FEDERAL COURT OF AUSTRALIA

Maiocchi v Royal Australian & New Zealand College of Psychiatrists [2013] FCA 1046

THE COURT ORDERS THAT:

1.    The name of the tenth respondent is amended to “Medical Council of New South Wales”.

2.    The name of the eleventh respondent is amended to “Phiroan Pty Ltd trading as Northside Clinic”.

3.    The name of the thirteenth respondent is amended to “Health Care Complaints Commission”.

4.    The proceeding is summarily dismissed as against the second, third, fourth, eighth, tenth, twelfth and thirteenth respondents.

5.    The proceeding is summarily dismissed as against Ramsay Health Care Limited.

6.    The Application is struck out.

7.    The Amended Statement of Claim is struck out.

8.    The applicant is directed to serve a draft Amended Application and a draft Further Amended Statement of Claim in which:

(a)    the applicant re-pleads her claims against the fifth, sixth and ninth respondents for their alleged contraventions of s 9 and s 15 of the Racial Discrimination Act 1975 (Cth) (the RD Act) which were the subject of her written complaints to the Australian Human Rights Commission (the Commission) dated 3 January 2011 and 14 July 2011;

(b)    the applicant re-pleads her claims against the first and eleventh respondents in so far as it is or will be alleged that either of them is vicariously liable for any contravention of s 9 or s 15 of the RD Act by the fifth, sixth or ninth respondent;

(c)    the applicant re-pleads her claims against the seventh respondent in so far as it is or will be alleged:

(i)    that the seventh respondent is vicariously liable for any contravention of s 9 or s 15 of the RD Act by the fifth, sixth or ninth respondent;

(ii)    that the seventh respondent breached a term of the contract of employment between the seventh respondent and the applicant, or breached a common law or statutory duty owed by the seventh respondent to the applicant, by permitting any of the fifth, sixth or ninth respondents to:

    make false, misleading or otherwise improper allegations against the applicant in relation to her work as a Psychiatry Registrar at Northside Clinic;

    withdraw or procure the withdrawal by the seventh respondent of the applicant’s clinical privileges without proper or reasonable cause.

(d)    any allegation in the draft Further Amended Statement of Claim against any of the fifth, sixth or ninth respondents for any alleged contravention of s 27(2) of the RD Act is to be clearly and succinctly pleaded and include particulars of the matters referred to in paragraph [103] of the reasons for judgment published on 23 October 2013;

(e)    the draft Further Amended Statement of Claim is to comply, or substantially comply, with the requirements of r 16.02 and r 16.41 of the Federal Court Rules 2011 (Cth);

(f)    the Amended Application is to specify, in accordance with the prescribed form, the relief sought against each of the respondents and must not contain any allegation of fact or law.

9.    The draft Amended Application and the draft Further Amended Statement of Claim are to be served by 14 February 2014.

10.    The applicant is to provide to the Associate to Nicholas J a copy of the draft Amended Application and the draft Further Amended Statement of Claim served pursuant to these orders by 18 February 2014.

11.    The proceeding is listed for further directions at 9.30am on 21 February 2014.

12.    The applicant is to pay:

(a)    the second, third, fourth, fifth, eighth, tenth, twelfth and thirteenth respondents’ costs of the proceeding;

(b)    75% of the ninth respondent’s costs of his interlocutory application;

(c)    the other respondents’ costs of their respective interlocutory applications.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    The applicant commenced this proceeding by originating application filed on 15 June 2012 against 13 respondents. On 19 July 2012 she was ordered to file an amended application and a statement of claim. The applicant did not file an amended application, but she did file a statement of claim. That document, which ran to 43 pages in length, did not comply with the Federal Court Rules 2011 (Cth) (the Rules) in numerous respects. On 7 September 2012 the applicant was ordered to file an amended statement of claim. She filed such a document (the Amended Statement of Claim) on 24 September 2012. It runs to 111 pages, excluding some hundreds of pages of related attachments.

2    The question now before me is whether any of the claims against the 13 respondents against whom the applicant has claimed should be dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) or r 26.01 of the Rules, or, if not, whether the Amended Statement of Claim should be struck out pursuant to r 16.21 of the Rules.

BACKGROUND FACTS

3    The applicant is a medical doctor. In early 2005 she commenced a training programme accredited by the first respondent, The Royal Australian & New Zealand College of Psychiatrists (RANZCP). RANZCP is a company limited by guarantee which provides accreditation to psychiatrists in Australia and New Zealand.

4    The applicant became a Medical Doctor in Argentina in 1977, and a Medical Specialist in Radiation Oncology in 1983. She and her husband came to Australia from Argentina in April 1990. The applicant became an Australian citizen in 1993. She became an Australian Medical Council (AMC) Graduate in 2002 and was registered as a Medical Doctor in 2004.

5    In early 2005 the applicant became a trainee with RANZCP. She trained in psychiatry and also studied towards a Master’s degree in Psychiatry. The applicant says that she successfully completed all her basic rotations and written examinations to complete her basic training except for her clinical examination.

6    In early 2010 the applicant, while employed by the North Sydney and Central Coast Area Health Service (NSCCAHS), was working on secondment as a Psychiatry Registrar at Northside Clinic in Sydney. During her time at Northside Clinic the applicant worked with a number of consultant psychiatrists who were members of RANZCP. They included the fifth respondent (Dr Wilson), the sixth respondent (Dr Jurd) and the ninth respondent (Dr Lyndon). It appears that Dr Wilson acted as the applicant’s supervisor while she worked at Northside Clinic, and that she had dealings with Dr Jurd in his capacity as Director of Postgraduate Training in Psychiatry for the NSCCAHS.

7    In early May 2010 Dr Wilson and Dr Jurd, and possibly Dr Lyndon, decided that the applicant should not be allowed to continue working at Northside Clinic. It is not in dispute that the applicant’s clinical privileges were revoked on or about 11 May 2010. According to an email written by Dr Wilson on 15 May 2010, Northside Clinic was no longer allowing the applicant to work there because:

There are numerous concerns about [the applicant’s] ability to practise as a psychiatry registrar in this context, but these are currently the focus of College of Psychiatry procedures.

There have been serious, multiple clinical competence issues raised regularly with Dr Maoicchi since very early in her term at Northside.

In essence the final steps [sic] resulted from a number of the consultant psychiatrists losing confidence in her ability to safely care for their patients, myself included. In addition Dr Maoicchi demonstrated a clear lack of understanding of the significance of a serious pathology result.

8    On 19 May 2010 Dr Jurd wrote to the applicant enclosing a document entitled “Risk Assessment – Alleged Misconduct” which referred to what Dr Jurd described as “[s]erious complaints regarding unsatisfactory and unsafe professional performance … lodged about Dr Maiocchi” and which also expressed concerns about her clinical skills. The document also included recommended risk management strategies which involved the imposition of restrictions upon the applicant’s duties (ie. relieving her of all clinical duties and responsibilities) and relocating her to another workplace pending the outcome of a formal review.

9    On 15 July 2010 Dr Paton, the Clinical Director at NSCCAHS, wrote to the applicant to advise her that the applicant had been the subject of notice given under s 140 of the National Law which was presumably a reference to the Health Practitioner Regulation National Law (NSW) (see the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW)). Although Dr Paton’s letter indicated that there were concerns identified as to the applicant’s practice at Northside Clinic, it did not indicate what those concerns were or what conduct was to be the subject of the notice under s 140. His letter also notified the applicant that she was required to attend a medical examination “to determine fitness for work based on the inherent requirements of your job role.”

10    The evidence indicates that the notification pursuant to s 140 of the National Law was not given until 3 August 2010. It took the form of a letter from the CEO of NSCCAHS, Mr Daly, to the Medical Council of New South Wales (the NSW Medical Council) stating:

There have been concerns noted about Dr Maiocchi’s performance by NSCCAHS over several years in regard to her training position with the Area Health Service (AHS), although these have not been of a serious enough nature to warrant notification to then [sic] NSW Medical Registration Board.

However, a series of incidents have occurred earlier this year, whist [sic] Dr Maiocchi was on secondment to the Northside Clinic, a private psychiatric hospital at St Leonards. This clinic is a routine placement for trainees working in the North Shore Ryde Sector of the AHS. Concerns regarding Dr Maiocchi’s performance were initially raised in February of this year, by Dr Craig Wilson, her supervisor at the Northside Clinic. A remediation plan was put into place by Dr Stephen Jurd, Network Director of Training for the AHS, to address the concerns raised by Northside Clinic.

However, further concerns about Dr Maiocchi’s performance at Northside Clinic were raised, and her mid-term feedback was unfavourable.

Despite attempts to remedy the situation, Dr Wilson and several other consultants became so concerned regarding the safety of Dr Maiocchi’s practice, in regard to the Northside Clinic patients, that the Northside Clinic determined Dr Maiocchi would no longer be allowed to practice there from 11 May 2010.

NSCCAHS then undertook a risk assessment, which determined that Dr Maiocchi should be stood down from clinical duties on full pay whilst the circumstances at Northside Clinical were reviewed. To date, Dr Maiocchi has not resumed clinical practice in this AHS, or in any other location to our knowledge.

The available information regarding this matter was reviewed by three senior psychiatrists and a trainee at the same stage of training to that of Dr Maiocchi. This group were concerned about an apparent and significant change in competence level, based on this preliminary analysis of the evidence, noting that there was substantial evidence that performance of basic tasks of a medical practitioner was inadequate and potentially dangerous. This pattern of poor practice had not previously been noted. The psychiatrists recommended that before further investigation should proceed, Dr Maiocchi should undergo a thorough medical and cognitive assessment to rule out a physical or other health problem which could account for this apparent and recent deterioration in performance. Dr Maiocchi is currently considering if she will do so.

On behalf of NSCCAHS, I am therefore making a notification of Dr Maiocchi to the Medical Council of NSW, as required under legislation.

It appears that Mr Daly also wrote to the Health Care Complaints Commission (HCCC). The HCCC advised the applicant of this fact in a letter to her dated 1 September 2010.

11    On 11 July 2011 NSCCAHS wrote to the applicant advising that an investigation of the allegations against her had been completed, and that the investigation found sufficient evidence to support some of the allegations. A copy of the investigator’s report, which was prepared for Ms Taylor, the Director, Mental Health Drug and Alcohol, NSCCAHS, is in evidence. The investigation team consisted of Dr Drew, a psychiatrist and Ms Tawfiq, an external investigator. It is apparent from their report that they were appointed to conduct their investigation on 5 January 2011. The investigators interviewed eight persons including Dr Wilson, Dr Harper, Dr Tan and the applicant. The investigators examined nine allegations made against the applicant.

12    In her letter of 11 July 2011, Ms Taylor advised the applicant:

The investigation of an allegation against you has now been completed and the investigation found sufficient evidence to support some of the allegations. A copy of the full report has previously been provided to you and I note your response on same.

I write to confirm my decision in relation to this issue. I confirm that in making my decision I have had full regard to the facts of the matter including your responses and your length of service.

After careful consideration of all the available evidence I have decided to refer the matter to the Health Care Complaints Commission and the Medical Council of New South Wales. A full copy of the investigation report and your response to it has been provided to the Health Care Complaints Commission. The Health Care Complaints Commission will also provide the information to the Medical Council. I am advised that these agencies will contact you directly regarding their processes and will appraise you further of any necessary actions from this point.

In the interim I confirm that you are to remain on non clinical duties until the decision from the Health Care Complaints Commission and Medical Council has been advised to Northern Sydney Local Health District.

13    On 26 October 2011 the NSW Medical Council wrote to the applicant. It advised:

On 27 September 2011 the Performance Committee (the Committee) of the Medical Council of NSW (the Council) pursuant to section 154 of the Health Practitioner Regulation National Law (NSW) [the National Law (NSW)] decided to have your professional performance assessed and pursuant to Schedule 5B Part 1 and specifically clause 3 of the National Law (NSW), you are required to take part in an assessment exercise.

The Committee is satisfied that pursuant to section 154 of the National Law (NSW), there are matters that indicate your professional performance is or may be unsatisfactory in the areas of clinical decision making, communication and patient management. …

Performance Assessment is specifically designed to be educative rather than disciplinary in its focus. A practitioner whose performance is found by the assessors, to be below an acceptable level, is given the opportunity to improve through retraining and re-education in the Performance program.

14    It appears that the applicant was unwilling to participate in the Performance Assessment. On 4 November 2011 the NSW Medical Council referred the matter to the HCCC for investigation. On 12 January 2012 the HCCC determined that the complaint should be referred for further investigation to the NSW Medical Council. According to a letter from the HCCC to the applicant, the investigation was still ongoing as of 10 May 2012. The applicant says, and I have no reason to doubt, that this investigation was still not finalised by the time she commenced this proceeding.

THE APPLICANT’S COMPLAINT TO the AUSTRALIAN HUMAN RIGHTS COMMISSION (THE COMMISSION)

The initial letter of complaint

15    On 3 January 2011 the applicant lodged a complaint (letter of complaint) with the Australian Human Rights Commission alleging that she had been discriminated against based upon her race. The applicant’s letter of complaint indicated that her complaint was made against Dr Wilson, Dr Jurd and RANZCP.

16    In the letter of complaint the applicant explained that in January 2010 she started a rotation at the Northside Clinic. It was during this rotation, according to her letter of complaint, that she was the subject of bullying, harassment and discrimination by Dr Wilson and Dr Jurd.

17    In the letter of complaint the applicant referred to three documents upon which she said her complaint was based. These documents were identified by the applicant as follows:

    Basic Training, Mid Rotation Report dated 23 March 2010 by Dr Wilson (the Mid-Term Evaluation);

    Remediation Plan – Dr Licia Maiocchi dated 13 April 2010 by Dr Jurd (the Remediation Plan);

    Adult Psychiatry Rotation – Basic Training Certificate of Completion dated 28 May 2010 by Dr Wilson (the End of Term Evaluation).

According to the applicant, it was in these documents that (at p 3):

[her] communication skills and [her] professional attitude are either directly attacked or directly deemed inadequate, or by implication [her] professional attitude is exposed as inadequate.

The applicant also stated in the letter of complaint that she believed that racial discrimination was the most likely cause of Dr Wilson’s and Dr Jurd’s behaviour.

18    According to the letter of complaint, the complaint against RANZCP arose (at p 9):

because the RANZCP has failed to provide a fast and fair response to the issues which are the subject of [the applicant’s] complaint with the RANZCP against Dr Jurd and Dr Wilson.

19    The applicant also explained how she has been affected by the matters the subject of her complaint. According to the letter of complaint, the effects upon her included:

    not being able to sit RANZCP’s Clinical Examination;

    stress resulting in the applicant having to take unpaid leave;

    difficulties between the applicant and her co-workers at the Northside Clinic.

20    The letter of complaint also described the outcomes the applicant sought. The outcomes she referred to included the “setting aside” of the Mid-Term Evaluation, the Remediation Plan and the End of Term Evaluation, written apologies from Dr Wilson, Dr Jurd and RANZCP, and written undertakings from RANZCP that the applicant’s complaint would not have any adverse consequences in relation to her training and that steps would be taken to facilitate its completion.

RANZCP’s response to the applicant’s letter of complaint

21    The Commission wrote to RANZCP seeking its response to the applicant’s complaints. Lawyers acting for RANZCP wrote to the Commission on 4 March 2011 requesting that the complaint be dismissed on the basis that it was misconceived and lacking in substance. According to the lawyers for RANZCP (at pp 1-2):

The essence of the complaint is that the College failed to deal with complaints by the complainant in relation to bullying, discrimination and harassment. In accordance with the College’s usual policy, these matters are first referred for investigation in the workplace by the employer/hospital. We note in this regard Dr Maiocchi has had legal advisers acting on her behalf, who have been dealing with relevant investigations at the Northern Sydney Central Coast Area Health Service. On this basis, the College, in accordance with its usual practice, declines to take further action pending the outcome of those investigations.

The College adopted this approach in accordance with its usual policies, an approach it would have taken in any case, and certainly in any case regardless of race or other discriminatory ground.

The College adopts this policy as it has limited powers in the workplace to deal with these matters, and they are therefore best handled in the workplace through appropriate workplace policies and procedures.

We confirm on behalf of the College that race and national identity played no part in any decision in relation to the complainant.

22    The Commission’s letter raised with RANZCP a number of specific matters. One of these concerned the requirements, if any, that RANZCP imposed on trainee psychiatrists in relation to communication skills and English language ability. The Commission’s letter also stated (at p 3):

Dr Maiocchi claims that RANZCP failed to investigate her complaint and appears to allege that her race or ethnic origin or immigrant status was a factor in the decision to take no action [in relation to her complaints].

23    In relation to communication and English language skills, the RANZCP lawyers advised that it had no specific English language requirements for training, but that a number of assessment and training objectives imply that there be an ability to communicate in English clearly in both written and oral form. In response to the suggestion that RANZCP may have failed to investigate the applicant’s complaint, RANZCP’s lawyers stated (at p 3):

The matters raised in the complaint were first brought to the RANCP’s [sic] attention on 28 May 2010. Subsequently, the College has received two requests to undertake a review. However, as the complaint was initiated as a consequence of the employing hospital’s risk assessment of Dr Maiocchi’s competence, the College considers this to be an employment issue, which must be addressed through the hospital’s normal procedures.

As stated, the College’s usual processes require the outcome of the hospital review into Dr Maiocchi’s complaint before it would escalate the matter through the College’s formal review and appeals channels.

The expansion of the applicant’s complaint

24    There followed a considerable amount of correspondence between the applicant and the Commission in which the applicant sought to expand her complaint.

25    According to an email the applicant sent to the Commission on 27 April 2011, the Remediation Plan prepared by Dr Jurd, and various allegations made by Dr Wilson, were used as a basis to unfairly report the applicant to the NSW Medical Council. In her email the applicant also stated:

My training with the RANZCP has been, for all practical purposes, suspended since 11 May 2010, I have not had any supervision, as required by the RANZCP, since May 2010, I have been isolated from my peer group, and the Remediation Plan signed by Dr. Jurd on 13 April 2010, is still afoot preventing me from taking the last examination of the training program (however nobody is checking my English accent or checking whether I have read local vernacular publications, like the magazine New Woman).

26    The applicant also wrote to the Commission on 5 July 2011 in which she sought to expand her complaint as follows:

This is a formal notice that the complainant, Dr. Licia Maiocchi, reserves her rights to claim vicarious liability from any entity involved in her complaint, disregarding whether the vicarious liability has been specifically included in any past or future part of her complaint or not, and whether the entity has been specifically named in any past or future part of her complaint or not.

For the sake of clarity the vicarious liability referenced above includes, in addition to the vicarious liability of the RANZCP, the vicarious liability of Dr. Jurd’s employer, Northern Sydney & Central Coast Local Health Networks, and the vicarious liability of Dr. Wilson’s employer, Northside Clinic.

27    The applicant wrote to the Commission again on 14 July 2011. She explained that she had received an acknowledgment that her dissertation toward her Master of Psychiatry degree had been accepted and that she had therefore completed all requirements for the conferral of that degree. In this letter the applicant made a complaint against the ninth respondent, Dr Lyndon. According to the applicant’s letter (at p 5):

My dissertation supervisor, Dr. Bill Lyndon, was Dr. Wilson’s manager (Mood Disorders Unit Director) and has been one of the persons that according to Dr. Wilson have developed the Remediation Plan along with Dr. Jurd.

…

Please note that my complaint is for Dr. Lyndon’s participation in the Remediation Plan signed by Dr. Jurd on 13 April 2010 and not for his extremely poor performance as a dissertation supervisor, where he even recommended (in writing) to perform unethical behaviour. I would also like make clear that I am not complaining against the NSW Institute of Psychiatry the organisation for which Dr. Lyndon supervised the dissertation of my Master in Psychiatry.

The applicant’s letter indicates that Dr Lyndon was the Moods Disorder Unit Director at the Northside Clinic. It continues (at p 6):

I am formally asserting the fact that Nortside Clinic [sic] has vicarious liability for the events related with my claims of discrimination and victimisation.

I am also formally asserting that, after well over fourteen months of pain and suffering, I believe I have the right to compensation from all the institutions responsible for the events related with my complaint.

28    The applicant’s letter includes extracts from various statements made to the investigators including, in particular, statements made by Dr Wilson, and the applicant’s response to them. The statements by Dr Wilson were made at an interview with Dr Drew and Ms Tawfiq on 7 February 2011, approximately one year or more after the Mid-Term Evaluation was written by Dr Wilson and the Remediation Plan was written by Dr Jurd. They include some details of the allegations of unprofessional practice made against the applicant by Dr Wilson (who is referred to in the investigators’ record of interview as the complainant) including an alleged comment he claimed had been made by the applicant to a young patient receiving treatment at Northside Clinic which, if Dr Wilson is to be accepted, was highly inappropriate.

29    By early 2012 the applicant’s complaints had been expanded to extend to not only Dr Wilson, Dr Jurd and RANZCP, but also the Northern Sydney Local Health District (NSLHD), Ramsay Health Care Limited (Ramsay), Phiroan Pty Ltd (Phiroan) (trading as Northside Clinic), Dr Lyndon, Dr Tomasic, Dr Chalk, Mr Peters, the NSW Medical Council and MDA National Insurance Pty Ltd (MDANI).

30    The applicant’s complaint was expanded to include the NSW Medical Council following a request made by her in October 2011. The basis for this request, communicated to the Commission in an email of 20 October 2011, is unclear except that the applicant seemed to contend that the NSW Medical Council had been guilty of victimisation because it did not afford her natural justice, and because it was unwilling or unable to manage the investigation concerning her in a fair or impartial manner.

31    It is apparent that NSLHD, the successor to NSCCAHS, was also brought within the scope of the applicant’s complaint on the basis that it was Dr Jurd’s employer and, possibly because, according to the applicant, it was guilty of victimisation. Ramsay and Phiroan were apparently brought in on the basis that one or more of them employed Dr Wilson and Dr Lyndon, the latter having been included as a result of his alleged involvement in preparation of the Remediation Plan signed by Dr Jurd on 13 April 2010.

32    It is not clear to me how MDANI became involved as a respondent to the applicant’s complaint since it had nothing to do with the preparation of any of the three documents that formed the basis of the applicant’s original complaint to the Commission. It appears that the applicant urged, and the Commission accepted, that it should be brought within the scope of the applicant’s complaint on the basis that the applicant contended that it was guilty of victimisation.

Dr Lyndon’s response to the Commission

33    The evidence before me includes a letter written by Dr Lyndon to the Commission dated 27 October 2011 on the letterhead of Phiroan Pty Ltd trading as Northside Clinic. In his letter Dr Lyndon states:

It is my understanding from the documents you sent to me that Dr Maiocchi’s complaint of racial discrimination relates to the content of a remediation plan signed by Dr Stephen Jurd on 13 April 2010.

I am a psychiatrist in private practice and the Director of the Mood Disorders Unit at Northside Cinic [sic]. The Mood Disorders Unit regularly has two registrars, trainees with the Royal Australian and New Zealand College of Psychiatrists, working with us for six month terms. Dr Licia Maiocchi was allocated to the Mood disorders Unit for her six month term beginning in January 2010.

Over the next three months I received, as Director of the Unit, numerous complaints from nursing staff and consultant psychiatrists about Dr Maiocchi’s behaviour, personal interactions and clinical competence. As a result, I conferred with the Northside Clinic Management and the RANZCP Regional Director of Training, Dr Stephen Jurd about the best way of dealing with these concerns while observing appropriate industrial guidelines. The Northside Clinic has its own guidelines for dealing with similar concerns regarding its employees and the RANZCP also has specific guidelines relating to trainees. Dr Jurd felt, and I agreed, that it was the responsibility of the RANZCP and himself, as the College representative, to set in motion the College’s process of counselling and remediation. Dr Jurd then prepared a remediation plan which I understand he subsequently presented to Dr Maiocchi.

It appears that Dr Maiocchi has assumed that I was involved in the preparation of the remediation plan and therefore she has included me in her complaint to AHRC. This is an incorrect assumption on her part.

I did not play any part in the preparation of the remediation plan. I did not see the remediation plan until it was sent to me by AHRC.

I deny any racial or other discrimination against Dr Maiocchi at any time.

34    The letter is signed by Dr Lyndon who describes himself as the Director, Mood Disorders Unit Northside Clinic and Clinical Senior Lecturer, University of Sydney.

Termination of complaint

35    On 16 April 2012 the Commission terminated the applicant’s expanded complaint against the following persons and entities on the basis that there was no reasonable prospect of the matter being settled by conciliation:

    RANZCP (the first respondent);

    Dr Tomasic (the second respondent);

    Dr Chalk (the third respondent);

    Mr Peters (the fourth respondent);

    Dr Wilson (the fifth respondent);

    Dr Jurd (the sixth respondent);

    NSLHD (the seventh respondent);

    MDANI (the eighth respondent);

    Dr Lyndon (the ninth respondent);

    The NSW Medical Council (the tenth respondent);

    Ramsay – Phiroan Pty Ltd trading as Northside Clinic (the eleventh respondent).

36    The applicant was subsequently advised by letter dated 31 May 2012 that the Commission would receive the complaint by the applicant against various other persons and organisations alleging victimisation including:

    Vicki Taylor (the twelfth respondent);

    HCCC (the thirteenth respondent).

37    However, in the same letter, the Commission advised that the applicant’s complaint against Ms Taylor and the HCCC (and various others) had been terminated on the basis that it was lacking in substance and misconceived. I shall have more to say concerning the substance of the complaints against various respondents, including Ms  Taylor and the HCCC, later in these reasons.

THE APPLICATION

38    The applicant was previously ordered to file an Amended Application but she has not done so. The Application includes a range of factual and legal allegations which, assuming they are material and otherwise properly pleaded, should appear in the Amended Statement of Claim and not in the Application. The Application should be amended so that it does no more than specify the relief claimed by the applicant.

THE AMENDED STATEMENT OF CLAIM

39    The Amended Statement of Claim is highly discursive and argumentative. It also contains a large amount of irrelevant material, and many sections of the document are expressed to be incomplete. I am mindful that the applicant is unrepresented and unfamiliar with the rules of pleading, and that some allowance can be made in her favour on that account: see, for example, Re Morton; Ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497 at 512-514 (Sackville J) citing (inter alia) McLelland J in Tardy v Secretary of the Department of Community Services and Health (9 October 1990, NSWSC, unreported). Nevertheless, I am satisfied the document is likely to cause prejudice, embarrassment and delay and that it is not one that I could reasonably require any of the respondents to plead to either in whole or part. Nor does it provide a coherent or intelligible account of the applicant’s case against the various respondents.

40    The applicant tendered a large volume of documentary material exhibited to her affidavit of 17 October 2012 (running to approximately 1500 pages) which has been of some assistance in unravelling the applicant’s complaints. The background facts as set out earlier in these reasons are mostly drawn from the documentary material tendered by the applicant.

41    The allegations raised in the Amended Statement of Claim against the 13 named respondents may be summarised as follows:

Dr Jurd, Dr Wilson, Dr Lyndon and NSLHD

(a)    The applicant alleges that she was discriminated against and victimised by Dr Jurd, Dr Wilson and Dr Lyndon, all of whom are alleged by her to have contributed to the production of the Remediation Plan signed by Dr Jurd.

(b)    The applicant alleges that in order to conceal their bullying, discrimination and harassment of the applicant, Dr Jurd and Dr Wilson, with the support of NSLHD, further victimised the applicant by:

(i)    making false allegations of professional misconduct;

(ii)    exaggerating and magnifying errors on the part of the applicant which were the product of stress caused by Dr Jurd’s and Dr Wilson’s bullying, discrimination and harassment of the applicant.

(iii)    not following mandatory procedures or providing the applicant with natural justice or due process;

(iv)    withdrawing the applicant’s clinical privileges and preventing her from taking the RANZCP clinical examination;

(v)    breaching the applicant’s contract of engagement by not providing her with an alternative position which would allow her to complete her training with RANZCP;

(vi)    ostracising and persecuting the applicant, and isolating her from her colleagues and peers;

(vii)    engaging in acts of explicit and direct victimisation.

MDANI

(c)    The applicant alleges that her insurer, MDANI:

(i)    victimised the applicant by condoning and supporting the behaviour of the other respondents;

(ii)    breached its contract of insurance with the applicant by, after 1 July 2010, ignoring cl 6(c)(ii) of the policy;

(iii)    failed to disclose a conflict of interest in that it was providing assistance not only to the applicant but also to Dr Jurd and thereby breached its fiduciary duty to the applicant.

RANZCP

(d)    The applicant alleges that RANZCP victimised the applicant by:

(i)    failing to investigate Dr Jurd’s, Dr Wilson’s and Dr Lyndon’s bullying, discrimination and harassment of the applicant;

(ii)    removing the applicant from its list of trainees even though it ought to have known that Dr Jurd had wrongly prevented the applicant from fulfilling her training requirements;

(iii)    failing to acknowledge that there was any issue as to the bona fides of the Remediation Plan signed by Dr Jurd or Dr Jurd’s motivations in producing that document.

(e)    The applicant also alleges that RANZCP is vicariously liable for the actions of Dr Jurd.

Northside Clinic

(f)    The applicant alleges that Northside Clinic, or at least the entity or entities that carry on business under that name, victimised the applicant by failing to produce or disclose medical records relating to the allegations made against her in a timely way and by destroying the “Communications Notebook” which the applicant says contained entries that were relevant to the allegations made against her.

(g)    The applicant alleges that Northside Clinic “ought to be” vicariously liable for the conduct of various persons including the Nursing Unit Manager (NUM) and, depending upon their contractual arrangements, Dr Jurd, Dr Wilson and Dr Lyndon.

(h)    The applicant alleges that the NUM, Ms Atkinson, bullied and harassed the applicant. She asserts that Ms Atkinson ignored the applicant until the applicant introduced herself. The applicant then alleges that “it was the duty of the NUM, as the administrative manager of the applicant (a registrar) to introduce herself to the applicant rather than to ignore the applicant.”

Dr Tomasic, Mr Peters and Dr Chalk

(i)    The applicant alleges that Dr Tomasic, Mr Peters and Dr Chalk are either directly or vicariously liable for the actions of Dr Jurd and RANZCP.

The NSW Medical Council

(j)    The applicant alleges she needs discovery in relation to her claim against the NSW Medical Council but also asserts that it can be alleged that it victimised the applicant by (inter alia) making a false allegation against the applicant, and that it may also be liable to her for:

failing to acknowledge the possibility of the existence of bullying, discrimination and harassment, in spite of it being known that the AHRC considered that the case of the applicant had substance and in spite of knowing that the RANZCP has requested that bullying, discrimination and harassment be investigated.

(k)    It is also alleged by the applicant that the NSW Medical Council “condoned or supported the behaviour of other respondents.”

HCCC

(l)    The applicant makes the same complaints against HCCC as those made by her against the NSW Medical Council. Further, she alleges that there are “two issues which are exclusive to the HCCC”, and that these relate to the HCCC’s investigation into the applicant, its failure to provide her with information relevant to its investigation, and the HCCC’s conclusion that the applicant does not have any valid excuse to refuse to participate in a performance assessment.

OTHER INCHOATE CLAIMS

42    The applicant has asserted in her affidavit that there are other claims likely to be available to her including claims based upon:

    breach of contract;

    breach of fiduciary duty;

    breach of common law duty of care;

    breach of statutory duty; and

    breach of the rules of natural justice.

43    None of these additional claims have been pleaded or particularised. What the applicant has sought to do in her affidavit is signal the possibility that additional claims of this kind might in due course be relied upon by her.

RELEVANT STATUTORY PROVISIONS

44    The Amended Statement of Claim refers to ss 5, 9, 13, 15, 17(b), 18 and 18A of the Racial Discrimination Act 1975 (Cth) (the RD Act). Most relevant to the applicant’s claim are ss 9, 15 and 18A, each of which is in Pt II of the RD Act. These sections relevantly provide:

9    Racial discrimination to be unlawful

    (1)    It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

    (1A)    Where:

        (a)    a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

        (b)    the other person does not or cannot comply with the term, condition or requirement; and

        (c)    the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

        the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.

    (2)    A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

…

15    Employment

    (1)    It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:

        (a)    to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;

        (b)    to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or

        (c)    to dismiss a second person from his or her employment;

        by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.

…

    (3)    It is unlawful for an organization of employers or employees, or a person acting or purporting to act on behalf of such an organization, to prevent, or to seek to prevent, another person from offering for employment or from continuing in employment by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.

…

18A    Vicarious liability

(1)    Subject to subsection (2), if:

    (a)    an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and

    (b)    the act would be unlawful under this Part if it were done by that person;

    this Act applies in relation to that person as if that person had also done the act.

(2)    Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.

45    Section 5 relevantly provides that the RD Act is to have effect as if there were added to the end of subs 15(1) the words “or by reason that that second person or any relative or associate of that second person is or has been an immigrant.”

46    Section 27(2) of the RD Act is concerned with victimisation. It relevantly provides:

    A person shall not:

    (a)    refuse to employ another person; or

    (b)    dismiss, or threaten to dismiss, another person from the other person’s employment; or

    (c)    prejudice, or threaten to prejudice, another person in the other person’s employment; or

    (d)    intimidate or coerce, or impose any pecuniary or other penalty upon, another person;

    by reason that the other person:

    (e)    has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or

    (f)    has furnished, or proposes to furnish, any information or documents to a person exercising or performing any powers or functions under this Act or the Australian Human Rights Commission Act 1986; or

    (g)    has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986.

47    I should also refer to relevant provisions of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) including, in particular, s 46P, s 46PD, s 46PF and s 46PH. I summarised the effect of these and related provisions of the AHRC Act in Haraksin v Murrays Australia Ltd (No 2) (2013) 211 FCR 1 at [17] as follows:

A complaint that is made to the Commission under s 46P must be referred to the President (s 46PD). The President must, subject to some limited exceptions, inquire into a complaint (s 46PF). The President is given power to require a person to provide relevant information or relevant documents (s 46PI). The President may decide to hold a compulsory conference, and if so, the President must direct the complainant and respondent to attend (s 46PJ). Section 46PH provides for termination of a complaint by the President. There are various grounds upon which the President may terminate a complaint under s 46PH. They include:

•    if the President is satisfied that the alleged unlawful discrimination is not unlawful discrimination (subs (1)(a));

•    if the President is satisfied that the complaint was trivial, vexatious, misconceived or lacking in substance (subs (1)(c));

•    if the President is satisfied that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to each affected person (subs (1)(e));

•    if the President is satisfied that the complaint involves a matter of public importance that should be considered by the Federal Court or Federal Magistrates Court (subs (1)(h));

•    if the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation (subs (1)(i)).

48    Subsections 46PO(1)-(4) of the AHRC Act relevantly provide:

46PO    Application to court if complaint is terminated

(1)    If:

        (a)    a complaint has been terminated by the President under section 46PE or 46PH; and

        (b)    the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

        any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

    …

    (2)    The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

    (3)    The unlawful discrimination alleged in the application:

        (a)    must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

        (b)    must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

    (4)    If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

        (a)    an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

        (b)    an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

        (c)    an order requiring a respondent to employ or re-employ an applicant;

        (d)    an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

        (e)    an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

        (f)    an order declaring that it would be inappropriate for any further action to be taken in the matter.

49    I referred to various authorities concerned with s 46PO of the AHRC Act in Haraksin at [79]-[82]. Those authorities explain the jurisdictional significance of the complaint lodged with the Commission and the limitation s 46PO imposes upon an applicant seeking to bring proceedings in respect of conduct that did not form part of the subject matter of the applicant’s complaint to the Commission at the time of its termination. The present case is one in which the scope of complaint lodged pursuant to s 46P of the AHRC Act has been expanded, apparently with the concurrence of the President of the Commission, between the time the applicant’s complaint was first lodged and the time it was terminated pursuant to s 46PH.

SUMMARY DISMISSAL

The relevant principles

50    The respondents who seek summary dismissal of the proceeding in so far as it is brought against them principally rely upon s 31A of the FCA Act. Section 31A relevantly provides:

…

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

    (a)    the first party is defending the proceeding or that part of the proceeding; and

    (b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

    (a)    hopeless; or

    (b)    bound to fail;

    for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Court has apart from this section.

…

51    Lindgren J explained the difference between an application to strike out a pleading on the basis that it is deficient and an application for summary dismissal brought under subs 31A(2) of the FCA Act in White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at [47]:

[E]vidence may disclose that a person has or may have a ‘reasonable cause of action’ or ‘reasonable prospects of success’, yet the person’s pleading does not disclose this. In such a case O 11, r 16 [now r 16.21 of the Rules] empowers the Court to strike out the pleading but … s 31A(2) would not empower the Court to give judgment for the respondent against the applicant. A failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success, but the existence of a reasonable cause of action and the pleading of a reasonable cause of action remain distinct concepts.

(emphasis added)

This passage in his Honour’s judgment was referred to with approval by French CJ and Gummow J in Spencer v The Commonwealth of Australia (2010) 241 CLR 118 at [23].

52    Section 31A of the FCA Act was considered by the High Court in Spencer. All members of the High Court who addressed the meaning and effect of s 31A recognised that the power to summarily terminate a proceeding is not to be exercised lightly and must be exercised with caution (see French CJ and Gummow J at [24], Hayne Crennan, Kiefel and Bell JJ at [60]). Further, as the language of subs 31A(2) makes clear, it may only be exercised if the Court is satisfied that the proceeding as a whole, or some relevant part of it, has no reasonable prospect of success.

53    French CJ and Gummow J said (at [25]) that subs 31A(2) “requires a practical judgment by the Federal Court as to whether the applicant has more than a ‘fanciful’ prospect of success” and that summary judgment should not be awarded to a respondent merely because the Court is of the view that the applicant is unlikely to succeed on some relevant factual issue. On the other hand, it is apparent from what their Honours said at [21] (when quoting with approval the observations of Lord Hope in Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at 260-261) and at [26] that it may be open to the Court to conclude, upon an application under subs 31A(2), that the factual basis for a claim is fanciful because it is entirely without substance.

54    Hayne, Crennan, Kiefel and Bell JJ emphasised (at [56]-[59]) the use of the phrase “no reasonable prospect” in s 31A and the undesirability of judicial glossing of those words. Their Honours also emphasised that various epithets used prior to the enactment of s 31A to describe the degree of confidence which a Court should possess with respect to the prospects of a proceeding succeeding before the Court might properly exercise its power to summarily dismiss (eg. “clearly untenable” or “manifestly frivolous”) may no longer be sufficient for that purpose.

Dr Wilson and Dr Jurd

55    Neither Dr Wilson nor Dr Jurd has sought summary dismissal of the applicant’s claims against them. They have, however, sought orders that the Amended Statement of Claim be struck out. Dr Wilson and Dr Jurd are entitled to such an order.

Dr Lyndon

56    Dr Lyndon has also sought an order that the whole of the Amended Statement of Claim be struck out. He is entitled to that order. Unlike Dr Wilson and Dr Jurd, Dr Lyndon also seeks an order for summary dismissal of the applicant’s claims against him.

57    It seems to me that the applicant may have a tenable claim against Dr Lyndon for unlawful discrimination assuming, of course, that the factual allegations made against him are correct. The allegations made against Dr Lyndon based upon s 9 and s 15 of the RD Act are not fanciful, and although he has denied them in correspondence, he has not denied them in any affidavit relied upon by him on the present application. In all the circumstances I do not propose to accede to his application for summary dismissal of the claims based upon s 9 and s 15 of the RD Act.

58    The applicant’s case against Dr Lyndon, Dr Jurd and Dr Wilson for alleged victimisation is discussed later in these reasons.

59    Dr Lyndon also sought orders for dismissal of the proceeding as against him on account of the applicant’s procedural defaults. Dr Lyndon relied upon what he characterised as the applicant’s persistent failure to comply with the Court’s orders.

60    I agree that there have been some defaults by the applicant, but I would not characterise those that have occurred to date as persistent. Nor am I prepared to infer that the applicant is either unwilling or unable to comply with the Court’s orders: cf. Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 396.

Dr Tomasic, Dr Chalk and Mr Peters

61    In the Amended Statement of Claim the applicant alleges that the second respondent (Dr Tomasic), the third respondent (Dr Chalk) and the fourth respondent (Mr Peters) are and were, at all material times, President, Secretary and Chief Executive Officer (CEO) respectively of RANZCP. In their written submissions Dr Tomasic, Dr Chalk and Mr Peters accepted that they occupied these positions at relevant times.

62    The Amended Statement of Claim also alleges that Dr Tomasic and Dr Chalk were directors of RANZCP, and that Mr Peters was its company secretary. None of this was disputed by them in their submissions in reply. I propose to consider the application for summary dismissal on the footing that they held these positions at relevant times and that Mr Peters was also an employee of RANZCP.

63    The Amended Statement of Claim alleges that Dr Tomasic, Dr Chalk and Mr Peters are vicariously liable for the conduct of RANZCP. This proposition is legally misconceived. The directors of a company are not vicariously liable for its wrongdoing. Nor are the company’s employees vicariously liable for its wrongdoing. The applicant’s claims against Dr Tomasic, Dr Chalk and Mr Peters that they are vicariously liable for the conduct of RANZCP have no reasonable prospects of success and will be dismissed.

64    The suggestion contained in the Amended Statement of Claim that Dr Tomasic, Dr Chalk or Mr Peters might be directly liable to the applicant under ss 9, 15 or 27(2) of the RD Act finds no support in any of the documentary evidence relied upon by the applicant. I am satisfied that any such claim is entirely without substance and has no prospects of success.

RANZCP

65    The position with respect to RANZCP is somewhat different. It seems to me to be reasonably arguable that in preparing the Remediation Plan Dr Jurd was acting as the agent of RANZCP. I say this because he appears to have prepared the Remediation Plan in his capacity as RANZCP’s Director of Training. On that basis I think the applicant is entitled to maintain a claim against RANZCP (assuming that such claim can be, and is properly pleaded and particularised) on the basis that RANZCP is vicariously liable under subs 18A(1) of the RD Act for the conduct of Dr Jurd. I would allow the applicant’s claim against RANZCP to go forward on the basis that it might also be found vicariously liable for the conduct of Dr Wilson.

66    Of course, whether or not RANZCP is ultimately liable on this basis will depend upon findings yet to be made including, of course, whether the creation of the relevant documents by Dr Jurd and Dr Wilson, their unfavourable reflections upon the applicant’s competence as a Psychiatry Registrar, and the imposition of the requirements contained in the Remediation Plan constituted acts of direct or indirect discrimination due to race, nationality or ethnic origin for which Dr Jurd and Dr Wilson are liable.

NSLHD

67    Subsection 22(2) of the Health Services Act 1997 (NSW) provides that local health districts, which includes NSLHD, cannot employ staff. There is unchallenged evidence before me that indicates that at all relevant times Dr Jurd was instead employed by the State of New South Wales (State of NSW) as Director of Postgraduate Training in Psychiatry in respect of a designated area known as “Network B” which covers mental health services conducted by the Northern Sydney, Central Coast and Western and Far Western New South Wales Local Health Districts.

68    The applicant’s case against the State of NSW in so far as it relates to NSLHD, at least as articulated in her submissions, raises two claims which I think, if properly pleaded and particularised, might be sufficiently arguable to be allowed to proceed to trial. The first is a claim based upon subs 18A(1) of the RD Act and the fact that Dr Jurd was at all relevant times an employee of the State of NSW. The second, which will require much closer attention in any further amended statement of claim, concerns the applicant’s own contract of employment with the State of NSW.

69    If the true position is (as the applicant alleges) that Dr Jurd unlawfully discriminated against the applicant on the grounds of race or ethnicity or, as is also alleged, that he knowingly made false allegations of professional misconduct or, at least, unprofessional conduct, against the applicant with a view to depriving her of clinical privileges, and so as to make it impossible for her to complete her training, then it is arguable that the State of NSW would be liable to the applicant for breach of her contract of employment or breach of a common law or statutory duty. However, it is necessary for the applicant to properly formulate any implied term or duty of care that is to be relied upon by her in support of any such case, and to plead the material facts relevant to both the implication of any such term or the existence of any such duty and any alleged breach by her employer. The applicant has not yet done so.

Ms Vicki Taylor

70    Ms Taylor is the Chief Executive of NSLHD. The applicant alleges in the Amended Statement of Claim that Ms Taylor is vicariously liable for the conduct of NSLHD. That allegation is legally misconceived. There will be an order summarily dismissing the applicant’s claim against Ms Taylor on the ground that it has no reasonable prospects of success.

Northside Clinic

71    There is unchallenged evidence from Ms Mortimer, the CEO of the Northside Clinic, that Northside Clinic is owned and operated by Phiroan. Ms Mortimer’s evidence is corroborated by ASIC records and show that Phiroan, a wholly owned subsidiary of Ramsay, has been the registered owner of the Northside Clinic business name since 2007.

72    There is also unchallenged evidence from Ms Mortimer that none of Dr Jurd, Dr Wilson or Dr Lyndon were employees of Phiroan or any other company in the Ramsay group of companies during the time of the applicant’s placement at Northside Clinic or at any other material time.

73    In light of Ms Mortimer’s unchallenged evidence, I am satisfied that the case that the applicant seeks to maintain against Ramsay has no substance, and no reasonable prospects of success. Accordingly, the proceeding as against Ramsay will be summarily dismissed.

74    So far as the applicant’s case against Phiroan is concerned, there are essentially three aspects to it.

75    First, in the Amended Statement of Claim the applicant alleges that she was employed by Phiroan. This is plainly incorrect. The unchallenged evidence establishes beyond argument that the applicant was employed by the State of NSW for NSLHD. The proposition that the applicant was employed by Phiroan lacks substance. In my view, any case which the applicant seeks to raise based upon the proposition that she was employed by Phiroan has no reasonable prospects of success.

76    Various allegations are made against Phiroan in the Application based upon s 53B of the Trade Practices Act 1974 (Cth) and its successor s 31 of the Australian Consumer Law (Sch 2 of the Competition and Consumer Act 2010 (Cth)). Both of these statutory provisions relate to misleading conduct by a corporation with regard to an offer of employment made prior to the commencement of employment. There is no suggestion that Phiroan ever made such a representation to the applicant – none is pleaded and none is apparent from the voluminous evidence adduced by the applicant in support of her position on the various interlocutory applications now before me. In my view, the claims against Phiroan based upon these statutory provisions have no reasonable prospects of success.

77    The second aspect to the applicant’s case against Phiroan concerns her dealings with the nursing staff at Northside Clinic. I have already referred to the allegation made by the applicant in relation to the NUM’s treatment of her. Accepting that the NUM ignored the applicant as is alleged, and that the NUM waited for the applicant to engage with her rather than the reverse, the suggestion that this might somehow give rise to liability on the part of Phiroan is, in my view, fanciful. In my view any claim against Phiroan based upon the applicant’s complaint concerning the NUM has no prospects of success.

78    The third aspect of the applicant’s claim against Phiroan cannot be so easily rejected. Dr Lyndon may not have been employed by Phiroan, but it is clear that he acted as the Director of the Mood Disorders Unit at Northside Clinic. Further, as I have mentioned, his letter of 27 October 2011 (denying any involvement in the preparation of the Remediation Plan) was written by him on Phiroan letterhead.

79    If the applicant can establish that Dr Lyndon is liable to her on the basis that he unlawfully discriminated against her then it is conceivable that Phiroan might also be liable to the applicant pursuant to s 18A of the RD Act if Dr Lyndon’s unlawful acts were done in the course of his work for Phiroan. If the applicant wishes to advance such a case then she should plead the existence of the relevant agency and the connection between the unlawful acts alleged by her and Dr Lyndon’s duties under such agency.

NSW Medical Council and HCCC

80    The NSW Medical Council and HCCC have sought orders for summary dismissal of the proceeding as against them. In the alternative they seek an order that the Amended Statement of Claim be struck out.

81    The closest the Amended Statement of Claim gets to pleading a tenable cause of action against the NSW Medical Council and HCCC is the cause of action based upon their alleged contraventions of s 27(2) of the RD Act. Any such claim could only succeed if it were first shown that the respondent in question victimised the applicant – by which I mean engaged in conduct of the kind referred to in subparas (a), (b), (c) or (d) of subs 27(2) – and, second, if it were also shown that it did so for one or more of the reasons specified in (e), (f) or (g) of subs 27(2). The particular subparas of subs 27(2) upon which the applicant relies are subparas (c) and (e). That is to say, the case which the applicant seeks to raise against the NSW Medical Council and HCCC based upon subs 27(2) is that each of them prejudiced or sought to prejudice the applicant in the applicant’s employment by reason of the applicant having made or having proposed to make a complaint under the RD Act.

82    In my view these claims are without substance and have no prospects of success. I shall explain why I have reached this conclusion.

83    It is tolerably clear from the applicant’s pleaded case, and the evidence relied upon by her, that she claims to have suffered prejudice in the form of being denied clinical privileges. In fact, the applicant says, and for present purposes I accept, that the decision to deny her clinical privileges made it impossible for her to complete her training or to practice medicine in any field.

84    The evidence establishes beyond doubt that the decision to withdraw the applicant’s clinical privileges was made by NSCCAHS following the risk assessment prepared for it by Dr Jurd about which she also complains. That the decision to withdraw the applicant’s clinical privileges was a decision of NSCCAHS (rather than the NSW Medical Council or HCCC) is clear from the correspondence to which I have previously referred, including Mr Daly’s letter to the NSW Medical Council dated 3 August 2010. There is not the faintest suggestion in the evidence that either the NSW Medical Council or HCCC was involved in the decision to withdraw the applicant’s clinical privileges which the applicant says, and I accept, has caused her significant harm.

85    The evidence makes clear that the NSW Medical Council and HCCC did not become involved in the dealings between the applicant and NSCCAHS until after the latter issued notifications pursuant to s 140 of the National Law. This was, as I have explained, after the risk assessment was prepared and after the applicant’s clinical privileges had been withdrawn by her employer. In my view this is fatal to the applicant’s claims against the NSW Medical Council and HCCC based upon their alleged contravention of subs 27(2) of the RD Act.

86    Another fundamental problem that arises in relation to the claims under subs 27(2) of the RD Act concerns the suggestion that either the NSW Medical Council or HCCC did anything at all in relation to the applicant for the reason that she had made, or that she proposed to make, a complaint under the RD Act. That suggestion is, in my view, fanciful and lacks substance. The statutory machinery pursuant to which the NSW Medical Council and HCCC became involved in assessing complaints made in relation to the applicant’s conduct as a medical practitioner was not set in motion until after the applicant’s clinical privileges were withdrawn by NSCCAHS.

87    The applicant has had more than sufficient opportunity to properly plead her case against both the NSW Medical Council and HCCC. Her failure to do so is not merely a reflection of the challenge faced by an unrepresented litigant who has prepared a pleading without the assistance of a legal practitioner. In my opinion, the applicant’s inability to plead any coherent claims against the NSW Medical Council or HCCC is as much due to the fact that she has no tenable claim against either of them than to any unfamiliarity on her part with relevant legal principles or rules.

88    I am satisfied that the applicant’s claims against the NSW Medical Council and HCCC should be summarily dismissed.

MDANI

89    MDANI has sought orders for summary dismissal of the proceeding as against it. In the alternative it seeks an order that the Amended Statement of Claim be struck out. MDANI was, at relevant times, the applicant’s professional indemnity insurer under a succession of what may be described as “claims made and notified” policies.

90    I turn first to the allegations of victimisation made by the applicant against MDANI. In my view these allegations are wholly misconceived.

91    In an email to the Commission dated 15 August 2011 the applicant contended that MDANI was guilty of an offence under subs 27(2) of the RD Act. She relied in particular upon subpara (c) of that subsection.

92    The proposition that MDANI prejudiced, or threatened to prejudice, the applicant in her employment because the applicant had made, or proposed to make, a complaint under the RD Act is, in my view, fanciful and lacking in substance. The Amended Statement of Claim does not include any allegation that, even if proven, could possibly justify a finding that MDANI had contravened subs 27(2) of the RD Act. The applicant has had ample opportunity to formulate any claim against MDANI for contravention of subs 27(2) but has not done so. I am satisfied that the applicant has no tenable claim against MDANI for victimisation.

93    The evidence includes a copy of the applicant’s policy of insurance for the period 1 July 2009 to 30 June 2010 (Policy I) issued by MDANI. It also includes a copy of the applicant’s policy of insurance for the period 1 July 2010 to 30 June 2011 (Policy II).

94    The applicant has alleged that MDANI breached her policy of insurance “by ignoring clause 6(c)(ii)”. This complaint is founded upon a misconception. The clause relied upon by the applicant provided for indemnity against legal costs incurred:

pursuing or defending any allegation against your former, current or proposed employer or contractor that relates to or arises from the contract or proposed contract under which you were, are or will be, engaged to provide health care services in your field of practice (including a complaint under anti-discrimination or equal opportunity legislation);

Policy II included a clause in these terms, but Policy I did not include the same or any equivalent clause.

95    There is unchallenged evidence that the applicant gave notice under Policy I that she had been discriminated against by Dr Jurd, Dr Wilson and Dr Lyndon while working at Northside Clinic and that her clinical privileges had been withdrawn. This notice was given when she contacted MDANI on 13 May 2010 and advised MDANI’s employee, Ms Xabregas, of those matters. There is a contemporaneous file note created by Ms Xabregas that records this communication.

96    The giving of this notice is significant because cl 6 of Policy II – which includes cl 6(c)(ii) upon which the applicant relies – is expressed to apply only to legal costs incurred pursuing or defending allegations “which you first became aware of and tell us about in writing, during the period of insurance …”. The period of insurance referred to in cl 6 of Policy II is 1 July 2010 to 30 June 2011. Hence, the right of indemnity provided for by cl 6(c)(ii) of Policy II could not apply to the allegations of unlawful discrimination made by the applicant against Dr Jurd, Dr Wilson and Dr Lyndon that were the subject of notice given on 13 May 2010.

97    Under cl 5(b) of Policy II the applicant was entitled to indemnity in respect of defence costs incurred with the insurer’s consent for any investigation the subject of notice given to the insurer during the period of the policy. There is no suggestion in the evidence that MDANI failed to fulfil its obligations under this clause. In particular, there is no suggestion that it did not pay for the services of the experienced solicitors (HWL Ebsworth Lawyers) who represented the applicant in relation to the investigation conducted by Dr Drew and Ms Tawfiq for NSCCAHS.

98    The allegations of conflict of interest and breach of fiduciary duty are also misconceived. The solicitors who acted for the applicant did not also act for Dr Jurd. While it may be accepted that the applicant and Dr Jurd were both insured by MDANI, there is not the slightest evidence to suggest that the solicitors who acted for the applicant were in any sense conflicted by reason of that fact or that they did not act for the applicant with due care, skill and independence.

99    The Amended Statement of Claim does not raise any case against MDANI that is tenable. In my view, the applicant has had ample opportunity to plead any such case if she has one. In the circumstances, I am satisfied that the applicant has no tenable claim against MDANI and that her proceeding, as against MDANI, has no reasonable prospects of success.

100    MDANI is entitled to an order summarily dismissing all claims made against it.

ALLEGED VICTIMISATION BY DR JURD, DR WILSON AND DR LYNDON

101    The Amended Statement of Claim contains numerous allegations of acts of victimisation by Dr Jurd, Dr Wilson and Dr Lyndon. The legal basis upon which it is suggested that Dr Jurd, Dr Wilson or Dr Lyndon might be liable for any such acts (assuming they were committed by them) is entirely unclear. It seems to have been assumed by the applicant that the alleged acts of victimisation were unlawful on the basis that they constituted acts prohibited by subs 27(2) of the RD Act. This is in spite of the fact that the applicant did not lodge any complaint with the Commission until 3 January 2011. Most, if not all, of the alleged acts of victimisation are said by the applicant to have taken place well before then.

102    Further, it is apparent that, however imperfectly the allegations of victimisation have been pleaded, the applicant intends to, and does, assert that each of Dr Jurd, Dr Wilson and Dr Lyndon engaged in conduct of a highly improper kind that constitutes a criminal offence under the RD Act punishable by imprisonment.

103    In my view, none of the allegations of victimisation made against Dr Jurd, Dr Wilson and Dr Lyndon that are relied upon by the applicant should be permitted to go to trial unless clearly and distinctly pleaded. In particular, if the applicant wishes to rely upon subs 27(2) of the RD Act, it will be necessary for her to clearly specify in her pleading in relation to each of Dr Jurd, Dr Wilson and Dr Lyndon:

    what is the specific act of victimisation he is alleged to have committed (having regard to subs 27(2)(a)-(b));

    when, and in what circumstances, he is alleged to have committed the said act; and

    for what reason he is alleged to have committed the said act (having regard to subs 27(2)(e)-(g)).

104    It was submitted on behalf of Dr Lyndon that the allegation of victimisation made by the applicant against him amounted to an abuse of process. There is considerable force in this submission given that the acts of victimisation relied upon by the applicant appear to pre-date the lodgement of the applicant’s complaint against Dr Lyndon. I think the best course to take in relation to the victimisation allegations against Dr Lyndon is to give the applicant a further opportunity to re-plead her claim against him based upon subs 27(2) if she in fact wishes to maintain any of these allegations.

DISPOSITION

105    The proceeding as against the following parties is to be summarily dismissed:

    Dr Tomasic (the second respondent);

    Dr Chalk (the third respondent);

    Mr Peters (the fourth respondent);

    MDANI (the eighth respondent);

    The NSW Medical Council (the tenth respondent);

    Ramsay (the first named eleventh respondent);

    Vicki Taylor (the twelfth respondent); and

    HCCC (the thirteenth respondent)

The applicant must pay these respondents their costs of the proceeding.

106    As against all other respondents, the applicant will be required to serve a draft Amended Application and a draft Further Amended Statement of Claim in which:

(a)    the applicant re-pleads her claims against the fifth, sixth and ninth respondents for their alleged contraventions of s 9 and s 15 of the RD Act which were the subject of her written complaints to the Commission dated 3 January 2011 and 14 July 2011;

(b)    the applicant re-pleads her claims against the first and eleventh respondents in so far as it is or will be alleged that either of them is vicariously liable for any contravention of s 9 or s 15 of the RD Act by the fifth, sixth or ninth respondent;

(c)    the applicant re-pleads her claims against the seventh respondent in so far as it is or will be alleged:

(i)    that the seventh respondent is vicariously liable for any contravention of s 9 or s 15 of the RD Act by the fifth, sixth or ninth respondent;

(ii)    that the seventh respondent breached a term of the contract of employment between the seventh respondent and the applicant, or breached a common law or statutory duty owed by the seventh respondent to the applicant, by permitting any of the fifth, sixth or ninth respondents to:

    make false, misleading or otherwise improper allegations against the applicant in relation to her work as a Psychiatry Registrar at Northside Clinic;

    withdraw or procure the withdrawal by the seventh respondent of the applicant’s clinical privileges without proper or reasonable cause.

(d)    any allegation in the draft Further Amended Statement of Claim against any of the fifth, sixth or ninth respondents for any alleged contravention of s 27(2) of the RD Act is to be clearly and succinctly pleaded and include particulars of the matters referred to in paragraph [103] of the reasons for judgment published on 23 October 2013;

(e)    the draft Further Amended Statement of Claim is to comply, or substantially comply, with the requirements of r 16.02 and r 16.41 of the Federal Court Rules 2011 (Cth);

(f)    the Amended Application is to specify, in accordance with the prescribed form, the relief sought against each of the respondents and must not contain any allegation of fact or law.

107    The applicant will be given ample time to prepare her draft Amended Application and draft Further Amended Statement of claim which she will be required to serve by 14 February 2014.

108    I will hear from the applicant and the remaining respondents on the question whether the applicant should be given leave to file the proposed Amended Application and the proposed Further Amended Statement of Claim at the next directions hearing or, if necessary, on some other date fixed for that purpose.

109    The applicant must pay the following parties’ costs of their interlocutory applications on the basis that they were wholly or substantially successful in obtaining the orders they sought:

    RANZCP (the first respondent);

    Dr Wilson (the fifth respondent);

    Dr Jurd (the sixth respondent);

    State of NSW – NSLHD (the seventh respondent);

    Phiroan (the eleventh respondent).

110    Dr Lyndon (the ninth respondent) enjoyed partial success. I think the applicant should pay 75% of Dr Lyndon’s costs of his interlocutory application.

111    There will be orders accordingly.

Associate:

Dated:    23 October 2013