Roehrich v NSW Medical Board

[2006] NSWSC 170

CITATION:	ROEHRICH v NSW MEDICAL BOARD [2006] NSWSC 170
HEARING DATE(S):	24 October 2005
JUDGMENT DATE :	24 March 2006
JUDGMENT OF:	Hulme J at 1
DECISION:	Order the Defendant to pay the Plaintiff damages in the sum of $100; Order each party to pay his, her or its own costs
PARTIES:	Dr Eckard Roehrich NSW Medical Board
FILE NUMBER(S):	SC 30090/04
COUNSEL:	In person Ms G Furness
SOLICITORS:	In person AE Dix

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HULME J

No: 30090/04

Friday, 24 March 2006


Dr Eckard ROEHRICH v NSW MEDICAL BOARD, Professor Walter GLOVER AND Dr Jennifer KENDRICK
JUDGMENT

1 HIS HONOUR: On 23 December 2004 I delivered Reasons dealing with the principal issues arising in these proceedings and made the following substantive orders:-

(i) That the decision of the Board made on or about 17 September 2003 that the professional performance of the Plaintiff be assessed be quashed.
(ii) Dismiss the Plaintiff’s claim that the decision of the Board made on or about 21 September to suspend the Plaintiff from practising medicine be quashed.

2 In the “Statement of Claim” in the proceedings the Plaintiff, in addition to seeking relief along the lines of that dealt with in the first and second of the orders made on 23 December, sought damages, costs and “any reasonable further or other order as this Honourable Court sees fit.” Those claims are the subject of these Reasons. Pursuant to directions made at various times between 24 December 2004 and 24 October 2005 when the Plaintiff’s claim for ancillary relief was heard the Plaintiff, in a “Statement of Particulars” filed on 27 April 2005 and an “Amendment of the Statement of Particulars” filed on 31 May 2005 identified his claim in these respects as follows:-

“1. DAMAGES

1.1 Loss of income on Friday 30 July 2004
(as per particular 2, 3 &4) $4,000.00
1.2 Unliquidated damages – loss of repute $50,000.00

2. COSTS

2.1 As per particulars 9.1 & 9.8
(2 letters @ $150.00 each) $300.00
2.2 As per particulars 9.3 & 9.10
(2 notices of demand @ $500.00) $1,000.00

2.3 As per particulars 9.5 & 9.12
(2 notices of default @ $300.00) $ 600.00
2.4 As per particulars 9.14
(Notice for better & further particulars) $ 500.00

3. INTEREST UNDER SECTION 94

The court may order that interest be paid at such rate as it thinks fit on the whole or any part of the money paid for the whole or any part of the period.”
“ Legal costs
Bilias & Associates – Solicitors $1,760.00
John Young – Barrister $2,200.00 $3,960.00
John Young – Barrister (I Nov 2004) $550.00
WJ Henty – LLB $3,300.00
Filing fee – NSW Supreme Court 19.10.04 $757.00
Hearing Allocation Fee – NSW Supreme Court
24 October 2005-10-25 $1,172.00
Travelling expenses – On Court days 27.10.04
28.10.04, 29.10.04, 23.12.04, 27.1.05, 3.5.05
and 17.5.05 @ $100.00 per day $700.00

The Plaintiff reserves the right to claim further costs as they may arise.”

3 During the course of these claims, the Plaintiff advanced also a claim for damages for trespass.

4 It is unnecessary for me to recount at length matters referred to in my principal Reasons. It sufficeth to say that on or about 17 September 2003 the NSW Medical Board determined that a performance assessment of the Plaintiff should be carried out. Such an assessment would have involved two medical practitioners attending at the Plaintiff’s practice, observing and assessing the professional performance of the Plaintiff and, if thought appropriate, inspecting the premises involved and inspecting the Plaintiff’s records. Dr Roehrich was advised of the decision to have an assessment carried out and asked to co-operate.

5 Dr Roehrich took exception to the decision and between 6 October 2003 and 28 July 2004 pursued a course of somewhat acrimonious correspondence with the Board. On 3 June orally, and by letter dated 16 July 2004 Ms Mackowski who was the Board’s co-ordinator of the performance assessment program advised Dr Roehrich that the performance assessment was scheduled for 30 July at his premises and on that date, Ms Mackowski and two persons whom one might infer were the appointed assessors, attended. Ms Mackowski entered the premises and was informed by the Plaintiff’s receptionist that she had no appointment and left. The inference is clear that the Plaintiff refused to participate in any assessment at that time.

6 In fact, by a “Notice of Demand” dated 28 July 2004 Dr Roehrich had written to the Board in terms which included the following:-

6. On 6.3.04 Ms Mackowski from the Board telephoned me at my surgery. In that telephone conversation I reiterated the issues raised in my previous correspondence and indicated the following to her:
6.1 A tribunal matter that has not been adjudicated cannot form a reasonable basis for the Board’s entry onto my premises without my consent.
6.2 …
6.4 I do not consent to persons directed by the Medical Board to enter my premises without the Board demonstrating a reasonable cause.

7 After 30 July the acrimonious correspondence resumed until on 21 September 2004 there was an enquiry before the Medical Board and an order was made suspending the Plaintiff from practising medicine.

8 The reason I quashed the decision of the Board determining upon a performance assessment was that in making that decision the Board adopted the wrong test and not that identified in Section 86C of the Medical Practice Act which is in terms:-

“86C The Board may have the professional performance of a registered medical practitioner assessed under this Part if any matter comes to its attention that indicates that the professional performance of the registered medical practitioner, or any aspect of the practitioner’s professional performance, is unsatisfactory. This is not limited to matters that are the subject of a complaint or notification to the Board.”

9 The precise grounds upon which the Plaintiff claims his damages were not defined in the Statement of Claim and the matter has proceeded upon the basis that the Plaintiff can rely on any cause of action or entitlement apparent on the evidence. This has obviously imposed some burden on counsel for the Defendant but it is obvious from the depth and quality of her written submissions that the burden was not an insuperable one. For his part the Plaintiff also placed before the Court written submissions, supplemented by oral address. In the course of his submissions the Plaintiff relied upon a number of decisions including Cooper v Wansworth Board of Works (1863) 14 CB (NS) 180, Osmond v Public Service Board of NSW (1984) 3 NSWLR 447, Kioa v West (1985) 159 CLR 550 at 584, Beaudesert Shire Council v Smith (1966) 120 CLR 145 at 156, Farrington v Thompson (1959) VR 286, Dicey’s Rule of Law, Minister for Immigration v Pochi (1980) 4 ALD 139 at 160 and Koeppen v Commissioner for Community Relations (1986) 11 FCR 360 and query FAI Insurances Limited v Winacee (1981) 151 CLR 342.

10 Two of these cases, Cooper v Wansworth Board of Works and Farrington v Thompson involved the commission of torts consequent on decisions held to be invalid, and are similar to the Plaintiff’s claim here for damages for trespass. They say nothing about any entitlement to damages consequent merely on the invalidity of a decision. Most of the others, while providing support for the proposition that bodies such as the Board owe duties to persons who may be affected by any decision the body makes, were made in the context of judicial review with a view the correction or quashing of administrative decisions and say nothing as to the issue of whether, quite apart from an entitlement to have a decision corrected or quashed, a party aggrieved is entitled to damages.

11 The circumstances when invalid administrative decisions do give rise to such a right was the subject of lengthy consideration in X (Miners) v Bedfordshire County Council (1995) 2 AC 633 at 730 et seq. It is unnecessary for me to refer in detail to what was said in that case but three passages may help to indicate why I have reached the conclusion that the Plaintiff’s claim for damages, based on error by the Board in its decision to have a performance assessment cannot succeed.

“The principles applicable in determining whether such statutory cause of action exists are now well established, although the application of those principles in any particular case remains difficult. The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However, a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that parliament intended to confer on members of that class a private right of action for breach of the duty.” – at p731.
“Although the question is one of statutory construction and therefore each case turns on the provision of the relevant statute, it is significant that your Lordships were not referred to any case where it had been held that statutory provisions establishing a regulatory system or a scheme of social welfare for the benefit of the public at large had been held to give rise to a private right of action for damages for breach of statutory duty.” - at p 731.
“In my judgment the correct view is that in order to found a cause of action flowing from the careless exercise of statutory powers or duties, the Plaintiff has to show that the circumstances are such as to raise a duty of care at common law. The mere assertion of the careless exercise of a statutory power or duty is not sufficient.” – at p734.

12 It seems to me that on their proper construction, the relevant provisions of the Medical Practice Act were enacted to establish a regulatory system for the benefit of the public at large and Parliament did not intend to confer on persons such as Dr Roehrich any private right of action for breach of duty and the circumstances are not such as to raise a duty of care at Common Law. See also State of New South Wales v Paige (2002) 60 NSWLR 371 as to the inter-relationship between some legislative schemes and private rights of action.

13 However one of the cases relied on by the Plaintiff does support his claim that the mere failure by a body such as the Board to adhere to a duty imposed on it does give an entitlement to a private right of action for damages. That case is Beaudesert Shire Council v Smith wherein, at p156, it was said:-

“Independently of trespass, negligence or nuisance but by an action for damages upon the case, a person who suffers harm or loss has the inevitable consequence of the unlawful, intentional and positive acts of another, is entitled to recover damages from that other.”

14 Unfortunately for the Plaintiff’s argument, in Northern Territory v Mengle (1994 -1995) 185 CLR 307 at 344-345, Beaudesert Shire Council v Smith was overruled.

15 As has been said, the Plaintiff also asserted that the Medical Board is liable to him upon the basis that Ms Mackowski’s entry into his premises on 30 July 2004 amount to a trespass. On this claim the Plaintiff is entitled to succeed.

16 While in many cases a Court will readily imply a licence to one person to enter upon the land of another for the purposes of making contact with the occupant of the land or other persons on those premises, here the letter of the Plaintiff of 28 July 2004 made it clear that Ms Mackowski had no such licence to be there. Although perhaps the words “persons directed by the Medical Board to enter my premises” may be more apt to refer to the assessors appointed by the Board, the words are also appropriate to embrace Ms Mackowski in her capacity as the co-ordinator of the performance assessment program of the Board. But even if technically they do not in terms apply to her, they are sufficient to preclude any inference of, or implicit, licence to Ms Mackowski to go upon the premises.

17 Trespass is actionable per se and the Plaintiff is entitled to damages for this infringement of his right. It is clear that Ms Mackowski was on the premises for only a short time, that all she did there was approach the Plaintiff’s receptionist and, having been met with the response that she (and the assessors) had no appointment, left. No actual loss was suffered by the Plaintiff in consequence of her trespass. The assessors had waited nearby and had not entered the premises .

18 Though the Plaintiff’s correspondence provided a fair indication that the Medical Board and its representative were unwelcome, I do not regard Ms Mackowski’s conduct as a contumelious disregard of the Plaintiff’s rights and in those circumstances it seems to me that $100 is an appropriate sum by way of damages for the trespass. In light of the correspondence, the Plaintiff is entitled to more than a simply nominal sum.

19 My conclusion that, notwithstanding that the Board’s decision to have a performance assessment was invalid, no right to damages accrued in consequence means that it is strictly unnecessary for me to embark on any other issues relating to damages. However, as I have considered them, some further comment is probably desirable. I shall broadly follow the order in which the various claims have been set out above.

Loss of Income

20 Dr Roehrich asserted that the notification that the assessors would be attending on 30 July 2004 meant that he lost the opportunity of seeing patients for the whole of that day. There is no evidence that even if the assessment had gone ahead that was the situation although no doubt it would have taken some time. However, given Dr Roehrich’s refusal to participate in the assessment, a stance which he had determined upon in advance there is no reason to think that he would have been interrupted for more than 5-15 minutes, a period of interruption which most general practices commonly cope with without difficulty. Furthermore, there is no evidence of what Dr Roehrich’s usual daily income was nor that the consultations which might otherwise have been held on 30 July could not have been held over the next few days in addition to his normal load for those days. There was no evidence that Dr Roehrich was so busy that any time out resulted in loss. On the basis of lack of evidence also, this claim must wholly fail.

Unliquidated Damages – Loss of Repute

21 There is no evidence that the Medical Board published its decision to have a performance assessment in any way likely to have impacted on Dr Roehrich’s repute. He made some publication of it. He took the view that because of the Board’s decision and the fact that it had power to consider his patient’s records that he should inform his patients of the fact although the detail of his communications is not in evidence.

22 In my view there was no necessity on Dr Roehrich to do this. There was no reason to think that the Medical Board or the assessors would have made any inappropriate use of the patient’s records and accordingly any loss of repute which Dr Roehrich suffered was proximately due to his own actions and not something for which the Board should be regarded as causally responsible.

Costs – 2.1 - 2.4

23 This claim is for, presumably the time and trouble in writing the letters to which I have referred above as “acrimonious” correspondence and much of which is quoted at a little length in my principal reasons. I need not repeat all that I said previously about it beyond recording that the terms of the correspondence were based upon misconceptions by the Plaintiff as to his entitlement. It was his decision to indulge in the correspondence and it was not a reasonable consequence of the Board’s decision to hold a performance assessment.

Legal Costs

24 The accounts of Bilias & Associates and John Young which are the foundation for two of these claims in terms relate to proceedings before the Medical Tribunal. Dr Roehrich objected to me receiving a copy of the decision of the tribunal and I ruled I should not. There is nothing before me to indicate those proceedings had any connection with the decisions of the Board which were the subject of consideration in the proceedings before me. Dr Roehrich asserted that notwithstanding the terms in which the accounts of Bilias & Associates and John Young were couched, some of the work they did related to the proceedings before the Board but I would not be justified on the evidence before me in inferring that those costs were a consequence of the Board’s decisions.

25 The third component of the legal costs sought were costs of a Mr Henty, a lawyer who was present during part of the proceedings before me. However, although Mr Henty sought permission to sit at the Bar Table and spoke a little on the Plaintiff’s behalf, he was a friend and did not appear for the Plaintiff. In the circumstances, I do not regard Mr Henty’s fees as properly legal costs and on that ground I decline to allow them.

Travelling Expenses

26 The decision in Cachia v Hanes (1993-1994) 179 CLR 403 at 409-411 make it clear that “costs which may be awarded to a litigant are confined to money paid or liabilities incurred for professional legal services” and do not extend to the costs and expenses of the litigant’s travel and loss of time.

Filing and Hearing Allocation Fees

27 It was conceded on behalf of the Defendant that the amounts claimed under these headings are “in their nature” properly allowable as costs. However, in response to these and to the other claims for costs the Defendant submitted that while the Plaintiff had had partial success in the proceedings decided on 24 December 2004, he was unsuccessful in a number of the issues raised including a claim for what may be regarded as the most substantial issue in the proceedings namely whether the order suspending him from practice should be quashed. That last proposition is correct and when regard is had to the totality of the proceedings, it seems to me that a proper order for costs would be that each party pay his, her or its own costs.

28 In so concluding I do not ignore the fact that the Plaintiff has succeeded in his claim in trespass. However, this was so subsidiary to the main issues that it does not argue with any weight contrary to the conclusion just expressed.

29 The Defendant did not seek an order for costs.

30 Accordingly, the orders which should be made are:-

(i) Order the Defendant to pay the Plaintiff damages in the sum of $100.
(ii) Order each party to pay his, her or its own costs.

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