REASONS FOR JUDGMENT
1 These reasons should be read with those I gave on 17 March 2014: Maiocchi v Royal Australian & New Zealand College of Psychiatrists [2014] FCA 301. Also, they incorporate the oral reasons for orders I made on both 27 March 2014 and 28 March 2014.
2 The first matter is Dr Maiocchi's application for an extension of time to seek leave to appeal.
3 The period of delay was from 6 November 2013 to 21 February 2014.
4 An extension of time was opposed by the first to fourth, ninth, tenth, eleventh and thirteenth respondents on the basis that the application for leave to appeal itself had insufficient prospects of success. The remaining respondents did not oppose an extension of time.
5 By her affidavit sworn on 20 February 2014 Dr Maiocchi deposes that she does not have legal representation in the current proceedings. Dr Maiocchi says that there were several reasons for the delay. The first reason was the complexity of the case. The second reason was that she had been attempting, unsuccessfully, to obtain litigation funding. The third reason was that Dr Maiocchi had not found it possible to find a law firm which would work on her case. The fourth reason was that her husband could no longer support the litigation full-time. The fifth reason was that without legal representation Dr Maiocchi said it was necessary to research the legislation rather than to obtain legal advice. The sixth reason was that there had never been a proper curial process where a process of discovery would have disclosed all the relevant documents. Dr Maiocchi said she received access to crucial documents only after the hearing before the primary judge held on 9 November 2012. Also, Dr Maiocchi said, medical records included by the investigator working for her employer included much more detail than the medical records that her insurance company made available to her while defending the allegations of medical malpractice. The records lay in a folder in a box that Dr Maiocchi never opened because she was told by her insurance company that what she had seen already was all she was able to get.
6 Dr Maiocchi referred to a number of documents which, she said, would give a good idea of the relevant issues connected with the appeal and the delay, being documents starting at pages 2, 10, 66, 72, 151, 156, 160, 167, 169 and 179 of LBM-8.
7 Dr Maiocchi said that the Court and the respondents were informed of her decision to appeal on 11 November 2013 and 14 February 2014.
8 In my opinion, an extension of time should be granted as Dr Maiocchi has provided an adequate explanation for the delay and the preferable course is to deal with the application for leave to appeal on its merits.
9 I will next return to the draft notice of appeal. There are a number of grounds remaining to be considered.
10 Limited submissions were advanced before me by Dr Maiocchi in relation to the respondents in respect of which or whom the primary judge permitted Dr Maiocchi to replead, being the first, fifth, sixth, seventh, ninth and eleventh respondents. The submissions that were put were those set out in a document handed up to me on the morning of 27 March 2014 headed "Grounds of Appeal Related to Specific Orders issued on 23 October 2013".
11 The matter that is there set out in relation to orders 1 and 3 appears to me to be of no substance, and indeed merely deals with the correct naming of the parties. To the extent that it is suggested that there is any prejudice to the applicant, Dr Maiocchi, from the correction of the parties' names, and any resultant non-conformity between the names of those parties and the parties as named before the Australian Human Rights Commission, there is no substance in that contention.
12 The same applies in relation to order 2. His Honour gave reasons, none of which have been impugned, as to why it was that the name of the eleventh respondent should be amended to Phiroan Pty Ltd, trading as Northside Clinic. The same applies for order 5, which is the corresponding order in relation to the eleventh respondent. Those are procedural matters.
13 There was no doubt raised in submission before me as to the correctness of these orders 1, 2, 3 and 5, and no prejudice would flow to the applicant from those orders in any event.
14 I will consider later the submissions in respect of order 4.
15 That then brings me to orders 6, 7 and 8 made by the primary judge on 23 October 2013.
16 The "Grounds of Appeal Related to Specific Orders issued on 23 October 2013" contains a number of arguments or submissions in relation to orders 6 to 7. Before coming to those orders, there is also a submission made in this document about order 8, which is the form of the direction to the applicant to serve a draft amended application and draft further amended statement of claim.
17 To the extent that it is not dealt with in what I am about to say about orders 6 to 7, in my view, the short answer to the submissions made in relation to order 8 is that it is not at all clear to me the extent to which s 17(b) of the Racial Discrimination Act 1975 (Cth) was put against the respondents who remain in the proceedings. It is not at all clear, for example, if it was put in relation to each one of those respondents. But it seems to me that order 8 is a procedural interlocutory direction and that it is procedurally open to Dr Maiocchi to make an application to the primary judge, whether successful or not, to have that order varied so as to permit her to include in her further pleadings a contention in relation to s 17(b) of the Racial Discrimination Act.
18 I say that without prejudice to any arguments of substance that may be put either by Dr Maiocchi or on behalf of the respondents. It may be that s 17(b) was not a complaint against all of the respondents or each of those remaining respondents so far as concerned what was before the Australian Human Rights Commission. I am not making any observation one way or the other in relation to that aspect of the matter. But I would refuse leave to appeal in relation to order 8.
19 This brings me to the submissions that were put both orally and in writing in relation to orders 4 and 6 to 7.
20 The first submission is that the originating application was as good as an unrepresented litigant can do for a case brought pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth). That does not strike me as a ground or submission about which it could be said that there was any doubt as to the conclusions of the primary judge in relation to these respondents.
21 The second and related ground is that the applicant, Dr Maiocchi, had raised the point. I will assume in her favour that she had raised the point before the primary judge.
22 The next submission is that an order to rewrite the application would somehow cause difficulties with s 46PO of the Australian Human Rights Commission Act, that the application to the Court would not conform "with the form available to apply for s 46PO of the AHRC Act 1986 from the Federal Court." That is not a ground or submission of any substance. It is a matter for the docket judge in the first instance to make orders as to what claims are sustainable in this Court and how the pleadings should be framed.
23 The next point that is made by Dr Maiocchi is that she raised before the primary judge, and the primary judge said nothing about in his reasons for judgment, her submission that an unrepresented applicant should not have to file a statement of claim which followed strictly the rules of the Court, and she disputed that before the primary judge, and the related proposition that her position was there was no need for a statement of claim in proceedings brought pursuant to s 46PO. Dr Maiocchi also submitted that deficiencies in the statement of claim could be "compensated by curial process".
24 In my view, it is not established that there is any sufficient doubt as to the conclusions of the primary judge as to the form of the application and statement of claim. This general submission is not one which I accept as founding sufficient doubt about the primary judge's reasons or orders. Similarly, the submission that is made that the judgment does not deal with the fact that the applicant had included the statement "Not enough time for the Applicant to complete this document" in the document that stands or stood as the pleading does not found, in my view, doubt as to the primary judge's conclusions.
25 The next element of the submission on these orders is that there was no reference to a judgment, Haile-Michael v Konstantinidis (No 2) [2012] FCA 167, which was said to be relevant. The complaint is the judgment was cited in the outline of submissions but, "not considered by the primary judge".
26 In my view, that judgment is no more than an example of a case brought under the Australian Human Rights Commission Act, where, as a matter of that judge's discretion, and no doubt with regard to the state of the pleadings that his Honour was dealing with, his Honour made orders that the interlocutory applications that raised deficiencies in the pleadings should be stood over to the trial. The judgment deals with a matter of practice and procedure and it is not shown that the primary judge in the present case was unaware of, or ignored, any relevant issues of principle.
27 There is a submission that the primary judge erred by not considering a part of the applicant's affidavit sworn on 17 October 2012 as corrected by her affidavit sworn on 8 November 2012. These matters were allegations of victimisation, that is a breach of s 27(2)(c) of the Racial Discrimination Act. In my opinion, assuming in favour of the applicant, Dr Maiocchi, that these allegations were put to the primary judge so far as they concern the respondents who remain in the proceedings, that is a matter which, as with s 17(b), at a procedural level the applicant can and should deal with in an application to vary order 8 made by the primary judge. Therefore this submission would not ground leave to appeal. So far as concerns the eighth respondent, the primary judge did consider those submissions at [91]-[92]. So far as concerns the twelfth respondent, it was not necessary for the primary judge to consider this claim in light of his reasons at [70]. So far as concerns the tenth and thirteenth respondents, the primary judge considered the allegations at [81]-[82]. In my opinion, there is no substance in this submission.
28 The next general submission is that the primary judge erred by not considering "that before the complaint with the AHRC, the Applicant was proposing to make a [complaint], and the issue of discrimination was a [matter] in discussion well before the allegations of medical malpractice were made against the Applicant." In my opinion this is a generalised submission relating to the allegations of victimisation and my reasons just given in relation to victimisation apply.
29 Lastly it was put that the primary judge erred in ignoring alternative claims and/or claims in addition to discrimination. This generalised submission is not made out as it appears that the primary judge dealt with the claims he was asked to consider, such as the consideration at [69] of the breach of contract claim made against the seventh respondent.
30 As to order 4, which is that the proceedings be summarily dismissed as against the second, third, fourth, eighth, tenth, twelfth and thirteenth respondents, the effect of what I have so far dealt with by reference to the draft notice of appeal and the fact that nothing of substance, apart from the submissions above, was put in support of the bare grounds of the draft notice of appeal headed E, F, G, H, I and J means that so far as order 4 is concerned, and leaving aside the position of the eighth respondent for the moment, Dr Maiocchi's complaints against order 4 have not been made out. No basis for doubting the conclusions of the primary judge has been advanced in oral or written submissions before me and I would not grant leave to appeal.
31 So far as concerns the first to seventh and ninth to thirteenth respondents, leaving aside again the position of the eighth respondent, the order that I will make is that the application for leave to appeal be dismissed with costs.
32 I turn now to the position of the eighth respondent, MDA National Insurance Pty Ltd (the MDA). The primary judge referred to paragraph (g) on page 33 of the 111-page amended statement of claim, as to the matters that were pleaded and put in relation to this respondent. The victimisation was said to be by reference to s 27(2)(c) of the Racial Discrimination Act, which refers to a person prejudicing or threatening to prejudice another person in the other person's employment, by reason that the other person had made or proposed to make a complaint under the Racial Discrimination Act, or the Australian Human Rights Commission Act. I note that this is an offence provision and the penalty for the offence in the case of a body corporate is 100 penalty units.
33 The primary judge said that the proposition that the eighth respondent, the MDA, prejudiced or threatened to prejudice the applicant in her employment, because the applicant had made or proposed to make a complaint under the Racial Discrimination Act was fanciful and lacking in substance, and the pleading did not include any allegation that, even if proved, could justify a finding that the MDA had contravened s 27(2)(c) of the Racial Discrimination Act.
34 Dr Maiocchi says that s 17(b) of the Racial Discrimination Act was referred to in the originating application, which it was, at page 23 of 36 although not in terms that made it clear, if this is the complaint, that the claim was made against the eighth respondent. Section 17(b) makes it unlawful for a person to assist the doing of an act that is unlawful by reason of a provision of Pt II of the Act. No such claim was articulated in the amended statement of claim with which the primary judge was dealing. It was not referred to in the forty-seven page written submission made by the applicant to the primary judge. It does not seem to me that the claim was put to the primary judge in relation to the eighth respondent.
35 Nothing that has been put to me by Dr Maiocchi provides any basis for concluding that there is sufficient doubt about the primary judge's conclusion in respect of the Racial Discrimination Act, so far as concerns the eighth respondent, the MDA.
36 Secondly, what is put against the MDA relates to an allegation of conflict of interest or breach of fiduciary duty. The primary judge considered the allegations of conflict of interest and breach of fiduciary duty at [98], and said the claim was misconceived. Although Dr Maiocchi and Dr Jurd were both insured by the MDA, the primary judge said that there was no evidence to suggest that the solicitors who acted for the applicant were in any sense conflicted by reason of that fact, or that they did not act for the applicant with due care, skill and independence.
37 It was put to me by Dr Maiocchi that the primary judge did not know that a Ms Lalich, at the relevant time an officer of the MDA, was a solicitor, but this does not seem to me to be of any relevance. Nothing that has been put to me by Dr Maiocchi provides any basis for doubting the primary judge's conclusion as to the alleged conflict of interest and/or breach of fiduciary duty in relation to the eighth respondent, the MDA.
38 There were also arguments or submissions put about s 52 of the Trade Practices Act 1974 (Cth) and a negligence claim against the MDA. These claims are at best shadowy. There is a passing reference at page 23 of the originating application to a claim under s 52, but nothing more. To the extent that they were the subject of submissions before the primary judge, his Honour dealt with them at [99] to the effect that the pleading did not raise any case against the eighth respondent that was tenable. I make the same observation about the negligence claim, and nothing that has been put to me by Dr Maiocchi provides any basis for concluding that there is sufficient doubt about that conclusion.
39 I turn next to the allegations concerning the MDA's breach of its contractual obligations under the policy or policies of insurance, which the primary judge dealt with as a free-standing claim at [93] through to [97].
40 It is not at all clear to me that this claim before the primary judge amounts to unlawful discrimination alleged in the application, which was the same as or the same in substance as the unlawful discrimination that was the subject of the terminated complaint within the meaning of s 46PO of the Australian Human Rights Commission Act, except possibly as part of a victimisation complaint.
41 The essence of the allegation is not accurately put, in my opinion, as Dr Maiocchi put it in her draft notice of appeal as "ignoring" clause 6(c)(ii) of the policy, since 1 July 2010. More accurately, it would be put as misconstruing or misapplying that clause. Whether or not in any circumstances taking a view about the meaning or application of the clause could amount to victimisation, I leave to one side.
42 The clause relates to providing indemnity against legal costs incurred pursuing any allegation against the insured's former, current or proposed employer that relates to or arises from the contract under which the insured was engaged to provide health care services in her field of practice, including a complaint under anti-discrimination or equal opportunity legislation. The applicant gave a notice on 13 May 2010 and, despite my asking Dr Maiocchi to take me to any other notice, that notice of 13 May 2010 is the only notice in the sense of the insured telling the insurer about the claim in terms of the policy.
43 In relation to that notice of 13 May 2010 the relevant period of insurance was 1 July 2010 to 30 June 2011, but the clause of the policy at that time was expressed to apply only to legal costs incurred which she first became aware of and told the insurer about in writing during the period of insurance. Thus the right of indemnity could not apply to the allegations, as the primary judge found on the face of it, of unlawful discrimination made by the applicant against Dr Wilson and Dr Lyndon, who were referred to in that notification. It may be that the primary judge also included Dr Jurd as a person against whom the applicant had given notice, but if there is an error in that respect, in my view, it is an immaterial error. It is also important to note that his Honour the primary judge said at [97] that there was no suggestion in the evidence that the insurer failed to fulfil its obligations under clause 5(b) of the second policy.
44 I turn then briefly to consider in three final respects the draft notice of appeal.
45 The first is at the foot of page 7. The applicant, Dr Maiocchi, seemed to suggest that the primary judge was correct with respect to some aspect of what his Honour had said, although it is not entirely clear what Dr Maiocchi's understanding is of what the primary judge said. But insofar as that passage in the draft notice of appeal contains a ground or submission that the primary judge was in error in failing to conclude that the applicant's employer had discriminated against the applicant, my first observation is that it does not have anything to do with the position of the eighth respondent. My second observation is that it is a new matter raised, new in the sense of a matter that was not raised before the primary judge.
46 The second remaining aspect of the draft notice of appeal is the third full paragraph on page 8. Again, the allegation was not before the primary judge and, therefore, it is difficult to see that his Honour made any error in that respect. But I would also observe that this aspect of the draft notice of appeal would not seem to be within the notification of 13 May 2010. It really seems to be an observation in passing, rather than a ground of appeal or submission in support of a ground of appeal.
47 The third remaining aspect of the draft notice of appeal that I will refer to briefly is at the foot of page 8. It seems to involve a misunderstanding of the effect of retroactive cover and, again, seems to be more of an observation in passing, rather than a proposed ground of appeal or a submission. To the extent that that passage continues on page 9 of the draft notice of appeal, the matter there complained of - that is the applicant's actions against the first respondent - does not seem to be a matter that fell under the policy and, further, I was not taken to any notification by the applicant in terms of the policy.
48 Nothing, therefore, has been put to me by the applicant which provides a basis for considering that there was sufficient doubt about the primary judge's conclusion in relation to the eighth respondent. And for these reasons in relation to the contract claim, I would refuse leave to appeal on the basis that the reasons and judgment of the primary judge are not attended by sufficient doubt to warrant the attention of a Full Court.
49 The orders I make are that leave to appeal be refused, with costs.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.