officer for the purpose of the tort of misfeasance in public office. It should be understood that, while expressed generally, these conclusions are limited to matters arising on the facts and circumstances of the present appeal. It is not necessary or appropriate to attempt a definitive statement of the boundaries of the concept.
While the concept of a 'public officer' is broad it does not encompass all public officials or public employees. Nor, conversely, must the holder of a public office for the purpose of the tort always be a public official or public employee. In evaluating whether a person is a public officer it is necessary to have regard to the context of the tort of misfeasance in public office. In that respect the concept of 'public officer' is informed by the nature of the tort and its rationale. The tort is concerned with the performance of public powers and duties - it protects against the misuse of governmental or executive power vested in a person who, by virtue of his or her position, is entitled or obliged to exercise such power in the public interest. Invariably, a public officer is appointed to or occupies an official position, governmental or executive in nature, to which continuing functions (and associated powers or duties) of a public nature are assigned. Thus the concept includes a person who, by virtue of a position that he or she holds, is entitled to exercise governmental or executive powers in the public interest.

The various indicia of public office discussed in the authorities (see [87] - [88] above) will, in some cases, assist in evaluating whether the position occupied by the person is of a character such that it constitutes the holder of the position a public officer for the purpose of the tort.
It should be apparent from what we have said that we do not accept the appellant's submission that the relevant question is whether the particular officer was performing a public duty or function - a contention that excludes any consideration of the position that the putative public officer occupies. This, to our mind, conflates the issue of whether the relevant person was a 'public officer' and the issue of whether, in relation to the impugned act or omission, he or she was relevantly exercising a public power as a public officer. Spigelman CJ made it clear in Leerdam v Noori that the requirement that the defendant must be a public officer is a 'quite distinct' element from whether the impugned act or omission involved the exercise of power as a public officer.[114] The appellant's proposition is also contrary to the many authorities which have identified that the two requirements are separate.[115]
[114] Leerdam v Noori [9].
[115] See [61] and the authorities cited at fn 56 and fn 57.
It is true that the holder of a public office will invariably be entrusted with public duties and endowed with public powers. This may, in a particular case, be an important or even a decisive indicator that a person is a public officer for the purpose of the tort. But that does not mean that the question of whether a person is a public officer for the purpose of the tort of misfeasance in public office is always conclusively determined by whether the person was performing a public duty or function.
It is not necessary to come to a view on an apparent difference of opinion between Cannon v Tahche and Obeid v Lockley as to whether there is a requirement for the relevant public power to attach to the office. As has been seen, that was the conclusion of the Court of Appeal in Victoria in Cannon v Tahche. Macfarlan JA agreed with that conclusion in Leerdam v Noori. However, in Obeid v Lockley the Court of Appeal in New South Wales (Bathurst CJ with Beazley P and Leeming JA relevantly agreeing) preferred the view that the power does not have to be expressly attached to the office.
The present appeal is in the context of a defendant's summary judgment application under O 16 r 1(1) RSC. In that context it is appropriate to assume without deciding, favourably to the appellant, the less demanding requirement as articulated by the Court of Appeal in New South Wales in Obeid v Lockley.

Consideration

Is it reasonably arguable that Dr Sturdy was a 'public officer'?

The initial aspect of ground 2 is the appellant's contention that it is reasonably arguable that Dr Sturdy was a public officer for the purpose of the tort of public misfeasance.
The appellant's pleaded case in support of his contention that Dr Sturdy was a public officer was devoid of any meaningful detail. Two things were said in the appellant's pleaded case. First, that, as operator of the PHC, Ramsay had statutory obligations pursuant to the Hospitals and Health Services Act. Second, that, as CEO and clinical director of the PHC, Dr Sturdy was responsible for ensuring Ramsay's compliance with all laws, by-laws, statutes and covenants. Even accepting these allegations at face value they do not, individually or collectively, sustain the proposition that Dr Sturdy was a public officer for the purpose of the tort. That is all the more so where there is no specification of the statutory provisions relied on. And, as has been seen, to the extent that the Hospitals and Health Services Act provided for any relevant duty, it was a duty imposed on the Minister rather than the holder of a licence under pt IIIA of the Hospitals and Health Services Act to conduct a private hospital.
Reflecting, perhaps, the deficiency in the pleaded case, the appellant's argument before the master and on appeal took a different approach to that found in the appellant's statement of claim. The appellant advanced a case based on an initial proposition that the State had contracted out its obligation to provide health services followed by a further proposition that this meant that Ramsay and Dr Sturdy assumed public duties with the result that Dr Sturdy became a public officer for the purpose of the tort of misfeasance in public office. Dr Sturdy was said to be a public officer because she was the CEO of the PHC - a private hospital which, pursuant to the Services Agreement between Ramsay and the respondent's statutory predecessor, was providing medical services to public patients. On the appellant's argument the 'public duty' for the provision of the relevant health services to public patients had been 'divested' to Ramsay and Dr Sturdy, making Dr Sturdy a public officer for the purpose of the tort.
There are three immediate problems with this contention.
First, for reasons already explained (see [73] - [75] above), it is not the case that the Minister's duty under s 5A(1) of the Hospitals and Health Services Act was divested to Ramsay and Dr Sturdy. The contractual arrangement in the form of the Services Agreement did not effect any assignment or delegation of the Minister's public duty. To the contrary, in terms of s 5A(3) of the Act, the Minister entered into the Services Agreement in discharge of the Minister's duty. Second, as a corollary, it is not possible to identify a duty of a public character owed by Dr Sturdy as the CEO of the PHC. When asked to do so by the court counsel for the appellant could point to no more than the contractual arrangements between the respondent's statutory predecessor and Ramsay as the operator of the PHC.[116] Third, insofar as the appellant was driven to rely on the powers and duties under the Services Agreement, the powers and duties relied on are of a private contractual nature - they cannot be characterised as governmental or executive powers or duties to be exercised or observed in the public interest.
[116] Appeal ts 10 - 11.
Having accepted, correctly, that the only relevant powers and duties were those owed to the Minister under the Services Agreement, and those powers and duties were privately agreed and contractual in nature,[117] the appellant nevertheless persisted in the contention that Dr Sturdy could be a public officer for the purpose of the tort. Counsel for the appellant relied on observations of Spigelman CJ in Leerdam v Noori.[118] Counsel referred to the following passages:
In the present case there is no 'office' or governmental power of any character. The concept of an 'office', in the context of liability for abuse of power, connotes an official position to which continuing functions or duties are assigned. Those duties or functions must be of a 'public' nature. It is not sufficient merely to be employed by a public authority for public purposes.
I know of no authority in which the 'position', said to be an 'office' for purposes of the tort, was created solely by contract between the executive arm of government and the occupant of the position. Such authority to act as is conferred is not, at least in the case of a legal representative, a conferral of public power to which the concept of 'abuse of power' applies.
It may well be that a person who is a public officer, acting in pursuance of contractual powers, is acting as a public officer. The tort has been said to extend to both statutory and common law powers. However, a person whose capacity to act is entirely a creature of contract with the executive arm of government is not, in my opinion, thereby constituted a public officer for purposes of the tort.[119] (original emphasis) (citations omitted)
[117] Appeal ts 11. See also Appeal ts 13.
[118] Appeal ts 13 - 15.
[119] Leerdam v Noori [16] - [18].
Counsel for the appellant focused on the third paragraph. Counsel submitted that the circumstance that there was a contractual obligation between the Minister and Ramsay as operator of the PHC did not of itself mean that there could not be the exercise of a public function by Ramsay as the operator of the hospital.[120]
[120] Appeal ts 15.
It may be accepted that Spigelman CJ contemplated that a public officer could be acting as such even where he or she was acting pursuant to contractual powers. But this presupposes that the person was relevantly a public officer - that being the very question presently under consideration. There is no possible reading of Spigelman CJ's observations by which it could be concluded that the Chief Justice was suggesting that a person whose relevant powers and duties arise under a contract with the State (ie the 'executive arm of government') is thereby to be treated as a public officer for the purpose of the tort. Spigelman CJ was stating, to the contrary, that a person whose capacity to act was entirely the product of a contract with the State was not a public officer. If there is any doubt as to this understanding of the passage it is dispelled by recording that in Stewart v Ronalds Hodgson JA referred to Leerdam v Noori in observing that:
[I]t seems clear that the tort [of misfeasance in public office] cannot apply to a person who does not himself or herself hold a public office, but is merely contracted by a public official to carry out some task.[121]
[121] Stewart v Ronalds [2009] NSWCA 277; (2009) 76 NSWLR 99 [106].
It is also relevant that, in upholding the appeal in Leerdam v Noori, Allsop P referred to the solicitors' contract to provide legal services with the Commonwealth. Allsop P stated: '[t]hat was not the vesting of executive power in them'.[122] Rather, by the retainer, the solicitors provided services of a professional character to the executive. In the course of performing the retainer the solicitors no doubt had various duties. However, as Allsop P made plain, it was a misapprehension of the character of the various duties of the solicitors to say that those duties were transmogrified into governmental or executive duties (ie public duties) because the solicitors were retained to act for the Commonwealth.[123] The solicitors held no office and relevantly carried out no public duties.[124]
[122] Leerdam v Noori [51].
[123] Leerdam v Noori [53].
[124] Leerdam v Noori [58].
As the CEO of the PHC, Dr Sturdy did not occupy an official position, governmental or executive in nature, by virtue of which she was entitled to exercise governmental or executive powers in the public interest. Dr Sturdy was a private employee of a proprietary limited company operating a private hospital. So far as the appellant pointed to particular powers or duties on the part of Ramsay and Dr Sturdy as the CEO engaged by Ramsay for the PHC, those powers and duties relevantly flowed from contract (ie the Services Agreement). The suggestion that such a person could be a public officer for the purpose of the tort of misfeasance in public office is contrary to settled authority.[125]
[125] Leerdam v Noori [17] - [18], [51], [109]; Stewart v Ronalds [106].
This conclusion is unaffected by the circumstance that Dr Sturdy's management role as CEO is referred to in the licence issued to Ramsay under the Hospitals and Health Services Act. The management team was only specified as there was a licence condition requiring notification of any change in the senior management arrangements. No governmental or executive powers or duties were conferred by virtue of Dr Sturdy's specification within the licence. The identification of the management team did not transform the relevant Ramsay personnel into public officers occupying an official position, governmental or executive in nature, to which continuing functions of a public nature were assigned.
In addition, nothing in Dr Sturdy's status, functions or authority as the CEO of the PHC marked her out as possessing any of the accepted characteristics of the holder of a public office. The appellant did not contend to the contrary - the appellant's argument was centred on the contention that Dr Sturdy was performing public duties and exercising public powers rather than the trappings of any office occupied by Dr Sturdy. But, given the conclusion we have reached adopting a functional approach - namely that Dr Sturdy did not occupy an official position, governmental or executive in nature, to which continuing functions and concomitant public powers and duties were assigned - it is worthwhile to also exclude that the appellant had a reasonably arguable case that Dr Sturdy was a public officer for the purpose of the tort based on apparent indicia of a public office.
For these reasons we are satisfied that the master was correct to conclude that it was not reasonably arguable that Dr Sturdy, as Ramsay's CEO in respect of the PHC, was a public officer for the purpose of the tort of misfeasance in public office.
This is not a case where the development of the law in relation to the concept of a 'public officer' for the tort of misfeasance in public office may be stifled by summary dismissal of the appellant's claim. Even accepting, as we must, that the metes and bounds of who is a public officer for the purpose of the tort have not been conclusively settled, there is no basis in law for the conclusion that Dr Sturdy was a public officer for the purpose of the tort. Nor is there a reasonable possibility that the law is developing such that the concept of 'public officer' might include an employee of a private hospital - that is so even where the employee performs a senior management role of the kind performed by Dr Sturdy. The authorities that the appellant has referred to and relied upon do not support the contrary proposition. Dr Sturdy, as the CEO of a private hospital, was not the holder of a public office for the purpose of the tort. The proposition that Dr Sturdy held such a public office is not reasonably arguable.
This aspect of ground 2 fails, meaning that ground 2 necessarily fails.

Is it reasonably arguable that Dr Sturdy was exercising a public power?

The conclusion that it is not arguable that Dr Sturdy was a public officer for the purpose of the tort of public misfeasance is enough to dispose of the appeal. However, the question of whether Dr Sturdy was relevantly exercising a public power was fully argued and is closely related. It is appropriate to also determine that aspect of ground 2. For the reasons that follow it is not arguable that Dr Sturdy was exercising a public power for the purpose of the tort in failing to recognise the appellant's status as a credentialed medical practitioner at the PHC (this being the exercise of power the subject of the appellant's claim).
The tort of misfeasance in public office can be committed by omission as well as by action.[126] It has been said, however, that the tort is not concerned with mere failure, oversight or accident - neglect does not suffice.[127] As Lord Millett has explained, it is no accident that the tort is misfeasance in public office, not nonfeasance in public office.[128] The respondent did not contend that, as pleaded, Dr Sturdy's failure to recognise the appellant's credentialing contract amounted to mere neglect. While there was not a positive plea that the failure was deliberate the appellant did contend that Dr Sturdy acted in bad faith, abusing her power as a public officer and that Dr Sturdy's actions amounted to conscious maladministration. Those pleas implicitly allege deliberate omission rather than mere neglect. The issue, then, is whether the alleged deliberate omission arguably amounted to the exercise of a public power for the purpose of the tort of misfeasance in public office.
[126] Neilson v City of Swan [42].
[127] Three Rivers (No 3) (230), (235 - 237).
[128] Three Rivers (No 3) (236)
The appellant argued as follows in submitting that the power to recognise the appellant's status as a credentialed medical practitioner at the PHC was a 'public power' for the purpose of the tort of misfeasance in public office:[129]
1.Ramsay, as operator of the PHC, had to comply with obligations under the Services Agreement in providing health services to public patients.
2.In this respect (as has been seen at [16] above) there were obligations to credential medical practitioners within the Services Agreement. (To that it may be added that the licence contained a condition to establish and maintain a credentialing committee - see [18] and [20] above).
3.Ramsay had to credential medical practitioners to practice at the PHC so as to be in a position to operate the PHC and provide health services to public patients - without credentialed medical practitioners Ramsay would not be able to carry out its obligations under the Services Agreement.
[129] Appeal ts 17.
The appellant argued that the credentialing process - and in particular the power to credential - was a public power as it was part of the process of Ramsay's public duty or power of providing health services to public patients.[130]
[130] Appeal ts 21 - 22.
So understood this second aspect of ground 2 must fall with the failure of the first aspect of ground 2. The appellant was unable to establish that the Minister divested to Ramsay the public duty for the provision of health services in Mandurah insofar as those health services related to public patients. There was, relevantly, no public duty or power as alleged. Ramsay's duties and powers were contractual in nature. This holds true for the specific exercise of power the subject of the appellant's claim. The credentialing obligations arose as a matter of contract as between Ramsay and the respondent's statutory predecessor under cl 10.1(n) of the Services Agreement (by which the operator had to ensure compliance with the By-Laws).
There was, in this respect, no exercise of a public (ie governmental or executive) power. At most, so far as the credentialing process was concerned, Dr Sturdy was performing requirements that had their genesis in Ramsay's contractual obligations. The act complained of could not ground a claim based on the tort of misfeasance in public office as it did not involve an exercise of public power.
This conclusion is supported by the example given by the Court of Appeal of Victoria in Cannon v Tahche concerning the Director of Public Prosecutions (see [90] - [91] above). While accepting, for the purpose of argument, that the Director was a public officer, the Court of Appeal did not accept that he or she would be exercising a public power at all times when appearing in court to prosecute a trial. Rather, in so doing, the Director was performing a function of his or her office.
Similarly, decisions relating to the credentialing of medical practitioners at the PHC do not involve the exercise of a public power. The credentialing process relied on by the appellant was a requirement of the Services Agreement. In taking steps in relation to the credentialing of medical practitioners, pursuant to the By-Laws, Dr Sturdy - as the CEO of the PHC so engaged for Ramsay - was fulfilling a contractual obligation of her employer as a function of her role, not performing a public duty or exercising a public power.
For these reasons the master was correct to conclude that it was not reasonably arguable that Dr Sturdy was exercising a public power for the purpose of the tort of misfeasance in public office in failing to recognise the appellant's status as a credentialed medical practitioner at the PHC. The second aspect of ground 2 also fails.

Ground 2 must be dismissed

Ground 2 fails. The master was correct to hold that this was a case where the respondent had made out the basis for summary judgment under O 16 RSC. Accepting, as one must, the need to exercise great care in providing for summary determination and depriving the appellant of the opportunity to have his action tried in the normal way, this is a clear case where we are comfortably satisfied, with a high degree of certainty, that it is apparent that the appellant's case must fail. It is not arguable that Dr Sturdy was a public officer. Nor is it arguable that Dr Sturdy's impugned conduct involved an exercise of public power. The appellant's claim of misfeasance in public office does not provide a real question to be tried.

Conclusions and orders

The failure of ground 2 means that the appeal cannot succeed.
In the circumstances it becomes unnecessary to determine ground 3. We decline to do so in circumstances where, as we have mentioned, the appellant's case proceeded on the erroneous footing that the respondent (rather than the respondent's statutory predecessor) was vicariously liable for a wrongful act by Dr Sturdy. The court has not been assisted by submissions that properly address the question of vicarious liability by reference to the relationship between Dr Sturdy, the alleged wrongful act and the respondent's statutory predecessor.
The failure of ground 2 results in the dismissal of the appeal. An order should be made that the appeal is dismissed. The parties should be heard on the question of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MD
Associate to the Honourable Justice Vaughan
23 MAY 2023