Plaintiff v First Defendant

TORTS - Misfeasance in public office - Statutory body - Whether member of body is public officer - Health Practitioner Regulation National Law (Victoria) ss 36, 37, 156; sch 4.

1 The plaintiff applied for leave to add Dr John Reeves ('Reeves') and Dr Debra O'Brien ('O'Brien') as the third and fourth defendants in the proceeding, and for leave to further amend his statement of claim to articulate his allegations against those proposed defendants and to make further allegations against the existing defendants.[1]

2 For the reasons that follow, leave to join the proposed new defendants to the proceeding is refused. I will grant leave to the plaintiff to amend his statement of claim in a more limited way than was originally sought.

3 The plaintiff's claim as presently pleaded is in defamation. It arises out of an alleged publication by the first defendant ('St Vincent's') and the second defendant ('Loh') of a complaint notification to the Australian Health Practitioners Regulation Agency ('AHPRA') on 20 March 2019, following an independent review that was undertaken in respect of his surgical performance. To understand the plaintiff's concerns about that complaint notification, he contends that the publication conveyed defamatory imputations, including that:

(a) his care of patients on whom he performs surgery is substantially below the standard of care expected of a neurosurgeon and spinal surgeon in his position;

(b) his surgical judgment and ability is substantially below the standard expected of a neurosurgeon and spinal surgeon in his position;

(c) he caused a patient to suffer permanent paraplegia by providing treatment that was substantially below the standard of care expected of a neurosurgeon and spinal surgeon;

(d) he misdiagnosed a patient and recommended and performed surgery that was inappropriate for the patient and which caused serious complications and injury;

(e) he has placed the public at risk of harm because he has practised his profession as a neurosurgeon in a way that constitutes a significant departure from accepted professional standards; and

(f) he is so incompetent as a neurosurgeon that, if allowed to continue in practise, he poses a risk to patient safety.

4 The plaintiff alleges reputational damage, aggravated damage and special damage. The plaintiff's particularised claim to special damages comprises loss and expected future loss of income as a consultant neurosurgeon and spinal surgeon following AHPRA's placing of restrictions on the plaintiff's right to perform surgery, which was, he alleges, a direct result and/or foreseeable consequence of the publication.[2]

5 The plaintiff commenced this proceeding by an originating application in the Federal Court of Australia on 17 July 2019. The Federal Court transferred the proceeding to this court on 23 September 2019. The proceeding is fixed for trial on 24 May 2021 and interlocutory steps have been substantially, although not entirely, completed.

6 The amendments sought by the plaintiff were set out in a document described as 'third amended statement of claim' exhibited to an affidavit affirmed by the plaintiff ('proposed pleading'). That affidavit explained the roles of Reeves and O'Brien.

7 The plaintiff sought leave to introduce the five new causes of action to the proceeding:

(a) a negligence claim against the existing defendants and Reeves;

(b) a breach of contract claim against the existing defendants and Reeves;

(c) a claim for injurious falsehood against the existing defendants and Reeves; and

(d) claims for misfeasance in public office and breach of statutory duty against O'Brien.

8 The defendants and Reeves opposed leave being granted to the plaintiff on three grounds:

(a) the proposed negligence and breach of contract claims did not disclose a cause of action and, accordingly, have no reasonable prospect of success;

(b) the proposed negligence, breach of contract and injurious falsehood claims were not properly particularised and should not be allowed in their current form; and

(c) the joinder of O'Brien as a defendant to the proceeding and the proposed inclusion of the claims for misfeasance in public office and breach of statutory duty should not be allowed, as those claims do not have a sufficient connection with the subject matter of the proceeding between the plaintiff and the existing defendants and, if allowed, would prejudice, embarrass and delay a fair trial of the plaintiff's existing claim against those defendants.

9 O'Brien opposed leave being granted to the plaintiff because neither cause of action to be pleaded against her had any real prospect of success.

10 The defendants submitted with some force that the plaintiff's affidavit in support of the application did not reveal an appropriate basis for the exercise of a discretion in his favour, failing in particular to identify a proper basis for the proposed amendments, to explain the delay in making the application, and otherwise to explain why the court ought to prejudice the defendants by further delay in the resolution of the proceeding.[3] Although the plaintiff took issue with this contention, it is not necessary that I resolve this aspect of the dispute.

11 Largely in response to the defendants' written submissions, the plaintiff accepted that there were deficiencies in the proposed pleading. He accepted that it was necessary that he submit and seek leave for a proposed pleading with materially different amendments. However, he submitted that the form of the necessary further amendments was evident from his written submission in reply.

12 It has never been acceptable for a pleading to be scattered across multiple documents and, as a matter of form, a pleading should be complete without cross-references to other documents, save for a response to a request for further and better particulars.

13 The plaintiff did not initially accept an invitation to adjourn the application until he could produce the amended pleading on which he wanted to rely, but during the course of the hearing he gave those instructions to his counsel. The plaintiff's response in this respect was necessary and appropriate. Particularly in a proceeding that is set down for trial, his application needed to place before the court and the defendants a document that substantially set out, with proper and appropriate particulars, the amended allegations that the plaintiff wished to pursue in the proceeding.

14 However the defendants resisted the plaintiff being granted an adjournment to rectify the proposed pleading, submitting that permitting that indulgence would be futile. With the exception of the injurious falsehood claim that the plaintiff wishes to add against the existing defendants and Reeves, the plaintiff faced a submission that the amendments did not, and could not, disclose claims that had a real prospect of success. Further, the defendants contended that the claims contemplated by the plaintiff in negligence, contract, misfeasance in public office, and breach of statutory duty were fundamentally flawed and could not be saved by amendment.

15 The plaintiff submitted that I ought to reject this contention. He contended that, by reference to and within the confines of his reply submission, he had identified how he might properly plead a further version of the proposed pleading as the basis for his application was evident, and he ought to be permitted the opportunity to do so.

16 Save for the plaintiff's proposed claim in injurious falsehood, I will not grant that further opportunity. I will refuse leave to amend on the basis of the proposed statement of claim presently before the court. I am persuaded that any claim that the plaintiff might plead in the circumstances against the defendants and Reeves in negligence and contract, and any claim that the plaintiff might plead against O'Brien for misfeasance in public office and breach of statutory duty would have no real prospect of success.

17 The court may apply the 'no real prospect of success' test in s 63(1) of the Civil Procedure Act 2010 (Vic), which governs applications for summary judgment, on the basis that the defendants are, in substance, applying for summary judgment on the question whether the court ought to grant leave to amend the pleading. In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd, Warren CJ and Nettle JA (as his Honour then was) stated that the test:

should be construed as one of whether the respondent to the application for summary judgment has a "real" as opposed to a "fanciful" chance of success; that the "real chance of success" test is to some degree a more liberal test than the "hopeless" or "bound to fail" test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent's case is not "hopeless" or "bound to fail", it does not have a real prospect of succeeding.[4]

18 In Mandie v Memart Nominees Pty Ltd, the Court of Appeal observed:

The power conferred on the court by s 63(1) of the [Civil Procedure Act 2010 (Vic)] to dispose of claims before a trial facilitates one of the stated purposes of the Act. Subject to limited exceptions, if a claim or defence has no real prospect of success, then summary judgment may be given. It must follow that a proposed pleading amendment raising a claim or defence of that type should not be permitted. To grant leave in that circumstance would be futile as the claim or defence would be susceptible to a summary judgment application. This principle facilitates the administration of justice, as it enables courts to prevent claims or defences being pleaded where they will inevitably fail and thus avoid the cost and inconvenience that would otherwise arise if those claims or defences were permitted to be made only to be the subject of summary judgment subsequently.[5]

19 Reeves is the Medical Director at St Vincent's and was represented before the court by its legal team. He was not, and is not proposed to be, a party to the existing defamation claim. The crux of that claim, as noted above, was publication of the complaint notification to AHPRA. It is not alleged that Reeves published that notification.

20 The plaintiff, in a rolled up allegation, contends that each of St Vincent's, Loh and Reeves owed him a duty of care. The plaintiff accepted that the content of that duty of care as set out in the proposed pleading needed to be reformulated and invited the court to proceed on the basis that it would be reformulated as follows:

From the circumstances and conduct of the parties, the first, second and third defendants, collectively referred to as 'the Hospital', owed Morris a duty:

(a) to take reasonable care when making decisions relating to disciplinary allegations; and

(b) to make decisions based only on information they know to be true and correct; and

(c) to follow their own policies and procedures in respect of disciplinary action.

21 The plaintiff alleged that this duty of care was breached by 'the Hospital' - a reference to each of St Vincent's, Loh and Reeves - by publishing the complaint notification to AHPRA, because they failed to ensure the accuracy of the information contained in the review that was the basis for the complaint notification and did not give the plaintiff an opportunity to address errors in the review before the notification was published.

22 The loss and damage that the plaintiff alleges that he suffered by reason of the defendants' negligence is the same damage as the special damage that he suffered consequent upon the defamatory publication.

23 Although the defendants took a number of strong objections to the form of this pleading, it is not necessary to rule on those objections. They are noted in the written submissions and were referred to in oral argument.[6] A more fundamental point was raised. However, before turning to that fundamental point, it is convenient to note the nature of the breach of contract claim that the plaintiff seeks leave to advance.

24 The plaintiff proposes to allege that he entered into a contract with 'the Hospital' on 17 April 2016. The contract is not particularised and cannot be identified, adding further obscurity to the allegations. Although the plaintiff, by his second affidavit, put a number of documents before the court for the purposes of the application, there is no contract amongst those documents that might meet the description, such as it is, in the proposed pleading.

25 Whatever be that contract, the plaintiff alleges that there was an implied term of the contract that 'the Hospital' were required to accord procedural fairness to those affected by their decisions. How and why that term ought to be implied is not addressed in the proposed pleading. It seems from the tenor of the submissions that the plaintiff seeks to contend that 'the Hospital' failed to provide procedural fairness to him to permit him to respond to the allegations made against him in the independent review prior to its publication of its notification to AHPRA.

26 The pleading does not identify the loss and damage caused by the breach of the implied term. By the end of the hearing, it seemed clear that the plaintiff contended that the failure to accord him procedural fairness caused the notification to AHPRA to contain errors of fact that might have been corrected, had the plaintiff had the opportunity denied to him. The damage that he would contend that he sustained from this alleged breach of contract is the same damage as is pleaded in relation to both the existing defamation claim and the proposed negligence claim.

27 As the defendants and Reeves submitted, the degree of overlap between the existing defamation claim and the proposed claims is substantial. All three causes of action purport to be claims for the same loss and damage alleged to have been caused essentially by the same act, namely the publication to AHPRA of the notification and AHPRA's response to it.

28 The defendants and Reeves submitted that the plaintiff's claim is framed, and can only be framed, as a claim for damages for injury to the plaintiff's reputation (with aggravated and special damages) caused by the publication of a notification to AHPRA. The notification negligently presented false facts that the plaintiff could not correct because he was not afforded the opportunity to do so. In whatever way the plaintiff's proposed pleading is analysed, the damage alleged to have been sustained was caused by publication of the notification to AHPRA causing its response to the detriment of the plaintiff. The plaintiff sought to recover in negligence and contract the same damage that the plaintiff alleged he had suffered by reason of the defamation.

29 The defendants submitted that a requirement of coherent demarcation between the principles of law governing different causes of action is well established. For this reason, the law relating to the circumstances in which damages may be recovered for a publication that causes injury, which is the law of defamation, must not be rendered incoherent by the introduction of the same claim for compensation for damage through different causes of action; in this case, negligence and breach of contract.

30 This common law principle is clearly expressed by the High Court. In Sullivan v Moody ('Sullivan'),[7] the High Court rejected the contention made by two fathers against medical practitioners and government agencies that they were owed a duty of care when reporting on the investigation, examination, diagnosis and opinion in respect of suspected abuse of their children. The reports were adverse to the fathers but no allegation following on these reports was sustained in any later inquiry and the fathers sued for damages for shock, distress, psychiatric harm and financial loss consequent on the publication to others of the medical reports.

31 The High Court observed that there are cases, of which the appeal before it was one, where to find a duty of care would so cut across other legal principles as to impair their proper application, which required the conclusion that there was no duty of care of the kind asserted, and that the fathers must pursue remedies in accordance with those other legal principles.

32 The High Court noted that the core of the complaint by each appellant was that he was injured as a result of what he, and others, were told. As I have noted, that is the core of each cause of action that the plaintiff advances or seeks leave to advance in this proceeding. The High Court observed:

The present cases can be seen as focusing as much upon the communication of information by the respondents to the appellants and to third parties as upon the competence with which examinations or other procedures were conducted. The core of the complaint by each appellant is that he was injured as a result of what he, and others, were told. At once, then, it can be seen that there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like. To apply the law of negligence in the present case would resolve that competition on an altogether different basis. It would allow recovery of damages for publishing statements to the discredit of a person where the law of defamation would not.[8]

33 Beyond the inappropriate stress on the principles of defamation by migrating the claim into the law of negligence, the High Court identified a more fundamental objection that affected the coherence of the law: duties of the kind alleged by the appellants should not be found to be owed if that duty would not be compatible with other duties which the respondent owed. The High Court stated:

The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.[9]

34 The second decision is Tame v New South Wales ('Tame').[10] Following a motor vehicle accident, a police officer made a clerical error in the accident report, attributing to Tame a high blood alcohol reading that was actually the reading taken from the other driver. The report was communicated to Tame's insurer and although, ultimately, the mistake was corrected, she developed a psychiatric injury during the period of delay in receiving payment from her insurer and sued the New South Wales Police for negligence.

35 The High Court affirmed what it had said in Sullivan. Gleeson CJ stated:

Furthermore, as in Sullivan v Moody, this is a case where the appellant claims to have been injured in consequence of what others were told about her. There is the same intersection with the law of defamation, and the same need to preserve legal coherence. In the events that occurred, Mrs Tame's reputation was not harmed. But suppose it had been. Then the law would have engaged in an exercise of balancing the rights and responsibilities of Mrs Tame and Acting Sergeant Beardsley by reference to considerations many of which would be rendered irrelevant by the application of the law of negligence.[11]

36 As the defendants submitted, this reasoning has been applied to dismiss or strike out negligence claims where the underlining conduct concerned the communication of defamatory material.[12]

37 Further examples of the application of the principle of coherence include Hill v Van Erp,[13] Koehler v Cerebos (Australia) Ltd,[14] and Hunter and New England Local Health District v McKenna.[15]

38 There is a further ground for concluding that the causes of action have no real chance of success, also drawn from these authorities. As the defendants correctly submitted, a duty of care on their part would be incompatible with statutory duties. In this contest, the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) enacts the Health Practitioner Regulation National Law ('National Law') in the State of Victoria.[16] The references that follow in these reasons are to the National Law.

39 The National Law establishes AHPRA. Prominent amongst its functions is the national notification process for reporting certain conduct of health practitioners. There are provisions dealing with both mandatory and discretionary reporting of conduct. Of particular relevance are ss 140, 141 and 142 that impose mandatory obligations on health practitioners and their employing entities to notify AHPRA, as soon as practicable, if they form a reasonable belief that another health practitioner has behaved in a way that constitutes 'notifiable conduct', which relevantly includes placing the public at risk of harm. Sections 144 and 145 of the National Law provide for the voluntary notification to AHPRA of conduct by health practitioners including that which may be of a lesser standard than that which the public or professional peers would expect.

40 Significantly for the question of whether the defendants can owe a duty of care of the kind alleged by the plaintiff, the fundamental objective of the National Law is plainly to maintain public safety and public confidence in the health profession and the standards of conduct of health practitioners. So much is clear from the objectives and guiding principles set out in s 3 of the National Law.[17] The obligation to notify is conditioned by having a reasonable belief that a health practitioner is behaving in a way that constitutes notifiable conduct. As the defendants submitted, the statutory duty cannot be reconciled to the standard of care contended for by the plaintiff. The plaintiff submitted that the defendants' duty to take reasonable care when making decisions relating to disciplinary allegations, assuming that reference be to obligations to notify under the National Law, is to make decisions based only on information that they know to be true and correct.

41 The plaintiff contends that an employer or health practitioner's statutory obligation to make a mandatory notification to AHPRA co-exists with a duty of care owed by the former health practitioner to the latter heath practitioner to make the decision to notify, in discharge of the statutory duty, only information that the reporting health practitioner knows to be true and correct. This standard would transpose onto the reporting health practitioner the duty to investigate to establish the truth of the allegations before making the notification. Such an obligation would be inconsistent with the National Law, which recognises that the role of investigating and establishing the veracity of a notification is that of AHPRA.

42 The plaintiff's contentions in this respect cannot be accepted. The principles explained by the High Court in Sullivan v Moody and Tame preclude recognition of such a duty of care because it would be incompatible with the statutory regime.

43 The difficulties with the plaintiff's contractual claim - based upon an implied contractual duty to afford procedural fairness - are equally insurmountable.

44 First, the plaintiff's analysis in contract is flawed in that there is no basis to conflate any duty to accord procedural fairness that might be related to the Hospital's (although presumably only St Vincent's) contract with the plaintiff to conduct medical procedures with any duty to accord procedural fairness that might apply under the mandatory reporting obligations under the National Law.

45 The plaintiff alleges that St Vincent's by-laws, which are said to be incorporated into the contract, requires a practitioner who is the subject of an independent review to be afforded an opportunity to respond to that review. That may be so. However, the by-laws identified by the plaintiff deal with the manner in which concerns, allegations or complaints are internally managed within the hospital. That is a distinct process to the mandatory reporting obligations stipulated by the National Law. The by-laws do not, and cannot, operate with primacy over the National Law or determine the manner in which the defendants must comply with it. The by-laws cannot, as a matter of construction, import contractual obligations of procedural fairness into the statutory notification process for the benefit of a health practitioner who may be the subject of a notification to AHPRA. So much is implicitly recognised by the by-laws themselves.[18]

46 The deliberations of or on behalf of AHPRA, by their very nature, may evoke the requirements of natural justice. Those bodies may be obliged to afford procedural fairness to the plaintiff, but the source of that obligation is not the contract of engagement of the plaintiff by the hospital.

47 Second, the defendants rely on defences of statutory honest opinion and common law qualified privilege in response to the plaintiff's defamation claim. Neither defence requires the exercise of reasonable care by the defendants or requires the defendants to have given the plaintiff an opportunity to be heard prior to publishing the notification. Such notions play no role in the manner in which the law of defamation strikes a balance between free speech and injury to reputation. The defendants correctly submitted the plaintiff's cause of action for defamation covers the field in relation to his entitlement to recover damages for the publication of the notification. Moreover, as I have stated, the obligation to afford natural justice in the investigative and adjudicative processes under the National Law is not sourced from the contract between the plaintiff and the hospital.

48 For these reasons, the proposed claims and negligence in breach of contract do not disclose a cause of action. There is no real prospect that the plaintiff could establish either the duty that is the foundation of his claim in negligence or the implication of the term that is the foundation of his claim in contract. Leave to join Reeves and to amend the statement of claim to make these claims against the existing defendants and Reeves is refused.

Misfeasance in public office and breach of statutory duty claims

49 I turn next to the claims proposed to be added against O'Brien. A very brief, perhaps oversimplified, description of the regulatory statutory regime for health practitioners provides necessary background to these claims. The Victorian Board of the Medical Board of Australia ('Victorian Board') was established by the Medical Board of Australia under s 36 of the National Law. Under cl 11 of sch 4 to the National Law, the Medical Board of Australia established the Victorian Immediate Action Committee ('Immediate Action Committee'). Under s 37 of the National Law, the Medical Board of Australia delegated certain powers to the Victorian Board and to the Immediate Action Committee. These delegated powers include the power to take immediate action against a health practitioner under s 156 of the National Law.

50 O'Brien was appointed as a member of the Victorian Board by the Victorian Minister for Health under s 36(3) of the National Law and, as a member of that board, she was also a member of the Immediate Action Committee.

51 On 5 April 2019, the Immediate Action Committee gave the plaintiff notice of a proposed decision, and on 11 April 2019, the Immediate Action Committee made a decision under s 156(1) of the National Law to impose conditions on the plaintiff's registration. On 15 August 2019, the Victorian Board refused an application by the plaintiff to remove the conditions the Immediate Action Committee had imposed.

52 There is a factual dispute whether O'Brien played any part in the committee's deliberations on 5 and 11 April 2019 and on 15 August 2019. In an affidavit, her solicitor deposes to instructions from her that she played no part in these deliberations or the decision and in each case she declared a conflict of interest at the outset of the decision-making process and was not present for and did not take any part in any decision about the plaintiff, and exhibited documents said to evidence this fact. As such, her conduct was said to conform entirely to cl 8 of sch 4 of the National Law.

53 The plaintiff disputes this contention and points to a document that might support an allegation that O'Brien did participate in this decision-making process in breach of cl 8 of sch 4. It was unnecessary to address these factual circumstances in any detail on the hearing of this application as the plaintiff wished to do. For present purposes, I must assume the plaintiff can establish his version of events at trial.

54 It seems not to be in dispute that there was a valid basis for O'Brien to declare a conflict of interest but a factual dispute exists, to be resolved at any trial, as to whether she did so and stood out of the decision-making process. The plaintiff emphasised this contest of fact in his submissions as a matter for trial, but had no persuasive response to more fundamental points raised against him by O'Brien that are not dependent on contestable facts.

55 The elements of the tort of misfeasance in public office were described by Deane J in Northern Territory v Mengel ('Mengel').[19] The plaintiff must establish:

(a) an invalid or unauthorised act;

(b) done maliciously;

(c) by a public officer;

(d) in the purported discharge of his or her public duties; and

(e) which caused loss or harm to the plaintiff.[20]

56 To identify whether the plaintiff can plead a claim for misfeasance in public office against O'Brien, it is necessary for the pleading to identify an act done by a public officer (O'Brien) in the purported discharge of public duties that cause loss or harm. I accept O'Brien's submission that the plaintiff has not, and will not be able to, plead such matters.

57 Accepting, without deciding, that s 234 of the National Law invokes an exercise of power in discharge of public duties, and focussing on the loss pleaded by the plaintiff, the source of that loss was the decision made by the Immediate Action Committee on 11 April 2019 to impose conditions on the plaintiff's registration. On 15 August 2019, the Victorian Board determined not to remove those conditions. That loss is pleaded as the fifth element of the offence, meaning the first element to be established - the relevant act - must have been the decision by the Immediate Action Committee on 11 April 2019 and/or the Victorian Board on 15 August 2019.

58 As the cause of action must be brought against the public officer who did the act that caused the loss in exercise of public power, the plaintiff can never show that O'Brien committed the tort. The act upon which he relies is the act of the Immediate Action Committee or the Victorian Board, not O'Brien. Although she was a member of those bodies, she had no personal authority to do any act that could cause the plaintiff's loss. Although the plaintiff refers in his proposed pleading to O'Brien's capacity as 'Chair of Victorian Board of the Medical Board of Australia', that position has no statutory significance and is not a public office of the relevant kind.

59 In Cannon v Tahche ('Cannon'), the Court of Appeal identified the necessary coincidence between the officer, the office, the exercise of power, and the cause of loss when it observed:

the tort is essentially concerned with the abuse by the holder of a public office of a public power or one which must be exercised for the "public good", and which is attached to the office. ... Moreover, in order to succeed in an action founded on the tort, the plaintiff must establish that he or she is a member of the public to whom the defendant owed a duty to exercise the power legitimately, namely, only in the public interest and not for an ulterior purpose...[21]

60 In Cannon, a prosecutor and his instructing solicitor were sued for misfeasance in public office by withholding from the plaintiff evidence that the complainant had fabricated rape allegations against him. On the trial of a preliminary question, the primary judge had held that both the prosecutor and the instructing solicitor were holders of a public office for the purposes of the tort, that they each owed the plaintiff duties to make disclosure to him of information relevant to his defence and to conduct the prosecution fairly and impartially, and that they could be liable to the plaintiff for damages for breach of those duties. An appeal succeeded.

61 The Court of Appeal held that the necessary components of the tort of misfeasance in public office involve:

(a) The misuse or abuse by the holder of a public office of a relevant power which is an incident of the office.

(b) That such wrongful conduct was actuated by malice in the sense that the power was used, not for the public benefit, but for an ulterior purpose with the intent that harm be caused to the plaintiff (or in reckless disregard of such a likely consequence) or that there was a purported exercise of the power with knowledge that it did not exist (or in reckless disregard as to its existence).

In order to succeed in a claim based on misfeasance in a public office, the plaintiff must also establish that the duty to exercise the relevant power properly was owed to him as a member of the public.[22]

62 A relevant issue on the appeal was whether the appellants held a public office. Acknowledging that the meaning of 'holder of a public office' depends on the circumstances of the case and has been given a wide meaning for the purposes of the tort, the court continued:

... Be that as it may, it seems that, since the tort is essentially concerned with the misuse of a relevant power which is an incident of a public office, it follows as a matter of practicality that an office cannot be characterised as a public office for the purposes of the tort if no relevant power is attached to it. Put another way, an essential feature of such a public office is that a relevant power is an incident of it. ...[23]

63 The relevant power attached to the committee/board. Those bodies were empowered to make decisions that are assumed, for present purposes, to be an incident of public office. Section 156 of the National Law conferred on the Immediate Action Committee the public duty that the plaintiff alleges caused his loss. That public duty was not conferred on individual members of the committee, such as O'Brien. To the extent that the plaintiff submitted that the National Law assigns powers to the individual members of the board who are thus public officers, entitled to exercise powers in the public interest, that submission was misconceived. O'Brien's position as an individual committee member, or as chair of the Victorian Board can never be characterised as a public office for the purposes of the tort, because no relevant power is attached to it. It is only when the members of the committee/board act collectively as a committee or board that such a proposition might become arguable. It simply cannot be contended that O'Brien had power to independently impose conditions on the plaintiff's registration such as would cause the loss he alleges.

64 The plaintiff's response was that he could attribute malicious intent to one member of a multi-member body, so as to contend that member was, as a matter of law, the driving force responsible for the decisions made by that body. No proper basis for allegations of that sort is disclosed by the plaintiff's submission in response, or more pertinently, deposed to by affidavit. The plaintiff could not develop a submission to that effect. Assuming the facts could be alleged, the proposition appears not to be supported by authority. The plaintiff did not cite any authority to the court. O'Brien noted Jones v Swansea City Council[24] as the closest decision that her counsel could locate, although the facts bore little resemblance to the plaintiff's situation. The plaintiff has no answer to the contention that there is a want of identity between O'Brien's positions on those bodies and the plaintiff's claimed loss. That being the case, it is unnecessary to enquire how the plaintiff would answer O'Brien's next response, that s 236 of the National Law protects her from liability for anything done or omitted to be done as a member of the committee/board in good faith.

65 Returning to the conflict of interest question mentioned earlier, the plaintiff next contended that the notification was an invalid or unauthorised act because of apprehended bias on the part of O'Brien and her failure to follow the procedure set out in the National Law, by declaring her conflict of interest and taking no part in the decision-making process. It is not sufficient to identify a disputed question of fact in respect of this issue. The act that must be shown to be invalid or unauthorised is not the act of O'Brien, but that of the Immediate Action Committee or the Victorian Board.

66 Conflict of interest for a board member in O'Brien's position is governed by cl 8 of sch 4 of the National Law, as cl 8(6) applies the clause to a member of a committee of a National Board and the committee itself in the same way as it applies to a member of the National Board and the National Board itself. The Immediate Action Committee and the Victorian Board are both committees of the National Board. Assuming that the plaintiff's factual allegations of conflict of interest against O'Brien were established at trial, their decisions are not thereby invalidated because cl 8(5) applies. It provides that 'a contravention of this clause does not invalidate any decision of the National Board' and by cl 8(6) that rule is applied, mutatis mutandis, to a decision of a committee.

67 Thus, leaving to one side the misconception or misdirection of the exercise of power as being by O'Brien rather than by the committee on which she served and which was empowered to act as it did, the plaintiff's allegations of conflict of interest cannot establish that the purported exercise of power by the Immediate Action Committee or the Victorian Board was invalid. Brennan J explained why in Mengel:

A number of elements must combine to make a purported exercise of administrative power wrongful. The first is that the purported exercise of power must be invalid, either because there is no power to be exercised or because a purported exercise of the power has miscarried by reason of some matter which warrants judicial review and a setting aside of the administrative action. There can be no tortious liability for an act or omission which is done or made in valid exercise of a power. A valid exercise of power by a public officer may inflict on another an unintended but foreseeable loss - or even an intended loss - but, if the exercise of the power is valid, the other's loss is authorised by the law creating the power.[25]

68 If the plaintiff cannot show an invalid exercise of power, his remedy, if any, is to seek merits review of a valid decision. Apparently, this is presently being attempted in VCAT. It is not possible for the plaintiff to re-plead the claim of misfeasance in public office in a manner that will have a real prospect of success.

69 To the extent that the plaintiff attempts to plead malice, and were it necessary to do so, I would find the pleading to be inadequate in this respect: malice is pleaded not against the decision maker, but against O'Brien. Again, the element of malice is disconnected from the invalid or unauthorised act that caused loss or harm to the plaintiff.

70 For these reasons, the plaintiff's attempt to plead a claim of misfeasance in public office against O'Brien is misconceived and it is unnecessary to evaluate the remaining submissions put on O'Brien's behalf.

71 Finally, the plaintiff has attempted to plead breach of statutory duty by O'Brien. This claim is based on the same conduct alleged to form the basis of the cause of action in misfeasance in public office. In substance, the plaintiff contends that O'Brien, in her capacity as chair of the Victorian Board:

(a) knowingly engaged in deliberations in decision-making with respect to his practice at St Vincent's;

(b) provided information pertaining to his practice to AHPRA;

(c) influenced AHPRA to investigate contentions about surgical complications;

(d) communicated about the investigation of him with AHPRA; and

(e) was present during deliberations of the National Board on 5 and 11 April and 15 August 2019.

72 The statutory duty said to be breached by this conduct is the duty under s 234 of the National Law, which specifies the general duties of persons exercising function under the legislation. The pleading of this cause of action is poorly formed and some speculation as to what the plaintiff might ultimately contend, if given leave to re-plead, is necessary. There is, however, a short point in response.

73 The general duties identified in s 234 of the National Law are imposed on health practitioners appointed to membership of a disciplinary body in order to establish and preserve the integrity of decision-making under the National Law, which, as explained earlier, seeks to achieve objectives for the public good.

74 There is no scope to identify in the National Law an intention on the part of Parliament to create an actionable private duty owed by health practitioners serving on bodies created by the National Law to those regulated by the collective decisions of those bodies. The suggestion that a statutory duty might be owed by O'Brien to the plaintiff in these circumstances is misconceived and has no prospect of being found to exist on any conceivable factual basis that the plaintiff could properly allege or establish.

75 For these reasons, leave to the plaintiff to join O'Brien to the proceeding as the fourth defendant is refused, as each of the claims that the plaintiff seeks to allege against O'Brien has no real prospect of success and would be susceptible to a summary judgment application if permitted.

76 Finally, there remains the question of the proposed amendment to introduce a claim of injurious falsehood against the existing defendants. The defendants did not contend that such a claim could not be properly pleaded, only that it had not been properly pleaded in the proposed pleading. For his part, the plaintiff accepted the need to reconsider the form and content of his pleading. The existing defendants have specified in paragraphs 3.11-3.13 of their written submissions the shortcomings in the plaintiff's pleading that they allege, and the plaintiff might give those paragraphs particular attention.

77 I would only add that the rolled up reference to the first, second and proposed third defendants as 'the Hospital' suggested that a claim for injurious falsehood might be made against Reeves. There is nothing before the court suggesting a proper basis for an allegation that Reeves published any false statements on which the plaintiff relies for this cause of action. In refusing leave to the plaintiff to join Reeves as the third defendant in the proceeding, I am satisfied that there is no proper basis evident on the material before the court for any claim against Reeves for injurious falsehood to have any real chance of success. The plaintiff will not be permitted to re-plead this claim against Reeves.

78 Subject to affording the plaintiff an opportunity to propose an amended statement of claim that pleads in proper form a cause of action in injurious falsehood against the existing defendants, the plaintiff's summons dated 21 August 2020 will be dismissed.

79 Applying the usual rule the costs follow the event would result in a further order that the plaintiff pay the costs of each party upon whom the summons was served. I would not, on first blush, regard the reservation of leave to propose an amended pleading in respect of injurious falsehood as warranting any different conclusion. If some other or different order in respect of costs is sought by any party, I will hear further submissions on that question when the proceeding is listed for making formal orders on 11 November 2020 at 9:30am.

[1] Any reference to defendants in these reasons should be understood as referring to both the existing defendants and the proposed defendants.

[2] Those restrictions are currently being challenged in proceedings in VCAT.

[3] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 215 [103].

[4] [2013] VSCA 158; (2013) 42 VR 27, 39 [29].

[5] [2016] VSCA 4, [43] (citations omitted).

[6] In this regard, I collected and discussed some of the authorities on the sufficiency of pleadings in Wheelahan v City of Casey (No 12) [2013] VSC 316, [25].

[7] (2001) 207 CLR 562.

[8] Ibid 580-1 [54] (citations omitted).

[10] [2002] HCA 35; (2002) 211 CLR 317.

[11] Ibid 335 [28] (citations omitted). See also the reasons of Gaudron J at 342 [58], McHugh J at 361 [122]-[123], 362 [126] and Callinan J at 425 [323], 426 [325].

[12] The defendants cited Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32, 35-7, 42-4; Gould v TCN Channel Nine Pty Ltd [2000] NSWSC 707, [23], [27]; Cornwall v Rowan [2004] SASC 384; (2004) 90 SASR 269, 427 [693]-[694]; Griffith v ABC [2004] NSWSC 582, [31]-[32]; Gacic v John Fairfax Publications Pty Ltd [2005] NSWSC 1210, [32]-[40]; Chan v Sellwood [2009] NSWSC 1335, [44]-[47]; Walker v Veda Advantage Information Services and Anor [2011] QSC 316, [15]-[19]; Norris v Gittos [2011] WASC 295, [46]-[51]; Kostov v Nationwide News Pty Ltd (No 1) [2018] NSWSC 1822, [51]-[54].

[13] (1997) 188 CLR 159, 231-4.

[14] [2005] HCA 15; (2005) 222 CLR 44.

[15] [2014] HCA 44; (2014) 253 CLR 270, 279 [18], 281-3 [29]-[33].

[16] It does so by applying the schedule of the Health Practitioner Regulation National Law Act 2009 (Qld) as a law of Victoria.

[17] See also Health Care Complaints Commission v Do [2014] NSWCA 307, [34].

[18] Clause 14.7 provides that, in the context of any review, the relevant persons must comply with their obligations of mandatory reporting of notifiable conduct under the National Law.

[19] (1995) 185 CLR 307, 370-1 ('Mengel').

[20] See also Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 3) [2010] FCA 361; (2010) 267 ALR 494, 508-14 [57]-[70]; Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; (2011) 203 FCR 293, 319-21 [101]-[111]; Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198, [58]-[68].

[21] [2002] VSCA 84; (2002) 5 VR 317, 328 [28].

[25] Mengel (n 19), 356. See also Sanders v Snell (1998) 196 CLR 329, 344-5 [38].