Wortley v HCCC

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20080/2002 - NATHAN WORTLEY v HEALTH CARE COMPLAINTS COMMISSION

JUDGMENT (Summary judgment - dismissal; duty to act in good faith - Health Care Compaints Unit) 1 MASTER: There are two motions to be determined. Firstly, by notice of motion filed 31 May 2002 the defendant seeks an order that the proceedings be stayed or dismissed generally pursuant to Part 13 r 5(1) of the Supreme Court Rules. The defendant relied on the affidavit of David Michael Swain sworn 31 May 2002. Secondly, by notice of motion filed 9 July 2002 the plaintiff seeks an order that the proceedings be dismissed. The plaintiff relies on his affidavits sworn 8 July 2002, 15 July 2002 (three) and 3 September 2002. I shall determine the defendant's motion first because depending on the result it may then be unnecessary to deal with the plaintiff's motion. At this hearing the plaintiff was not legally represented, but presented his case in an articulate manner. 2 On 13 March 2001 in proceedings 20507/1999 (the earlier proceedings) between the plaintiff and defendant, Sully J made a preliminary decision on a question of law. The question was whether the facts pleaded in the amended statement of claim filed by the plaintiff on 6 November 2002 disclosed any good cause of action. Sully J in his judgment, at para 32, answered the question "No". The amended statement of claim pleads that the defendant did not properly investigate his complaint. This is the same subject matter as he raises in these proceedings, with the exception of paragraph 2 of his statement of claim, which I shall refer to later in this judgment.

The law on summary judgment 3 Part 15 r 26 provides: "(1) Where a pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or (c) is otherwise an abuse of the process of the Court, the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1)." 4 Part 13 r 5 says: "(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings- (a) no reasonable cause of action is disclosed; (b) the proceedings are frivolous or vexatious; or (c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings." 5 In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 the High Court held at 57 that:

"Ordinarily a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." 6 According to their Honours, at 58, this is because:

"It would be wrong to deny a plaintiff resort to the ordinary processes of a court on the basis of a prediction made at the outset of a proceeding if that prediction is to be made simply on a preponderance of probabilities". 7 Similarly, in Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) Rolfe AJA at 13 found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb. 8 In General Steel, Barwick CJ, who heard the application alone stated at 130: "Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 9 Barwick CJ also said at 129: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'." 10 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at 602: "The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried.' " 11 According to Rolfe AJA in Zarb, at 15-16: "The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241."

The earlier proceedings 12 Sully J summarised the relevant provisions of the Act. In particular, His Honour referred to the purpose of the Health Care Complaints Act 1993 (NSW) (The Act) which, as set out in the long title of the Act, is: "An Act to provide for the making, conciliation, investigation and prosecution of health care complaints; to constitute a joint committee of members of Parliament, the Heath Care Complaints Commission and the Health Conciliation Registry and to specify their functions; to amend certain Acts; and for other purposes." 13 Section 3 of the Act defines the objects of the legislation as follows: "(a) to facilitate the maintenance of standards of health services in New South Wales, (b) to promote the rights of clients in the New South Wales health system by providing clear and easily accessible mechanisms for the resolution of complaints, (c) to facilitate the dissemination of information about clients' rights throughout the health system, (d) to provide an independent mechanism for assessing whether the prosecution of disciplinary action should be taken against health practitioners who are registered under health registration Acts." 14 The plaintiff referred to the commission's obligations to investigate a complaint. Section 23 of the Act states: "Investigation of complaint (1) The Commission must investigate a complaint: (a) if, under section 13(1), the appropriate registration authority is of the opinion that the complaint should be investigated, or

(b) if, following assessment of the complaint, it appears to the Commission that the complaint: (i) raises a significant issue of public health or safety, or (ii) raises a significant question as to the appropriate care or treatment of a client by a health service provider, or (iii) provides grounds for disciplinary action against a health practitioner, or (iv) involves gross negligence on the part of a health practitioner. (2) A complaint is to be investigated in accordance with Division 5. (3) However, the Commissioner must not investigate a complaint unless the complainant verifies the complaint by statutory declaration. (4) The Commission may investigate a complaint despite any agreement the parties to the complaint may have reached concerning the complaint." 15 Sully J in the earlier proceedings, at para 7, referred to principles taken from the speech of Lord Browne-Wilkinson in X Minors v Bedfordshire County Council [1995] 2 AC 633 at 730 and 731 where Lord Browne-Wilkinson states: "The question is whether, if Parliament has imposed a statutory duty on an authority to carry out a particular function, a plaintiff who has suffered damage in consequence of the authority's performance or non-performance of that function has a right of action in damages against the authority. It is important to distinguish such actions to recover damages, based on a private law cause of action, from actions in public law to enforce the due performance of statutory duties, now brought by way of judicial review. The breach of a public law right by itself gives rise to no claim for damages. A claim for damages must be based on a private law cause of action. The distinction is important because a number of earlier cases (particularly in the field of education) were concerned with the enforcement by declaration and injunction of what would now be called public law duties ………………

Private law claims for damages can be classified into four different categories, viz: (A) actions for breach of statutory duty simpliciter (ie irrespective of carelessness); (B) actions based solely on the careless performance of a statutory duty in the absence of any other common law right of action; (C) actions based on a common law duty of care arising either from the imposition of a statutory duty or from the performance of it; (D) misfeasance in public office, ie the failure to exercise, or the exercise of, statutory powers either with the intention to injure the plaintiff or in the knowledge that the conduct is unlawful." 16 Sully J then considered each of the four different categories referred to above in relation to the plaintiff's statement of claim and found that the plaintiff's pleaded cause of action did not fall within any of those recognised categories. Sully J stated at para 14: "In my opinion, a fair reading of the entirety of the statutory scheme for which the Act makes provision indicates that the Act falls precisely within that category of "regulatory or welfare legislation affecting a particulars area of activity" of which Lord Browne-Wilkinson concluded, in the passages earlier herein cited, that "the legislation is not to be treated as being past for the benefit of those individuals … … … … (affected in particular by the relevant activity) … … …but for the benefit of society in general". 17 Sully J came to the conclusion that the plaintiff's amended statement of claim, so far as it propounds a claim at law based upon the breach simpliciter by the defendant commission of its statutory duties under the Act, did not disclose a good cause of action. 18 The plaintiff submitted that his new proceedings pleaded the tort of failure to act in good faith as a separate cause of action. The defendant submitted that the fresh proceedings do not plead a cause of action known at law. 19 On 28 February 2002, the plaintiff commenced these fresh proceedings against the defendant. The statement of claim alleges that the defendant and staff owed the plaintiff a duty of care to act in good faith while processing and dealing with the plaintiff's complaints and letters. The plaintiff alleges that the summary report prepared by Mr Conroy and submitted to the committee and the review conducted by Ms Kinross were done in bad faith. 20 The plaintiff has provided some background facts in relation to his admission to Rozelle. After taking large doses of LSD once a week for a period of six weeks, the plaintiff experienced hallucinations. He became confused and disoriented. The real world seemed to have disappeared. The reason the plaintiff went to the mental health centre was because he had asked his father to kill him. The plaintiff was admitted to Rozelle and released on 10 December 1996. The plaintiff records an incident where on 29 March 1997 a nurse from CSAHS came to his parents' house at the request of his father. Nathan Ryan, the nurse and the plaintiff's father were in the lounge room talking. The plaintiff was in the kitchen with his mother and sister cutting vegetables. The plaintiff's sister was eating a large portion of what was only a small roast, which was for tea. Jokingly the plaintiff said "stop eating the roast. How would you like it if I ate you 'cause there's not enough left?" The plaintiff then bit her lightly on the forearm. The plaintiff said that his sister was feeling uncharacteristically testy that night and she shouted at him. The plaintiff shouted back and their mother took the sister's side. The plaintiff left the kitchen angry and went up to his room. Nathan Ryan, and a psychiatrist by the name of Janet Ninio, hospitalised the plaintiff that night. Later when the plaintiff applied for his medical records he found out that they had claimed that because of the incident with his sister the plaintiff was a risk to others. The plaintiff denied that he was a risk to others. 21 The complaint was prepared by Mr Conroy and referred to the committee. The committee did not investigate the plaintiff's complaint. Hence, the plaintiff alleges that the summary prepared by Mr Conroy did not properly summarise his complaints. It must be remembered that a summary is intended to be just that. It is not intended to reproduce verbatim the contents of the statutory declaration. 22 Mr Conroy recorded that the plaintiff complained that he was hospitalised at Rozelle Psychiatric Hospital at the end of November 1997 and he was given inappropriate medication during that hospitalisation. According to the plaintiff, the summary prepared by Mr Conroy omitted to refer to the pain that the medication caused him. 23 Further, the plaintiff complained that upon release from hospital, without any legal authority arising from a community treatment order against the plaintiff, he was forced against his will to continue to take the medication prescribed to him. The plaintiff says Mr Conroy incorrectly recorded that he was released from hospital on a community treatment order. The plaintiff further complained that CSAHS staff falsified statements and scheduled him into hospital under false pretences and not in accordance with the provisions of the Mental Health Act 1990 (NSW), and although Mr Conroy did mention that the plaintiff claimed his files were tampered with, he neglected to mention the evidence the plaintiff had provided in support of the allegation. According to the plaintiff, his hospital records have been tampered with because the duration of that hospitalisation was for a period of five weeks, but the records show he was hospitalised for only two weeks, and notes have been taken out of his file. 24 However, the report prepared by Mr Conroy does state: "…The remainder of the complaint related to the treatment of Mr Wortley from the time of his assessment by staff of Marrickville Community Health Centre and admission to Rozelle in October 1996, for treatment of the effect of LSD, and subsequent treatment of a schizophrenic condition to March 1997. Mr Wortley alleges that he was misdiagnosed with schizophrenia psychosis. He believes his symptoms were consistent with LSD intoxication and that he was suffering from neuroleptic induced psychosis or supersensitivity psychosis and states his reasons why. He also contends that he was inappropriately treated with Chlopromazine by Dr S Soma while in Rozelle Hospital. The Chlorpromazine increased his hallucinations and sedated and incapacitated him. Despite complaining of these effects for the rest of his 5 weeks stay. Mr Wortley provides a MIMS reference which states Chlopromazine is contraindicated for drug intoxication Following his discharge, Mr Wortley states that he was intimidated into continuing the medication through a Community Treatment Order (CTO), and threats made by Central Sydney Area Health community health staff that he would be re-hospitalised if he did not comply. (This in fact took place and Mr Wortley was subsequently re-hospitalised). Mr Wortley also contends that his medical records have been tampered with and the record of an (sic) his initial interview with a (community health) psychiatrist has been removed." 25 Mr Kinchingten wrote to the plaintiff and informed him that the defendant would not proceed with any sort of investigation. The plaintiff sought a review of the decision. The plaintiff submitted that, because Ms Kinross (the reviewer) did not take measures to have the inaccuracies of Mr Conroy's brief explicitly identified and rectified, she did not deal with his complaints in good faith. The plaintiff alleges that the investigation process was flawed and as a result he has suffered emotional distress, grief and anxiety. He seeks damages. 26 The plaintiff referred to s 96 of the Act which states: "Exoneration from liability A matter or thing done or omitted by a person, being the Commissioner, an officer of the Commission, the Registrar, a conciliator or a person employed in the Registry does not, if the matter or thing was done or omitted in good faith for the purpose of executing this Act, subject the person personally to any action, liability, claim or demand." 27 The plaintiff contends that, while employees of the defendant are exonerated from liability if a matter or thing was done in good faith, a cause of action arises if the matter or thing was done by an employee in bad faith. 28 In Gibson v Parkes District Hospital (1991) 26 NSWLR 9, Badgery-Parker J considered whether a statement of claim should be amended by holding the workers compensation insurer as defendant and claiming as against the insurer and the employer breaches of a duty to act in good faith in the processing of a workers compensation claim. 29 Badgery-Parker J, at 33, expressed the view that, on the facts of the case before him, the associated statutory scheme, namely the scheme contained in the Workers Compensation Act 1987 (NSW), did not preclude the existence of a cause of action in which the plaintiff sought to rely. This was because as His Honour stated at 29-30:

"I do not find in the existence of detailed and comprehensive provisions for the enforcement of rights under the Workers' Compensation Act 1926, and for the control of and disciplinary action against licensed insurers, any reason to conclude that the suggested cause of action in tort for breach of the duty of good faith must be denied. So far as concerns the provisions for enforcement of a claim for benefits under the Act, they deal with an entirely different subject, they compensate losses of a different kind. As to the provisions relating to the conduct of insurers, they are apt to preserve the public interest in the integrity and financial soundness of insurers and the interest of both the whole community and of individual workers that insurers give prompt and diligent attention to their responsibilities under the Act, and a breach of obligations of diligence, promptitude and good faith may well call into play the disciplinary provisions. But while the fear of such consequences may induce an insurer to act promptly and in good faith in respect of each individual worker's claim, the operation of those provisions offers little or no benefit to the worker who in fact suffers from a breach by the insurer of those obligations. Exhortation, reprimand, punishment, even de-licensing of the insurer provides to the individual worker no compensation for losses of the kind the subject of this action nor any guarantee that such losses will not occur. Nor, as it seems to me, does the existence of a power in the Compensation Court Act 1984 to award interest lead to a conclusion that a tortious remedy should not be recognised. No doubt in many cases no financial damage will be incurred by reason of the insurer's dealing in bad faith, over and above what can be compensated by an award of interest, but such an award would be quite inadequate to compensate for a loss of assets or for bankruptcy, and offers no compensation for distress etc." 30 In contrast, the scheme set up by the Health Care Complaints Commission is to investigate complaints. It is not intended to give private rights to individuals. As Sully J held, this legislation is not to be treated as being passed for the benefit of individuals but for the benefit of the society in general. In so far as the statement of claim propounds a claim based upon the defendant's breach of its statutory duties, it does not disclose a good clause of action. These proceedings differ from Gibson. It is my view that the plaintiff's claim is doomed to failure. The statement of claim is dismissed. 31 Costs normally follow the events. The plaintiff is to pay the defendant's costs as agreed or assessed. 32 The plaintiff sought summary judgment because the defence is vexatious. According to the plaintiff, the defendant does not have a defence and it is not entitled to have the matters it raises in its defence heard by the court. The statement of claim is dismissed so it is not necessary to deal with this motion, except to say that the defendant should have had the right to present its case had the case gone to trial. As the statement of claim has been dismissed it is not necessary to say anything further. 33 The court orders:

(2) The plaintiff is to pay the defendant's costs as agreed or assessed of both the motions and of the proceedings. **********

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