Attorney General of New South Wales v Bar-Mordecai

CITATION : Attorney General of New South Wales v Bar-Mordecai [2008] NSWSC 774

Attorney General v Bar-Mordecai [2005] NSWSC 142 Attorney General v Spautz [2001] NSWSC 66 Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192 Bryan v Maloney (1995) 182 CLR 609 Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410 Cran v State of New South Wales [2004] NSWCA 92 CASES CITED : Gifford v Strang Patrick Stevedoring Pty Limited (2003) 214 CLR 269 Perre v Apand (1999) 198 CLR 180 Re Attorney General for the Commonwealth of Australia & Anor: Ex Parte Skyring (1996) 135 ALR 29 Re Michael Bar-Mordecai [2006] NSWMT 10 San Sebastian Pty Ltd v Minister (1986) 162 CLR 341 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Tame v New South Wales (2002) 211 CLR 317 Wang King John Cheng v Pharmacy Board of New South Wales [2005] NSWSC 1130

The proposed claim against the Commission: the alleged failure to investigate the complaints expeditiously 15 The first allegation in the draft amended summons (MFI 4 at paragraphs 1 to 8) is in substance that the Commission failed to investigate the two complaints expeditiously, contrary to s 48 of the Medical Practice Act and s 29(2) of the Health Care Complaints Act. 16 The Medical Practice Act deals with the registration of medical practitioners and the making of complaints and the taking of disciplinary action against such practitioners. Section 41 provides that any person can make a complaint. Section 42 provides that complaints are to be made to the Medical Board or to the Commission. Section 46 provides that the Board and the Commission are to notify each other when a complaint is made to or by either one of them as soon as practicable after the complaint is made. 17 Division 3 of Part 4 addresses the manner in which complaints are to be dealt with. It is in that context that s 48 appears. It provides: "Complaints to be dealt with expeditiously All complaints are to be dealt with expeditiously." 18 There is otherwise no time limit imposed in respect of the investigation of a complaint. The courses of action available both to the Board and to the Commission on a complaint are broad. The powers of the Board include referring the complaint to the Commission for investigation or referring it to a Committee or to the Tribunal. The powers of the Commission include referring the complaint to the Board or, after consultation with the Board, referring it to a Committee or to the Tribunal. Section 52 provides that both the Board and the Commission are under a duty to refer a serious complaint to the Medical Tribunal. A serious complaint is defined as one which in the opinion of the relevant body may, if substantiated, provide grounds for the suspension or deregistration of a registered medical practitioner. 19 The Health Care Complaints Act has a broader application than the Medical Practice Act in that it applies to a broader range of health service providers than registered medical practitioners. Part 2 of the Act makes provision for complaints to the Commission against health service providers including registered medical practitioners. 20 Division 4 of Part 2 of the Act makes provision for the initial assessment of complaints for the purpose of deciding whether the complaint should be investigated. Section 22 of the Act provides that the Commission must carry out that assessment within sixty days after receiving the complaint. I interpolate to note that Mr Bar-Mordecai's initial grievance was that the Commission failed to investigate the complaints against him within that two month period. An earlier draft summons against the Commission alleged "flagrant criminality" perpetrated by the Commission in filing the complaint with the Tribunal after taking longer than sixty days to assess it, and "flagrant criminality" by the Tribunal in accepting it in those circumstances. 21 By the time of the hearing, however, Mr Bar-Mordecai accepted the correctness of the submissions put by the Attorney General in these proceedings that his complaint confused the assessment process with the investigation process. Unfortunately, much of the material presented to the Court in advance of the hearing by Mr Bar-Mordecai and, in response, by counsel for the Attorney General focussed on that contention, which was then abandoned at the hearing by Mr Bar-Mordecai. 22 There is no time limit imposed on the investigation of a complaint under the Health Care Complaints Act. However, s 29(2) of that Act provides: "The investigation of a complaint is to be conducted as expeditiously as the proper investigation of the complaint permits. Expedition is particularly appropriate if the complainant or the person on whose behalf the complaint is made is seriously ill." 23 Mr Bar-Mordecai tendered correspondence which he contended established that, in respect of the Rotman complaint, a period of three years, two months and four days elapsed between the date of lodgement of the complaint with the Commission and the date on which the Commission filed the complaint with the Medical Tribunal of New South Wales. In respect of the second complaint, he said the period was three years, three months and two days. There may be some room for argument as to the correctness of the assumptions underlying those calculations but for present purposes I am prepared to accept them as being correct. The thrust of Mr Bar-Mordecai's contention was that the Commission ought to have been in a position to investigate the complaints more quickly. 24 Mr Bar-Mordecai tendered an index of the documents put in evidence before the Tribunal and noted that the bulk of that material was available at an early stage of the investigation. However there was otherwise no evidence before me from which I could discern the particular course taken by the investigation or the chronology of the steps it entailed. The submission was, in effect, that I should infer from the length of time in fact taken between the date on which the complaints were lodged and the date on which they were referred for hearing to the Medical Tribunal that the investigations had not been carried out expeditiously. 25 The length of time that is appropriate for the conduct of an investigation will, of course, be informed by the steps required to be taken according to the nature of the issues under investigation, the seriousness of the allegations, the need to consider the opinions of experts and any particular hurdles encountered by the investigating authority. As submitted by Ms Ward, who appeared for the Attorney General, the Health Care Complaints Act contemplates extensive investigation where appropriate. The powers conferred on the Commission include powers of entry, search and seizure, the power to apply for a search warrant, the power to compel production of documents and appearance to give evidence and criminal sanctions for refusal or failure to comply with a requirement of the Act. 26 Furthermore, it is apparent in the present case that the issues the subject of the investigation were of considerable complexity and diversity and involved extensive inquiry into factual issues and the need to consider expert opinion on a range of matters. The issue of Mr Bar-Mordecai's administration of morphine to the deceased shortly before her death was a substantial medical issue on its own. The proper investigation of the allegation that he destroyed her 1989 will and the alleged falsity of his evidence given in proceedings in this Court concerning the will would in all likelihood have required the Commission to obtain a range of information from a variety of sources and to give careful consideration to that material. On the strength of the evidence placed before me, I am not satisfied that there is any ground for the contention that the Commission failed to conduct the investigation with due expedition. There is no evidence before me of any specific period of inactivity or delay. It is to be borne in mind that the content of the obligation under s 29(2) is to conduct the investigation as expeditiously as the proper investigation of the complaint permits. The onus of establishing prima facie ground for alleging a breach of that obligation is on Mr Bar-Mordecai. He has not discharged that onus. 27 Even if the evidence had succeeded in establishing some factual basis for the complaint, it is doubtful whether that would give rise to a cause of action sounding in damages at the suit of the person being investigated. That issue was not addressed by either party in the submissions at the hearing. No criticism is to be directed at the representatives for the Attorney General on that account, since they came to Court armed to meet a completely different application. The summonses in respect of which leave is now sought by Mr Bar-Mordecai were handed up on the morning of the hearing. 28 At the conclusion of the hearing, I asked the parties to provide short supplementary submissions confined to the issue whether an investigator owes a duty of care at common law to the person being investigated to conduct the investigation expeditiously. Ms Ward's submissions filed in response to that request drew my attention to the decision in Wang King John Cheng v Pharmacy Board of New South Wales [2005] NSWSC 1130 where it was held that the statutory requirement that the Commission should act expeditiously "should be understood as an instruction for the guidance and government of the Commission the neglect of which does not affect the validity of action taken in disregard of it". That, of course, does not answer the question as to the existence of a duty of care. 29 Ms Ward also drew my attention to the decision of the Court of Appeal in Cran v State of New South Wales [2004] NSWCA 92, where the Court considered whether the State owed a duty of care in the context of a prosecution for possession of prohibited drugs to arrange the prompt analysis of the items founding the charge. The Court held that there was no such duty: per Santow JA (with whom Ipp and McColl JJA agreed) at [63-64]. 30 In Cran, Ipp JA stated at [71]: "the recognition of a duty of care of the kind contended for by the appellant would tend to have an inhibiting effect on the discharge by the police of their central functions of investigating and preventing crime and apprehending offenders. It would in some cases lead to a defensive approach by police to their multifarious duties. It would introduce a risk that police would act so as to protect themselves from claims of negligence." 31 I accept Ms Ward's submission that the same considerations apply to the investigative work of the Commission. The primary object of the Commission in exercising its functions under the Health Care Complaints Act is the protection of the health and safety of the public: see s 3 of the Act. Similarly, the object of the Medical Practice Act is to protect the health and safety of the public by providing mechanisms designed to ensure that medical practitioners are fit to practice medicine: see s 2A of the Act. In my view, the recognition of a duty of care of the kind contended for by Mr Bar-Mordecai would tend to have an inhibiting effect on the discharge by the Commission of its statutory function of investigating complaints against health service providers and would introduce the risk adverted to by the Court of Appeal in Cran that officers of the Commission would act so as to protect themselves from claims, potentially to the detriment of the health and safety of the public. 32 Mr Bar-Mordecai filed lengthy supplementary submissions, ranging well beyond the issue in respect of which leave was granted, together with three folders of authorities. 33 The first section of his submissions addressed the question of duty of care at common law. Mr Bar-Mordecai submitted that, owing to the experience and expertise of Mr Swain of the Commission as an investigator, the Commission would have been able to foresee the risk of physical injury to Mr Bar-Mordecai by the Commission's actions. Mr Bar-Mordecai submitted that the Courts have placed few limitations on the recognition of a duty of care in respect of physical damage. He cited a passage from the decision of the High Court in Bryan v Maloney (1995) 182 CLR 609 which he identified as appearing at page 619. The passage relied upon, which in fact appears at 617.8, was not set out in full in the submissions. The full passage states: "In more settled areas of the law of negligence concerned with ordinary physical injury to the person or property of a plaintiff caused by some act of the defendant, reasonable foreseeability of such injury will commonly suffice to establish that the facts fall into a category which has already been recognised as involving a relationship of proximity between the parties with respect to such an act and such damage and as 'attracting a duty of care, the scope of which is settled'" 34 Bryan v Maloney is not authority for the proposition that the relationship between a medical practitioner and the body that investigates a complaint against him falls into a recognised category of relationship of proximity with respect to physical injury alleged to arise from a failure to investigate the complaint with due expedition. 35 In respect of psychiatric injury, Mr Bar-Mordecai submitted that such injury was reasonably foreseeable since the Commission has ready access to expert psychiatrists and relied on "false allegations and criminality" to found the two complaints against him. He relied on the decision of the High Court in Tame v New South Wales (2002) 211 CLR 317 at [12] and [201]. 36 Tame was concerned with the issue whether a police officer, who mistakenly recorded that the driver of a car involved in an accident had a blood alcohol level of 0.14 when in fact her blood alcohol level was nil, owed a duty to take reasonable care to avoid psychiatric injury to the driver. What is stated at [12] per Gleeson CJ is that reasonable foreseeability of the kind of injury that has been suffered by the person to whom it is alleged the duty is owed is a necessary but not sufficient condition of the existence of a legal duty of care. What is said at [201] per Gummow and Kirby JJ does not derogate from that proposition. 37 The High Court held that the police officer did not owe a duty of care to the driver. The reasons of a majority of the judges for rejecting the existence of such a duty included the proposition that it would be inconsistent with the primary duties of a police officer. Gleeson CJ held at [26] that the primary duty of a police officer filling out a report at the scene of an accident is to make available to his superiors, honestly and frankly, the results of observations, tests and inquiries made and that it would be inconsistent with such a duty to require him to take care to protect from emotional disturbance and possible psychiatric illness a person whose conduct was the subject of investigation: see also per Gaudron J at [57]; per McHugh J at [125]; per Gummow and Kirby JJ at [231]; per Hayne J at [298]. 38 In my view, far from supporting Mr Bar-Mordecai's claim, the reasoning in Tame requires me to find that there is no prima facie ground for the contention that the Commission owes a duty to take reasonable care to avoid psychiatric injury to a medical practitioner against whom a complaint has been lodged that is being investigated by the Commission. 39 Mr Bar-Mordecai submitted that his vulnerability and the fact that the Commission controlled the risk of harm were factors relevant to the existence of a duty of care, relying on Gifford v Strang Patrick Stevedoring Pty Limited (2003) 214 CLR 269 at [90] and [102]. The point of the reference to [102] is unclear to me and appears to be a mistake. The decision in Gifford turned on the fact that the respondent was the employer of a stevedore who was crushed to death by a forklift vehicle driven negligently by another employee. Gummow and Kirby JJ noted at [90] that the respondent had a significant, perhaps exclusive degree of control over the risk of physical harm to the employee and the risk of consequent psychiatric harm to his children when they learned of the accident. 40 The recognition of such a duty of care owed by an employer to an employee and his family does not assist Mr Bar-Mordecai's case. In Cran, Santow JA expressed the view at [50] that, in light of the strong dicta in Tame, lower courts would be constrained in finding any aspect of police investigation amenable to civil liability even where the injured person was totally vulnerable and where the police or prosecutorial authorities had the entire power to control the situation that brought about the harm to the injured person. 41 Mr Bar-Mordecai's submissions also addressed the question of a duty of care in respect of pure economic loss. He relied on Sutherland Shire Council v Heyman (1985) 157 CLR 424. Those submissions focussed, not on the alleged failure to conduct the investigation expeditiously, but on conduct identified in the following terms in the submissions: "The HCCC has blatantly perverted justice by: (i) making false allegations [s 314 Crimes Act 1900] of no de facto marriage and that [Mr Bar-Mordecai] lied about having sex with his de facto wife four times a week: (ii) recruiting six witnesses to depose false evidence [s 321 Crimes Act 1900] in support of a false allegation of there being no de facto marriage: (iii) perverting the course of justice [319 Crimes Act 1900]. Mr Swain of the HCCC with his experience and expertise as an investigator of many years standing for the HCCC, would have been able to foresee that pure economic loss might have been caused to Dr Bar-Mordecai by his actions on behalf of the HCCC in advancing and relying on false allegations and criminality, and hence, he, representing the HCCC owed a duty of care to Dr Bar-Mordecai in respect to that pure economic loss". 42 Mr Bar-Mordecai identified three factors that militate in favour of the existence of a duty of care to avoid financial loss. They were his vulnerability to harm, the fact that the Commission was in a position of control over the risk of injury to him (citing Perre v Apand (1999) 198 CLR 180 at 195, 201 and 259) and reliance coupled with assumption of responsibility (citing San Sebastian Pty Ltd v Minister (1986) 162 CLR 341 at 355-357). The last matter has no application in the present case. Mr Bar-Mordecai has never put his claim as one of negligent misstatement made to him by the Commission and relied on by him. There is no suggestion of any assumption of responsibility by the Commission or the Board: cf Cran at [52] to [61] per Santow JA. 43 Mr Bar-Mordecai acknowledged, against those factors, that one factor militating against the recognition of a duty of care is "the law's concern not to place conflicting obligations on a person". He acknowledged that there may be no duty of care owed in respect of powers exercised in good faith. He relied on s 189 of the Medical Practice Act, which provides for personal immunity from claims in respect of the acts or omissions of a person done as the Board and "in good faith" for the purposes of executing the Medical Practice Act or any other Act. He submitted that, by implication, a duty of care is owed where the investigator does not act in good faith. 44 It is a misconception to construe the terms of the statutory immunity as having an impact on the content of the common law. The fact that the statutory protection of persons performing the functions of the Board is circumscribed by the requirement that the act in question was done in good faith does not mean that a duty of care springs up where previously, consistent with the decision in Tame, none existed. In my view, I am required to apply the principles discussed in Tame which establish that there is no ground for recognising a duty of care owed to Mr Bar-Mordecai by those who investigated the complaints against him. 45 In any event, there is no evidence whatsoever to suggest an absence of good faith on the part of any of the people involved in the investigation of the complaints against Mr Bar-Mordecai. The allegation appears to proceed on the premise that Mr Bar-Mordecai's innocence of the acts complained of is an absolute truth and that any person who alleges otherwise, or has alleged otherwise at any stage, has perpetuated a deliberate lie. That premise must be rejected. 46 In respect of s 48 of the Medical Practice Act, Mr Bar-Mordecai's supplementary submissions also relied on a cause of action for damages for breach of statutory duty. Mr Bar-Mordecai submitted that such a cause of action arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was intended to afford protection: Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410 at 424. 47 Mr Bar-Mordecai submitted that provisions of the Medical Practice Act and the Health Care Complaints Act disclose that legislation was designed to create a regime specifically for the benefit and protection of the practitioner to be investigated. He relied on the contents of s 40 of the Medical Practice Act (the opportunity for the practitioner under investigation to file submissions before a complaint is referred to the Tribunal) and s16(1) of the Health Care Complaints Act (the obligation to inform the practitioner of the outcome of the assessment of a complaint). He also referred to s 187 of the Medical Practice Act, but probably he intended to refer to s 189. The submission referred to a requirement that the Commission perform its functions in good faith. Section 189 provides for protection from liability for an act or omission done in good faith for the purposes of executing the Act. Section 187 deals with offences by corporations and appears to be irrelevant to Mr Bar-Mordecai's claims. 48 I accept that those provisions provide some protection for a medical practitioner against whom a complaint has been lodged. It does not follow, however, that the legislation discloses an intention to provide a ground of civil liability if any of those provisions is breached. As noted in Byrnes v Australian Airlines in a passage not referred to by Mr Bar-Mordecai which immediately follows the passage at 424 cited by him, the question is one of construction but an examination of the statute "will rarely yield a necessary implication positively giving a civil remedy". An examination of the provisions of the Medical Practice Act and the Health Care Complaints Act does not disclose a basis for any such implication. 49 In conclusion, I am not satisfied that there is any prima facie ground for the contention that the Commission owed a duty of care to Mr Bar-Mordecai to conduct the investigation expediously. In my view, the recognition of such a duty would be inimical to the objects of the legislation discussed above and cannot be gleaned from either Act read as a whole. 50 Accordingly, even if I had been satisfied that there was any substance in the underlying factual contention that the complaint was not investigated as expeditiously as the proper investigation of the complaint permitted, I am not satisfied that there is prima facie ground for the contention that a breach of any such obligation gives rise to a claim sounding in damages. Mr Bar-Mordecai's application on this ground must be dismissed for that additional reason.

Alleged failure to discontinue dealing with the complaints under s 27 of the Health Care Complaints Act 55 The third allegation in the draft amended summons (MFI 4 at paragraphs 10 and 11), which is also difficult to reconcile with the second allegation, is that the Commission failed to comply with s 27 of the Health Care Complaints Act in that it failed to dismiss the complaints. Section 27 of the Health Care Complaints Act provides that, following the assessment phase (which is the phase required by s 22 to be carried out within 60 days after receiving a complaint) the Commission may discontinue dealing with a complaint for any one or more of a number of reasons. 56 A close consideration of Mr Bar-Mordecai's submissions in support of this third contention discloses that it amounts, in substance, to an allegation that the complaints made against him were unfounded and that the Commission ought to have recognised that fact and discontinued dealing with the complaints. For example, one of the particulars of the first complaint alleged that, between August 1983 and about 25 June 1994, Mr Bar-Mordecai treated the patient whilst at the same time having a personal and sexual relationship with her. Mr Bar-Mordecai has always contended that the patient became his de facto wife. He submitted that, for that reason, the particular of the complaint referred to the Tribunal was wrong because a personal and sexual relationship is not the same as a de facto marriage. He submitted that no ethical consideration arises in respect of the treatment by a medical practitioner of a de facto partner. 57 Another contention was put in respect of the particular which alleged that Mr Bar-Mordecai administered 30 milligrams of morphine to the patient shortly before her death. He submitted that the Commission ought to have determined that he was not wrong to do so because they had in their possession a report of Dr Kuchar, who was the patient's cardiologist, which said that he had done nothing wrong. 58 In my view, this allegation is without substance. The matters raised in the particulars of the complaints were of a kind that warranted thorough investigation. As I have already noted, in due course the Tribunal found all but one of the particulars proved. An appeal to the Court of Appeal was dismissed: see Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192; as was an application to the New South Wales Medical Tribunal for review or appeal under s 87 of the Medical Practice Act: see Re Michael Bar-Mordecai [2006] NSWMT 10. An application to the High Court for special leave to appeal against the decision of the Court of Appeal is pending. 59 Mr Bar-Mordecai addressed me at length as to the weakness of the two complaints. Even if there were substance in those submissions, which there did not appear to be, it would not follow that the Commission was wrong not to exercise its power to discontinue dealing with the complaints at the conclusion of the assessment phase. Further, even if the Commission was wrong not to exercise its power to discontinue dealing with the complaints, it would not follow that its failure to do so amounted to a breach of duty of care owed to Mr Bar-Mordecai. 60 I am not satisfied that there is any substance in that complaint such as to establish a prima facie ground for the bringing of the proceedings.

The proposed claim against the Board 65 In broad terms, the basis of the claim sought to be made against the Board by the draft further amended summons (MFI 5) is that it failed to protect Mr Bar-Mordecai from the acts of the Commission. An obligation to do so is said to arise in contract and is also alleged to be the content of a duty of care owed by the Board to Mr Bar-Mordecai. The claim in contract arises from an allegation that, in consideration for payment of his yearly fees to the Board, it was agreed that the Board would provide Mr Bar-Mordecai with "care and vigilance with regard to any complaint brought against him." The summons alleges that it was a term and condition of that agreement that the Board would do all acts and things necessary to properly monitor and assess complaints in consultation with the Commission and would make its objections known to any commission, criminality or breach of compliance with any section of the Health Care Complaints Act and the Medical Practice Act. 66 The summons alleges that, in breach of that condition, Mr Bar-Mordecai did not receive proper and adequate protection from the Board and was not protected from the breaches and criminality that the Commission had perpetrated. 67 Further and alternatively, the summons alleges that, in the circumstances, the agreement between Mr Bar-Mordecai and the Board constituted an agreement for services within the meaning of the Trade Practices Act 1974 (Cth) into which was imported, by operation of s 74 of that Act, a term that the services rendered would be so done with due care and diligence. 68 The balance of the pleading consists in a repetition of the allegations made against the Commission and, in substance, complains that the Board was in breach of its alleged agreement with Mr Bar-Mordecai and also acted negligently either in participating in the breaches of the Commission or in failing to protect Mr Bar-Mordecai from those breaches. 69 Since the claim against the Commission is the springboard for the claim against the Board, leave should not be granted to institute proceedings against the Board for the reasons outlined above. 70 I have come to the view that there is no prima facie ground for the claims and accordingly it is not necessary for me to consider the second issue raised by s 84(4), whether the proposed proceedings are an abuse of process. To the extent that the proceedings seek to canvass the findings of the Tribunal, that may be a matter going to the question of abuse of process. However, it is not necessary for me to consider that question. 71 The application must be dismissed. Costs 72 Ms Ward submitted that I should order Mr Bar-Mordecai to pay the costs of the Attorney General on an indemnity basis as a measure of opprobrium. She relied on the decision of O'Keefe J in Attorney General v Spautz [2001] NSWSC 66 at [107] where his Honour noted that an order for costs on an indemnity basis generally betokens that a claim that has been made is wholly unjustified or that a defence that has been raised is deliberately false or time-wasting. It is difficult to analyse the fairness of applying those principles in the present case where, although I am satisfied that the application that has been made is wholly unjustified, I doubt whether Mr Bar-Mordecai is capable of perceiving it as such. 73 As I have already observed, applications of this kind must be approached with due regard to the rule of law which requires that, ordinarily, a person should have access to the courts in order to invoke their jurisdiction. In the case of a person who is the subject of an order under s 84 of the Supreme Court Act, there is a hurdle to that access in the requirement to satisfy the Court that the proceedings are not an abuse of process and that there is prima facie ground for the claim. I am reluctant to impose an additional hurdle in the form of the threat of indemnity costs when, by their nature, unsuccessful applications for leave will often provide a basis for an application for such costs. Accordingly, I am not prepared to make an order for costs on any basis other than the usual basis.

(1995) 182 CLR 609

(1995) 185 CLR 410

(2003) 214 CLR 269

(1999) 198 CLR 180

(1996) 135 ALR 29

(1986) 162 CLR 341

(1985) 157 CLR 424

(2002) 211 CLR 317

[2004] NSWCA 92