Kitchen v Quinlivan [2025] QSC 176

EVIDENCE - ADMISSIBILITY - GENERAL PRINCIPLES - OBJECTIONS - where at the commencement of trial both parties raised a number of objections to evidence - where the plaintiffs (a doctor and his practice entity) bring a claim against the defendant (director of the Professional Services Review agency (PSR agency)) for misfeasance in public office - where the plaintiffs object to the evidence of several witnesses whose evidence they contend goes towards establishing those witnesses "usual practice", of either themselves or the PSR agency which they worked for, and such evidence is speculative or conclusionary - where the plaintiffs object to evidence on the basis of issue estoppel or res judicata - where the defendant objects to an affidavit in the plaintiffs' evidence on the basis that it is irrelevant on the pleadings - where the defendant objects to an expert report provided by the plaintiffs on the basis that it is inadmissible opinion evidence that goes to the legal question before the court - whether the objections are upheld

ESTOPPEL - ESTOPPEL BY JUDGMENT - ISSUE ESTOPPEL - RES JUDICATA OR CAUSE OF ACTION ESTOPPEL - where it is admitted on the pleadings that the defendant consented to a declaration in prior Federal Court proceedings - whether there is an issue estoppel or res judicata in relation to the defendant's declaration in the Federal Court proceedings such that the defendant cannot now give evidence in respect of that declaration

Health Insurance Act 1973 (Cth)

Judiciary Act 1903 (Cth)

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464

Connor v Blacktown District Hospital [1971] 1 NSWLR 713

Gooley v NSW Rural Assistance Authority (No 3) [2019] NSWSC 1314

Kitchen v Director of Professional Services Review [2023] FCAFC 60

Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Phelan v Melbourne Health [2019] VSCA 205

R v Gordon (No 4) [2016] NSWSC 312

Webuildem Pty Ltd v Arab Bank Australia Ltd [2013] FCA 37; (2013) 300 ALR 99

• [1] This trial commenced before me on Monday 21 July 2025. On that day, a number of objections were made to the evidence on both sides of the record. Written submissions pertaining to those objections had apparently not been disclosed between the parties before the hearing, although the fact of the objections, and the particulars of them, had been exchanged between the parties such that, at the hearing on 21 July 2025, the parties were able to provide schedules of the objections to the affidavits, their response to them and allow an opportunity for me to rule in relation to them.
• [2] The matter has to be determined quickly to enable the trial to proceed. For that purpose, the court did not sit today, but the trial will resume tomorrow.

The plaintiffs' objections to the defendant's evidence - "usual practice"

• [3] I will return to the individual objections shortly, but I say something about the broad nature of the objections at the outset.
• [4] The first objection is in relation to the evidence of several of the witnesses whose evidence is said to go towards establishing those witnesses "usual practice" of either themselves or the organisation for whom they worked, the Professional Services Review agency ("PSR agency"). The plaintiffs submit that evidence of usual practice is largely unobjectionable but several of the witnesses go further to depose that whilst not having any recollection of having undertaken a specific step on a particular day they "would have" done that step having regard to that usual practice.
• [5] The plaintiffs refer me to Gooley v NSW Rural Assistance Authority (No 3),[1] where Parker J said the following at [118] to [119]:

"Strictly speaking, it is not admissible for a witness who cannot remember doing something on a particular day to give evidence directly that, in accordance with his usual practice, he would have done it. What is admissible is evidence of the practice (which can be given by the witness or anyone else having sufficient knowledge of that practice), from which the Court can be invited to infer that the witness did actually so act on the day in question: see Connor v Blacktown District Hospital [1971] 1 NSWLR 713 at 721, per Asprey JA, with whom Mason JA agreed; R v Gordon (No 4) [2016] NSWSC 312 at [14]- [15], [20].

The key point is that the drawing of the inference is ultimately for the court. Whether the court draws the inference depends upon how compelling the evidence makes it. Where the business practice in question involves a step which is a mechanical one and does not involve any discretion, it may readily be possible to draw the inference. But where the usual practice described in the evidence is neither regular nor uniform, the court can have less confidence that the step in question was actually taken on the occasion in question. In such a case, the evidence of usual practice may in truth be no more than the witness' reconstruction, or hope, about how he or she would have behaved in the circumstances of the case."

• [6] Further, the plaintiffs rely upon R v Gordon (No 4),[2] where Campbell J considered the statement of Asprey JA (with whom Mason JA agreed) in Connor v Blacktown District Hospital,[3] and stated at [15]:

"...Evidence of a witness that "I believe I did this because I always do it", is of its nature inscrutable and, therefore, difficult to test. In my view the proper approach is that of Asprey JA, agreed to by Mason JA, which essentially treats evidence of practice as a species of circumstantial evidence. Evidence of practice lays a foundation for an inference that the practice was followed on a particular day. That is the proper basis of its admissibility."

"I would not however permit her to give evidence that because this was her usual practice she believed she did it on the day or she must have done it on the day or some other formulation which is really a conclusionary statement rather than evidence of what she saw, heard or otherwise perceived."

• [8] That seems to me to be a well-accepted proposition that statements are admissible to the extent that they go to setting out what the witness' usual practice would be. From this, the court can, but not must, draw an inference about whether such acts were performed by that person on the occasion and in the circumstances, because the evidence demonstrates that the person has done so with sufficient regularity, and or in similar circumstances, so as to make it appear probable in the minds of a reasonable person that given the same or similar circumstances, the like acts were performed again.[4]
• [9] But that is an inference for the court to draw. It is not admissible for the witness to say that they "would have" done a particular thing because that is in accordance with their usual practice. In short, they can give evidence to their usual practice, but not that they would have done a particular thing on a particular day.
• [10] The defendant relied upon the decision of Phelan v Melbourne Health,[5] particularly at [79] to [82], to support the proposition that it is well-established that evidence as to usual practice is admissible and, on occasions, can be decisive.
• [11] I accept entirely that evidence as to usual practice is admissible, but the evidence which is being relied upon here is not limited to evidence of usual practice, but effectively asks the court to receive evidence as to the inference that should be drawn from that usual practice, and that can be seen by an identification of the paragraphs which are objected to below.
• [12] As to the affidavit of Georgia O'Keefe, after the exchange of objections the only paragraph that remained in dispute was paragraph 27 where Ms O'Keefe says:

"On 12 or 13 November 2018 (although I cannot specifically recall when) I would have printed the final versions of the following documents and placed it in the Director's in tray, outside her office, for her to review and sign ..."

• [13] This paragraph is inadmissible. The witness can, consistent with the authorities I have set out above, give evidence as to her usual practice but it is a matter for the court to draw an inference, or not, based on the quality of that evidence as to whether the court can be satisfied that she did those things on the days which she alleges.
• [14] The defendant attempted to support paragraph 27 of Ms O'Keefe's affidavit on the basis that, properly read, the evidence was really that she knew that she had printed the final versions of the documents on one of two days, the 12th or the 13th of November, but she was merely unable to say on which day she so printed it. I do not accept that that is the way paragraph 27 should be read. If her evidence was that on one of two days she printed the final version of a document, but she was unable to say on which day she had done it, the paragraph could have said as much; but it did not. As drafted it seems to me paragraph 27 is inadmissible.
• [15] In relation to the affidavit of Margaret Parker, the first objection, not otherwise resolved, was paragraph 33 which read:

"Whilst I cannot recall, it is more likely than not we would have had a weekly case management meeting with the Director on Thursday, 1 November 2018 (or thereabouts) where it would have been mentioned that Dr Kitchen's 2018 submission had been received."

• [16] The plaintiffs object to the evidence on the basis that it is speculative or conclusionary, and the witness cannot give evidence that she believed she complied with her usual practice on a particular day.
• [17] The objection is upheld. The witness is not here giving evidence about what the usual practice of the PSR agency was at its weekly case meetings. Rather it is speculation as to what "would have" been done on a particular day. It is inadmissible.
• [18] I turn to the affidavit of the defendant sworn 5 August 2024.
• [19] The first objection which falls within the "usual practice" objection is to paragraph 42 of Director Quinlivan's affidavit. The paragraph reads:

"To prepare for the meeting with Dr Kitchen I would have spent approximately eight hours:

(a) reading the 'case folders' (which at this stage comprised three large white A4 lever arch folders), and included the Medicare request for review and relevant attachments, Dr Dunlop's report/comments, the letter sent to Dr Kitchen about the meeting, and a sample of Dr Kitchen's patient records for each of the MBS items the subject of review;

(b) reading more of Dr Kitchen's patient records;

(c) referring to Medline on specific procedures and practices;

(d) referring to my previous annotated notes and making further annotations on the printed file; and

(e) preparing written notes for me to refer to during the meeting."

• [20] The paragraph is objected to on the basis that it is speculative or conclusionary and that the witness cannot give evidence that she believes that she complied with her usual practice on a particular day. The defendant supports the paragraph on the basis that it is evidence of her usual practice.
• [21] I do not accept that Director Quinlivan's evidence at paragraph 42 is evidence of her usual practice. As drafted, it is, I agree, speculative or conclusionary. It is not framed as her usual practice as she has done elsewhere in her affidavit (see for example the way in which her evidence is offered at paragraph 17). In the circumstances, the objection to paragraph 42 is upheld.
• [22] The next objection is to paragraph 53(xii), but limited to the second sentence:

"I would have said words to the effect that Dr Kitchen will have the opportunity to provide written submissions to me if he wished, and I would have explained to Dr Kitchen the possible outcomes of the review which was for me to take no action, enter into an agreement with him or refer him to a committee."

• [23] Again, the plaintiffs object to this evidence on the basis that it is either speculative or conclusionary or that the witness cannot give evidence that she believes she complied with her usual practice on a particular day. The defendant supports the evidence on the basis that it is evidence of her usual practice.
• [24] I find the evidence to be inadmissible. The evidence is not framed in the way that this was the doctor's usual practice as she has elsewhere in her affidavit, rather it is framed in a way that is inadmissible evidence of what she "would have" done.
• [25] I propose to deal with the objections to paragraphs 59, 60 and 86 together:

(a) 59 reads - "The process by which the section 89C report came to be prepared would otherwise have followed the general process I have set out at paragraph 17(s) above."

(b) 60 reads - "Although I do not have a specific memory of approving and signing these documents, I would have followed the usual process for signing documents described under the heading 'Signing Documents' above."

(c) 86 reads - at the second sentence, where, after referring to the fact that she could not specifically recall having any discussions with her case management team regarding the draft of certain documents referred to in paragraph 84 of her affidavit, Director Quinlivan went on, "however it would have been prepared in accordance with the practice I described in paragraph 17(y) above."

• [26] All are worded in a way which is objectionable, and inadmissible, because they use the expression that something "would have" occurred, rather than saying something to the effect that the deponent had reviewed the usual procedures for the signing of documents (paragraph 22), for the preparation of the report (paragraph 17(s)), or for drafting the report (paragraph 17(y)) and the deponent has no reason to think that the usual practice was not followed on each such occasion. Had appropriate wording to that effect been used then the evidence would likely have been admissible. Although I propose to strike out each of those objected to parts, I will give the defendant leave limited to leading evidence in the appropriate form in respect of paragraphs 59, 60 and 86.
• [27] I should record here the plaintiffs' further objection to paragraph 59 that the defendant did not herself prepare the s 89C report, so it may be that she cannot give admissible evidence as to its preparation in any event. That is the reason for the use of the word "likely" in [26] above. The leave does not extend to make admissible that which would otherwise be inadmissible.
• [28] That same leave does not apply in relation to the other paragraphs because those paragraphs are not drafted with reference to a usual practice, are conclusionary and speculative and, having regard to the importance of them, I would not be disposed to grant leave to lead further evidence to cure those defects.
• [29] There is one further objection which is pressed that does not fall within the "usual practice" category. It is an objection to the last two sentences of paragraph 38(d) which comes at the end of a paragraph where Director Quinlivan gives some evidence in relation to the number of services being offered by Dr Kitchen per day in which she alleges that a rule existed, referred to as "the 80/20 rule" which pertained to when medical practitioners rendered 80 or more services on each of 20 or more days in a 12 month period which was deemed to constitute a "prescribed pattern of services" for the purposes of the Health Insurance Act 1973 (Cth). The objectionable part of the evidence is:

"As I understand, the rule was introduced because legislators were concerned high volume servicing may result in a lack of clinical input. Whilst this same clause was not in place for non-general practitioner specialist medical practitioners, the number of services per day across so many days a year raised a similar concern over a lack of clinical input."

• [30] The two sentences are objected to firstly on the basis of relevance, secondly that it is opinion evidence, and thirdly the basis for her belief or understanding was not stated.
• [31] The defendant defends this paragraph on the basis that it is not opinion evidence and it is not necessary for the defendant to state the basis for her belief. Otherwise, it is said that the witness is capable of giving this evidence through her experience in her PSR agency position.
• [32] The evidence is inadmissible. Firstly, because it is irrelevant, as on Director Quinlivan's own evidence the rule does not apply to Dr Kitchen, and secondly the deponent's understanding as to why the rule was introduced is simply irrelevant to any matter in issue before me.

The plaintiffs' objection to the defendant's evidence - issue estoppel

• [33] Background to this issue can be briefly summarised for the purposes of dealing with these objections.
• [34] On 18 December 2017, the defendant wrote to Dr Kitchen stating that she had received a request from the Chief Executive Medicare to review Dr Kitchen's provision of services during a period identified as 1 February 2016 to 31 January 2017.
• [35] In late October 2018, Dr Kitchen's solicitors provided submissions to the defendant. The submissions were lengthy and attached numerous written annexures and other documents. After receiving the submissions, the defendant made a referral under the Health Insurance Act 1973 (Cth) in respect of Dr Kitchen's provision of services.
• [36] In November 2019, Dr Kitchen commenced a proceeding in the Federal Court of Australia seeking to review the decision to refer the doctor's services. That proceeding was on foot for just over two years when the defendant, on 2 February 2021 consented to a declaration made by the Federal Court of Australia that:

"Contrary to section 89C(2) of the Health Insurance Act 1973 (Cth) (the Act), the first respondent did not take into account the applicant's submission dated 29 October 2018 before making the referral to the second respondent under section 93 of the Act on 14 November 2018 ..."

• [37] The statement of claim in this proceeding (at paragraph 21) alleges misfeasance against the defendant. Here it is alleged that in exercising the power under s 93 of the Act to make the referral, the defendant knew that she could not validly exercise the power under s 93 without first taking into account Dr Kitchen's 2018 submission. That allegation at paragraph 21(a) of the statement of claim is admitted in the defence at paragraph 31.
• [38] But as to the allegation that the defendant knew she had not taken Dr Kitchen's 2018 submission into account (statement of claim paragraph 21(b)) the defendant denies that allegation (for reasons pleaded in paragraphs 27(b), 35A and 35B) and further because the defendant alleges that between 2 November and 4 November 2018 the defendant read the plaintiffs' submission which comprised 96 pages, but the defendant does not recall whether she was provided with the 207 attachments (which formed part of the submission) or any of them, or whether she read the said attachments in full, in part, or at all, and further asserts that the defendant did not have regard to the electronic files (videos) which accompanied the plaintiffs' 2018 submission.
• [39] It is further admitted on the pleadings that the defendant consented to that declaration that she "did not take into account the applicant's submissions".
• [40] The question that affects these objections to Director Quinlivan's evidence is whether there is an issue estoppel or res judicata in relation to that declaration made by consent in the Federal Court such that Director Quinlivan cannot now give evidence that she in fact took into account Dr Kitchen's submissions.
• [41] I will deal with each of the objections in turn, but as to the matter of principle, both parties rely upon Blair v Curran,[6] where the Dixon J explained:

"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.

In the phraseology of Lord Shaw, 'a fact fundamental to the decision arrived at' in the former proceedings and 'the legal quality of the fact' must be taken as finally and conclusively established (Hoystead v. Commissioner of Taxation). But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation."

• [42] The defendant submits that the doctrine of res judicata has no application because the court is not concerned with the same right or cause of action. It does accept that issue estoppel may apply. In contrast the plaintiffs submit that the declaration constitutes a res judicata between the parties,[7] and further that the defendant is estopped from denying that she did not take into account Dr Kitchen's submission.
• [43] It is worth observing that when a costs order was made against the Director, which was subsequently appealed to the Full Court of the Federal Court, the Full Court accepted, at [56] that:

"...the primary judge's orders (including declarations) dated 2 February 2021 constitute a res judicata as between the parties."[8]

"However, there must be an inquiry as to the issues that were determined by the consent judgment and any issue estoppel only arises to the extent that the consent determined a particular issue ..."

• [45] For completeness I observed that the Full Court of the Federal Court went on at [58]:

"In this case, while the issue of the merits of the application brought by Dr Kitchen was determined by the consent orders made by the primary judge, the fact, nature and extent of the Director's knowledge of those merits were not so determined. It follows that the Director is not prevented by res judicata from advancing submissions against the premise of Dr Kitchen's claim for indemnity costs, being her knowledge of those merits and her knowledge from the commencement of the proceedings that she had no reasonable basis for resisting the orders by Dr Kitchen ..."

• [46] A number of things should be said in relation to the Full Court's judgment at [58]. Firstly, the Full Court was there considering the Director's submissions in relation to Dr Kitchen's claim for indemnity costs which was based, in part, upon the Director's lack of any explanation as to why she had consented to the order in the Federal Court in February 2021. That of course is not the same issue as is before me. Secondly, although obviously persuasive, I am not bound by the approach of the Full Court of the Federal Court.
• [47] However it is, respectfully, plainly correct that any issue estoppel only arises to the extent that the consent declarations determined a particular issue.
• [48] The defendant submits that it was made clear by the Full Court, or naturally follows from its decision, that none of the following were in issue before the Federal Court, nor were determined by the declaration:

(a) what part of Dr Kitchen's submission the defendant read (or viewed) as distinct from whether she properly took it into account;

(b) the defendant's knowledge about what part of Dr Kitchen's submission was provided to her, and therefore her knowledge about what part of his submission she read (or viewed); and

(c) the defendant's state of mind when making the referral.

• [49] Dr Kitchen's application for judicial review of the defendant's decision sought a review of the defendant's decision to "make the Referral and set up [the committee]". The relief was sought against the defendant under s 39B(1A)(c) of the Judiciary Act 1903 (Cth). Ground 3 of the application set out (where the first respondent is the defendant here):

"The first respondent failed to follow the requirements of the legislation in making the Referral, and thereby committed jurisdictional error.

1. The First Respondent failed to properly take into account submissions made by the Applicant as required by section 89C(2) of the HI Act."

• [50] The defendant therefore submits that the declaration must be viewed in the context that Dr Kitchen advanced his case, on the basis that the defendant did not "properly" take his submission into account, and accordingly all that the declaration stood for is that, as a matter of fact and law, the defendant did not, to the standard necessary to make a legally valid decision, take into account Dr Kitchen's submission.
• [51] I accept the proposition put on behalf of the defendant that in order to construe what was meant by the form of declaration, the court needs to look at the pleadings or the application to see what was sought, and therefore what was, in that case, declared. The defendant contends that the only thing that was determined by the Federal Court declaration of February 2021 was that there had been a failure to properly take into account the 2018 submission.
• [52] Although I will deal with each of the objections in turn, each of the objections go to Director Quinlivan giving evidence that she had read Dr Kitchen's submissions and spent time intellectually considering her decision. The plaintiffs submit that that is precisely the sort of evidence that she is not able to give. To the extent that it goes to her state of mind, if the evidence is offered that her state of mind demonstrates that she took something into account, or that she actively considered the submissions, the plaintiffs submit that is the very subject of the declaration in the Federal Court.
• [53] Specifically in relation to the submissions made by the defendant set out at paragraph [48] above, the plaintiffs submit that:

(a) as to sub-paragraph (a), that part of Dr Kitchen's submissions that the defendant read, as distinct to whether she took them into account, the plaintiffs agree she can properly give evidence of what she did or did not read;

(b) as to sub-paragraph (b) the plaintiffs submit that the defendant's knowledge about what part of the submissions were provided to her and what part she read, she is able to give evidence of that;

(c) in respect of her state of mind when making the referral, dealt with at sub-paragraph (c), if the state of mind evidence is limited to the knowledge referred to in sub-paragraph (b) about what part of the submission she had read, then the plaintiffs have no objection to that evidence. But if the state of mind evidence is that she took something into account or that she actively intellectually engaged with the submissions then the plaintiffs submit that that is the subject matter of the declaration.

• [54] I set out the paragraphs which are objected to below so that both sets of submissions above may be understood:

(a) at paragraph 70 the last sentence "I recall I spent some time considering Dr Kitchen's matter and to the decision I would make, i.e. take no further action, enter into an agreement, or make a referral to a committee";

(b) at paragraph 72 the first sentence "By the time I received Ms O'Keefe's email above, I had read the printed copy of Dr Kitchen's 2018 submissions, and had regard to all the material available to me as part of the review, and intellectually considered my decision for the review.";

(c) at paragraph 73;

(d) at paragraph 74 the third sentence "While I had given significant thought to the matter and held a strong view, I did not regard myself as committed to the decision until I signed the establishing paperwork."; and

(e) at paragraph 89.

• [55] The defendant maintains that all that the deponent is doing in giving evidence such as that objected to above, is giving evidence of her state of mind to meet the case against her that, effectively, she failed to "properly" consider the submission in the context of the misfeasance claim. The defendant pressed the proposition that her evidence goes to her state of mind as to what she thought at the particular time that ultimately warranted her making the referral.
• [56] I do not accept that there is no issue estoppel which arises out of the declaration. Rather I accept, as did the Full Court of the Federal Court, that the declaration dated 2 February 2021 constituted a res judicata as between the parties but that there must be an inquiry as to the issues that were determined by that declaration, and any issue estoppel only arises to the extent that the declaration determined a particular issue. Even if I am wrong on the res judicata, I would have found an issue estoppel, with the same need for there to be an inquiry as to the issues that were determined by that declaration.
• [57] I also agree, respectfully, with the Full Court of the Federal Court that the issue of the merits of the application brought by Dr Kitchen was determined by the consent declarations made by the primary judge. It follows that the defendant cannot give evidence of what she took into account in the context of considering the extent to which she intellectually engaged with the submissions. That was, in my view, that which was dealt with by the consent declaration.
• [58] On the defendant's construction of the declaration that there had been a failure to "properly" take into account the 2018 submission, but the defendant is able to offer her evidence of what she did and did not actively or intellectually consider so as to fully understand those aspects of the submission which she properly took into account, and those aspects of the submissions which she did not so properly take into account. By way of an example only, and by reference to her pleaded case, I understand her submission to be that she is able to give evidence, for example, that she considered the 96 pages of Dr Kitchen's submission, but may not have actually had regard to certain annexures because, again by way of example only, copies of the documents were accidently not printed and given to her. As a consequence, she might maintain that her "proper consideration" was merely affected by some administrative failure and not by her failure to engage in active or intellectual consideration. In my view, that would be to re-litigate the very issue which was the subject of the declaration. The declaration has already been made that the defendant "did not take into account the applicants' submission" before making the referral. It is therefore the issue which was determined by the declaration and, to use the terminology of the Federal Court, the issue estoppel arises in relation to the issue that the defendant did not take into account the applicants' submission.

• [61] The defendant objects to the whole of the affidavit of Christopher Barrett who is a specialist orthoptist. He holds a Bachelor of Applied Science (Orthoptics) and has completed training as a Clinical Applications Specialist in cataract extraction. He gives some evidence about his work with the first plaintiff over the years and his observations of the plaintiff's practice. Primarily his affidavit goes to issues in relation to the impact that the PSR proceedings had on the plaintiff's professional reputation. The defendant submits that Mr Barrett's affidavit does not go to any issue raised on the pleadings.
• [62] Having reviewed Mr Barrett's affidavit it seems to me arguable that his affidavit goes firstly to issues relating to Dr Kitchen's reputation, but more importantly to the issue of the quantum of his damages. The evidence is relevant to Dr Kitchen's ability to perform between six and eight cataract replacement surgeries per hour over the course of a surgical list while by comparison most ophthalmologists only perform between two and four cataract surgeries per hour. As well as, other aspects of Dr Kitchen's practice that enabled him to be highly efficient because he employed high staffing numbers in his consulting rooms, enabling him to move quickly through various rooms and maximise his efficiency.
• [63] Whilst there may well be submissions about the weight which I would put on Mr Barrett's affidavit, it is in my view admissible, and the objection is disallowed.
• [64] The defendant's next objection is to the expert report of Professor Minas Coroneo dated 11 December 2024. Again, the objection is to the whole of Professor Coroneo's report.
• [65] Professor Coroneo is a professor of ophthalmology. His report was commissioned to address the following questions:

(a) to express an opinion on whether Dr Kitchen's 2018 submission was or was not competent and reasonably comprehensive;

(b) in light of the meaning of the phrase "inappropriate practice" the expert was asked to express an opinion as to the scale and complexity of the issues that may have arisen in the course of the investigation;

(c) to express an opinion on whether the answers given and the documents produced by Dr Kitchen in the course of the viva voce examinations by the committee indicated:

(i) professional competence (or not); and

(ii) preparation that was reasonable (or not).

(d) to express an opinion on whether the time spent by Dr Kitchen and his staff in their preparation of the submission was or was not reasonable and appropriate preparation in all the (specified) circumstances.

• [66] The plaintiffs defend Professor Coroneo's report on the basis that part of the plaintiffs' claim is for time which he lost in his practice whilst he was preparing, over the course of many weeks and months, to answer the complaints against him. Dr Kitchen says that as a consequence of that loss of time, he suffered various losses to his practice. Professor Coroneo's report is said to assist the court in determining whether the steps taken by Dr Kitchen were a reasonable response to the investigation. Put another way, it is opinion evidence of an ophthalmologist about what a reasonable ophthalmologist would do in order to respond to an investigation of the type which was launched against Dr Kitchen.
• [67] Whilst the plaintiffs accept that some of the questions put to Professor Coroneo could have been framed differently, the defendant does not in fact object to the questions which the doctor was asked (as such), but rather objects to the whole of the doctor's report in its entirety, on the basis that Professor Coroneo is in fact answering the legal question for the court as to whether the steps taken by Dr Kitchen were appropriate in all the circumstances.
• [68] In Makita (Aust) Pty Ltd v Sprowles,[9] for expert evidence to be admissible there must firstly be an agreed or demonstrated field of specialised knowledge. Second, there must be an identified aspect of that field in which the witness demonstrates that by reason of their specified training, study or experience, the witness has become an expert. Third, the opinion proffered must be "wholly or substantially based on the witness' expert knowledge". Fourth, so far as the opinion is based on facts observed by the expert those facts must be identified and admissibly proved. Fifth, so far as the opinion is based on assumed or accepted facts those facts must be identified and proved in some way. Sixth, there must be established that the facts upon which the opinion is based form a proper foundation for it. And finally, the expert's evidence must explain how the field in which the expert has expertise applies to the facts assumed or observed so as to produce the opinion propounded.[10]
• [69] The defendant accepts that Professor Coroneo is a highly specialised and expert ophthalmologist. The question really is whether that expertise provides a basis upon which Professor Coroneo can express an opinion on the competency or otherwise of Dr Kitchen's response to the investigation which was brought against him.

• [74] Accordingly, the orders of the court are that the following paragraphs are inadmissible:

1. paragraph 27 of the affidavit of Georgia O'Keefe;

2. paragraph 33 of the affidavit of Margaret Parker;

1. paragraph 38(d) of the affidavit of Julie Anne Quinlivan but limited to - "As I understand, the rule was introduced because legislators were concerned high volume servicing may result in a lack of clinical input. Whilst this same clause was not in place for non-general practitioner specialist medical practitioners, the number of services per day across so many days a year raised a similar concern over a lack of clinical input.";

4. paragraph 42 of the affidavit of Julie Anne Quinlivan;

1. paragraphs 59, 60 and 86 of the affidavit of Julie Anne Quinlivan (limited to those parts in [25] above), but with leave to lead evidence substantially in accordance with [26] above; and
2. paragraphs 70, 72, 73, 74 and 89 of the affidavit of Julie Anne Quinlivan (limited to those parts in [53] above).

[1] [2019] NSWSC 1314.

[2] [2016] NSWSC 312.

[3] [1971] 1 NSWLR 713 at 721.

[5] [2019] VSCA 205.

[6] [1939] HCA 23; (1939) 62 CLR 464 at 531-533.

[7] Webuildem Pty Ltd v Arab Bank Australia Ltd [2013] FCA 37; (2013) 300 ALR 99 at [62]- [63].

[8] Kitchen v Director of Professional Services Review [2023] FCAFC 60.

[9] [2001] NSWCA 305; (2001) 52 NSWLR 705.