Practice and procedure - Application to strike out statement of claim - Turns on own facts

Public Sector Management Authority Act 1994, s 81

Ackroyd v Whitehouse (Director of National Parks and Wildlife Service) (1985) 2 NSWLR 239

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

AYHT v Medical Board of South Australia [2000] SASC 136

Banque Commerciale SA (In Liq) v Akhill Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279

Edwardes v Kyle (1995) 15 WAR 302

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Gould v Mt Oxide Mines Ltd (In Liq) [1916] HCA 81; (1916) 22 CLR 490

Haocher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1989) 169 CLR 648

Hospital Contribution Fund of Australia v Hunt (1983) 44 ALR 365

Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408

Kanda v Government of the Federation of Malaya [1962] UKPC 2; [1962] AC 322

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Mutual Life and Citizens Assurance Co Ltd v Evatt [1970] UKPCHCA 2; (1970) 122 CLR 628

National Companies and Securities Commission v Newscorp Ltd [1984] HCA 29; (1984) 156 CLR 296

Pan Continental Mining Ltd v Posgolo Investments Pty Ltd [1994] FCA 983; (1994) 121 ALR 405

Sullivan v Department of Transport (1978) 1 ALD 383

Victoria v Master Builders Association [1995] VicRp 47; (1995) 2 VR 121

1 MASTER SANDERSON: This is the defendant's application to strike out the plaintiff's statement of claim. The application is brought under the provisions of O 20 r 19(1)(c). During the course of his submissions, senior counsel for the defendant dealt with a large number of complaints as to the statement of claim - some of the complaints were more significant than others. As I have reached the conclusion that the statement of claim should be struck out I will attempt to deal with all issues raised by the defendant. In any further pleading minor matters which are properly complained of but which would not ordinarily justify the pleading being struck out can be addressed, along with the more serious matters.

2 The first two paragraphs of the statement of claim identify the parties. The plaintiff holds the position of medical director, Obstetric Clinical Unit at King Edward Memorial Hospital for Women ("King Edward Hospital"). It is pleaded by par 1(b) that he is an employee of a public sector body (the defendant) pursuant to the provision of the Public Sector Management Act 1994. The defendant is, pursuant to statute, responsible for the management and control of King Edward Hospital.

3 By par 3 of the statement of claim it is pleaded that the defendant "purported" to exercise its statutory powers to appoint two named individuals to review the obstetric and gynaecological services at King Edward Hospital. The defendant complains of the use of the word "purported". There is no allegation elsewhere in the statement of claim that the establishment of what is subsequently referred to as the "Review" was contrary to statute or in some other way improper. That being the case, the use of the word purported is embarrassing and inappropriate.

4 Paragraph 4 of the statement of claim sets out the terms of reference of the Review. No objection is taken to the terms of par 4. However, the defendant says that neither par 3 nor par 4 identifies a power exercised by the defendant which attracts a duty of procedural fairness. There is no doubt that a duty of procedural fairness arises on the exercise of a power by a public official: see Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 576; Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598. What is pleaded in par 3 and par 4 is the establishment of the Review and its terms. That is the act taken by the defendant. It is difficult to see how that act alone can give rise to a duty of procedural fairness. If the action of the defendant in establishing the Review does give rise to such a duty there are no material facts pleaded which establish the basis upon which the duty arises.

5 In par 5 the word "purported" appears again. For the reasons I gave in relation to par 3 I think the use of that word is embarrassing. It should not be permitted to stand.

6 By par 6 it is pleaded that "prior to, or during the course of the Review" two employees of the defendant provided certain documents to the persons undertaking the Review. These documents, it is alleged, included confidential medical records made by the plaintiff regarding certain of his patients and "privileged legal advice and reports provided by, inter alia, the plaintiff to Ms Beck (a solicitor employed by the defendant) for the sole or principal purpose of providing legal advice on the rights and obligations of, inter alia, the plaintiff and the defendant arising from particular medical outcomes".

7 The defendant makes a number of complaints about this paragraph, all of which are justified. First, it is said that nothing that was done prior to the Review is the subject of complaint. It is the conduct of the Review itself which is the subject of this action. The reference to prior events is inappropriate. Secondly, the use of the word "confidential" and the reference to "privileged legal advice" suggests that the handing of these documents to the persons conducting the Review was in some way improper. However, nothing is made of that groundwork. This leads on to the third and most fundamental objection to the paragraph. It has no place in the overall scheme of the pleading. There is no allegation that in handing over the documents the defendant in some way breached its duty to the plaintiff. If it is said that the handing over of these documents in some way breached the defendant's duty of procedural fairness to the plaintiff, that is not pleaded. It is difficult to see how such a plea could properly be made. As it stands at present, par 6 raises a false issue and it cannot stand.

8 Paragraph 7 and par 8 plead the conduct of the Review and its completion on or about 3 April 2000 when it provided a report ("the Report"). It is pleaded by par 8 that the conclusions in the Report were critical of the performance of the plaintiff and "confidential particulars" of those adverse findings have been provided. No complaint is made as to these two paragraphs.

9 By par 9 it is said that based upon what has been pleaded in par 1 to par 8, the plaintiff "had and was entitled to have" certain "legitimate expectations". These expectations are set out in subpar (a) through to subpar (f). Again the defendant makes a number of criticisms of this paragraph and again all are, in my view, justified. First, it is said, that the use of the phrase "inter alia" before the legitimate expectations are listed is embarrassing. It implies that apart from the legitimate expectations mentioned in the six subparagraphs there are others. If there are others they ought be pleaded. If there are not then the phrase "inter alia" ought not be used. Secondly, subpar (9)(b) relates to matters prior to the commencement of the Review. These matters could not be the subject of a requirement of procedural fairness during the course of the Review and the plea cannot stand. Thirdly and fundamentally, there is nothing which is pleaded in par 1 to par 8 which could give rise to the "legitimate expectations" pleaded in par 9.

10 It is important at this point to clarify just what is meant by this concept of "legitimate expectation" and the consequences that flow therefrom. This question was discussed by Mason CJ in Attorney-General (NSW) v Quin (1990) 170 CLR 1 where his Honour said (at 20 - 21):

"Notwithstanding the criticism that has been levelled at the concept of 'legitimate expectation' since it was first introduced by Lord Denning MR in Schmidt v Secretary of State for Home Affairs (1969) 2 Ch 149, as a foundation for attracting a duty of procedural fairness, the concept has been accepted and adopted by this Court as denoting expectations which go beyond enforceable legal rights: ...

It is the presence of a legitimate expectation which conditions the existence of a claimant's right to procedural fairness and the corresponding duty of the decision-maker to observe procedural fairness in the treatment of the claimant's case. The content of that duty is dependent upon the circumstances of the particular case, but its existence is determined by reference to legal principle. So, a legitimate expectation may be created by giving of assurances, the existence of a regular practice, the consequences of denial of the benefit to which the expectation relates or the satisfaction of statutory conditions. The list is not exhaustive, but provides indications of the kinds of factors which a court will take into account in deciding whether or not an expectation is legitimate.

The duty to accord procedural fairness in connexion with a claimant's legitimate expectation is sometimes said to be referable to a general duty of good administration. But the content of that broader duty is still defined by reference to the claimant's legitimate expectation. In the absence of such an expectation, there is no corresponding duty to accord fairness. For that reason, although in one sense it means nothing to say that a person entitled to fair procedures or good administration has a legitimate expectation of being accorded such treatment, it is still necessary to identify a relevant legitimate expectation, and that legitimate expectation may consist of an expectation of a procedural right, advantage or opportunity. The procedural right which forms the subject-matter of the legitimate expectation will not necessarily be the same as the procedure which procedural fairness or good administration, the duty to accord which is enlivened by the expectation, will demand. ...

Although a legitimate expectation may take the form of an expectation of a substantive right, privilege or benefit or of a procedural right, advantage or opportunity, it is helpful to avoid confusion between the content of the expectation and the resulting right to procedural fairness. Perhaps in pursuit of clarity of expression, courts have referred to a legitimate expectation that some benefit will not be denied or taken away without an opportunity to be heard ... In truth, the legitimate expectation in such cases is often simply that the benefit will not be denied or taken away. The 'expectation' that the claimant will be heard ordinarily flows of itself from the primary legitimate expectation."

11 The difficulty with this pleading is that there is nothing in par 1 through to par 8 which sets out the conditions which give rise to what are said to be the plaintiff's legitimate expectations. Perhaps the only hint of such a condition is to be found in par 1 where reference is made to the very senior position held by the plaintiff with the defendant. It might be arguable that the very fact that the plaintiff holds the position that he does gives rise to certain legitimate expectations. But that is not the way the case is presently pleaded. In the circumstances then, there is no basis upon which par 9 can be seen as a proper pleading.

12 There is one further matter complained of by the defendant in relation to par 9. That relates to par 9(f). It is pleaded that "such allegations" would be investigated in accordance with s 81 of the Public Sector Management Act. It is not clear what "allegations" the plaintiff is referring to. It may also be that the plaintiff is claiming that a legitimate expectation to procedural fairness arises consequent upon the provisions of the Public Sector Management Act. That plea might well be open: see In Re H K (An Infant) [1967] 2 QB 617. However, if that is to be pleaded the pleading is not, as it presently stands, in a proper form.

"Notwithstanding the legitimate expectations, the Report was completed in circumstances that were contrary to paragraphs 9(a), (b), (c), (d), and (f) ... "

Certain matters are then set out in subpar (a) through to subpar (d) of par 10. It is difficult to see to what end par 10 is directed. If the plaintiff held legitimate expectations these give rise to a right of procedural fairness. Paragraph 10(a) pleads that the plaintiff became aware of the Review as a consequence of reading an article in a newspaper. It is not pleaded in par 9 that the plaintiff had a reasonable expectation that he would be given advance notice of any review. The same comments apply to par 10(b). Paragraph 10(c) does not relate to allegations concerning the defendant's conduct as pleaded in par 9(a), par 9(b), par 9(c), par 9(d) and par 9(f). Paragraph 10(d) refers to "adverse findings, comments and inferences" made about persons other than the plaintiff in the Report. It is hard to see how this relates to any legitimate expectation held by the plaintiff.

14 In my view par 10 in its present form cannot stand.

15 By par 11 it is pleaded that the plaintiff was not afforded an opportunity or any reasonable opportunity to take certain steps. By par 11(a) it is pleaded that the plaintiff was not given an opportunity to consider the terms of reference of the Review. No complaint is made of the terms of reference of the Review. By par 11(b) it is said that the plaintiff was denied the opportunity to obtain legal advice "concerning the matters the subject of the Review". This allegation is unrelated to the plaintiff's claim that he was not given adequate opportunity to respond to adverse allegations about him in the Report. Paragraph 11(c) claims that the plaintiff was not given the opportunity to obtain legal advice in relation to the provision of confidential communications or communications the subject of legal professional privilege to the Review. This paragraph is unrelated to any relief claimed. Furthermore, there is no basis pleaded upon which it could be said that the failure to allow the plaintiff to obtain legal advice was a denial of procedural fairness. Paragraph 11(d) pleads that the plaintiff was denied the opportunity to consider documents provided to the authors of the Review. This does not relate to any pleaded cause of action. There is a reference in par 11(d) to the "Review Committee". It is not entirely clear what is meant by the use of this phrase. (It may be that the word "Committee" should be omitted). Paragraph 11(e) pleads that the plaintiff was denied the opportunity to call witnesses and cross-examine persons who had made "serious allegations". No particulars are given of the phrase "serious allegations". Furthermore there is reference to the "Investigation". This should be presumably a reference to the Review. Leaving that minor point to one side, par 11(e) is seriously lacking in particularity.

16 In my view the complaints made as to par 11 are properly made and it cannot stand in its present form.

17 Paragraph 12 of the statement of claim deals with the use made of the Report once it was received by the defendant. In fact it is not pleaded that the defendant did anything with the Report which was adverse to the interests of the plaintiff. Officers of the defendant did request the plaintiff to take immediate leave from his position but as pleaded this was nothing more than a request. The plaintiff was not dismissed from his position. It is difficult to see what flows from par 12. It cannot stand in its present form.

18 Paragraph 13 pleads that in August 2000 the Report was referred to by certain media outlets. There is no allegation that the defendant was responsible for publication of the Report or responsible for references made to the Report in the media. Paragraph 13 raises no issue in connection with this claim and cannot stand.

19 Further complaints are made as to the prayer for relief. Save to say that I am in broad agreement with the defendant that there is no basis pleaded for the granting of each of the orders sought in the prayer for relief I do not propose to deal with each of the individual claims. It follows that if the pleading is to be recast the prayer for relief will have to be recast.

20 The whole of the plaintiff's statement of claim ought be struck out. The plaintiff will have leave to replead and bring in a minute of amended statement of claim. I will hear the parties as to the precise form of the orders.

21 Lest there be any misunderstanding in relation to this application I should emphasise that I am in no way dealing with the merits of the action brought by the plaintiff against the defendant. This is a pleading summons. My task is to assess whether the statement of claim in its present form properly pleads a case against the defendant. I have determined that it does not. That does not mean that the plaintiff does not have a case against the defendant - that is a matter to be determined at trial if the matter should proceed that far. Any defendant is entitled to know what case it has to meet and the basis upon which the plaintiff's claim is founded. The plaintiff's present statement of claim does not satisfy those requirements. That is the full scope and extent of this decision.