Maiocchi v Royal Australian & New Zealand College of Psychiatrists [2014] FCA 301 | Case summary

REASONS FOR JUDGMENT 1 On 23 October 2013 the primary judge made orders and gave reasons for judgment: see Maiocchi v Royal Australian & New Zealand College of Psychiatrists [2013] FCA 1046. The questions before him were whether any of the claims against the 13 respondents should be dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) or r 26.01 of the Federal Court Rules 2011 (Cth) or, if not, whether the Amended Statement of Claim filed on 24 September 2012 should be struck out pursuant to r 16.21 of the Federal Court Rules. 2 On 21 February 2014 the applicant filed an application for an extension of time and for leave to appeal from all of those orders. A draft notice of appeal was annexed to that application. 3 The discretion conferred by s 24(1A) of the Federal Court of Australia Act 1976 (Cth) is an "unfettered discretion" conferred in "unqualified terms". The principles which may guide the exercise of discretion are stated in Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; 187 FCR 261 and Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. The questions commonly asked when considering whether leave to appeal should be granted have often been phrased in terms of: (a) whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong. 4 I first deal with the ground of appeal under the heading "A" on pages 2, 3 and going on to page 4 of the draft notice of appeal. Dr Maiocchi, who appears on her own behalf, has made extensive oral submissions in support of her application for leave to appeal on this ground, that is, the existence of a genuine apprehension of bias on the part of the primary judge. I have left out the words "actual bias" because in the course of her oral submissions Dr Maiocchi said that she did not press that ground. 5 Nothing that Dr Maiocchi has put to me and none of the material referred to in the numbered paragraphs 1 to 13 under the heading "A" in the draft notice of appeal provide any basis for thinking that the judgment of the primary judge is attended by sufficient doubt in respect of this allegation of genuine apprehension of bias so as to warrant the judgment being reconsidered by the Full Court. As I understood the arguments each of them concerned no more than disagreement with the primary judge. I therefore refuse the applicant leave to appeal in respect of the ground of appeal under the letter "A": existence of a genuine apprehension of bias. 6 I will next deal with that part of the proposed notice of appeal under the heading "B" on page 4 of the draft notice of appeal, the heading being "Error in considering proceedings pursuant to s 46PO of the Australian Human Rights Commission Act 1986". The proposed ground of appeal is that in proceedings pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth), the Court ought not to be bound by technicalities or legal forms. I read the notice of appeal as proposed as referring to s 46PR which says: In proceedings under this Division, the Federal Court and the Federal Circuit Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution. 7 The oral submissions made by Dr Maiocchi seemed to involve the proposition that it was not open in this case for the primary judge to have proceeded as he did. In light of the terms of s 46PR, the submission seems to be that either matters of evidence or matters of procedure are not applicable by virtue of s 46PR. I would not grant the applicant leave to appeal in relation to this ground, numbered 14. There are no circumstances that have been pointed to that would suggest that the judgment of the primary judge is attended by sufficient doubt in this respect to warrant it being reconsidered by the Full Court. 8 In my opinion, s 46PR does not prevent the appropriate application of the relevant rules concerning pleadings in Pt 16 of the Federal Court Rules which, in part anyway, provide procedural fairness to other parties - here, the respondents - in terms of being faced with a clear statement of the material facts which are said to found the claims against them. So as I have said, I would refuse leave to appeal in relation to this ground 14. 9 Next is ground 15, on page 4 of the draft notice of appeal, under the heading "Error in not considering the Constitution of the First Respondent ("RANZCP")". This ground 15 as proposed is that the Constitution of the RANZCP confirms that the respondents dismissed - which means, in context, the second respondent, Dr Tomasic; the third respondent, Dr Chalk; and the fourth respondent, Mr Peters - were in control of the day-to-day business of the RANZCP. In my opinion, this proposed ground of appeal does not warrant leave to appeal. It does not suggest that in all the circumstances the judgment of the primary judge was attended by sufficient doubt to warrant it being reconsidered by the Full Court. 10 The first point is that the Constitution of the first respondent was not tendered in evidence before the primary judge. The second point is that the proposed ground of appeal does not engage at all with the reasons of the primary judge in relation to these respondents, that is, the reasons at [61] through to [64], which had two limbs. One was that the suggestion that those respondents might be directly liable found no support in any of the documentary evidence relied upon by the applicant. And the second limb was that the allegation that these respondents were vicariously liable for the conduct of the first respondent, RANZCP, was legally misconceived. So for those reasons, I would refuse leave to appeal in relation to the proposed ground numbered 15. As I understand it, it was not part of what was put by the first respondent to the primary judge that the first respondent would not be liable for the acts of the second or third or fourth respondents. 11 I next consider the part of the draft notice of appeal under the heading "D", first occurring: "Error in not considering the evidence presented by the Applicant and the AHRC for the first to fourth respondents". I will treat the reference to the AHRC (the Australian Human Rights Commission) as a mistake, because the AHRC was not involved in presenting evidence, at least in the sense of evidence to the Court. 12 The grounds under that heading, numbered 16 to 21, do not identify the evidence that was said to have been presented by the applicant and the grounds also do not identify which parts of any evidence presented to the primary judge were not considered. 13 Proposed ground 16 contains a complaint about a procedure not being followed. Proposed ground 17 refers to, as I read it, the "CEO", the fourth respondent, being given copies of letters by the third respondent to the applicant. Proposed ground 18 again talks about important correspondence being sent to Mr Peters, the fourth respondent. Proposed ground 19 speaks about Mr Peters' legal representation. And ground 20 seems to refer to a different issue of whether or not the responsibility of office bearers of RANZCP was said to be different from the responsibility of the RANZCP. Paragraph 21 says no more than that other grounds were to be added in the final version. 14 I would not grant leave to appeal in respect of these grounds. They do not, in my view, provide any basis for thinking that there is sufficient doubt about the judgment of the primary judge to warrant the judgment being considered by a Full Court, so I would refuse leave on the basis that I have just referred to. I note, but I do not rely on for present purposes, the submission on behalf of counsel for these parties that the grounds, in effect, did not go anywhere, because there was no allegation in the pleadings that the second, third and fourth respondents treated the applicant differently because of the characteristics referred to in the Racial Discrimination Act 1975 (Cth). 15 For these reasons I refuse leave to appeal in relation to grounds 16 to 21 inclusive of the draft notice of appeal. 16 I adjourn the hearing of the balance of the application to 27 March 2014. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Maiocchi v Royal Australian & New Zealand College of Psychiatrists

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