Maiocchi v Royal Australian & New Zealand College of Psychiatrists

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 828 of 2012

AND: ROYAL AUSTRALIAN & NEW ZEALAND COLLEGE OF PSYCHIATRISTS

State of New South Wales - NORTHERN Sydney Local Health District

JUDGE: NICHOLAS J DATE: 22 august 2014 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 23 October 2013 I made orders (the October orders) summarily dismissing this proceeding as against the second, third, fourth, eighth, tenth, twelfth and thirteenth respondents: see Maiocchi v Royal Australian & New Zealand College of Psychiatrists [2013] FCA 1046. I also made orders striking out the application and the amended statement of claim filed by the applicant (Dr Maiocchi). Various orders were made requiring Dr Maiocchi to serve a draft amended application and draft further amended statement of claim. My aim in making those orders was to ensure, as far as was reasonably possible, that the documents filed in place of those that were struck out, would be intelligible in form, and that allegations made, and causes of action asserted, could be evaluated to see which of them might be maintainable, and which might be rejected as legally or factually untenable. 2 Order 8 provided: The applicant is directed to serve a draft Amended Application and a draft Further Amended Statement of Claim in which: (a) the applicant re-pleads her claims against the fifth, sixth and ninth respondents for their alleged contraventions of s 9 and s 15 of the Racial Discrimination Act 1975 (Cth) (the RD Act) which were the subject of her written complaints to the Australian Human Rights Commission (the Commission) dated 3 January 2011 and 14 July 2011; (b) the applicant re-pleads her claims against the first and eleventh respondents in so far as it is or will be alleged that either of them is vicariously liable for any contravention of s 9 or s 15 of the RD Act by the fifth, sixth or ninth respondent; (c) the applicant re-pleads her claims against the seventh respondent in so far as it is or will be alleged: (i) that the seventh respondent is vicariously liable for any contravention of s 9 or s 15 of the RD Act by the fifth, sixth or ninth respondent; (ii) that the seventh respondent breached a term of the contract of employment between the seventh respondent and the applicant, or breached a common law or statutory duty owed by the seventh respondent to the applicant, by permitting any of the fifth, sixth or ninth respondents to: • make false, misleading or otherwise improper allegations against the applicant in relation to her work as a Psychiatry Registrar at Northside Clinic; • withdraw or procure the withdrawal by the seventh respondent of the applicant's clinical privileges without proper or reasonable cause. (d) any allegation in the draft Further Amended Statement of Claim against any of the fifth, sixth or ninth respondents for any alleged contravention of s 27(2) of the RD Act is to be clearly and succinctly pleaded and include particulars of the matters referred to in paragraph [103] of the reasons for judgment published on 23 October 2013; (e) the draft Further Amended Statement of Claim is to comply, or substantially comply, with the requirements of r 16.02 and r 16.41 of the Federal Court Rules 2011 (Cth); (f) the Amended Application is to specify, in accordance with the prescribed form, the relief sought against each of the respondents and must not contain any allegation of fact or law. 3 Order 9 required Dr Maiocchi to serve the draft amended application and the draft further amended statement of claim by 14 February 2014. 4 On 21 February 2014 Dr Maiocchi applied for an extension of time to seek leave to appeal against the October orders. Her application was dismissed by Robertson J on 28 March 2014. 5 Dr Maiocchi took no steps to comply with the October orders while her application for leave to appeal remained on foot, even though she was well aware that the mere filing of the application for leave to appeal did not result in a stay relieving her of the obligation to comply. 6 On 8 April 2014 Dr Maiocchi sought from me an extension of time within which to comply with the October orders. I granted Dr Maiocchi an extension until 16 May 2014. On 22 May 2014 she sought from me a further extension. I extended the time for Dr Maiocchi to comply with the October orders to 18 July 2014. 7 It was not until 21 July 2014 that Dr Maiocchi served a document entitled "Amended Draft Originating application" (the draft application). The relief claimed in the draft application is as follows: 1. Declaratory relief to the effect of stating that the allegations of medical malpractice and/or unsatisfactory professional conduct made against the Applicant were either false or inappropriately made or both. 2. Declaratory relief to the effect of stating that the clinical privileges of the Applicant were inappropriately withdrawn on 11 May 2010. 3. Declaratory relief to the effect of stating that the Applicant has been discriminated and victimised by the Respondents. 4. Compensatory damages pursuant to the breaches of the AHRC Act 1986 and/or the Racial Discrimination Act 1975. 5. Compensatory and exemplary damages pursuant to common law. 6. Compensatory and exemplary damages pursuant to breaches of the Trade Practices Act 1974 (for events taking place before 1 Jan 2011) or the Competition and Consumer Act 2010 (for events taking place on or after 1 Jan 2011) for the Respondents engaged in trade or commerce. 7. Compensatory and exemplary damages pursuant to any breach of the duty of care arising out of any obligation pursuant to the OHS Act 2000 and the Occupational Health and Safety Regulation 2001. 8. Compensatory and exemplary damages pursuant to any breach of the duty of care or statutory duty arising out of the Health Practitioner Regulation National Law (NSW). 9. Compensatory and exemplary damages pursuant to breach of contract by the First Respondent. 10. Compensatory and exemplary damages pursuant to breach of contract of employment by the Seventh Respondent. 11. The damages referred to in previous paragraphs to be calculated for pain and suffering, irreparable damage to reputation, loss of income and loss of future income. 12. The exemplary damages referred to in previous paragraphs calculated as 5% of the gross income or revenue of the relevant Respondents since 11 May 2010 until judgement plus 3% the total tangible and intangible assets of the relevant Respondents, or as fixed by the Court. 13. Aggravated damages (damages arising out of the conduct of the relevant Respondent during the legal proceedings, to be awarded in addition to exemplary damages) against the First Respondent, the Seventh Respondent and the Eleventh Respondent. 14. Interest on any compensation or damages. 15. Any other order the Court deems fit. 8 Also served with the draft amended originating application was an untitled document running into 132 pages (the draft amended statement of claim). These are the documents served by Dr Maiocchi purportedly in accordance with Order 8. Each page of the draft amended statement of claim bears a watermark stating "Draft, work in progress 21 July 14". The extent of its incompleteness is apparent from para [401] at pp 131-132 which states: As it can be inferred from the amended draft originating Application dated 21 July 2014, and it is clear from several paragraphs above, the claims in addition to discrimination include, at least: (a) Misleading or deceptive conduct by RANZCP, NSC and NSLHD (References to the elements of the cause of action and particulars are needed) (b) Claims pursuant to any breach of the duty of care arising out of any obligation pursuant to the OHS Act 2000 and the Occupational Health and Safety Regulation 200 by RANZCP, NSC and NSLHD (References to the elements of the cause of action and particulars are needed) (c) Claims for damages in respect of the claims for breach of contract by RANZCP and NSLHD (References to the elements of the cause of action and particulars are needed) (d) Claims for damages pursuant to any breach of the duty of care or statutory duty arising out of the Health Practitioner Regulation National Law (NSW). (References to the elements of the cause of action and particulars are needed) 9 The draft amended statement of claim is not a document to which the respondents should or will be required to plead. It is a rambling and confusing document that is no better, and certainly more prolix, than its predecessor which, as I pointed out in my previous judgment, was 111 pages in length. The latest version contains a great deal of irrelevant and argumentative material including allegations of unethical conduct on the part of the ninth respondent (Dr Lyndon). Dr Maiocchi seems to accept that the subject matter of these allegations has nothing to do with any of the causes of action upon which she wishes to rely. 10 Further, the draft amended statement of claim does not comply with Order 8 and, even more troubling, does not appear to me to reflect any genuine effort to prepare a document that complies with Order 8. Large portions of the draft amended statement of claim are a "cut and paste" from the statement of claim I previously struck out. As I have mentioned, the draft amended statement of claim is, even now, still described as "a work in progress". Dr Maiocchi did not contend that the proposed statement of claim complies with Order 8. Nor did she indicate when, if at all, she is likely to be in a position to serve a document that complies, or substantially complies, with Order 8. This is a highly regrettable state of affairs given the lengthy period of time that Dr Maiocchi has had to revise her pleading and to consider it in light of my previous reasons for judgment. 11 Dr Maiocchi is not legally represented and has no legal qualifications. She has told me on numerous occasions that she has tried to obtain legal representation but without success. There is nothing before me to indicate that Dr Maiocchi is likely to obtain legal representation in the future. However, she is intelligent and well educated, and able to understand, at least in a general sense, the substance of the complaints made about her pleading. Her main difficulty, it seems to me, stems from her desire to bring within the scope of her proceeding all manner of grievances against a large number of entities and individuals against whom she does not appear to have had any discernible cause of action. 12 There are allegations pleaded by Dr Maiocchi against the seventh respondent (NSLHD) by whom she was at all relevant times employed. The principal allegations against NSLHD centre upon a complaint that NSLHD "did not follow the mandatory policies of NSW Health" by supporting the withdrawal of Dr Maiocchi's clinical privileges and preventing Dr Maiocchi from working in her chosen profession. It is alleged that there was a failure by NSLHD to comply with relevant management guidelines concerning complaints or concerns about a clinician. However, these allegations are not translated into any recognisable cause of action whether arising in contract, tort or under statute. This problem with the pleading was the focus of Order 8(c)(ii). Dr Maiocchi has done nothing to cure it. 13 There are also allegations pleaded against the first respondent (RANZCP) including allegations that RANZCP contravened s 17(b) and s 27(2)(c) of the Racial Discrimination Act 1975 (Cth) (the RD Act). Section 27(2) is reproduced at [46] of my previous reasons. Section 17(b) provides that it is unlawful for a person to assist or promote whether by financial assistance or otherwise the doing of an act that is unlawful by reason of a provision of Pt II of the RD Act. This would include assisting another person to engage in an act of discrimination in contravention of s 9 of the RD Act. 14 The contravention of s 17(b) by RANZCP is said to arise out of its failure to act in accordance with its written procedures "and its silence" which is said to involve RANZCP having assisted the fifth respondent (Dr Wilson) and the sixth respondent (Dr Jurd), in their (alleged) acts of unlawful discrimination. It is not apparent from the draft amended statement of claim what assistance RANZCP is alleged to have provided to either Dr Wilson or Dr Jurd in their performance of the alleged unlawful acts. The particulars given suggest that Dr Maiocchi's main complaint against RANZCP is that it did not adequately investigate the allegations later made by her against Dr Wilson and Dr Jurd and that this somehow deprived her of evidence that might have assisted her in defending subsequent proceedings involving the Health Care Complaints Commission and the Medical Council of NSW. 15 RANZCP is not the only respondent who is alleged to have contravened s 27(2)(c) of the RD Act. Similar allegations are made against Dr Wilson, Dr Jurd, Dr Lyndon and the eleventh respondent (Phiroan). As my previous reasons made clear, these are serious allegations that should be clearly and succinctly pleaded. Order 8(d) was specifically directed to ensuring that they were. The draft amended statement of claim falls a long way short of satisfying the requirements of Order 8(d). 16 RANZCP, Dr Wilson, Dr Jurd, NSLHD, Dr Lyndon and Phiroan have each filed interlocutory applications which seek orders that the proceeding against them be struck out or, in the case of some of those respondents, that it be summarily dismissed. For the most part, the evidence relied upon consists of a volume of documents which establishes the procedural history of the matter. Dr Lyndon, who has sought an order for summary dismissal of the proceeding as against him, has made an affidavit in which he denies, amongst other things, that he ever discriminated against Dr Maiocchi. He also denies engaging in the unethical behaviour to which I previously referred and submits, correctly in my view, that this constitutes scandalous matter that should never have been included in the document. 17 Dr Maiocchi's failure to comply with Order 8 raises the question of whether or not what remains of her proceeding against the respondents should be dismissed or struck out in its entirety. The respondents submit that the proceeding should be dismissed on account of the prolonged and substantial failure to comply with the orders of the Court. Dr Lyndon and Phiroan also submit that the proceeding as against them should be dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). 18 The power to summarily dismiss proceedings pursuant to s 31A of the FCA Act is dealt with at [50] to [54] of my previous judgment in this matter and I need not repeat what appears there. Also relevant is s 37P of the FCA Act. The Court may, pursuant to s 37P(5) (as is made clear by s 37P(6)), dismiss a proceeding in whole or in part if a party has failed to comply with a direction about the practice and procedure to be followed in relation to the proceeding. Dr Maiocchi has failed to comply with Order 8 made on 23 October 2013. That order constituted a direction about the practice and procedure to be followed in relation to this proceeding. The discretion to make an order for dismissal pursuant to s 37P(5) is therefore enlivened. 19 So far as Dr Wilson, Dr Jurd, RANZCP and NSLHD are concerned, I do not think that Dr Maiocchi should be permitted to rely upon any of the causes of action she has sought to rely upon in tort, contract or statute with the exception of certain specific causes of action involving alleged contraventions by Dr Wilson and Dr Jurd of s 9 of the RD Act. It does seem to me that there emerges from the draft statement of claim what may be tenable causes of action for contravention of s 9 of the RD Act against Dr Wilson and Dr Jurd. But I would not allow any of the other claims to proceed given that they have not been properly pleaded as required by Order 8. I say this in circumstances where, firstly, I am satisfied that Dr Maiocchi has not made what I would regard as a genuine effort to comply with that order and, secondly, where I am also satisfied that further attempts to require Dr Maiocchi to properly plead her case against the respondents are likely to be futile. In the result, I think the interests of justice will be best served by confining Dr Maiocchi's claim to those to which I have referred and which she seems to accept constitute her core complaints against Dr Wilson and Dr Jurd. 20 Subject to what follows, I will allow Dr Maiocchi's claims against Dr Jurd and Dr Wilson for their alleged contraventions of s 9 of the RD Act to proceed to trial. I will also allow Dr Maiocchi's claims against RANZCP (on whose behalf Dr Wilson and Dr Jurd were said to have been acting at relevant times in their capacity as supervisors appointed by that organisation) and the NSLHD (by whom Dr Jurd was at relevant times employed) on the basis that they may be vicariously liable under s 18A of the RD Act for any unlawful discrimination against Dr Maiocchi engaged in by Dr Wilson or Dr Jurd in contravention of s 9. But these are the only claims that Dr Maiocchi will be permitted to advance at trial. 21 In my view, the cause of actions referred to in the draft amended statement of claim in relation to Dr Lyndon and Phiroan have no reasonable prospects of success. So far as Dr Lyndon is concerned, one of the claims sought to be raised against him in the draft amended statement of claim is said to be based in tort, presumably, negligence. As has been pointed out by his counsel, there is no arguable duty of care pleaded and the loss allegedly suffered as a result of Dr Lyndon's alleged tortious conduct is pure economic loss not involving any physical injury or harm. The other claim made against Dr Lyndon is founded upon an alleged contravention by him of s 27(2) of the RD Act. I am satisfied that each of these claims against Dr Lyndon is untenable and manifestly frivolous. The proceeding as against him will be dismissed on that basis. 22 As against Phiroan, Dr Maiocchi complains that she was badly treated by nurses working at the Northside Clinic. She singles out, in particular, Ms Atkinson, who she alleges, together with other members of the nursing staff, engaged in what she describes as harassment. It may be assumed that the nursing staff at the Northside Clinic were employed by Phiroan. But the way in which the allegations relating to the nursing staff have been pleaded makes it impossible to understand exactly what the acts complained of are and on what basis Phiroan, if it was the employer of the nursing staff, is alleged to be liable to Dr Maiocchi. 23 Neither Dr Wilson nor Dr Jurd was employed by Phiroan, and there is nothing before me to suggest that any conduct in which they engaged was engaged in by them as agents for that company. So far as Phiroan is concerned, I am satisfied that Dr Maiocchi's inability to plead a tenable cause of action against Phiroan provides a strong indication that she does not have one. The proceeding as against Phiroan will be dismissed on that basis. 24 Any action taken by Dr Jurd and Dr Wilson which may have prevented Dr Maiocchi from completing her training with RANZCP or which may have resulted in the withdrawal of her clinical privileges, may have been taken by them in their capacity as supervisors appointed by RANZCP or, in the case of Dr Jurd, in the course of his employment by NSLHD. Whether or not RANZCP or NSLHD is vicariously liable under s 18A for Dr Wilson's or Dr Jurd's alleged contraventions of s 9 will be a matter for trial. 25 I propose to refuse Dr Maiocchi leave to file the draft amended application and the draft amended statement of claim. I also propose to order that the issues for trial in the proceeding brought by Dr Maiocchi against Dr Wilson, Dr Jurd, RANZCP and NSLHD, be defined by, and limited to, those set out in the Statement of Issues appearing in the Schedule to these reasons. These orders will be made pursuant to the power conferred on the Court by s 37P of the FCA Act. The proceeding will be fixed for hearing for five days commencing on 23 March 2015. 26 Dr Maiocchi will be ordered to pay Dr Lyndon's and Phiroan's costs of the proceeding. She must also pay the other respondents' costs of their respective interlocutory applications. I do not propose to make any other order in relation to those interlocutory applications. 27 Any application for leave to appeal from this judgment must be filed by 4.00pm, 29 August 2014. 28 There will be orders accordingly. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate: Dated: 22 August 2014 Schedule Statement of Issues

1. Did the fifth respondent (Dr Wilson) contravene s 9 of the Racial Discrimination Act 1975 (Cth) (the RD Act) between March and May 2010 in connection with his supervision of the applicant (Dr Maiocchi) while she was on secondment to the Northside Clinic by unlawfully discriminating against Dr Maiocchi in relation to: (a) his preparation and adoption of a mid-term evaluation dated 23 March 2010 in relation to Dr Maiocchi; (b) his request for a remediation plan in relation to Dr Maiocchi; or (c) his allegations of unsatisfactory performance in relation to Dr Maiocchi's work in his letter to the sixth respondent (Dr Jurd) dated 14 May 2010; based upon Dr Maiocchi's race, descent or national or ethnic origin, and in circumstances where such acts had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life?
2. If the answer to 1 is yes, is the first respondent (RANZCP) vicariously liable for Dr Wilson's contravention of s 9 of the RD Act?
3. What damages should be awarded to Dr Maiocchi by way of compensation for any of the alleged wrongful acts referred to in 1 which is found proven?
4. Did Dr Jurd contravene s 9 of the RD Act between April and May 2010 in connection with his supervision of Dr Maiocchi while she was on secondment to the Northside Clinic by unlawfully discriminating against Dr Maiocchi in relation to: (a) the preparation and adoption of the remediation plan dated 13 April 2010; (b) his alleged acceptance at face value, and without independent or critical evaluation, of the allegations of unsatisfactory performance in relation to Dr Maiocchi's work in the letter from Dr Wilson to Dr Jurd dated 14 May 2010; (c) withdrawing or procuring the withdrawal of Dr Maiocchi's clinical privileges; based upon Dr Maiocchi's race, descent or national or ethnic origin, and in circumstances where such acts had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life?
5. If the answer to 4 is yes, is RANZCP vicariously liable for Dr Jurd's contravention of s 9 of the RD Act?
6. If the answer to 4 is yes, is the seventh respondent (NSLHD) vicariously liable for Dr Jurd's contravention of s 9 of the RD Act?
7. What damages should be awarded to Dr Maiocchi by way of compensation for any of the alleged wrongful acts referred to in 4 which is found proven?