Chandrasekaran v Western Sydney Local Health District

Sketch of factual and procedural background

1. A hearing of a civil claim was conducted before me over many days. It commenced in late 2019 and concluded in mid-2020. Its broad context was as follows.
2. As at late 2017, Dr Sujatha Chandrasekaran (the plaintiff) was a qualified medical practitioner and specialist psychiatrist based in Sydney. She had been admitted as a fellow of the relevant professional college in 2015. Since then, she had worked without adverse professional incident as a visiting medical officer (VMO) in various public and private hospitals throughout Australia.
3. She commenced duties as a VMO with the Western Sydney Local Health District (the first defendant; hereinafter the Health District) in late December 2017. That was a fixed term appointment that was to expire on 2 March 2018. Accordingly, the plaintiff was working, to use a readily understood expression, as a locum.
4. That position had been arranged by Charterhouse Medical Pty Ltd (the second defendant; hereinafter Charterhouse), an international recruitment company that included within its business in Australia recruitment of medical professionals.
5. Despite the fact that the expertise of the plaintiff was more within the sub- specialisation of adult psychiatry, she commenced at an inpatient facility of the Health District that cared for patients who were children and adolescents. It was called Redbank House (hereinafter Redbank). Her supervisor there was Dr Padhi, the clinical director of Redbank, a psychiatrist who had arrived in Australia reasonably recently, and who had undergone some training in London, England.
6. Whilst undertaking her duties at Redbank, the plaintiff cared for two female children known in the hearing by the pseudonyms of "Olive" and "Tina", and whose mothers were known as "Moira" and "Martha" respectively.
7. On Friday, 12 January 2018, during pauses from work at Redbank, Dr Padhi mentioned to the plaintiff that he had spent time in Berlin, Germany. He also spoke of knowing a psychoanalyst practising in London by the name of Mr Navaratnam. As well, Dr Padhi said that he had undertaken a particular professional course for psychiatrists in London.
8. The plaintiff responded verbally to those statements by Dr Padhi, including by way of asking him a number of questions about what he had said. She queried him about his knowledge of the details of certain landmarks of Berlin. At one stage she showed him a map of the London "Tube" on her mobile phone, and asked him to identify the tube station at which he had alighted when attending on Mr Navaratnam. She also mentioned that she believed that there had been interference with her digital devices, colloquially known as "hacking".
9. Over the weekend, Dr Padhi reflected on the conversations between the plaintiff and himself. Before me, he gave evidence that he came to the view that the plaintiff was exhibiting symptoms consistent with paranoia. He said that that led him to be concerned about her appointment to a position in which she was caring for troubled children and adolescents. I hasten to add that that thesis of his was staunchly resisted by and on behalf of the plaintiff at all stages of the hearing.
10. On Monday 15 January 2018, Dr Padhi took purported steps to bring the appointment of the plaintiff to an end; I express myself in that way because the thesis of the plaintiff before me was that he had no right to do so.
11. Subsequently, neither Dr Padhi nor anyone else associated with the Health District provided the plaintiff with written reasons as to why her appointment had been terminated, in accordance with the relevant statute (to which I refer below).
12. Also on 15 January 2018, Dr Padhi telephoned an employee of Charterhouse, Mr Harvey. Dr Padhi simply said words to the effect of: Dr Padhi: "Hi Daniel, I am just calling to let you know that unfortunately we had to terminate Dr Chandrasekaran's placement today, effective immediately." Mr Harvey: "I'm sorry to hear that, can I ask what went wrong?" Dr Padhi: "I cannot go into detail due to the seriousness of the incident, however, there have been concerns about how she spoke to a patient's family and she acted aggressively towards me when I got involved." Mr Harvey: "I'm sorry to hear that, would you like me to seek a replacement?" Dr Padhi: "Yes please."
13. On 15 January 2018, Dr Padhi and an administrative employee of the Health District, Sumithira Joseph, prepared a risk assessment document about the plaintiff. It did not refer to the concerns by Dr Padhi about the symptoms that he claimed had been exhibited by the plaintiff during their conversations. Rather, it referred to the treatment by the plaintiff of Olive and Tina. The proposition was that the treatment was unsatisfactory and complaints made by at least one of the parents of one of them were justified. The document also spoke of the plaintiff presenting an "extreme risk". Later, another administrative employee of the Health District did not accept that risk classification, and downgraded it.
14. Mr Harvey told his superior at Charterhouse, Mr Pereira, about the conversation that Mr Harvey had had with Dr Padhi. On or about 15 January 2018, Mr Pereira instructed Mr Harvey that the plaintiff should no longer be engaged to work as a locum by Charterhouse. According to the affidavit of Mr Harvey, his best recollection of the words used was as follows: Mr Harvey: "Hi David, I have just received a call from Dr Padhi at WSLHD. He has informed me that Dr Chandrasekaran's placement has been terminated and that she has been asked to leave the hospital." Mr Pereira: "That's unusual. Did he say why?" Mr Harvey: "He wouldn't go into detail. He said that there had been a serious incident regarding a patient's family and that she acted aggressively towards him." Mr Pereira: "At this stage, Charterhouse shouldn't arrange further placements for Dr Chandrasekaran." Mr Harvey: "What should I do if Dr Chandrasekaran contacts me?" Mr Pereira: "If she contacts you to complain about the termination, you should tell her that any complaints should be directed to WSLHD as her employer. You should make it clear that Charterhouse are not her employer and therefore cannot discuss the circumstances of the termination with her. If she asks about further placements you should let her know that you are only able to assist her with ensuring she has received payment for work completed to date."
15. On 18 January 2018, Mr Harvey of Charterhouse sent an email to the plaintiff. It included the statement "I have spoken with the Health Service who explained they are not able to discuss the finer details with me and if you wish to discuss it further it must be with them". The email also stated "My Director has advised that I will only be able to have correspondence with you regarding payment of the days you have worked and no other matters".
16. On 9 February 2018, Dr Padhi made complaints to the relevant professional bodies about the plaintiff. A complaint notified to the Health Care Complaints Commission (HCCC) from the Australian Health Practitioner Regulation Agency (AHPRA) quoted Dr Padhi as having said of the plaintiff "During my limited interaction I believe she is unwell and needs urgent medical attention".
17. On 27 February 2018, employees of the Health District asked the plaintiff to sign a contract with regard to her period of time working at Redbank. In that sense, it can be described as "post-dated", because her work there had come to an end on 15 January 2018, well over a month beforehand. The plaintiff signed it, but made a note on it as follows: "PLEASE NOTE THAT THIS IS A FABRICATED LETTER OF OFFER & CONTRACT AND IS IN BREACH OF THE CONTRACT I SIGNED IN DECEMBER 2017 WITH CHARTERHOUSE MEDICAL. AFTER CONSULTING THE AMA & MY INDEMNITY I AM SIGNING IT FOR PAYMENT PURPOSES ONLY."
18. After that, she was paid the sums outstanding for the work she had done as a VMO.
19. On 2 March 2018, Mr Harvey sent an email to the plaintiff requesting, in short, no further contact between her and Charterhouse.
20. Exactly four months later, on 2 July 2018 at 8:38 AM, in response to an email from the plaintiff, Mr Harvey transmitted an email to both Ms Greenfield (a fellow employee of Charterhouse) and, assertedly accidentally, the plaintiff. Ms Greenfield was "cc'ed" into the email, and the plaintiff was the primary addressee. The email reads in its entirety as follows: "Subject: Re: Your call and email Dave this woman is cray This is the cray Google car lady who got fired from Health District. I didn't even mean to call her Monday I meant to call Saroja Krishnaswamy lol Daniel Harvey Senior Principal Consultant Psychiatry"
21. A short time later, Mr Harvey sought to "recall" the email quoted above. His position was that he had always intended that the primary addressee be "Dave"; that is, Mr David Pereira.
22. In June 2018, the proceedings that culminated in the hearing were commenced by the plaintiff in this Court. At many of the interlocutory phases of the proceedings she represented herself, but at the hearing before me she was represented by solicitor and counsel. Several affidavits that she had prepared whilst unrepresented were read in her case before me.
23. On 24 October 2018, the Medical Council of NSW suspended the appointment of the plaintiff as a specialist, and her ability to practice medicine. In fact, as I understand it, she has never, or almost completely never, practised as a psychiatrist or any other form of medical professional since the termination of her appointment at Redbank on 15 January 2018.

Overview of the proceedings before me

1. That skeleton outline of the matter belies a much more complicated factual and legal dispute that featured the involvement of senior counsel, many junior counsel, and solicitors; a large number of objections to evidence; many causes of action, some of them shared, brought against the two defendants; the oral evidence (including extensive cross-examination) of many witnesses, including the plaintiff and Dr Padhi; and many hearing days conducted (with some difficulty) remotely and in person last year.
2. There was also an application before me to reopen the evidence brought by the plaintiff earlier this year, at which stage she was self-represented again. I refused that application: see my judgment of 12 March 2021 on the court file. For the purposes of my findings of fact in this judgment, I disregard the things the plaintiff said, and the manner in which she said them, when she appeared for herself on that application, which was made well after the hearing had concluded and my judgment was reserved. I have also put from my mind my knowledge of the outcome of an application made by the plaintiff to a Justice of the High Court of Australia, seeking to have that refusal of mine reviewed: see, for example, Chandrasekaran, In the matter of an application for leave to issue or file [2021] HCATrans 77.

Sketch of causes of action and their bases

1. It is convenient now to set out the causes of action brought by the plaintiff against the two defendants, and a sketch of the factual assertions underpinning each one of them.
2. As is often the case in litigation in my experience, there was a useful refinement of those claims, and not all of those spoken of in the operative iteration of the pleading at the start of the hearing were pressed in the oral submissions of counsel for the plaintiff at its conclusion. As I remarked to all counsel at that stage, I regard it as incumbent upon me to resolve only those claims, and their bases, that were ultimately pressed by counsel for the plaintiff in his final submissions, in particular his ultimate oral submissions.
3. The following claims were maintained against the Health District by the conclusion of the matter; they are chiefly derived from the written submissions referred to above.
4. First, breach of contract (also referred to in the final written submissions for the plaintiff as "unfair dismissal"). This was on the basis that, in the context of both the Health Services Act 1997 (NSW) (the HSA) as it was at the time, and the sessional determination (SD) in force at the time and made pursuant to the HSA with regard to VMOs, the contract properly understood to have been entered into between the Health District and the plaintiff did not permit her appointment to be terminated in the way that it was, not least because it featured a failure to comply with the HSA.
5. Secondly, misleading and deceptive conduct, contrary to s 18 of the Australian Consumer Law, within Schedule 2 of the Competition and Consumer Act 2010 (Cth) ("the ACL"). This was on the basis that the Health District misled the plaintiff into believing that she would be working as an adult psychiatrist, and yet she ended up being required to work at Redbank House, where she was caring for children and adolescents. It was also on the ancillary basis that the working conditions of the plaintiff at Redbank were so wanting as to constitute a breach of the ACL.
6. Thirdly, injurious falsehood. This was on the basis that Dr Padhi, in his complaints about the plaintiff to relevant professional bodies, had assertedly maliciously made statements that were false and that had occasioned damage to her in the course of her business; publication of that statement by the defendant to a third person; and malice on the part of the defendant (see Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at [52]). It was said that the Health District is vicariously liable for his tortious conduct. The claim was also based on the separate proposition that adverse assessments of the performance of the plaintiff as a VMO constituted injurious falsehoods.
7. Fourthly, breach of confidence. This was on the basis that, whether through contact with Mr Navaratnam, or through accessing the digital devices of the plaintiff, or perhaps through some other mechanism, Dr Padhi had obtained confidential information about the plaintiff, and promulgated it. I interpolate that I did not understand it to be disputed that the elements of a breach of confidence are: that the information has the necessary quality of confidence, imparted in circumstances importing an obligation of confidence, and that there is an unauthorised use of that information to the detriment of the party who had originally communicated it: Coco v A N Clark (Engineers) Ltd [1968] F.S.R. 415.
8. The following causes of action were maintained against Charterhouse at the conclusion of the hearing.
9. First, misleading and deceptive conduct pursuant to the ACL. This was on the same basis sketched above: that Charterhouse had misled the plaintiff into believing that she would be working as an adult psychiatrist, not with children and adolescents.
10. Secondly, injurious falsehood, on two separate factual bases. The first was the asserted statement of Mr Pereira that Charterhouse should no longer arrange work for the plaintiff. The second was the email of Mr Harvey in which he spoke of the "Google car lady". Again, I understood the submission to be that Charterhouse was vicariously liable for the torts of its employees.
11. Overarching those claims were the millions of dollars in damages that were sought if one or more of the above causes of action were established in law and fact, on the basis that the events of the first part of 2018 have had ruinous consequences for the plaintiff, professionally, personally, and financially.

Determination of each cause of action, including pertinent facts

1. An orthodox way for me to resolve this matter would perhaps be first to make compendious findings of fact; then discuss the legal elements of each of the causes of action; then determine whether, in accordance with my findings of fact, all of the elements of any cause of action have been established on the balance of probabilities; and, finally, if so, determine the appropriate measure of damages.
2. In this case, however, I think that that would lead to even more delay than has already occurred. Instead, I propose to discuss each cause of action separately, and to include in that discussion findings of fact generally relevant to that claim. And those findings of fact will take effect "cumulatively"; by that I mean, findings of fact discussed in the context of one cause of action against one defendant will be applicable to all against both.
3. In accordance with that way of resolving things, it is convenient to discuss the causes of action in a different order from that adopted above.

Breach of confidence against the Health District

1. As I have explained, this claim was based on the vicarious liability of the first defendant for its employee, Dr Padhi, having obtained confidential information about the plaintiff and having promulgated it to her detriment.
2. Underpinning that was the factual assertion that, somehow or other, for some reason or other, Dr Padhi had invaded the privacy of the plaintiff, and obtained personal details about her. That was the explanation proffered by and on behalf of the plaintiff for the conversations about the city of Berlin, Mr Navaratnam, and psychiatric training in London. In particular, it was the case for the plaintiff that what Dr Padhi had to say was by no means normal social talk between two professionals on a break during a busy day of work; on the contrary, they were something much more sinister.
3. Dr Padhi and the plaintiff were examined orally before me, at length and in detail, about these conversations engaged in by two psychiatrists at their place of work on a Friday during a pause in their duties. The crucial cross-examination of each of them about this particular topic is to be found at trial transcripts 6 December 2019, pp 292(45)-318(14), 320(41)-323(15); 12 June 2020, pp 808(32)-820(19); and 8 July 2020, pp 832(20)-863(44), 889(21)-905(42). It can be seen therefrom, and from her affidavits read in the hearing, that the plaintiff firmly maintained the position that Dr Padhi was engaging in, amongst other things, a so-called "parody skit" of her and was engaging in "gaslighting".
4. I understand the latter to be a modern term derived from a 1940s motion picture in which a malevolent male seeks to undermine the confidence of a vulnerable female to the extent that she is manipulated into feeling, quite wrongly, that she may be mentally ill. The plaintiff explained in evidence that, by the former term, she meant a false "replaying" of details of her own life by another person in order to mock or satirise her own true, personal experiences: see Tcpt, 6 December 2019, pp 294(18)-295(33).
5. I propose to quote chapter and verse neither from those affidavits nor from that cross-examination. Nor is my finding about the crucial conversations between the plaintiff and Dr Padhi based particularly upon assessment of the demeanour of each of them, bearing in mind the well-known dangers in resolving questions of credit on that basis.
6. But I respectfully firmly reject the proposition that Dr Padhi, for some unexplained reason, determined with great malevolence to undermine deliberately the state of mind of a fellow medical professional whom he was just getting to know. I reject just as firmly the proposition that somehow or other Dr Padhi had accessed the digital devices of the plaintiff. I also reject the proposition that there may have been some sort of ulterior discussions between Dr Padhi and Mr Navaratnam about the plaintiff. I also reject without difficulty the suggestion that his mentions of the charms of the city of Berlin, Mr Navaratnam, and psychiatric training in London were anything other than completely normal and benevolent interactions between two medical professionals who were making small talk during a pause in their work.
7. To give but one example of the kind of proposition that I reject without difficulty: it was maintained by counsel for the plaintiff, no doubt on instructions, and put to Dr Padhi, that the truth was that he had never even visited Berlin: see Tcpt, 8 July 2020, p 837(27). That would have meant not only that Dr Padhi had lied to the plaintiff during their discussion: it would also have meant that he committed perjury before me. And yet a motive for such behaviour was never developed, let alone established (I have not forgotten that counsel for the plaintiff suggested a cover-up of the alleged wrongful dismissal of the plaintiff, but that hardly explains a conversation about Berlin that occurred prior to the termination of the appointment of the plaintiff). I am well satisfied that when Dr Padhi spoke of having been to that city and having enjoyed it, he was telling the simple truth.
8. There was also cross-examination directed towards suggesting that Dr Padhi had committed perjury about whether he had received particular qualifications overseas, whether he had written a particular thesis as part of his professional education, and whether he had undertaken particular training. But I am amply satisfied that all of the things that Dr Padhi claimed to have done professionally he had indeed done.
9. It is also noteworthy that the position of the plaintiff, made clear through her sworn evidence, cross-examination conducted by her counsel, and his final submissions, was that there has been a concerted malevolent combination against her: by Dr Padhi, Mr Navaratnam, and by other medical professionals; to use the word in its non-technical meaning, divorced from criminal law, a conspiracy. Yet again, not only is that proposition not established, its rejection on my part plays an important role in my assessment of the credibility of the plaintiff, and the resolution of this whole case.
10. To the very limited extent that demeanour of the two crucial witnesses plays a role in my determinations, it is as follows. Dr Padhi struck me as thoroughly honest, though perhaps stressed and exasperated by the fact that these proceedings had featured him being impugned as he was. The plaintiff, with respect, struck me as speaking sincerely, in the sense that she believed in the assertions that she was making. I do not believe that she was dissembling, or deliberately lying. And any confusion in her evidence - of which there was some - I believe can be put down to the passage of time, the plethora of lengthy affidavits that she filed when self-represented, months before the hearing, and which became part of her evidence in chief, and her understandable emotional investment in the proceedings. To be clear: I do not consider that the plaintiff is a dishonest person.
11. My simple resolution of the question of fact as to the nature of the relationship and interactions between Dr Padhi and the plaintiff and what, if anything, lay beneath what he had to say to her on 12 January 2018 is as follows.
12. Dr Padhi was speaking to the plaintiff in a friendly and entirely appropriate way, as befitted a new professional colleague. I reject the proposition that he was seeking to undermine her in any way. And, as I have said, I reject without hesitation the proposition that their shared experience of the German capital, their shared knowledge of Mr Navaratnam, and their shared interest in psychiatric training in London was anything other than a perfectly explicable coincidence, in light of their shared profession and specialisation, and the world that existed then of unfettered international travel. The conversation was not founded on malevolence, let alone some kind of prior secret intrusion by Dr Padhi into the personal life of the plaintiff.
13. In coming to all of those conclusions, I have not forgotten that the risk assessment provided by Dr Padhi of the plaintiff was later subsequently downgraded by another colleague. But I reject the proposition that that is evidence of malevolence on the part of Dr Padhi against the plaintiff. In my opinion, the simple explanation of it is that professional minds can legitimately differ within a large organisation about the seriousness of a perceived problem. Furthermore, I think it possible that Dr Padhi was troubled about his suspicions, and discomforted by the other clinical problems that had undoubtedly developed, and those emotional states may have led him to emphasise his concerns in the document.
14. Apart from the opinion that Dr Padhi expressed back in early 2018 about his fears about the mental and emotional well-being of the plaintiff, no medical opinion about that topic was placed before me. And I approach the opinions then expressed by Dr Padhi as not being evidence of the truth of their contents, but rather as simply explanations of why he subsequently did what he did. Furthermore, of course as a layperson constituting the tribunal of fact, I do not presume in this judgment to come to any medical finding, let alone any diagnosis, about the state of mind of the plaintiff.
15. Even so, the inevitable concomitant of my finding that the assertions made and maintained by the plaintiff about the motives and conduct of Dr Padhi, and indeed other persons, are without foundation is that I am satisfied on the balance of probabilities that her beliefs, feelings, assertions, and evidence about the actions and motivations of others were not based on objective fact.
16. And that view of mine inevitably affects my assessment of the evidence of the plaintiff that her devices had been hacked, as follows. Of course, I am aware as a layperson sitting as the tribunal of fact that hacking can and does occur: the news is replete with it having happened on both a small and large scale. And I have not forgotten that the plaintiff was in possession of a report that suggested that she may indeed have been a victim of that phenomenon. But here the inescapable inference is that the beliefs of the plaintiff about that topic must be judged in light of the fact that her beliefs about Dr Padhi and others are not well-founded.
17. I am respectfully well aware of the gravity of a judge of this Court coming to a finding about a psychiatrist that her firm beliefs are not grounded in objective fact. I accordingly apply the reflective and cautious "Briginshaw standard" to it: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. Even so, I am comfortably satisfied of the proposition that all of the adverse assertions of the plaintiff about the motivations and actions of Dr Padhi must be rejected, and none of them have any grounding in fact.
18. Turning now to apply that finding of fact to the elements of the cause of action of breach of confidence, the plaintiff referred to the principles that have been set out in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 443: It is now settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff: (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question; and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence; and (iv) there is actual or threatened misuse of that information …
19. I did not understand the first defendant to impugn that summary of the elements needed to be proven to my satisfaction on balance.
20. To apply my factual and credibility findings to the cause of action of breach of confidence, and to focus on (iii) above: not only am I not satisfied on the balance of probabilities that Dr Padhi has ever obtained confidential information about the plaintiff, I reject the proposition. That is a sufficient factual basis upon which to decide that this cause of action must fail.

Misleading and deceptive conduct against the Health District

1. Turning to discuss a further cause of action in a different order, as I have said this was founded on the proposition that the first defendant misled the plaintiff into working with children and adolescents, when she had been led to believe that she was working with adults.
2. As mentioned previously, the relevant statutory provision can be found in s 18 of the ACL: Misleading or deceptive conduct (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. (2) Nothing in Part 3‑1 (which is about unfair practices) limits by implication subsection (1).
3. The plaintiff also relied on the right to damages caused "by" such conduct, pursuant to s 236 of that legislation.
4. The following submissions were made on behalf of the plaintiff in support of the establishment of this wrong.
5. First, it was submitted that there is no doubt that the plaintiff was misled or deceived by a "carelessly made false representation" as to her placement.
6. Secondly, s 18 is not confined to conduct which is intended to mislead or deceive: Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CCLR 45; [2000] HCA 12.
7. Thirdly, damages are to be awarded on the basis of compensation for all of the loss directly suffered analogous to fraud, whether or not the claimant contributed to that loss, as to which the Court may make an 'expedient' albeit 'inexact' method of calculation: Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 (Gleeson CJ); Moore v Scenic Tours Ltd (2020) 377 CLR 209; [2020] HCA 17.
8. Separately from the applicable principles of law relied upon above, the plaintiff submitted that the following aspects of the evidence established this claim.
9. First, the Health District represented to the plaintiff that the position was an adult psychiatry position, which was simply not the case.
10. Secondly, there was never any intention to have the plaintiff work for the duration of the contract.
11. Thirdly, the plaintiff made clear that she sought work in the area in which she was trained - adult psychiatry - and that she did not hold a fellowship in child and adolescent psychiatry. Relatedly, the plaintiff had no prior experience in acute child and adolescent psychiatry, and had done her basic training in 2010 in an outpatient and community facility only. Furthermore, the plaintiff sought to clarify her role repeatedly.
12. Additionally, it was said that the plaintiff was reassured that the placement in adult psychiatry would become available, but there was never any real intention to have her work beyond 15 January 2018.
13. It was also submitted that the second defendant (against whom the same claim was made) "deliberately omitted the full email trail in its evidence and … included only the last four emails". This was a reference to the evidence placed before me of the emails passing between the plaintiff, the Health District, and Charterhouse in the period leading up to her commencement of work at Redbank.
14. Turning to my determination of this claim, in my respectful opinion, this cause of action can be dealt with concisely without doing injustice to either litigant, and without the need to dissect the complexities of the statutory cause of action.
15. That is not only because, as a matter of objective fact, the plaintiff arrived at Redbank on the appointed day and continued to work there; in other words, it is not as if she promptly left once she realised the age of the patients under her care.
16. Nor is it only because there is no record of any complaint having been made by the plaintiff whilst she was a VMO about the age of her patients, either to the Health District or Charterhouse.
17. It is primarily because the email chains passing between the plaintiff, officers of the Health District, and employees of Charterhouse in the period leading up to her appointment soundly demonstrate that the plaintiff was well aware of the nature of the work that she was to undertake. To give but one example from Exhibit 2D 6, on 28 November 2017 between 11:02 and 11:11 am, the following exchange occurred: [From Aimee Greenfield (Principal Consultant, Psychiatry at Charterhouse Medical) to the plaintiff on 28 November 2017 at 11:02 am] "Hi Sujatha, From what I gather from Daniel, i think the same service at Cumberland asked if you can cover the C&A [child and adolescent] role as they don't know the exact start date for the General Adult position. So i will chase up and find out if they have a proposed start date for you! Thanks, Aimie" […]
18. The response by the plaintiff on the same date at 11:11 am was as follows: "Ok I can do the child role for a bit before the adult role needs filling I guess. Regards, Sujatha"
19. The proposition that the plaintiff was under any misapprehension as to the nature of the work she was to undertake is, with respect, simply unsustainable.
20. Finally, to the extent that, when cross-examined about these documents, the plaintiff at Tcpt, 6 December 2019, 326(6)-326(25) raised the possibility that they had somehow been tampered with and were false or forgeries, I firmly reject that. And the assertion of that possibility by the plaintiff under oath supports my analysis of her credibility and states of mind already provided under the rubric of breach of confidence.
21. In short, as a matter of fact derived from clear documentary evidence, I am affirmatively satisfied that the plaintiff was well aware that she would be working with children and adolescents at Redbank, and accordingly that the Health District did not mislead her in that regard.
22. In similar vein, the working conditions at Redbank may have been sub-optimal, but that hardly establishes this cause of action.
23. I also reject the proposition that the officers of the Health District for some malicious reason, deliberately "set the plaintiff up to fail", and never intended her to fulfil the entire proposed period as a VMO. Yet again, the maintenance of that assertion feeds into my factual findings in a way significantly adverse to the credibility of the plaintiff as a whole.
24. I turn now to a contingent finding, on the assumption that I am wrong in the above legal and factual determinations. With regard to causation in the context of misleading and deceptive conduct, the putative wrongful conduct led to the plaintiff working at Redbank when she should have worked exclusively at an adult psychiatric facility. On her own case, she performed her duties at the least satisfactorily in trying circumstances (my finding about the assessment of the performance of the duties of the plaintiff appears below). But it was not the plaintiff being assertedly misled into working at Redbank that caused all that has gone wrong in her life subsequently; by any measure, it was the complaints made by Dr Padhi to various professional and regulatory bodies, and upheld by them at least to the extent of the plaintiff being suspended from practice.
25. In other words, even if the plaintiff was subjected to misleading and deceptive conduct - a finding that I firmly reject - it is not possible for her claim in the sum of many millions of dollars of damages to be sheeted home to that conduct.
26. This claim against the Health District must also be rejected.

Injurious falsehood against the Health District

1. I determine this next cause of action against the Health District on the understanding that it had two factual bases. The first was the creation and promulgation of documents within the organisation that spoke adversely of the professional performance of the plaintiff; in particular, the risk assessment of her created by Dr Padhi and a colleague by way of filling in an administrative form, and that was the subject of subsequent internal "downgrading".
2. The second basis was constituted by the notifications that Dr Padhi made to at least one professional body based upon his fears that the plaintiff was not mentally well, and was exhibiting signs of paranoia.
3. To repeat what I have said above for the convenience of the reader, the elements of this tort may be sketched as follows: a false statement of or concerning the plaintiff's goods or business; publication of that statement by the defendant to a third person; malice on the part of the defendant; and proof by the plaintiff of actual damage suffered as a result of the statement: see Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at [52].
4. In my respectful opinion, although a number of elements of the tort were placed in contention by senior counsel for the Health District, the claim can be determined on one of them: the requirement for proof of malice within injurious falsehood.
5. Consistent with my findings of fact above, I respectfully reject the proposition that Dr Padhi - or, indeed, any other employee of the Health District - was motivated by malice against the plaintiff at any stage. In fact, I am affirmatively satisfied of the contrary proposition: that he and others were motivated by good faith in what they wrote and said about the plaintiff.
6. In particular, I consider that the concerns of Dr Padhi about the mental state of the plaintiff, after their discussions and her enquiries of him, were sincerely held, and that all of his actions based upon those beliefs were motivated by a sincere desire to ensure the appropriate medical treatment of the patients of Redbank, and other persons, by the plaintiff.
7. I shall not repeat the bases upon which I come to that view; they are amply explained at an earlier stage of my judgment.
8. There are other bases upon which it could be that this tort should be rejected, but I do not believe it is incumbent upon me in the circumstances to go further.
9. The cause of action of injurious falsehood against the Health District is not established, on either factual basis.

Breach of contract against the Health District

1. The nub of this final cause of action against the Health District was the proposition that it had no right to terminate the appointment of the plaintiff as a VMO. In the final oral submissions, it was expressed for the plaintiff as a repudiation of the contract between the two of them.
2. It seemed to be accepted that the following legal issues were relevant: whether a contract did in fact exist between the plaintiff and the Health District; if so, what were its terms; whether the Health District complied with the contractual provisions governing the termination of the appointment of the plaintiff; whether that termination was authorised; and whether the plaintiff suffered any loss by reason of the asserted repudiation of the contract.
3. In turning now to resolve this cause of action, I shall first provide my finding of fact about the care that the plaintiff provided to the two young patients, Olive and Tina, and more generally whilst she was working at Redbank.
4. A great deal of the hearing was devoted to exploring the question of whether the care provided by the plaintiff in her role as a VMO at Redbank was satisfactory or not. To give but one example: it was said that, by calling security on at least one occasion, the plaintiff had failed to "de-escalate" a developing, emotionally raw situation in a therapeutic way. The counter-argument made on her behalf was that, for a number of reasons, the plaintiff was entitled to be concerned about her safety and that of others, and calling security was appropriate.
5. In my opinion, it is neither necessary nor desirable for me to resolve this controversy, whether generally or in its particulars. After all, professional minds can legitimately differ about any medical treatment, and I consider that there can be even more legitimate disagreement about the medical treatment of emotional, psychological and psychiatric problems than physical ones. I therefore limit my findings of fact to the following.
6. Although I have rejected the proposition that the plaintiff was in any way misled about the nature of the work she was to undertake at Redbank, I do accept that she would have preferred to engage in adult psychiatric work, and that she was more comfortable and experienced within that sub-speciality.
7. It is true that at least one complaint was made about her treatment by a parent of a child patient. But I think that, in all the circumstances, such a complaint has to be seen in the context of parents being deeply upset and worried about their children, and medical staff doing their best to help, within their professional judgment, in very trying circumstances.
8. I do accept that concern about the treatment that the plaintiff had provided during her appointment played a role in Dr Padhi taking the steps that he did. But I do not accept that it has been affirmatively established that the work undertaken by the plaintiff was unsatisfactory. In other words, my finding of fact about this whole topic is, in a sense, an absence of a finding: I am not satisfied that it has been established that the plaintiff was incompetent, or negligent, or ill-motivated in her work. Her period of appointment was not a great success, and problems arose, I agree, but they are not the same thing as incompetence or unsatisfactory performance in a very challenging setting.
9. A further finding of fact that I make at this stage is that there were shortcomings in the working conditions to which the plaintiff was subject during her appointment. They included such things as not being able to log on to the computer record system conveniently, and not having her own access card. After all, the evidence was undisputed that some aspects of her work were not logistically perfect. And I also accept that that state of affairs made a trying experience even more trying for the plaintiff.
10. Having said that, I reject without difficulty any proposition that any person (associated with either defendant) had placed the plaintiff in that position deliberately. Rather, those logistical difficulties were, I am well satisfied, merely the result of inevitably finite resources within the public health system generally, and perhaps particular logistical disruptions and difficulties when one is filling in as a locum.
11. My final finding of fact convenient to record now is that, as I have said, on 27 February 2018 the plaintiff was called upon to sign a document in the nature of some sort of retrospective contract governing the conditions of her appointment that had come to an end many days beforehand. I accept that the plaintiff signed that document solely so that she would be paid her outstanding remuneration, not least because of the way she endorsed it. Patently, that document does not constitute a contract, because it does not reflect a meeting of minds; quite the contrary.
12. Turning now to resolution of legal disputes underpinning this cause of action in the context of those findings: as I understood the final position advanced for the plaintiff, it was that the appointment of the plaintiff was governed by the HSA. I did not understand it to be disputed that, by way of that legislation, the SD was "picked up", and no contract between the two parties could be inconsistent with it. It was said for the plaintiff that there had been a flagrant breach of a provision of the HSA, in that Part 4 of Chapter 8, which provides a mechanism of "appeal" to visiting practitioners whose appointment has not been renewed, or suspended, or terminated, had simply not been complied with. I understood the thesis to be that the Health District had no right to purport to terminate her appointment before the date when it was agreed that it would expire. As for the date of any written contract said to bind the parties, I understood the thesis of the plaintiff to be that it was 8 December 2017, when the plaintiff by email expressed her acceptance of the contract then under discussion, although she referred to some ancillary matters that needed to be tidied up.
13. In a nutshell, the proposition was that, as a matter of fact and law, the Health District had no right to terminate the contract of the plaintiff when it did, and that she is entitled to very significant damages for all that has flowed from that wrongful act.
14. The position of the Health District may be summarised as follows. It was agreed that the HSA applies to the appointment of the plaintiff. It was also accepted that the SD had a role to play, in that, pursuant to s 98 of the HSA, any contract between the parties could not be inconsistent with the SD.
15. It was further accepted that the HSA had not been complied with, and that the plaintiff had thereby been deprived of the reasons for her termination, and her right of appeal to the Minister of Health. Having said that, the "temporal argument" made for the Health District was that failure to fulfil a statutory obligation that arose subsequent to the formation of the contract appointing the plaintiff as a VMO could hardly retrospectively shed light on the terms of the contract itself, including the circumstances in which the appointment could be terminated.
16. The thesis was that, looking at the negotiations between the plaintiff, the Health District, and Charterhouse, the objectively determined "meeting of minds" is to be found in the "locum agreement" that was annexed to a separate agreement between the plaintiff and Charterhouse. The thesis for the plaintiff about the creation of the contract having occurred on 8 December 2017 was rejected, chiefly on the basis that both the length of the appointment and also the pay rate remained to be resolved. I understand the point simply to be that those were fundamental matters to a contract of appointment as a VMO, and could hardly be regarded as ancillary "bits and pieces". The alternative thesis of the Health District was that, although things were not sufficiently resolved as at 8 December 2017, they had been by 11 December, and that is the date of the "locum agreement" to which I must look.
17. Resolving this dispute, I accept the following propositions.
18. First, although reference was made on behalf of the plaintiff to many decisions of many courts over many years about asserted breaches of contracts of employment by various public instrumentalities, they all need to be understood in their own specific statutory context. My focus has been on the circumstances of this case: the HSA, the applicable SD, the negotiations of the parties, what the evidence shows they have done and not done, and when one can objectively infer that agreement was reached.
19. Secondly, as at 8 December 2017, fundamental matters were not sufficiently resolved for it to be able to be said that a contract had been entered into.
20. Thirdly, moving ahead to 27 February 2018, to repeat: that purported contract was not a meeting of minds at all, and can be put to one side.
21. Fourthly, in my respectful opinion, the failure of the first defendant to comply with the appeals provisions of the HSA was a most regrettable one. That is because I accept the submission of counsel for the plaintiff that, if there had been compliance, it could well be that the plaintiff would have availed herself of that mechanism, rather than lengthy and expensive proceedings being seen to be needed to be instituted in this Court.
22. Fifthly, even so, I accept the temporal argument of the Health District that that failure cannot retrospectively affect objective determination of the formation of the contract, and the rights of the parties to which it gave rise.
23. Sixthly, I accept the proposition that there was an objective meeting of minds evidenced by the locum agreement of 11 December 2017. Seen in context, that document sets out the objective (and, to the extent it is relevant, the "subjective") agreement by which the parties were content to be bound.
24. Seventhly, clause 16(1)(a) of the SD provided that there could be termination on expiry of the agreed period of appointment or earlier "as may be agreed" between the plaintiff and the Health District. But in my respectful opinion that sheds little light here: the plaintiff certainly did not agree to the Health District dispensing with her services prior to the expected expiry date of her appointment. And although there are other grounds for termination to be found in clause 16(1)(a) of the SD, I did not understand the Health District explicitly to rely upon any of them.
25. Eighthly, in my opinion, the resolution of this dispute is to be found in the locum agreement. It provided that the Health District, to paraphrase, could not guarantee the amount of work that the plaintiff would ultimately be called upon to perform, or any resultant total fee for services. The locum agreement also spoke of the amount of work to be required of her as being at the "complete discretion" of the Health District.
26. Those provisions of the locum agreement, in my respectful opinion, are a complete answer to the proposition that the Health District had no right to ask the plaintiff to conclude the provision of her professional services before the appointed date.
27. And I must say that, speaking generally, that position seems to me to make complete "business sense" in the context of a short-term or locum appointment, for the following reason. As against the possibility that the professional whom a locum is temporarily replacing may become unexpectedly available - for example, because his or her holiday must be cancelled due to a family illness - it would be completely contrary to common sense for an appointed locum to be able to insist that his or her term of appointment be unnecessarily fulfilled, perhaps for many months.
28. Ninthly and finally, for completeness, it is one thing to say that the working conditions of the plaintiff during her appointment were sub-optimal. It is another thing entirely to say that they constituted a breach of contract. To the extent that that may form part of this claim, I reject it.
29. It follows that I would reject the claim of unfair dismissal or breach of contract. In summary: as one would expect in the circumstances, within the contractual rights of the Health District with regard to a doctor appointed as a locum, was the right to dispense with her services as it saw fit. That is what occurred. Although there were, with respect, undoubted failings on the part of the Health District, repudiation of the contract between itself and the plaintiff was not one of them.
30. It follows that this cause of action has not been made out.

Contingent analysis - measure of damages for breach of contract

1. As against the possibility that I am completely wrong in the above analysis of this cause of action, I make the following contingent finding.
2. The thesis for the plaintiff was that, after her appointment as a VMO was terminated, adverse events occurred, one cascading into the other, with the result that she would be entitled to very significant damages. But I cannot accept that the termination of the appointment, several weeks earlier than expected, can have "sheeted home to it" all that has gone wrong in the life of the plaintiff since then. As a matter of simple causation in breach of contract and sensible measure of damages, if indeed there has been a repudiation of this contract of temporary appointment, the damages should be no more than the unpaid professional fees for the few weeks during which the plaintiff would otherwise have remained working as a VMO.
3. That concludes my analysis of all of the causes of action brought by the plaintiff against the Health District. In my opinion, none of them is established. I turn now to discuss those maintained at the end of the hearing against Charterhouse.

Misleading and deceptive conduct against Charterhouse

1. For the straightforward reasons that I have given above with regard to the identical claim against the Health District, this claim against Charterhouse must be rejected.
2. To repeat myself for the convenience of the reader: the inevitable inference from the email exchanges leading up to the appointment is that the plaintiff was perfectly well aware that, although her preference was to work in adult psychiatry, even so she was to be working at Redbank, at least for a significant proportion of the time of her appointment, and that Redbank was a place of treatment of children and adolescents.
3. Separately, the suggestion that, for some reason or other, Charterhouse - the agency that had itself facilitated the appointment of the plaintiff as a VMO - wished to see that appointment fail, cannot be accepted.
4. Finally, if I am wrong about all of that, I repeat the contingent causation finding that I made in the context of the identical claim against the Health District.
5. This claim against Charterhouse is rejected.

Injurious falsehood against Charterhouse

1. To reiterate for the convenience of the reader, this claim against Charterhouse had two bases. The first was the words spoken by Mr Pereira to Mr Harvey to the effect that, at the time of speaking, Charterhouse should not arrange further placements for the plaintiff. The second was the email sent by Mr Harvey to the plaintiff and Ms Greenfield that I have quoted in full above at [20].
2. I shall not repeat the thumbnail sketch of the elements of this tort that I have provided above, and with which the plaintiff and Charterhouse were content. And it is to be recalled that Charterhouse, as opposed to any natural person, is said to be liable for the words spoken by natural persons in its employ, on the basis of vicarious liability.
3. In my respectful opinion, on neither factual basis can the claim succeed, for the following reasons.
4. Focusing first on the words spoken by Mr Pereira, in my opinion they are not the kind of statement captured by the tort. Although they are indeed a statement in the strictly grammatical sense of being a declaration about something, they are more in the nature of a command or firm suggestion as to what Charterhouse should or should not do in the future. They are not a statement about the plaintiff; they are a statement about Charterhouse, and what it should not do. Although one might readily infer why the speaker spoke as he did, the words he spoke do not say anything injurious about the plaintiff. That is the first reason why this basis of the claim must fail.
5. The second reason is because the words were spoken by one employee of Charterhouse to another. Bearing in mind that Charterhouse is the alleged tortfeasor, in my opinion there was no statement made by Charterhouse to a third party; rather, by way of one employee speaking to another, Charterhouse was "talking to itself" internally. But an essential element of the tort is the making of a false statement to a third party.
6. The third reason why this basis should fail is because malice is an essential element of the tort. It is true that the meaning of that element in the context of this tort is not straightforward: see generally Australand Holdings Ltd v Transparency and Accountability Council Incorporated [2008] NSWSC 669. Even so, even on the most elastic reading of that term, there was no evidence placed before me that could establish on the balance of probabilities that, when he said those words, Mr Pereira was acting with malice against the plaintiff. Indeed, bearing in mind that he had been told by Mr Harvey of the statement of Dr Padhi that, for unrevealed reasons the plaintiff had been suddenly terminated from her locum appointment, in my opinion the suggestion or command by Mr Pereira to Mr Harvey about what Charterhouse should and should not do in future was an unexceptionable one. It cannot be said that it was actuated by malice.
7. In short, for three separate reasons, the first basis of this claim must fail.
8. As for the second basis, I accept the evidence of Mr Harvey that the email was accidentally sent to the plaintiff, not least because of its opening word "Dave", and the frequency with which emails are transmitted to unintended addressees. I also accept that Mr Harvey would have been unlikely intentionally to send such a communication to the plaintiff, not least because there was already a measure of dispute arising from the events of January 2018 in which Charterhouse had become embroiled. I am well satisfied that the communication was an ill-thought out mocking of another person that was intended to remain confidential between work colleagues.
9. On the other hand, Mr Harvey gave evidence that, in referring to the plaintiff as "cray" more than once in his email, he meant to convey that in his opinion she was an eccentric person. But I reject that evidence: in my opinion, the context of the email, its intended recipients, its contents, and its tone combine to establish on balance that Mr Harvey intended to convey that, in his opinion, the plaintiff was mentally disturbed.
10. In particular, in cross-examination at Tcpt, 9 July 2020, p 971(14-21), he explained that his reference to the "Google car lady" was a reference to an earlier locum appointment of plaintiff, during which someone had reported that the plaintiff had complained that the "Google car" that is well-known to travel through the streets of the world taking photographs of buildings and landscapes for the purposes of Streetview on Google Maps was, in truth, following her. He was unshaken in that evidence, despite the best efforts of counsel for the plaintiff to have him adopt other theses based on typographical error.
11. In saying what he did in the email, I do not accept that Mr Harvey was intending to convey that someone who held that belief was eccentric or colourful; I am satisfied that he intended to convey his opinion, whether held seriously or humorously, that the plaintiff was not mentally well.
12. To complete my analysis of what Mr Harvey meant to convey, extracts of dictionaries of differing provenance were placed before me by the parties. But I place a little weight on that evidence: my assessment is based not only the fact that the word under discussion is surely primarily a contraction of the word "crazy", but also upon the context in which the word was used: referring to a reported, purportedly deeply held belief on the part of the plaintiff that, if sincerely held, would not be founded in fact.
13. My rejection of this part of his evidence, however, does not mean that the tort is established, for the following reasons.
14. First, the statement was made to the two persons who were its addressees: Ms Greenfield, an employee of Charterhouse, and the plaintiff. It was not made to a third party, and therefore was not promulgated in accordance with an essential element of the tort.
15. Secondly, although surely hurtful once received by the plaintiff, in light of its intended addressees, and its flippant tone, I am not satisfied that it can be characterised as malicious, in the sense that the tort understands that term. In short, I assess it as having been intended to be an unpleasant workplace joke at the expense of another person, nothing more than that.
16. Thirdly, it is to be recalled that this email was sent many months after Dr Padhi had made his complaints to professional and regulatory bodies. It was those complaints that led to the plaintiff being unable to practice as a psychiatrist, with multifarious adverse consequences to her. There was no evidence placed before me that the email of Mr Harvey, sent only to the plaintiff and a colleague of his, occasioned any damage to the professional practice of the plaintiff.
17. For three separate reasons then, the second basis of the tort of injurious falsehood against Charterhouse must fail.

Summary of disposition of claims against Charterhouse

1. The claim of misleading and deceptive conduct fails against Charterhouse. So does injurious falsehood, on both factual bases. The straightforward result is that there must be verdict and judgment in favour of the second defendant.

Damages with regard to all claims against both defendants - contingent findings

1. As against the possibility that I am wrong with regard to any cause of action against either defendant, and in truth one or more of them is established on balance on the evidence, I make the following wholly contingent findings of fact about damages.
2. First, there are obvious problems of establishment of causation arising here. By that I mean, I certainly accept that the life of the plaintiff - personally, professionally, financially - has declined precipitously since early 2018. But there are intractable issues about the plaintiff being able to assign any or all of those adverse outcomes to any cause of action that was placed before me.
3. Indeed, with the possible exception of a part of the injurious falsehood claim against the Health District - based, it is to be recalled, upon the complaints made to professional bodies by Dr Padhi - the subsequent adverse events in the life of the plaintiff in my opinion are not to be ascribed to the events of which I have written.
4. Rather, they are to be ascribed to the fact that, for years, she has been prohibited from working in her chosen profession by the relevant medical tribunals, with concomitant personal distress, financial disadvantage, and loss of reputation. But in my respectful opinion that state of affairs is nothing to do with - for example - whether or not the plaintiff would have preferred to work in adult psychiatry before she commenced at Redbank, or whether Mr Harvey accidentally emailed a hurtful joke to an unintended recipient.
5. Secondly, even if I am wrong a second time in that contingent finding, and even accepting as I do the general proposition of loss and hardship suffered by the plaintiff, there are obvious problems in terms of the sufficiency of evidence placed before me, as opposed to bare assertions in material such as exhibit H, with regard to quantification of damages.
6. However, because of the firm view that I have come to about the failure of all causes of action against both defendants, I do not believe it is incumbent upon me to take this contingent analysis further.

Conclusion and orders

1. On the basis of the above analysis, I return the following verdicts and make the following orders: 1. Verdict and judgment for the first defendant. 2. Verdict and judgment for the second defendant.

Determination of costs

1. It was agreed at the conclusion of the hearing that costs should be determined separately, rather than me receiving submissions about them contingently at that time. I was content with that course.
2. Accordingly, my Associate will be in touch with the parties in due course to provide a timetable and other logistical aspects of the provision of written submissions about the question, with the intention that I shall resolve it in Chambers. An oral hearing will only be conducted if, after the provision of all of those written submissions, a party successfully moves on a notice of motion seeking that mode of resolution. My further order is therefore: (3) Costs reserved.

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