Federal Court of Australia

Pathmanathan v St John of God Healthcare Inc [2025] FCAFC 61

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant pay the Respondent’s costs, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The Appellant was previously an anaesthetist accredited to practise at the hospital of the Respondent, St John of God Healthcare Inc in Subiaco (the Hospital). The Appellant’s accreditation was suspended on 11 November 2014, following (most notably) an incident referred to as the “iron infusion incident” during which the Appellant self-cannulated and administered herself an iron infusion while she had an unconscious patient in surgery, undergoing a gastric sleeve bypass operation.

2    The Appellant represented herself at the trial of the proceeding she initiated against the Respondent. The primary judge exercised significant diligence and patience in distilling, from her lengthy material, the causes of action the Appellant appeared to advance. One of those causes of action was for breach of contract. The primary judge dismissed the Appellant’s case: Pathmanathan v St John of God Healthcare Inc (No 3) [2023] FCA 628.

3    The Appellant, then represented by solicitors, filed a Notice of Appeal raising three grounds of appeal. All of the grounds concerned the case for breach of contract. Although the Appellant’s Originating Application raised a wider array of matters as constituting breaches of the contract for which she contended, as Ground 3 of the Notice of Appeal makes clear, the only breach of contract with which the appeal was concerned was the breach said to have been occasioned by the suspension of the Appellant’s accreditation as an anaesthetist at the Hospital on 11 November 2014.

4    As the appeal only concerns the Appellant’s claims in contract, it is not necessary to set out the Appellant’s grievances in detail, save to note that the thrust of her case was that she had been forced out of practise as an anaesthetist by a number of older, white men in the medical profession, and that the Respondent treated her unfairly, not only in relation to her initial suspension, but also in its dealings with the Australian Health Practitioner Regulation Agency (AHPRA). Through her submissions on the appeal, the Appellant ventilated many grievances, including allegations that the Respondent had interfered with her legal representatives.

5    As mentioned, the Appellant advanced claims in contract. She contended that, through her application for, the granting of, and her acceptance of, accreditation with the Respondent, the Appellant thereby entered into a contract with the Respondent. That contract was said to incorporate the Respondent’s By-Laws for Health Professionals (the By-Laws). The Appellant alleged that the decision to suspend her accreditation was in breach of contract. She claimed damages in the order of $120 million (albeit not solely on the basis of her case in contract).

6    The primary judge rejected the contention that a contractual relationship was formed through the accreditation process. The primary judge further determined that, if a contract was formed, it was not breached by the Respondent in suspending the Appellant’s accreditation.

7    The Appellant has advanced three grounds of appeal, as follows (error in original):

1     The Learned Trial Judge erred in fact and in law in finding that by the Appellant's application to the Respondent for accreditation in or about February 2012 and the Respondent's grant of accreditation for a period of 3 years as and from 23 February 2012.

1.1     no contract was thereby entered into between the Appellant and the Respondent;

1.2     alternatively, in so far as the grant of accreditation, was the grant of a licence, such licence was not a contractual licence;

1.3     that the Respondent's By-Laws for Health Professionals did not form part of any contract between the Appellant and the Respondent.

2     The Learned Trial Judge should have held as a matter of law and fact that by the mutual promises contained in the letter from the Respondent to the Appellant dated 23 February 2012:

2.1     a contract arose between the Appellant and the Respondent;

2.2     the By-Laws were incorporated into the contract such that both the Appellant and the Respondent were bound by the By-Laws;

2.3     that there was to be implied, as a matter of law, alternatively fact that the Appellant and the Respondent would act in good faith on the performance of the contract and that each party agreed to do all that was necessary to enable the performance of the contract.

3     The Learned Trial Judge erred in fact in finding that in the event the By-Laws had contractual force and effect Dr Henderson was entitled to and did suspend the Appellant on 11 November 2014 in accordance with the procedure in By-Law clause 27.2 of the By-Laws in that the Learned Trial Judge:

3.1     failed to consider whether in the exercise of good faith, Dr Henderson could have reached an appropriate and necessary state of mind (lack of confidence) without conducting an appropriate investigation and meeting with the Appellant to enable her to be informed of and answer the matters considered by Dr Henderson;

3.2     had regard to matters that were irrelevant and unproven in respect of which the Appellant had never received notice nor any opportunity to fairly address;

3.3     failed to have regard to the extreme damage suspension would have to the Appellant's career and the damage a suspension would cause being disproportionate to the matters considered by Dr Henderson;

3.4     failed to have regard to the conduct of other medical practitioners in respect of the infusion issue;

3.5     failed to have regard to the fact that no patient was adversely affected by any conduct of the Appellant.

8    Unless the Appellant succeeds on Ground 3 (and thereby establishes breach of contract), the appeal must fail. For the reasons that follow, Ground 3 has no merit and it is not necessary to address Grounds 1 and 2.

Relevant facts

9    Despite Ground 1 commencing with the words “[t]he Learned Trial Judge erred in fact and in law in finding that…”, the grounds of appeal do not go on to contend that the primary judge erred in his factual findings concerning the events, as they occurred. While the factual narrative of the primary judge was extensive, only certain aspects of the facts are relevant to the contractual issues arising on the appeal.

10    Following the Appellant’s application for accreditation at the Hospital (dated 7 November 2011), the Appellant was sent a letter confirming her accreditation, which was dated 23 February 2012. That letter was in the following terms (omitting formalities, emphasis added):

I am delighted to advise you that your application for accreditation at St John of God Hospital, Subiaco in Anaesthesia has been successful. I believe you have met with Dr Joe Pracilio Head of Anaesthesia and understand the terms of your accreditation specific to this site in regards to an after hours roster commitment. You are expected, at all times, to undertake only those clinical activities which your training and experience make safe and reasonable. It is important to emphasize that any extension of your clinical practice must only be undertaken following your application to, and written authorization from, the Medical Advisory Committee.

All Clinicians accredited at St John of God Hospital, Subiaco are expected to participate fully in the teaching of Medical Students and Junior Medical Officers where called upon to do so. Likewise, it is an expectation of all accredited Medical Practitioners that you will comply with the Hospital's By-Laws, a copy of which you received with the accreditation application. In particular, you are expected to actively participate in clinical audit, co-operate fully with Hospital Management and Heads of Department and act at all times in concert with the Hospital’s Mission and Values.

Finally, I have enclosed a copy of the document entitled “Bringing our values to life through our behaviour” which describes the expectation that every person working within St John of God Health Care will embrace the highest standards of interpersonal behaviour.

Once again, congratulations on being accredited at St John of God Hospital, Subiaco.

11    The By-Laws were referred to in the letter of accreditation. The critical terms of the By-Laws concerning suspension of accreditation were as follows (bold by-law headings in original, otherwise emphasis added):

27.1 Fitness of Practitioner

(a)     Any concerns about the current fitness of a Practitioner should be directed to the Divisional Chief Executive Officer.

(b)     The Divisional Chief Executive Officer may either independently, or together with another member of the Medical Advisory Committee, meet with the Practitioner concerned to determine whether there are grounds as to the Practitioner’s lack of current fitness.

27.2 Suspension or Termination of Accreditation or Refusal of Re-Accreditation

The Divisional Chief Executive Officer may suspend or terminate the accreditation of any Practitioner or may refuse the re-accreditation of any Practitioner:

(a)     who has been guilty of a breach of these By-Laws; or

(b)     …

(c)     if the Divisional Chief Executive Officer does not have confidence in the Practitioner practising at the Hospital for any reason including but not limited to:

(i)     the practice, or the standard of practice, or the competence or the general behaviour of the Practitioner;

(ii)     the ability of the Practitioner to conduct his or her practice within the Division, to an appropriate or proper standard;

(iii)     any matter or thing affecting the Practitioner’s practice or ability to practise to an appropriate or proper standard; or

(iv)     any allegation of incompetence, negligence or malpractice concerning the Practitioner; or

(d)     if the Divisional Chief Executive Officer is not satisfied that the Practitioner has satisfactory professional indemnity insurance or is appropriately registered; or

(e)     if, in the opinion of the Divisional Chief Executive Officer, there exists any other fact or circumstance which renders it inappropriate or undesirable that accreditation be granted to the Practitioner or that accreditation of the Practitioner be continued.

12    The Divisional CEO, being the person with the power to suspend the accreditation of a practitioner, was Dr Henderson. The Hospital’s Director of Medical Services was Dr Pracilio. It was Dr Pracilio who made the initial enquiries and made recommendations to Dr Henderson.

13    The “iron infusion incident” occurred on 28 October 2014. The Appellant received an iron infusion in the operating theatre while the patient for whom she was responsible was under anaesthetic, undergoing a gastric sleeve bypass operation.

14    The primary judge accepted the evidence of Dr Henderson, Dr Pracilio, Dr Longhorn (another anaesthetist) and Ms Morris (the nurse in theatre with the Appellant on 28 October 2014) and made findings of fact concerning the process leading up to the issue of the suspension letter on 11 November 2014. Relevantly:

(1)    On 30 October 2014, Ms Morris orally reported the iron infusion incident to Dr Pracilio and discussed the incident with him. Dr Pracilio made a brief handwritten note of that discussion at the time.

(2)    Also on 30 October 2014, Dr Pracilio spoke with Dr Longhorn, informally, concerning the iron infusion incident. Dr Pracilio confirmed that he was already aware of the subject matter and did not require Dr Longhorn to submit a formal report.

(3)    On 8 November 2014, Dr Pracilio commenced an examination of the iron infusion incident. This investigation included:

(a)    on 8 November 2014, examining the circumstances of the iron infusion event and looking for internal incident reports (known as “RiskPro reports”) concerning the Appellant, at which time Dr Pracilio became aware of a report concerning another incident, referred to as the “patient in the corridor” incident;

(b)    also on 8 November 2014, speaking with two other doctors in positions of administration at other hospitals, as each had inquired, at earlier points in time, as to how the Appellant was performing. Dr Pracilio’s purpose in making those calls was to obtain more information about the Appellant’s performance on a confidential basis; and

(c)    preparing a report as to the result of his investigations in the form of an email sent to the Respondent’s internal general counsel.

(4)    Having gathered what he considered to be sufficient information, Dr Pracilio spoke with Dr Henderson on 10 November 2014 regarding the outcome of his examination of the facts concerning the iron infusion incident and other conduct of the Appellant. Dr Pracilio advised Dr Henderson “that there was possibly a big problem” with the Appellant. The view that Dr Pracilio conveyed to Dr Henderson was that if the iron infusion event had occurred, then the accreditation right of the Appellant should be suspended pending further investigation. Dr Pracilio formed that view because, in his words, the Appellant’s role was to care for her patient and she “abrogated [her] responsibility the moment [she] cannulated [her]self”.

(5)    Dr Henderson agreed with Dr Pracilio’s assessment. Based on Dr Pracilio’s report, and his recommendation, Dr Henderson advised Dr Pracilio that he would act to suspend the accreditation rights of the Appellant, pending further investigation. Dr Henderson’s decision to suspend the Appellant’s accreditation was based on his conclusion that the iron infusion incident, if true, amounted to a significant departure from the standards which he expected of an accredited specialist anaesthetist at the hospital. Dr Henderson relied in good faith on what was reported by Ms Morris and Dr Pracilio, and had no reason to disbelieve what he was told by Dr Pracilio.

(6)    The primary judge accepted Dr Pracilio’s evidence that he had not formed a view as to the truthfulness of the iron infusion allegation until he met with the Appellant on 11 November 2014. At this meeting, the Appellant admitted to Dr Pracilio that she self-cannulated to administer an iron infusion on 28 October 2014. Dr Pracilio then notified the Appellant of the decision to suspend her accreditation pending further investigation and review.

15    The primary judge recorded the following in relation to Dr Pracilio’s evidence (emphasis added, error in quoted evidence in original):

[164] The following day, Dr Pracilio arranged to meet with Dr Pathmanathan for the purpose, according to his evidence, of having her confirm what had happened in the operating theatre on 28 October 2014. His evidence is that, he put to her directly the question: “Did you self-cannulate and give yourself an iron infusion?” To which her response was: “Yes, I did”. His evidence as to what then occurred is:

What happened next?---Well, that at that point, obviously, I had already had discussions with the CEO, because the [sic] only the CEO has the authority to suspend a practitioner or temporarily remove a practitioner from the list of credentialled doctors, so I don’t have that authority, so I had already spoken to the CEO and his guide to me was if that is the actual fact we need to provide temporary suspension of accreditation and we need to look at the pattern of practice of the practitioner to assess where we will go further with that aspect of the temporary removal of accreditation. So my role was to, firstly, confirm that the event actually did take place which was wayward [sic] outside the By-Laws of our organisation and then to advise her that she had been suspended. I followed that up with my concerns for her wellbeing that evening. I said, “Do you have anyone to talk to this evening? Have you family? Have you friends?” I think she said she didn’t have family but she had friends to discuss it with and I went one point further. I offered her help through Converge, which is a – a – a private organisation that helps practitioners or staff that may be having some mental concerns associated with actions that have taken place, so we did offer her that as well. And what I recall she didn’t take the card nor accept any assistance in that matter.

16    The primary judge rejected significant aspects of the Appellant’s evidence. His Honour rejected the Appellant’s evidence that the decision for her to receive an iron infusion while in theatre was a group decision taken with others present in the operating theatre (which included the surgeon), that she was assisted by an unidentified person (whom she referred to as “Dr Nameless”), to insert the cannula, and that she handed over care of the patient to another anaesthetist (Dr Longhorn) while she undertook the infusion.

17    The primary judge found that the decision to proceed with the infusion whilst her anaesthetised patient was being operated upon was the decision of the Appellant alone, and that the Appellant herself inserted the needle into a vein on the back of her hand, and self-administered the infusion.

18    The Appellant was suspended and notified of her suspension in a letter dated 11 November 2014, from Dr Henderson, the Divisional CEO. The letter stated (emphasis added):

Dear Dr Pathmanathan

This letter is to notify you that your accreditation at St John of God Subiaco Hospital is suspended forthwith, pending the satisfactory resolution of my concerns regarding your practice.

Issues of concern

I understand that there have been two recent incidents where you have inappropriately attended to personal matters whilst there have been patients in your care.

The first incident occurred on Tuesday 28 October 2014. It is alleged that whilst you attended to an anaesthetised patient undergoing bariatric surgery in theatre you cannulated yourself and administered an iron infusion. Apart from the breach of theatre protocol and the neglect of the patient that this behaviour suggests, if you had had an adverse reaction to the iron infusion the patient would have been left in theatre without an Anaesthetist. This behaviour falls well short of accepted professional standards.

It is also alleged that on one occasion whilst you were escorting a patient in your care from main theatre to the intensive care unit, you left the patient in the corridor with the anaesthetic technician/nurse, proceeded to the change room, got changed into your street clothes and then returned to escort the patient to intensive care.

I do not have confidence in your ability to practice to an appropriate professional standard. Pending a satisfactory explanation for your conduct, I have decided to suspend your accreditation until further notice in accordance with By-Law 27.2 of the St John of God Health Care By-Laws for Health Professions, dated December 2012 (By-Laws).

I request that you provide a written response to the allegations set out above by 5pm on Tuesday 25 November 2014. I will then consider your response and take any further action I consider appropriate.

Yours sincerely

Dr Lachlan Henderson

Chief Executive Officer

cc:     Dr Joe Pracilio, Director Medical Services

19    Through her then-solicitors, Tottle Partners, the Appellant provided a detailed submission to Dr Henderson on 25 November 2014. That submission (and a later submission to AHPRA on 18 December 2014) admitted — just as the Appellant had admitted to Dr Pracilio — that the Appellant had self-cannulated. As the primary judge recorded, the Appellant later sought to distance herself from the contents of these submissions on the basis that it was sent while she was under duress, was factually incorrect, and was sent without her instructions.

20    While the By-Laws provided for an appeal procedure, the Appellant did not appeal the suspension of her accreditation.

21    Events after the Appellant’s suspension were subsequently overtaken by an investigation commenced by the regulator, AHPRA. The Appellant self-reported to AHPRA, as mentioned above. The Respondent also lodged a report with AHPRA, dated 1 December 2014.

Ground 3: consideration

22    The first hurdle that the Appellant’s case on appeal encounters is that, even if a contract was concluded between the Appellant and Respondent, and even if that contract incorporated the By-Laws, she did not allege below that the contract included an implied term that the Respondent would act in good faith.

23    That said, the primary judge observed (at [55]) that the Appellant’s contention was that the contract was subject to the Respondent’s By-Laws “with clauses to the effect that the applicant would be treated fairly and with respect”. The primary judge also observed (at [56]) that he understood her breach of contract claim as “extending to a contractual failure to provide procedural fairness in the conduct of an investigation (which Dr Pathmanathan contends did not take place) and prior to taking the decision to suspend her accreditation rights”. Accordingly, we will address the Appellant’s appeal on the assumption (favourable to the Appellant) that, even though her case below did not expressly plead an implied term of good faith, the substantive case she was putting below (as a litigant in person) incorporated what she now characterises as an implied term of good faith.

24    However, the fatal problem for the Appellant’s case on appeal is that, even assuming there was a contract between the Respondent and the Appellant, she has not established any error in the primary judge’s conclusion that there was no breach of contract. Given this conclusion, it is not necessary to reach any conclusions on whether the arrangement between the Appellant and the Respondent was a contract, mere licence, or “contractual licence”. This was accepted by the Respondent in oral submissions, and the Appellant contended for enforceable obligations on the part of the Respondent irrespective of the taxonomy (even though Ground 3 of the Notice of Appeal is premised on a finding that the By-Laws have “contractual force”).

25    The Notice of Appeal does not contend that the primary judge’s factual findings were erroneous. This is significant because the primary judge’s findings do not support any conclusion that the Respondent did not act in good faith.

26    The sub-grounds of Ground 3 contend that the judge had regard to irrelevant matters, and failed to have regard to several other matters. These grounds seek to impugn the reasoning of the primary judge in reaching the conclusion that the Divisional CEO, Dr Henderson, was entitled to and did suspend the Appellant’s accreditation in accordance with cl 27.2 of the By-Laws, such that the suspension did not entail a breach of any contract. Those grounds do not assert error in the extensive findings of fact made by the primary judge, and his evaluation of the many witnesses he observed give their evidence over the course of an extended trial (11 sitting days).

27    The first sub-ground of Ground 3 asserts that the primary judge failed to consider whether, in the exercise of good faith, Dr Henderson could have reached an appropriate and necessary state of mind (lack of confidence) without conducting an appropriate investigation and meeting with the Appellant to enable her to be informed of and answer the matters considered by Dr Henderson (Ground 3.1).

28    There is no merit in that contention. The primary judge considered the Appellant’s submission that the Respondent failed to undertake any, or adequate, investigation before making the decision to suspend her accreditation (PJ [241]), and based on the evidence outlined at PJ [241]-[254], rejected that submission. The Appellant evidently disagrees with that finding.

29    The power to suspend the accreditation of an accredited practitioner under the By-Laws arises where the Divisional CEO does not have confidence in the practitioner practising for any reason, including the practice, standard of practice or the competence of the practitioner (cl 27.2(c)(i)) or the ability of the practitioner to conduct his or her practice to an appropriate or proper standard (cl 27.2(c)(ii)).

30    To the extent that there was any implied obligation only to exercise the suspension power in good faith, any such obligation would have to be construed harmoniously with the objectively ascertained purpose of the suspension power. Noting that there is also a power to terminate accreditation, the suspension power in cl 27.2(c) exists to empower the Respondent to take swift action to protect patients, including in response to risk of harm. That protective purpose is reinforced by the breadth of the power, which is reflected in the words “for any reason”, and in the context of (and by contradistinction with) the other sub-clauses of cl 27.2, which allow for suspension where the practitioner has been guilty of a breach of the By-Laws or where the Divisional CEO has formed the opinion that the practitioner has engaged in practices that are contrary to the By-Laws. That protective purpose would be defeated if the Divisional CEO were required to have completed an investigation before deciding to exercise the power under cl 27.2(c) and suspend a practitioner’s accreditation. That does not mean that the power under cl 27.2(c) is at large. We also note that there is an appeal procedure for any decision made under cl 27 (Part VII), which the Appellant did not invoke (PJ [92]).

31    There is no merit in the contention that Dr Henderson ought to have engaged in a more far-reaching investigation or to have met personally with the Appellant before deciding to exercise his power to suspend her while an investigation was conducted.

32    Dr Henderson gave evidence that he was concerned that the Appellant undertaking an iron infusion while her patient was under anaesthesia posed a risk to patient safety. The decision to suspend the Appellant was taken after Dr Pracilio had met with the Appellant and she had admitted to the central allegation in her discussion with Dr Pracilio — namely that she self-cannulated and administered herself an iron infusion while responsible for a sedated patient in surgery. The primary judge found that this was supported by objective evidence provided orally and in writing by Ms Morris who witnessed the event (PJ [254]). There is no merit in the suggestion that any more extensive investigation was required before Dr Henderson could, in good faith, form the necessary state of mind — a lack of confidence in the Appellant practising at the Hospital — and exercise the power to suspend the Appellant. Dr Henderson’s evidence about the concerns he had regarding the Appellant’s professional conduct, and the risk it posed to patients, was accepted by the primary judge. That concern was amply justified by the facts before Dr Henderson at the time he made the suspension decision.

33    Furthermore, even if the suspension power was subject to an obligation to act in good faith, in the circumstances as they were, Dr Henderson’s exercise of the suspension power has none of the hallmarks of action taken with a want of good faith (such as being capricious, dishonest, unconscionable, arbitrary or for a reason antithetical to the object of the power: Virk Pty Ltd (in liq) v YUM! Restaurants Australia Pty Ltd [2017] FCAFC 190 at [164]).

34    Although the Appellant, through her submissions on appeal, sought to cast doubt on whether she had in fact self-cannulated, the Notice of Appeal does not challenge the primary judge’s finding of fact that the Appellant self-cannulated, and admitted that fact to Dr Pracilio, and that this was witnessed by Ms Morris. In any event, we perceive no error in the primary judge’s rejection of the Appellant’s evidence on that matter and acceptance of Dr Pracilio’s evidence that the Appellant admitted the self-cannulation to him during their discussion on 11 November 2014. The primary judge’s factual findings were made following his Honour’s extensive exposure to the witnesses over a lengthy trial, such that this is a case in which the primary judge had relevant advantages in assessing the evidence (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ). While stopping short of finding that the Appellant deliberately gave false evidence, instead finding the Appellant’s evidence to be in large measure a product of reconstruction (PJ [201], [203]), the primary judge rejected the Appellant’s evidence where it was inconsistent with the evidence of other witnesses or contemporaneous documents. Even if, for argument’s sake, the Appellant had not self-cannulated, her admission to Dr Pracilio that she had (coupled with Ms Morris’ written and oral account of events) is what is relevant to the attributes of the decision-making process leading to the suspension of the Appellant’s accreditation at the Hospital.

35    The second sub-ground of Ground 3 of the Appellant’s Notice of Appeal contends that the primary judge had regard to matters that were “irrelevant and unproven” and in respect of which the Appellant had not received notice or a fair opportunity to address.

36    The Notice of Appeal does not identify what those matters are. When asked during the course of the hearing of the appeal what the irrelevant and unproven matters were, the Appellant said they were all the factual matters and evidence to which the primary judge referred in the course of his Honour’s reasons, but which post-dated the issue of the suspension letter (on 11 November 2014). The Appellant’s concern appeared to be that the primary judge had regard to evidence and matters that were not before Dr Henderson (and Dr Pracilio) before the decision was made to suspend the Appellant’s accreditation on 11 November 2014. The only specific part of the primary judge’s reasons referred to by the Appellant on this topic is paragraph 337 of the primary judge’s reasons, referred to in the Appellant’s written reply submissions.

37    That concern misunderstands the primary judge’s reasons. The primary judge engaged in an extensive process of fact finding. It must be remembered that the cause of action for breach of contract was only one of a multitude of causes of action, the factual basis for which was extensive both in terms of the time period and the evidence involved.

38    It is the case that, through the course of his reasons, the primary judge referred to evidence that was given about the events leading up to, and on, 11 November 2014. That evidence included evidence given in the trial, and documents that post-dated, or which may not have been available on or by 11 November 2014. But it also included findings on the course of events leading up to the issuance of the suspension letter on 11 November 2014. As the relevant findings (set out above at paragraph 14) show, the findings made provided ample basis for the conclusions the primary judge reached in relation to the breach of contract allegation.

39    The fact that the primary judge’s factual findings extended to events occurring after the letter of suspension does not establish either that: the primary judge’s assessment that the Divisional CEO’s suspension power was enlivened and exercised in accordance with the By-Laws was infected by the primary judge assuming that all the matters before him in evidence were before the Divisional CEO; or that the primary judge injected that other evidence into the analysis in some other impermissible way. That contention simply finds no foothold in the judgment. There is nothing in paragraph 337 of the primary judge’s reasons that suggests recourse was had to information not available to Dr Pracilio and Dr Henderson by 11 November 2014. Still less is there any basis upon which to suppose that any such evidence was determinative in the primary judge’s evaluation of the question of breach of contract. While the primary judge’s reasons on the breach of contract allegation were brief, mere brevity does not establish error, and the brevity of the primary judge’s reasons on breach was not a point of criticism advanced by the Appellant in the appeal.

40    Through her written and oral submissions, it appears that one of the Appellant’s complaints was that the primary judge should have found that there was a lack of procedural fairness in the process leading to the Appellant’s suspension. It is not evident to what extent that complaint is distinct from the argument regarding a want of good faith. The primary judge understood the Appellant’s breach of contract claim as extending to a contractual failure to provide procedural fairness in the conduct of the investigation prior to the suspension decision (PJ [56]). A contention of that kind can arguably be brought within Grounds 3.1 and 3.2. Insofar as the contention is that procedural fairness required Dr Henderson to have conducted an investigation, personally have met with the Appellant, and/or only to have acted to suspend the Appellant once all allegations had been put to her and proven, we reject that contention. What procedural fairness requires in any case depends on the circumstances: see, eg National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 at 311 (Gibbs CJ) and 320 (Mason, Wilson and Dawson JJ) citing Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 (Tucker LJ); Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 652 (Deane J) and 660 (Dawson J).

41    For the same reasons as we have rejected the contention that the exercise of the power of suspension (and any obligation of good faith) requires all of those steps to have been taken before taking a decision to suspend a practitioner, we would reject any contention that any contractual obligation to accord procedural fairness likewise required those steps to be taken before suspending the Appellant. As we have observed, the nature and protective purpose of the power to suspend a medical practitioner in the circumstances referred to in cl 27.2 of the By-Laws necessarily means that a decision to suspend may be taken before an investigation has been completed.

42    While the Appellant contended in her written submissions that the Respondent had, following her suspension, not in fact conducted its own investigation, but outsourced the task to AHPRA, that contention (even if correct) does not alter what was, or was not, required to be done before suspending a practitioner pursuant to cl 27.2 of the By-Laws.

43    We also note that the Appellant’s case that the process leading to her suspension lacked procedural fairness or was undertaken in bad faith is not supported by the procedures in the Respondent’s “Conduct, Equity and Justice” document. That document (which was not in the Appeal Book, but which the Appellant referred to by reference to the Court Book below, and the Respondent subsequently provided in a Supplementary Appeal Book) described itself as a “Human Resources Manual”. In her written Reply submissions, the Appellant pointed to a section of that document concerning “Disciplinary Action”, and an appendix headed “Investigation Process”. There was a section in the document, preceding the Disciplinary Action section, titled “Conducting Workplace Investigations”, but that section was blank, with a note stating the section was under review.

44    The Disciplinary Action section of that document describes processes for raising and addressing performance issues, leading up to potential dismissal of employees. It is not a section that sets out any processes that need to be followed before a medical practitioner, who is not an employee of the Respondent, can be suspended within the terms of cl 27.2 of the By-Laws. The appendix concerning investigations describes itself as a “general information sheet”. It notes that the process an investigation takes “may vary depending on individual circumstances, the severity of the issues raised and the responses by all parties”. Again, no fixed procedures are laid out.

45    We note that the Appellant’s submissions asserted that the process leading to her suspension involved recourse to sham complaints, was biased, and pursued a pre-determined outcome. Those contentions are not supported by the primary judge’s factual findings. Nor are they within the bounds of the Notice of Appeal. The Appellant also made extensive submissions regarding the course of the investigation undertaken by AHPRA, the Respondent’s involvement in that process and how it was that that process came to encompass examination of the Appellant’s psychological state. All of those matters post-date the suspension decision, which is what Ground 3 fixes on. Those matters are not relevant to the appeal, as framed.

46    The Appellant’s third ground of appeal also contended (by Grounds 3.3 to 3.5) that the primary judge erred in finding that, in the event the By-Laws had contractual force, Dr Henderson was entitled to and did suspend the Appellant in accordance with the procedure in cl 27.2, on the basis that the primary judge ought to have, but did not, consider:

(a)    the damage suspension would have caused to the Appellant’s career;

(b)    the conduct of other medical practitioners in respect of the infusion issue; and

(c)    that no patient was adversely affected by the Appellant’s conduct.

47    There was evidence before the primary judge from Dr Henderson regarding his being aware of the serious ramifications that suspension of accreditation rights would have for a practitioner. Dr Pracilio’s evidence (quoted in the Appellant’s submissions) also confirms he was acutely aware of the impact of suspension on a medical practitioner. The primary judge stated explicitly that his Honour accepted that the suspension of the Appellant’s accreditation would have a serious and adverse effect on her, both professionally and personally (at [257]). In short, the impact of suspension on the Appellant was not a factor ignored by the primary judge.

48    The Appellant’s next sub-ground of appeal contends that the primary judge should have had regard to the conduct of other medical practitioners in relation to the infusion issue. The primary judge considered, but rejected, the Appellant’s evidence that sought to attribute shared responsibility for the iron infusion incident to other medical practitioners (at [183]). The Notice of Appeal did not challenge any primary findings of fact. In any event, as the Respondent submitted, even if other practitioners were involved in the way the Appellant alleged, at most that would mean that they too might properly face scrutiny. While singling out the Appellant may have relevance to some of the other causes of action the Appellant advanced at trial, it does not render the decision to suspend the Appellant one made in breach of contract, or otherwise an infringement of the procedure outlined in cl 27.2 of the By-Laws. The primary judge also accepted Dr Henderson’s evidence that, at the time of the Appellant’s suspension, he was not aware that it was asserted (by the Appellant) that others were involved in the iron infusion incident.

49    The final sub-ground of appeal contends that the primary judge failed to have regard to the fact that the Appellant’s conduct did not result in a patient suffering any adverse outcome. However, it is evident that the primary judge did have regard to the absence of an adverse event, by reference to the evidence of Dr Pracilio (PJ [244]), and the Appellant’s evidence regarding satisfactory patient outcome (PJ [233]). The contractual power to suspend a practitioner’s accreditation is not confined to circumstances in which a patient has suffered harm. Any constraint of that kind would be inconsistent with the objectively ascertained purpose of the clause, which is to empower the Respondent, by its Divisional CEO, to take action to protect patients where the Divisional CEO does not have confidence in a practitioner. Quite obviously, conduct that poses a risk to patients (as Dr Henderson considered the iron infusion incident did) can found such a lack of confidence even if no harm in fact came to the patient.

50    For these reasons, Ground 3 of the Notice of Appeal must be rejected. As the appeal cannot succeed on either or both of Grounds 1 or 2, if Ground 3 is rejected, the Appellant’s failure on Ground 3 is fatal to the appeal. There is, in the circumstances, no utility in addressing the merits of Grounds 1 and 2.

The interlocutory application to adjourn the hearing of the appeal, amend the Notice of Appeal, and adduce new evidence

51    The Appellant made an interlocutory application dated 24 February 2025 seeking leave to amend her Notice of Appeal, and to adjourn the hearing of the appeal to allow, so it was said, counsel — who may be engaged if the appeal were adjourned — to work up an appeal and settle an amended Notice of Appeal. That application was lodged on 26 February 2025. By the same application, the Appellant sought leave to rely on evidence not tendered at trial. That application was made independently of the application for an adjournment. An earlier application seeking to adjourn the appeal was heard and refused on 12 February 2025, for reasons given on the transcript at the time.

52    On the day of the hearing of the appeal, we refused the interlocutory application. These are our reasons for refusing the application.

The application to adjourn the hearing of the appeal and amend the Notice of Appeal

53    The Appellant provided a draft amended Notice of Appeal, which she had prepared. That amended Notice of Appeal sought to introduce numerous additional grounds, many of which are difficult to comprehend. The interlocutory application was advanced, however, on the basis that leave to amend was sought, not to file the draft amended Notice of Appeal that the Appellant had prepared, but to file a prospective further version, which the Appellant anticipated would be prepared if the hearing of the appeal were adjourned and she proceeded to appoint lawyers.

54    The interlocutory application was listed to be heard on the day of the appeal, with the parties having been notified in advance that if the application to amend the Notice of Appeal and adjourn the hearing were refused, the hearing of the appeal would proceed forthwith.

55    First, adjourning the appeal for several months would cause clear prejudice to the Respondent. That prejudice is unacceptable given that the events in question occurred in 2014, litigation has been on foot for more than six years already (having commenced in 2018) and the first instance judgment was delivered on 13 June 2023. It is past time that this matter be brought to finality.

56    Secondly, the application was refused because it was made too late, without any acceptable explanation for the delay.

57    The appeal was fixed for hearing on 19 March 2025 several months prior (on 12 December 2024), meaning that the Appellant had plenty of time to craft any desired amendments to her Notice of Appeal.

58    In addition, to the extent the Appellant blames her former solicitors for the perceived deficiencies in the Notice of Appeal, she terminated their retainer in September 2024, again leaving many months in which she could have drafted any desired amendments. The evidence tendered in support of the application shows that the Appellant wrote to the Respondent on 15 October 2024 saying she wanted to amend her Notice of Appeal, and seeking its consent. In response, the Respondent asked for a copy of the proposed amended Notice of Appeal. But none was forthcoming.

59    Having regard to this background, the Appellant did not advance any satisfactory explanation for not having advanced her proposed expanded Notice of Appeal much earlier (cf Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at 215 [103] (Gummow, Hayne, Crennan, Kiefel and Bell JJ)).

60    Thirdly, no properly formulated amended grounds of appeal were proffered by the Appellant. The proposed amended grounds of appeal were either not specified at all — being the position if solicitors were to be appointed to draft an amended Notice of Appeal — or largely incomprehensible, if regard is had to the draft amended Notice of Appeal prepared by the Appellant, which was the only proposed draft before us.

61    Even if it might be thought that a more comprehensible amended Notice of Appeal would be drawn by solicitors (if the matter were adjourned), it is clear enough from the Appellant’s own draft that what she seeks is to mount an appeal that would involve a comprehensive review of the entirety of the case below. This contributes to the prejudice that would be faced by the Respondent if the application to adjourn the appeal and grant an open-ended leave to amend the Notice of Appeal were granted.

62    Fourthly, in addition to being unfair to the Respondent, it would be wasteful of the Court’s resources to have the resolution of this appeal, which has been a long time in the making, deferred significantly to accommodate the pursuit of the Appellant’s proposed sprawling list of grounds of appeal: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 at 321 [51] (French CJ, Kiefel, Bell, Gageler and Keane JJ).

63    All told, granting the application to adjourn the hearing of the appeal and permit the proposed amendments would cause unacceptable prejudice to the Respondent and would be inimical to s 37M of the Federal Court of Australia Act 1976 (Cth) which provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The Appellant has had ample opportunity to craft the terms of her appeal, even allowing for her medical condition and (current) lack of legal representation.

New evidence

64    As mentioned, the interlocutory application also sought leave to rely on two new pieces of evidence: a letter from St John of God Healthcare Inc dated 1 December 2011 accrediting the Appellant at St John of God Hospital Murdoch; and a blank, undated form headed “Request for On Call Payment” with a St John of God Subiaco Hospital logo.

65    Pursuant to r 36.57 of the Federal Court Rules 2011 (Cth), a party may apply for the Court to receive further evidence on appeal. Any such application must be made at least 21 days before the hearing of the appeal and must be accompanied by an affidavit that addresses a number of matters, including why the evidence was not adduced below. No evidence has been provided that addresses this matter in respect of the two documents, although the Appellant said in the course of her submissions that she had located one of the documents when going through her documents to address a tax issue.

66    As the Respondent noted, it is well established that the following considerations are generally relevant to the exercise of the Full Court’s discretion to receive new evidence:

(a)    the further evidence is such that, had it been adduced at trial, the result would very probably have been different; and

(b)    the party seeking to adduce the evidence demonstrates that it was unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence.

See, eg: Quach v MLC Limited [2022] FCAFC 202 at [67] (Collier, Perry and Thomas JJ); Australia Bay Seafoods Pty Ltd v Northern Territory of Australia [2022] FCAFC 180; (2022) 295 FCR 443 at [118] (Besanko, Charlesworth and O’Bryan JJ); District Council of Streaky Bay v Wilson [2021] FCAFC 181; (2021) 287 FCR 538 at [149] (Mortimer, Perry and SC Derrington JJ); Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16] (Griffiths and White JJ).

67    Neither document that the Appellant seeks to rely on in this appeal has any material bearing on the issues arising on the Notice of Appeal. The issues on appeal concern whether there was a contract with the Respondent arising from the process by which the Appellant was accredited at the Hospital, and whether the suspension of her accreditation at the Hospital in November 2014 was in breach of contract.

68    It appears that the Appellant wanted to refer to the letter of accreditation at the Murdoch hospital on the basis that it showed her being accredited by another of the Respondent’s hospitals at a date earlier than her accreditation at Subiaco. The letter showing the accreditation of the Appellant at a different hospital on a different date is neither here nor there.

69    In addition, the blank form for “on call” payments at the Subiaco hospital has no probative value. Neither piece of new evidence is such as would have likely been determinative or even important, to the determination of the contract issues at trial.

70    This aspect of the interlocutory application must also be rejected.

Conclusion

71    For the reasons given above, the appeal is dismissed with costs.

72    For the avoidance of doubt, we note that a separate Notice of Appeal in relation to the costs orders made below was filed and given proceeding number VID 667 of 2023. Orders were subsequently made by the judge case managing the appeals consolidating that proceeding with the substantive appeal proceeding. Accordingly, no orders need to be made in relation to the costs appeal. The costs appeal only sought to disturb the costs order below if the substantive appeal succeeded (which it has not).

Associate:

Dated:    1 May 2025