Andrew John Katelaris v Medical Council of New South Wales

RELEVANT STATUTORY PROVISIONS 17Section 129 of the Act makes provision for the creation of the Board in the following terms: 129 Board Constituted as a corporation (i)There is constituted by this Act that Corporation under the corporate name of the New South Wales Medical Board. (ii)The Board is a continuation of, and same legal entity as, the New South Wales Medical Board constituted under the Medical Practitioners Act 1938. 18Section 130 of the Act provides that the Board is to consist of twenty (20) members appointed the Governor. 19Section 133 provides as follows: 133 Committees (i)The Board may establish committees to assist it in connection with the exercise of any of its functions. (ii)The members of the committee need not be members of the Board. (iii)The procedure for the calling of meetings of any such committee and for the conduct of business for those meetings is as determined by the Board or (subject to any determination of the Board) by the committee.

THE FURTHER AMENDED STATEMENT OF CLAIM 20The further amended statement of claim filed on 12 April 2012 which is the subject of the present notice of motion includes a number of matters which appear to be largely irrelevant to any cause of action upon which the plaintiff seeks to rely. However, it would appear the plaintiff seeks to bring an action against the defendant in misfeasance in public office arising from: 1.the August decision; and 2.the s 66 decision. 21Annexed to the affidavit of Ms Harvey of 1 May 2012 is a request for particulars sent to the plaintiff, along with the plaintiff's reply. That request sought (in paragraph 1) confirmation from the plaintiff that the only conduct upon which he relied in alleging misfeasance in public office were the August decision and the s 66 decision. The plaintiff's response was in the following terms: "The August 17 2003 resolution of the Health Committee to convene a s 66 inquiry and the 17 September decision of the s 66 to impose legally binding conditions on Dr Katelaris' medical registration are not the only examples of misfeasance by the Medical Board". 22Consistent with this response, and in the course of oral submissions before me, the plaintiff said: "The misfeasance in public office alleged by the plaintiff is not a single event by a single person, but a series of events and decisions taken by the Medical Board and its officers between 16 May 2002 and December 2005. These will be enumerated, but the common features displayed are lack of procedural fairness, findings not based on evidence, the questionable legality of discretion exercise, and repeated deceit and dishonesty displayed by the board in its dealings with the plaintiff, all of which had a significant prejudicial effect against the plaintiff". 23Notwithstanding the plaintiff's response to the defendant's request for particulars, and his statements to the court, the only matters in the further amended statement of claim which, on a fair reading of the document as a whole, are the subject of allegations of misfeasance in public office are the two matters to which I have already referred. 24As to the first of those matters, namely the August decision, the further amended statement of claim pleads (in paragraphs (1) and (2)) the following: "(1) On 19 August 2003 the New South Wales Medical Board convened a Health Committee meeting regarding Dr Andrew Katelaris. Who made this decision and what evidence it was based was not known to Dr Katelaris. Present at this meeting, amongst others, were Mr Andrew Dix, A / Prof K Wilhelm, A / Prof B McCaughan, Dr B Kinghorn, Dr D Smith, Ms M Kelly, Dr E Hindmarsh, Dr J Schneeweis, Ms H Lapsley, Dr K Sundquist and A / Prof R Walsh. The minutes of that meeting contained errors of fact, both of which would tend to have a prejudicial effect against Dr Katelaris. Under "Compliance" is listed "Writing own prescriptions. Doesn't see GP". Neither of these assertions is factual and both were subject to previous correspondence to the Board by Dr Katelaris. The minutes of this meeting do not include any documentation to indicate even the most remote threat of physical or mental harm to any person. Notwithstanding that, the committee resolved to send Dr Katelaris to a s 66 enquiry. (2) On 5 August 2003 the Medical Board received correspondence under the name "Faith, Hope, Charity" stating that she intended to lodge a complaint against the Medical Board unless they took action against Dr Katelaris. Unless the Medical Board produces evidence to the contrary (and they are hereby challenged to do so) it must be concluded that the Health Committee was convened because of this anonymous threat and not in compliance with the proper guidelines for convening a Section 66 inquiry i.e. the protection of the public. The misuse of a s 66 inquiry is misfeasance and is compounded by the Board denying Dr Katelaris access to that letter or other correspondence from Ms Charity, despite repeated requests, so he could prepare a focussed rebuttal and allay any possible concerns the Board may have had". 25As to the second of those matters, namely the s 66 decision, the further amended statement of claim pleads, in paragraphs (6) and (7), the following: "(6) On 17 September 2003 the Medical Board convened a Section 66 Inquiry attended by A / Prof Michael Fernside (sic) and Dr Susan Messner. On page three of their report the Board members stated that the inquiry was convened under s 66 of the Medical Practice Act, 1992...."The New South Wales Medical Board did this in the context of its jurisdiction to protect the public. The matter arose following a resolution made by the Health Committee on 19 August 2003 which resolved to refer Dr Katelaris to an Inquiry under s 66". Suspension or conditions to protect life etc 66(1) The Board must if at any time it is satisfied that such action is necessary for the purpose of protecting life or the physical or mental health of any person: (7) The plaintiff contends that the Medical Board, specifically those named members in attendance at the Health Committee meeting and the s 66 inquiry, and possibly others, have exercise the proper power of the s 66 clause in an improper manner. A s 66 should and must be restricted to those circumstance where there is a genuine concern for health and safety of a medical practitioner and / or patients under their care. Using the legal power of s 66 inquiry to unreasonably harass a practitioner where no such threat exists constitutes misfeasance".

THE RELIEF CLAIMED BY THE PLAINTIFF 26The relief claimed by the plaintiff in the further amended statement of claim is pleaded in the following terms: 1."Financial restitution for eight years of lost professional income, loss of potential future earning potential and for anguish and suffering. 2.A review of the decision by the Medical Tribunal to deregister Dr Katelaris."

The submissions of the parties 27Ms Horvath, who appeared for the defendant, made three principal submissions. 28Firstly, Ms Horvath submitted that those paragraphs of the further amended statement of claim in which the plaintiff purported to plead an action in misfeasance in public office based upon the August decision should be dismissed pursuant to r 13.4. In particular, Ms Horvath submitted that the August decision was not, on any view, a decision of a public officer in the exercise of a public power and that in these circumstances, the tort of misfeasance in public office could not be made out. She further submitted that even if a contrary conclusion were reached as to these issues, the August decision could not be properly regarded as being causative of the damage pleaded in the first prayer for relief in any event. 29Secondly, Ms Horvath submitted that the pleadings relating to the s 66 decision were inherently confusing and embarrassing, and should be struck out pursuant to r 14.28. In particular, she submitted that it was not clear whether the plaintiff sought to bring an action against the board as a single entity, or whether he sought to bring an action against one or more of the individual members of the board. She also submitted that there been a complete failure on the part of the plaintiff to properly plead what she referred to as the "mental element" of the tort in respect of any of the individuals who constituted the board at the time of the s 66 decision being made. 30Thirdly, Ms Horvath submitted that the second prayer for relief should be dismissed. She pointed out that in answer to the defendant's request for particulars, the plaintiff had indicated that he would rely upon s 90 of the Act as conferring power upon the court to order a review of the decision of Medical Tribunal to deregister him. Ms Horvath submitted that although the provisions of s 90 facilitated an appeal to the Supreme Court against a decision or action of the Medical Tribunal, the further amended statement of claim contained no allegation against the tribunal. She submitted that in these circumstances the court had no power to grant the relief sought. She also pointed out that the plaintiff had previously made unsuccessful attempts to appeal against decisions of that tribunal in any event. 31As to the cause of action arising out of the August decision, the plaintiff submitted that the members of the committee were public officers exercising a public power. In this regard he relied upon the decision at first instance in Noori v Leerdam & 3 Ors [2008] NSWSC 515, and submitted that the position of the solicitor in that case was analogous to the position occupied by the members of the committee. Further, the plaintiff submitted that there was a direct causal link between the August decision and the damage pleaded in prayer 1. 32As to the cause of action arising out of the s 66 decision, the plaintiff submitted that the board was vicariously liable for the acts of its members. It should be noted that nowhere in the further amended statement of claim is there any pleading of a cause of action based upon vicarious liability. 33The plaintiff did accept that s 90 of the Act did not, in the present circumstances, give the court jurisdiction to grant relief sought in prayer 2. He conceded that in these circumstances, it was appropriate that prayer 2 be dismissed. 34In addition, the plaintiff made what might be described as an "over arching" submission to the effect that in circumstances where he appeared unrepresented, the pleadings in the further amended statement of claim should not be viewed in an overly technical way. He submitted: "In these circumstances, the plaintiff requests that the court look beyond any procedural and technical issues with the form of the pleadings and instead examine the substance of the claim."

The relevant provisions of the rules 35Rule 13.4 is in the following terms: 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under sub rule (1). 36Rule 14.28 is in the following terms: 14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under sub rule (1).

The relevant principles 37Prima facie, a plaintiff is entitled to have his case come to trial and applications to deprive him or her of that right will succeed only in the clearest of cases. Accordingly, when the court is asked to exercise its power pursuant to r 13.4, fatal defects in the plaintiff's case must be very clear before the court will intervene and dismiss the proceedings generally. In General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125, Barwick CJ observed (at 129): "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed: "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow (the pleadings) to stand would involve useless expense". 38In contrast, the power of the court under r 14.28 is concerned with those cases where there is a defect in the pleadings. It is not directed to cases where, after examining the evidence, the court comes to the conclusion that the plaintiff's case, as opposed to his pleading, is hopeless. When a pleading is defective, in that the pleading discloses no cause of action or the pleading tends to cause prejudice, embarrassment or delay, or the pleading is otherwise an abuse of process, the court has power under r 14.28 to strike out the whole or part of the pleading. 39For the purposes of r 14.28 a pleading is embarrassing if it is unintelligible, ambiguous or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim or defence (see Gunns v Marr [2005] VSC 251 at [15]). A pleading may also be embarrassing it if contains inconsistent, confusing or irrelevant allegations (Shelton v National Roads and Motorists Association Ltd (2004) 51 ACSR 278 at [18]).

Decision 40At the outset, and in view of the submission made by the plaintiff that I should adopt a "non technical" approach to the pleadings because he is unrepresented, a number of matters must be made clear. 41It is trite to observe that the court has an overriding duty to ensure that proceedings before it are conducted fairly. In the context of an unrepresented litigant, the discharge of that duty requires the court to ensure that such a person does not suffer a disadvantage from exercising his or her recognised right to be self represented (see generally R v Zorad (1990) 19 NSWLR 91 at 94-95; MacPherson v R (1981) 147 CLR 152; Hamod v State of New South Wales & Anor [2011] NSWCA 375 at [316] ff.) 42However, the court also has an obligation to ensure fairness to both parties. The notice of motion brought by the defendant in this case necessarily involves the application of specific provisions of the Uniform Civil Procedure Rules. I am mindful of the fact that it has been observed, on more than one occasion, that procedural rules are the servant, not the masters, of justice, and that it is open to the court in an appropriate case to dispense with formal rule requirements if such a course is considered appropriate (see for example Harding v Bourke (2000) 48 NSWLR 598 at [26] per Mason P and s 14 of the Uniform Civil Procedure Act). However, that should not be construed as permitting the court to dispense with the application of the rules where such an approach would operate to the detriment of a party. 43In the present case the rules pursuant to which the defendant seeks relief have, as part of their primary focus, the plaintiff's pleadings. Proper pleading is of fundamental importance in assisting the court to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings (see McGuirk v University of New South Wales [2009] NSWSC 1424 esp at [24].) 44In these circumstances, the provisions of rr 13.4 and 14.28 must be applied according to their terms. The fact that the plaintiff is unrepresented does not, in the circumstances of this case, justify a relaxation in the application of those rules in the manner in which the plaintiff submitted. 45In my view, in so far as the plaintiff seeks to bring a cause of action based upon the August decision, the pleadings disclose no reasonable cause of action and should be dismissed. Leaving aside the form of the pleadings, there are, in my view, a number of fatal defects in the plaintiff's proposed cause of action. 46One of the fundamental elements of the tort of misfeasance in public office is that a public officer exercised a public power, or discharged a public duty. In Leerdam & Anor v Noori & Ors (2009) 255 ALR 553 at [3] ff Spigelman CJ observed: "[3] The concept of "public office" or "public officer" appears in various legal contexts, both statutory and at common law: see the summary of the wide range of case law by Byrne J in R v McCann [1998] 2QdR 56 at 67-74. There is no authoritative statement of a test for determining what constitutes a public officer for purposes of the tort of misfeasance. Nor is one needed. In almost all cases the answer will be obvious. (see Society of Lloyd's v Henderson [2007] EWCA Civ 930; (2008) 1 WLR 2255 at [23] (Henderson). The most detailed consideration of Australian authorities is T Cockburn and M Thomas "Personal liability of public officers in the tort of misfeasance in public office" (2001) TLI 80 245). [4] Where there is any doubt about whether a particular 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 (Sanders v Snell (1998) 196 CLR 329; 157 ALR 491;[1998] HCA 64 at [37] (Sanders)) or that the tort is "concerned with performance of public duties" (at [39] ). There is no relevant difference, as these citations from the joint judgment in Sanders indicate, between authorities which use the language of "duty" and those which use the language of "power". The formulation "abuses his office" is to be found in the foundational authority Henley v Mayor & Burgesses of Lyme (1828) 5 Bing 91 at 107; 130 ER 995 at 1001". 47In my view, the conclusion that members of the committee were public officers is not one which is reasonably open. The members of the committee occupied no relevant public "office", in the sense that they occupied no official position to which any continuing functional duty of a public nature was assigned (see Leerdam v Noori (supra) at [16] per Spigelman CJ). The power that the committee exercised in making the August decision was administrative, rather than public. The plaintiff's reliance upon the decision (at first instance) in Noori v Leerdam & 3 Ors [2008] NSWSC 515 was, in view of the subsequent decision of the Court of Appeal, misguided. 48Even if it were the case that a conclusion was open that the members of the committee who made the August decision were public officers exercising a public power, that decision could not, in my view, be properly regarded as being causative of the damage said to have been suffered by the plaintiff. It will be evident from the outline of the facts that following the August decision, there were a number of events which took place culminating in the decision of the Medical Tribunal (a body quite separate and distinct from the committee) to deregister the plaintiff as a medical practitioner. It is as a consequence of the decision of the Medical Tribunal that the plaintiff is no longer able to practice, and thus no longer able to earn a professional income. In my view, adopting a common sense approach to the issue of causation, it could not be said that the August decision of the committee was causative of the damage that the plaintiff claims to have suffered, and in respect of which he seeks relief. 49 It follows that in my view, those parts of the further amended statement of claim which purport to plead a cause of action based upon the August decision disclose no reasonable cause of action in misfeasance in public office. The proceedings in relation to that claim should therefore be dismissed pursuant to r 13.4(1)(b). 50As to the cause of action based upon the s 66 decision, Ms Horvath did not submit that those paragraphs of the further amended statement of claim which went to that issue attracted the operation of r 13.4. Rather, she submitted that the form of the pleading was such that the paragraphs ought to be struck out pursuant to r 14.28. I agree with the submission. 51To begin with, the plaintiff has named the Medical Council of New South Wales, (formerly the board), as the sole defendant. It is well settled that the tort of misfeasance in public office is predominantly a personal tort. In Northern Territory of Australia & Ors v Mengel & Ors (1996) 185 CLR 307 the following relevant observation was made (at 347): "The cases do not establish that misfeasance in public office is constituted simply by an act by a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is a tort of a public officer, he or she is liable personally and, unless there is a de-facto authority there will ordinarily only be personal liability." 52There is some authority for the proposition that the tort can be alleged against a corporate entity (see Dunlop v Woollahra Municipal Council [1981] 1 NSWLR 76 at 84; Three Rivers DC v Bank of England [1996] 3 ALL ER 558 at 572.) However if this is the case, the pleading must be specific. In Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572 Lander J (with whom Cox and Prior JJ agreed) observed (at 587): "The proceedings in this case have been brought against the Legal Services Commission. It is a confusion of principle, in the circumstances of this case, to allege that the Commission is liable to the plaintiff for acts of its servants which acts were done intentionally to cause harm, or were done by their servants knowingly outside power. There is no suggestion on the pleadings of a defacto authority from the respondent to its officers. Particularly, there is no suggestion that the respondent in any sense, including the defacto sense, authorised its officers either cause harm or to act in excess of those officers' power: James v Commonwealth (1939) 62 CLR 339 per Dixon J at pp 359-360. At the highest, which is not sufficient, is the plea that "lack of reasonable care in advising the plaintiff and considering his application for legal assistance constituted misfeasance by the defendant." That is not a proper plea of misfeasance in public office in any event, but it is certainly not enough to suggest some sort of defacto authority given by the respondent which would make the authority itself liable for the acts of its servants and employees. The proceedings could be brought against the officers, but not the present respondent." 53Similar observations may be made in the present case about the pleading against the presently named defendant, in so far as it seeks to plead a case in respect of the s 66 decision. 54The matter is further complicated by the fact that in the course of his submissions the plaintiff made repeated references to the defendant being vicariously liable for the acts of its officers. Leaving aside the question of whether or not such a liability could ever be made out, if it is to be relied upon then it must be pleaded. Nowhere in the further amended statement of claim is there any reference whatsoever to an action based upon vicarious liability. 55Further, I accept Ms Horvath's submission that an element of the tort of misfeasance in public office is that the public officer exercising the public power did so, either: (a)with the intention of causing harm to the plaintiff, in the knowledge that he or she was acting beyond power and that such conduct would cause, or would be likely to cause, injury; or (b)did so with reckless indifference as to the possibility that such action was beyond power and that it would cause, or would be likely to cause, injury. 56Neither of these matters are pleaded in the further amended statement of claim. In the course of his submissions, the plaintiff made reference to the fact that part of his case in respect of the s 66 decision was based upon an allegation that there had been "deceit" on the part of the board. Leaving aside the question of whether or not deceit is relevant, it is not properly pleaded in any event. 57Generally speaking, the pleading in respect of the s 66 decision is, in my view, imprecise in its identification of the material allegations. Further, it contains a number of passages which are both confusing and irrelevant. As a result, the defendant is deprived of being put on proper notice of the real substance of the claim which is sought to be made against it. All of these matters support a conclusion that the pleading be struck out under r 14.28. 58Finally, I accept Ms Horvath's submission (with which the plaintiff ultimately agreed) that in the circumstances of the present case the court has no power whatsoever to grant the relief which is sought in prayer 2 in the further amended statement of claim. It follows that paragraph 2 should be dismissed.

THE FURTHER CONDUCT OF THE PROCEEDINGS 59The further amended statement of claim which has been the subject of this hearing represents the third attempt by the plaintiff to properly plead the cause(s) of action which he seeks to bring. It will be evident from both this judgment, and my previous judgment, that there have been a number of fundamental difficulties arising out of those attempts. It was accepted by Ms Horvath that in the event that I reached conclusion that all or part of the further amended statement of claim should be struck out rather than dismissed, it would be open to me to grant the plaintiff leave to file a further amended statement of claim in relation to any cause of action which might survive. I did not understand her to object to that course being taken, although she did draw my attention to the fact the costs being incurred by the defendant were steadily increasing, in circumstances where there may be little or no avenue of recovery of their costs from the plaintiff. 60In the course of his submissions to the court, the plaintiff indicated to me that, subject to the conclusions that I reached, he was minded to consult a legal practitioner with a view to obtaining some appropriate advice as to how to properly plead his cause(s) of action. It will be apparent, from the reasons I have given, that the proper conduct of this matter would be greatly facilitated by the plaintiff having the benefit of some form of legal assistance. The plaintiff informed me that in earlier proceedings brought by him against the board, Allsop P had made an order for the provision of pro bono legal assistance. For reasons which I do not completely understand, such assistance was not provided. 61If I am satisfied that it is in the interests of the administration of justice to do so, I have power under r 7.36(1) to order that a litigant be referred to the Registrar, for a referral to a barrister or solicitor on the Pro Bono Panel. Clearly, it is in the interests of administration of justice that the plaintiff have the benefit of legal advice in the present case. 62Rule 7.36(2A) provides that I may not refer a litigant for assistance if that litigant has obtained assistance under a previous referral at any time during the immediately preceding period of three years, unless I am satisfied that there are special reasons that justify a further referral. On the information which has been made available to me, although an order for referral was previously made by Allsop P, no legal assistance was actually obtained by the plaintiff. In any event, and even if such assistance had been obtained, I am satisfied that in the present circumstances there are special reasons justifying a further referral. Those reasons include the fact, to which I previously referred, that the latest version of the statement of claim represents the third attempt on the part of the plaintiff to properly plead a case against the board. 63In these circumstances I propose to make an order under r 7.36(1) and bring the matter back before me for further directions after the expiration of 28 day period referred to in r 7.36(4A). If it is the case that the plaintiff has not been able to obtain any pro bono assistance within that period, I will hear any further application he wishes to make at that time for a further adjournment for the purposes of enabling him to seek legal assistance from some other source before seeking to file any further amended statement of claim.

ORDERS 64I make the following orders: (1)In respect of the further amended statement of claim filed on 12 April 2012: (i)I dismiss prayer 2. (ii)I dismiss paragraphs (1) to (6). (iii)I strike out paragraphs (7) to (12). (2)I grant leave to the plaintiff to file a further amended statement of claim. (3)Pursuant to r 7.36(1) of the Uniform Civil Procedure Rules I refer the plaintiff to the Registrar of the court for a referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. (4)I stand the matter over for further directions before me at 9.30am on 20 July 2012. (5)I reserve the question of costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 June 2012