Federal Court of Australia

Pathmanathan v St John of God Healthcare Inc (No 2) [2021] FCA 928

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s interlocutory application of 30 July 2021 be dismissed.

2.    The Applicant’s interlocutory application of 6 August 2021 be dismissed.

3.    The trial dates of 30 August 2021 to 3 September 2021 be vacated.

4.    The proceeding be listed for a case management hearing on a date to be advised.

5.    Subject to Order 6, the costs of both the interlocutory applications be the Respondent’s costs in the cause.

6.    If either party wishes to submit for an alternative order to Order 5, they may file and serve written submissions limited to no more than 2 pages within 7 days of the publication of these reasons. The opposing party may file and serve any responsive submissions limited to no more than 2 pages within 7 days of service upon it or her.

7.    Any application made pursuant to Order 6 will be heard and determined on the papers.

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

REASONS FOR JUDGMENT

(Revised from the Transcript)

KERR J:

1    This is an interlocutory application that the Applicant have leave to attend and conduct the substantive hearing of her application remotely via videoconference.

2    Conditional on the success or otherwise of that application, the Applicant has a subsequent interlocutory application which was filed on 6 August 2921 as to arrangements that might best facilitate such a hearing. For the reasons that follow, the primary interlocutory application is to be refused.

3    The parties are in agreement that in consequence the hearing must be postponed. I will accordingly order that the hearing listed for five days from 30 August to 3 September 2021 be vacated. Unless agreement can reached as to consequential steps, the Court will schedule a case management hearing to hear further from the parties prior to making contingent orders for the future conduct of the proceeding.

Background

4    The Applicant, Dr Pathmanathan, is an anaesthesiologist, a specialist medical practitioner. She is a female of Sri Lankan heritage. By contrast to many of her peers having similar specialist qualifications, she is relatively young. In late 2017 the Applicant submitted complaints to the Australian Human Rights Commission (the Commission) against, inter-alia, the Respondent St John of God Healthcare Inc, which operates a hospital in Perth. The Applicant’s complaints as recorded by the Commission involved allegations that the Applicant had been discriminated against by reason of her race, ethnicity and national origin, age, and trade union activity. She also asserted she had been victimised.

5    The central aspect of the Applicant’s complaints to the Commission (albeit she submits her complaints were not confined to that circumstance) went to what the Applicant claimed had been the way she had been treated, in contradistinction to other staff, in respect of an incident which had occurred in November 2014. It is uncontentious that that incident occurred in the course of the Applicant providing specialist medical assistance to the surgical team and during a surgical procedure. The Applicant’s complaints had been terminated by the Commission pursuant to s 46PH(1)(b) of the Australian Human Rights Commission Act 1986 (Cth) (the Act) having regard to the delay in the Applicant having made those complaints and the concern on the Commission’s part on the impact of that delay on the ability of the Commission to make a fair inquiry into the Applicant’s complaints.

6    Section 46PO of the Act had then precluded the Applicant from bringing an application based on those complaints before the Court unless leave was obtained. The Applicant obtained such leave; Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460 (Pathmanathan). Following the appointment of the then trial judge to the High Court of Australia that matter was docketed to me.

7    As the reasons in Pathmanathan reveal, by the time the Applicant had brought her proceedings for leave she was living overseas. The Applicant then was, and has remained, self-represented. Leave having been obtained, arrangements were made by the Court to allow the Applicant to participate in case management hearings remotely.

8    It is convenient to refer to certain relevant orders made by the Court in anticipation of the trial of these proceedings. All were made by consent save that of 4 May 2021 which was made when the Applicant failed to appear.

9    On 8 December 2020 the Applicant was ordered to file and serve a list of witnesses she anticipated calling at trial on or before 29 January 2021. The trial was given a provisional hearing date for 5 days from 30 August 2021. On 12 March 2021 the time provided for the Applicant to file and serve her list of witnesses was extended to 11 April 2021.

10    On 4 May 2021 the Court confirmed the earlier provisional trial dates. Leave was given to the Applicant and the Respondent to make an application for their identified lists of witnesses to adduce evidence by video link. The Applicant’s list of proposed witnesses approved on 20 May 2021 extended to some 44 persons. The Respondent’s list extended to 6 persons. Consistently with the position then advanced by both parties that a fair trial would require the Applicant to attend in person, “for avoidance of doubt” the 4 May 2021 orders expressly excluded leave for the Applicant and the Respondent to appear at the hearing by video link.

11    It is against that background that the present interlocutory application has been advanced. The Applicant’s reasons in support were set out in her application as follows:

a.    The Applicant is overseas at present and international travel of 2 to 3 days necessary to get back to Australia at present is risky to her health due to the COVID- 19 pandemic and risk of contracting new variants.

b.    Further, with COVID pandemic events ongoing, it is reasonably foreseeable that travel may be prohibited due to international and state border restrictions compounded by local lockdowns.

c.    The Applicant may need to quarantine upon arrival in Australia and outbreaks have occurred in these settings thus a further risk of COVID transmission exists.

d.    Further to health risks, the trip will cost the Applicant many thousands of dollars >$10000 and as the Applicant is not earning an income this is too great an expense to bear.

e.    Further COVID related lockdowns in Melbourne are reasonably likely to occur and may force cancellation of an in-person hearing in any event.

f.    Many of the witnesses, importantly, key witnesses put forth by SJGHC will be in attendance remotely. Thus, even if the Applicant is to attend in person, most witnesses from both the Respondent and Applicants witness list will be remote.

g.    The Applicant would like to seek leave to have a Melbourne resident or her family member attend in person should the need arise to re-enact events in person to enhance the Court's understanding.

h.    To avoid uncertainty and enable adequate preparation for the hearing, given current global circumstances the Applicant considers it is in the best interest of all parties to hold the hearing in full remote mode.

12    The Respondent filed short written submissions in opposition to that application. The Respondent inter-alia noted that the Court had consented on the basis that the Applicant would be prejudiced in a fair trial if not permitted to attend in person. The Respondent was concerned that if the Applicant failed in successfully conducting the trial remotely the Respondent would be facing an appeal. It submitted that in any event if there might be prejudice to the Applicant there would also be prejudice to the Respondent. The Respondent submitted the past history of the attendances of the Respondent in case management hearings had involved difficulties with the video and expressed concern about the “workability” of a trial where the Applicant had indicated she intended to call numerous witnesses involving a need for significant cross-examination. The Respondent’s written submissions which were sent to the Court on the morning of 4 August 2021 noted that Victoria was not then currently in lockdown. They noted that the Applicant had not filed or served any material evidencing the arrangements she had made to attend in person.

13    The latter observation as at that time was undoubtedly correct. Notwithstanding correspondence from my Associate in which the Applicant had been advised that any such application should be supported by an affidavit setting out the basis upon which the application was advanced the Applicant (and advising that in light of what might be difficulties in formal compliance with such an affidavit being affirmed or sworn to by the overseas Applicant an unsworn affidavit would be accepted for filing and could be deposed to in the hearing) no such evidence was given. In oral submissions the highest the Applicant took the matter was to state (unsworn) that she had sought to make a booking but the flight had been cancelled and she had not further pursued the matter. I accept that the Applicant has not established by evidence the difficulties she claims to stand in her way of attending—including the speculative statements she advances as to the cost of any flights.

14    However in oral submissions counsel for the Respondent, Ms Pennington, accepted that the Court was entitled to proceed on the basis that any travel (assuming it could be arranged) to Australia would require the Applicant to spend at least a 14 days in quarantine. Ms Pennington also accepted that the present upsurge in new variants of the COVID-19 virus meant the position was not the same as it might earlier have appeared and that the risk of a future more strict lock-down in Victoria could not be dismissed. In that context Ms Pennington did not ask the Court to dismiss as unrealistic the Applicant’s fear that if she had to sit on a plane with other passengers who might have COVID-19 she might herself become sick although I interpolate that the Applicant later indicated that she is fully vaccinated which might go some way to ameliorating the risk of serious health complications were she to travel.

15    Ms Pennington submitted that a fair trial was not just a trial that was fair for one party and that the Respondent had always taken the position that it was entitled to have the Applicant present for cross-examination.

16    In her oral submissions the Applicant disputed that her presence overseas both as Applicant and witness would be productive of difficulties in the management of the trial that Ms Pennington had anticipated. She responded to questions addressed to her by the Court as follows:

HIS HONOUR: Yes. All right. Well, as to the pragmatics, Dr Pathmanathan, if I can – might return to you. How do you anticipate managing a trial remotely? It’s one thing to give your evidence remotely, but if you are also acting as the manager of the trial, if I can put it that way, in circumstances in which you have sought to subpoena, I think, 24 witnesses, and then have raised the prospect of seeking leave to subpoena some more, the 24 that the court has given leave for subpoenas to – to issue, are those that were in the list that you provided earlier, there are other witnesses I understand you would propose to call. Now, you may not need to subpoena, but there may be witnesses who have agreed to appear voluntarily. But how do you propose to manage remotely, the process of calling witnesses, managing the practicalities of a trial?

DR PATHMANATHAN: Yes, your Honour. I would do that much – it might actually be easier if it’s all remote, rather than partly in person, partly in remote. I say that because I would manage it the same way one would have to manage it in court, in that I would have my family assist me to manage this and I think Ms Pennington made two comments, one was about the technology and it dropping out, and the pragmatics of managing this case was something that you raised, your Honour. So in terms of the technology, I would like to respond and say that, you know, for the five day hearing we will have, obviously you saw how quickly I could put up a backup system in place. For the five-day hearing, we will of course be prepared with multiple – you know, multiple backup systems and certainly as an anaesthesiologist, that’s something that I’ve always had practice of doing, where you have plan A, B and C in place, so I don’t see technology being a problem.

I see that – and Ms Pennington has already told the court that she has managed to run a Coroner’s case at least partly in remote, so I – I’m certain that the court and Ms Pennington are very well equipped to handle, you know, running the five-day hearing in – fully remotely. And with my presence, so in terms of managing, we would manage it just as we would any other remote hearing. We will have to message the – we will prepare all the witnesses, we will schedule them, as closely as possible to the days and time and we will be in close communication with hem so that they do appear as and when they can, and we will practice with them so that they also have their technology appropriately planned and equipped for the hearing…

17    As to the additional witnesses she would seek to call, including expert witnesses whose proofs she had not provided, the Applicant submitted she could provide all of the necessary information to the Respondent within a short period and the Respondent would have ample time to prepare its case in the four weeks between that and the trial. I interpolate that having regard to other oral submissions the Applicant made I am sceptical of that submission. I return to those matters and the basis of my doubts regarding that proposition later in these reasons.

18    In respect of potential prejudice to the Respondent in her not being available to be cross-examined in person the Applicant submitted that where all of the other witnesses were scheduled to give evidence remotely, it would be potentially an additional act of discrimination against her if she alone would be required to give her evidence in person.

Consideration

19    After hearing submissions from the parties on 4 August 2021 I adjourned the hearing of the Applicant’s interlocutory application until Friday 6 August to allow the Court to consider the parties’ respective contentions and to permit the parties time to consider whether any agreed position might be reached. In the intervening period Victoria went into another 7 day lock-down.

20    On 6 August 2021 at the commencement of the resumption of the hearing I received as evidence affidavits from the Applicant and Ms Pennington. I have taken those materials into account in my assessment of the parties’ positions.

21    I may have reached the same conclusion in any event but the circumstance that Victoria has again gone into a 7 day lock-down reinforces that I am entitled to, and should, accept that the reasons the Applicant advances to explain her reluctance to travel to Australia to be present at the trial are valid. For the Applicant to do so would involve a minimum a 14 day quarantine and some, albeit difficult to quantify, additional risks to her health by reason of being with other travellers on an aircraft in close confines. The new variant of the virus, its transmissibility, and the risks it imposes have become obvious only relatively recently. That the Applicant now takes the position that she has become reluctant to travel is not inconsistent with her earlier desire to do so. In the end I do not take Ms Pennington to gainsay that proposition. I proceed on the basis that the risks the Applicant faces are real and are of a heighted significance. They justify hesitation on the Applicant’s part to fly to Australia notwithstanding the significance of this proceeding to her.

22    Moreover, now less than a month out from the scheduled start of the trial I cannot discount that even if the Applicant was to travel and was to undergo those risks there would be a not insignificant prospect that the Applicant might not be permitted to attend the Court in person if the current Delta version of the virus remains uncontrolled or, if controlled, was to break out again and provoke another lockdown in Victoria. In the challenging circumstances now prevailing, in my opinion the nub of the issue that confronts the Court becomes not whether the Applicant is to be compelled to submit to those risks and in the alternative forfeit her trial but whether that trial is to be permitted to take place as scheduled with the Applicant attending remotely not only as a self-represented advocate but also as a key witness. If the answer to that question is no, then, undesirable as it may be, it is inevitable that the trial dates will have to be vacated.

23    In evaluating the realistic options open to do justice in this case I am unconvinced by the Applicant’s submission that the Respondent’s interest in having her available in person for cross-examination, when the other witnesses who have already been advised will be called will be able to give their evidence remotely, should be viewed by the Court as an additional instance of discrimination on the Respondent’s part.

24    Each of the Applicant and the Respondent have consistently asserted a common desire to have this proceeding heard and determined without delay. I see no reason to doubt those assertions. On the Respondent’s part such a disposition appears consistent with it not having put in issue the very brief outlines of evidence for the very considerable number of witnesses the Applicant had earlier given notice of her intention to call. Rather than prolong interlocutory skirmishing the Respondent appears to have been content to allow that evidence to be called and to respond to it as circumstances required at trial. On the Applicant’s part it is consistent with her present determination to have the trial proceed notwithstanding her earlier intention of appearing in person on the understanding that that would be to her benefit.

25    The forensic decisions that were made by each of the Applicant and the Respondent earlier in May to consent to the listed witnesses of the other giving their evidence by video link are entirely explicable in that context—particularly in circumstances in which many of the relevant witnesses are busy medical practitioners residing interstate. I reject that the Respondent’s agreement to allowing those witnesses to give their evidence by video-link discredits its reluctance to agree to that in the case of the Applicant. The interest the Respondent has in testing the credit of the Applicant stands in a different position to that of witnesses generally. I accept that as a result of the more frequent necessary use of remote technology it is much less common for it to be accepted that to receive critical evidence in such a manner inherently gives rise to a denial of procedural fairness, but where credit is central, as it has not been disputed to be in this case, that it may involve some disadvantage to an opponent is not to be dismissed as immaterial.

26    Had this case been fully prepared and ready for trial with all arrangements in place, in the balance, such a disadvantage might have had to be accepted by the Respondent—but such a case is not this case.

27    Added to the disadvantage of the Respondent not being able to have the Applicant available in person for cross examination are the circumstances that:

(a)    the trial is likely to be prolonged by the fact that the technology availed of by the Applicant in the past has not proved stable (as was instanced, albeit quickly restored in the course of the hearing of the interlocutory application itself);

(b)    the Applicant is yet to serve subpoenas on the 30 witnesses for whom leave to issue subpoenas has been granted (an application was filed on 26 July 2021 but the Registry had not yet been able to provide sealed copies for service to the Applicant); and

(c)    the Applicant has indicated, in the teeth of the trial, as detailed during the interlocutory hearing that she will be seeking leave not only to rely on a very significant number of additional witnesses she had not earlier given notice of to the Respondent but also to adduce expert evidence from witnesses in respect of whom no proof of evidence compliant with GPN-EXPT has yet been provided.

28    The Applicant asked for “flexibility” in those latter regards. The following exchange then took place:

DR PATHMANATHAN: I do ask you for your flexibility in this, your Honour.

HIS HONOUR: Well, I have no idea what I am being flexible about. What are these people going to say? Who are they and what are they going to say?

DR PATHMANATHAN: Shall I run through the list?

HIS HONOUR: Well, the additional ones, not the ones that you have been granted leave to subpoena. Now

DR PATHMANATHAN: Yes.

HIS HONOUR: the other question is can you effectively provide for those persons to be subpoenaed within the timeframe and to give them sufficient notice for the trial. That’s the practical matter that you just have to deal with. But who are these additional people and what are they supposed to say?

DR PATHMANATHAN: Yes. So Dr Robyn Leake was a gynaecologist that I anaesthetised for and she was under investigation both by a hospital and by AHPRA, so she will speak to the process that she was put under, so she speaks directly to the process the hospital and AHPRA, you know, use in investigating and making findings against doctors, and it’s certainly a different process than with my experience.

HIS HONOUR: But what

DR PATHMANATHAN: Dr Arif Valibhoy

HIS HONOUR: Sorry, but what relevance is that to this proceeding?

DR PATHMANATHAN: So in terms of discrimination, we want to make the point that I was treated differently, so I was treated differently on the basis of the various, you know, race, age, gender – or, I should say, sex – discrimination or disability. So we will make the point in the hearing that Dr Leake was treated differently to I and we will adduce as to why.

Same with Dr Arif Valibhoy. He was actually suspended by St John of God themselves and went through an investigation process. He had independent expert opinions provided from interstate. Both of them did, so both of them were availed of that opportunity before any suspension was formalised, and certainly before an AHPRA investigation took place. And so they are both practicing; they haven’t been suspended or terminated. Certainly, nobody said to them, “This is the end of your career.” So they will provide direct evidence as to the process that these hospitals follow and AHPRA follows and why I was treated – and you will come to understand, yourself, why I was treated differently.

Nick Cooper, I think, is – apologies that we had Hayley Cormann listed, but Nick Cooper is actually a partner of Clayton Utz, and Hayley Cormann has now moved on to be a barrister in chambers at Quayside, but Nick Cooper remains at Clayton Utz, so we’re going to call upon him. And he will speak to the instructions that he received from MDA, because the communication that was had between St John’s and Nick Cooper and MDA and AHPRA are, you know, instrumental in laying our case.

And then the others: Eric Lowenstein and Yeni Cariolo. What happened after I was suspended and after MDA, you know, colluded with St John’s was that I could no longer get medical indemnity insurance. Now, this is very problematic for a doctor. So if you can’t get indemnity insurance, you can’t practice. So there’s – I could not – there’s multiple reasons for why I was hampered in the ability to regain my practice, one of which is the inability to get insurance. Now, this is obviously quite detrimental to a medical practitioner’s career. So I went to Mr Lowenstein to ask him to help broker insurance and he was unable to do so, and it was directly cited – it was due to the previous occurrences with St John’s and AHPRA. Yeni Cariolo is the same. She said, you know, “Where the previous issued had occurred, Avant Insurance,” a big insurer, “cannot provide you insurance or cannot help you with any claims.”

And then Alexandra Rothman. I had, you know, as a high-earning, high-income anaesthesiologist, I had income protection and trauma and whatnot protection – insurance – indemnity – to cover me should I have a loss of income. Unfortunately, I couldn’t make any claims on that, so I became instantly, overnight into the poverty – low socio-economic level – band, because I could not even claim on the insurance that I had paid into, and Alexandra Rothman managed that.

John Terry-Short is from Commonwealth Bank, so these go to damages. You know, he managed the private wealth section at Commonwealth Bank and he was my private banker. But obviously, after I lost my income, I lost my wealth. And he will speak to, you know, what – the damages, again.

Larissa Johnstone is a lawyer at St John’s. Quite interesting – she carried on the narrative of mental health impairment. In 2017, when I asked the privacy commissioner to assist me in getting documents from St John’s, Larissa Johnstone emailed the privacy commissioner – I can find you the email which the privacy commissioner sent to me – the Australian Government privacy commissioner – and Larissa Johnstone stated that the reason why they did not want to disclose documents is because I was emotionally unstable and I might be a threat or I might be, you know, some sort of – I think she was alluding to a personality disorder or some sort of mental health impairment. And this is a narrative that was constructed by St John’s, by MDA and the insurers and lawyers that were helping St John’s, and this was a narrative that Larissa Johnstone was carrying on in 2017.

Now, this was provided to Kenny J, because St John’s refused to reply to our service to attend court for the first hearing and they pretty much ignored it; they pretended they had not come across it. So it was laid bare in those emails to the privacy commissioner that was forwarded to me by the privacy commissioner that, in fact, St John’s were very well aware of the court case before them and that they were just ignoring it, and that they were claiming to not – they refused to give documents at that stage, because this narrative – imputation of a disability that I do not and did not have.

Karen Gonzales is the accreditation administrator, so she sits with Dr Joe Frijulia, the likes of the CEO, and she helps with the administration of accreditation. Certainly, she was one of the corresponders for my suspension and accreditation – and many other doctors. So I presume we will have to subpoena her. I presume she will have key information as to what was said in the corridors of St John’s against me, because a lot of information, as you know – even though a lot was documented because of the iron infusion – blessing in disguise, as I say – even though a lot was documented against me, I’m sure there was a lot of corridor conversation that I was not privy to and that they have not disclosed.

Now, Dr Greg McGrath, he comes from Healthscope. He’s director of medical services at Healthscope, so Ms Pennington may be aware. He’s quite prominent in WA. And when I first told him about the iron infusion, he did not see anything wrong with it. I maintained my – he didn’t see what was wrongful about it. He felt sorry for me and he said, “I hope you get better. Come back to Healthscope when you’re feeling better.” But obviously, through the interference with St John’s and this narrative of some sort of health impairment and speaking of mental health impairment that was being imputed – I mean, how you go from an iron infusion to a mental health impairment is what perplexed the likes of Dr Greg McGrath and other people at St John’s.

And I think he will speak to, you know, what he thinks of the iron infusion and how Healthscope handled my accreditation, and then how they had to handle my accreditation. I was – I had a lifetime ban from Healthscope after all of the carrying on by St – imputations of a mental health impairment – which I do not have; I say “imputation” very clearly. And it’s a grave thing to do, because obviously, you shouldn’t even discriminate, so if you do think someone has got that type of disability, you shouldn’t be suspending them. You should be putting in place safeguards to protect them, not to suspend them. But obviously, that did not happen. This was imputed. So Dr Greg McGrath will be talking about that.

Dr Paul Quinn was in the operating theatre next-door to me at the time of the iron infusion. He also called me to suggest that I open up a cosmetic surgery, because he could see that I would not be returning to practice, so he probably has – not probably, he definitely has the information as to the, you know – what’s the word – behind – you know, the rumours and the gossip and the interference and the phone calls that were being made behind the scenes. And he was in the operating theatre right next-door at the time of the iron infusion.

Ms Wendy Brown is an independent expert, effectively. She’s a bariatric surgeon in Melbourne. She’s very well-regarded. And she will speak to the credibility of bariatric surgeons advising people on nutrition and giving an iron infusion, which is what happened with the bariatric surgeon, Dr Chandraratna, and the surgical assistant, Dr Janet Barry, in the operating theatre that day. They advised me to take the infusion at 10 am in the morning, the iron infusion actually happened at 3 pm after about five hours of me saying “are you sure”. We’ve got Jane McGrath, who was my practice manager at Perth anaesthesia group, and she has now produced a blacklist where I was being harassed in 2013, and there’s effectively a blacklist being made, a group of doctors running around trying to disable my career.

So she has got this information. Peter Hodges is a partner at Mills Oakley, and I went to him to assist me in the final stages of – my father had a heart attack so I needed help in the final stages of my hearing with AHPRA in December 2015, and subsequently – he is the one who helped release the solicitors’ files. So that’s where I got much of the information, and I saw all these emails of correspondence between St John’s and the solicitors and MDA.

I was unaware that this was all happening behind my back in 2014, 2015. I thought it was a level playing ground, but obviously it wasn’t. It was all tilted in favour of – it was all a construct of St John of God Healthcare. So Peter Hodges gave me those solicitors’ files and he will speak to his – you know, his estimations there. Dr Nedra Van Dreisen and – provided a reference. She was at St John, she provided a reference. This is to my credibility and my – as you know, my performance, my conduct and my health was attacked by St John of God. So Dr Nedra Van Dreisen provided a reference to state that, you know, I was a cardiac anaesthesiologist, so not one for the faint hearted, and also that I was a very gifted anaesthesiologist despite that my career was ruined. And Prof David is an eminent – he’s a brother of Fiona Ward, he’s an eminent orthopaedic surgeon and I was his private anaesthesiologist, and he provides a reference as well as to my ability to provide not only anaesthesia but also my ability to work within the team in an operating theatre.

So I think this all lends to that credibility, the test that I will be put through, I guess. So it’s probably to help respond to the test and the assessment of my credibility. And finally, Dr Arghavan Salles and Dr Kim Steele would be the conclave on providing expert evidence on discrimination. So Dr Arghavan Salles is a gender discrimination or diversity officer at Stanford University and Dr Kim Steele is from John Hopkins University, and she has been through what she calls a playbook. So when I told her my story she said “that’s the same playbook that I experienced”. And she will talk to the case that she was part of, and her case was settled by John Hopkins University. But it’s a practice in medicine, unfortunately, that, you know, probably being – I don’t know if these doctors speak to each other overseas as well, but they seem to have a playbook that they practice from to destroy people’s careers. They destroy the careers of anaesthesiologists or doctors they don’t like on the basis of their colour, gender, age, whatever reason they find to not like someone, or prejudice against someone. So that’s the list of witnesses.

HIS HONOUR: In addition to those that you have already indicated you intend to subpoena?

DR PATHMANATHAN: Yes.

HIS HONOUR: Well, it occurs to me that essentially you seek to – you will be seeking to adduce evidence from a raft of persons that you’ve not previously given notice of.

DR PATHMANATHAN: As I said, your Honour, this was in preparing in further detail for the trial that we thought that these witnesses would be material and would be helpful to the court and your Honour in hearing this matter.

HIS HONOUR: All right.

MS PENNINGTON: Your Honour, if I might also just say that the matters to which these witnesses are intended to depose aren’t matters which arise on the face of the applicant’s chronology which was put before the court I think in around February this year. So issues pertaining to medical indemnity insurance and intellectual opinion on the basis or the way in which discrimination occurs in the workplace are simply not matters that the respondent has been on notice of.

29    On 5 August 2021 the Applicant communicated via e-mail to my Associate that she also proposed adducing expert evidence from seven witnesses. No proofs in a form compliant with GPN-EXPT have been filed or served. Some of those 7 witnesses and what they might opine had been referred to by the Applicant orally the previous day (for example Dr Kim Steele) and some (but not all) have provided earlier reports which might have been capable of being updated relatively quickly and provided in a form consistent with the practice note but plainly the position with respect to what the Applicant proposes clearly remains a work in progress and the Court has no confidence that other applications will not be made. Thus the Applicant in oral submissions indicated that she proposes calling Ms Wendy Brown, a bariatric surgeon, as effectively an independent expert: however Ms Brown’s name does not appear on the list of 7 proposed experts that the Applicant later sent via my Associate. Nor does it appear in the list later included in an affidavit.

30    The extent and nature of the additional evidence beyond that which the Applicant has foreshadowed and of which the Respondent has had virtually no notice notwithstanding the orders of the Court as have been referred to at [8] renders any prospect that a trial conducted on such premises, however managed, might be fair to the Respondent completely unrealistic. The trial that the Applicant now proposes to conduct remotely is not the trial she has put the Respondent on notice of. Some dispensation may be due to a self-represented litigant if they misunderstand their responsibly to comply with case management orders but the degree to which “flexibility” is sought, after a failure to comply with the orders of the Court requiring the Applicant to give notice of the witnesses the Applicant proposed to call (with a synopsis of their evidence) is well beyond that which would be consistent with the interests of justice to require the Respondent to accommodate at least in the short period between the present and the scheduled trial date.

31    Having addressed the above considerations I do not think it necessary to focus at any length upon the practical difficulties of trial management otherwise inherent in the prospect of a self-represented litigant attempting the challenging task of seeking to manage the conduct of a long trial remotely. The Applicant appears to recognise some aspects of this herself. In her interlocutory application the Applicant has stated that she would want to have a Melbourne resident or her family member attend the Court in person should the need arise to re-enact events in person to enhance the Court's understanding but the implementation of any such mechanism itself would give rise to significant procedural questions.

32    I am satisfied that the prospect of the trial being concluded in a timely way would be substantially reduced if the course sought by the Applicant, at least in the features of this proceeding, were to be approved.

33    I note that in anticipation that such concerns might prove an obstacle to the granting of the leave for the Applicant to appear remotely, after the proceedings were adjourned on 4 August 2021, the Applicant suggested certain proposed consent orders to the Respondent in which she proposed that she would submit affidavits for each (I interpolate, additional) witness and would turn over all Expert Reports made in anticipation of the hearing within the next 10 days. That was advanced on the basis that that would provide adequate opportunity for the Respondent to address the case the Applicant intended to advance. It is uncontentious that consent was not forthcoming. Accordingly on the morning of 6 August 2021 the Applicant filed a further Interlocutory Application seeking orders in respect of the additional evidence the Applicant would seek to lead and the means by which any prejudice to the Respondent might be ameliorated or overcome. That subsequent Interlocutory Application is in the following terms:

Interlocutory orders sought

1.    Leave for the Applicant to list and hear expert witnesses as per filing in Form 1 – Expert Witnesses and Management

a.    Dr Nick Kennedy (report filed in Applicant’s prior Affidavits 2018 / 2019)

b.    Prof Jan Mulier (report filed in Applicant’s prior Affidavits 2018 / 2019)

c.    Dr Ashish Sinha (report filed in Applicant’s prior Affidavits 2018 / 2019)

  d.    Dr Michael Kerr (Affidavit of Dr Kerr filed in 2019)

  e.    Dr Nick Ford (report filed in prior Affidavits 2018 / 2019)

  f.    Dr Kim Steele (pending report)

  g.    Dr Arghavan Salles (pending report)

2.    Leave for the Applicant to add additional witnesses to her list as per filing in Form 1 –Additional Witness List as per Justice Kerr Case Management 4th August 2021. All witnesses on this list were provided prior to the case management hearing on 4th August 2021.

3.    Provide orders for both Applicant and Respondent to work with the court Registrar to timetable the trial and witnesses efficiently.

4.    We note his Honor’s concern of time it may take to adduce evidence from all the witnesses.

a.    In response, the Applicant qualifies that as a Specialist Anaesthesiologist she is familiar with adducing information in 5-to-10-minute consultations and further has experience at running 25-person 5hr operating theatre lists.

b.    While it may be said the Applicant is not an experienced lawyer, the Applicant is familiar with the evidence, much of which has already been or is otherwise documented thus reducing time spent disputing the facts.

c.    In so far as the Respondent needs time to examine the witnesses, they too have had access to ALL the documents since 2018, have litigation experience and expertise to achieve the efficiencies necessary.

d.    Further, in the Court book to be provided and as per Form 1 – Outline of Applicant’s Court book, it is evident that the Applicant plans to have all their witnesses heard within time allowed the Respondent time to examine their own and the Applicant’s witnesses.

e.    Therefore, Applicant is confident in both Parties' abilities to comply with time constraints.

5.    We kindly ask the Court to afford leave to proceed on 30th August for the 5-day trial with the Applicant and all witnesses attending remotely via audio visual conference.

34    I accept that at least one aspect of the Applicant’s proposed orders, specifically that the timetabling of the trial might be submitted to a Registrar of the Court to settle, had earlier been raised by the Court as a potential mechanism whereby the procedural and management difficulties of a trial to be conducted remotely might be minimised or obviated. However that had been advanced as a possibility in the context of the Court's then understanding that only a limited number of additional witnesses, those for whom subpoenas had been sought but who had not been on the list of witnesses earlier advised to the Court and the Respondent were proposed to be called. In the event it has transpired that the number of additional witnesses proposed to be called is significantly more extensive and includes a number of experts for whom proofs of evidence in a form required by GPN-EXPT have not been obtained let alone provided to the Respondent.

35    In light of the Applicant's proposed orders (but prior to the Applicant filing her subsequent Interlocutory Application) Ms Pennington filed further submissions. They are in the form of an affidavit, Exhibit R1, sworn on 6 August 2021 which was read in the hearing. I need not refer to it in detail. It is sufficient for these purposes that I refer to paragraphs 30 and 32-37 of that affidavit which are as follows:

30.     In circumstances where the Applicant has not provided any explanation for her late application, there is simply insufficient time for the Respondent to adequately respond to any expert evidence. In the absence of any evidence from the Applicant that she should be allowed to proceed to trial on 30 August 2021 with that evidence - for example, any evidence of the need for expedition - it would be prejudicial for the Court to compel the Respondent to do so.

31.     …

32.     Insofar as the lay witnesses are concerned, the Applicant's application for leave to add 16 witnesses is symptomatic of the Applicant having failed to comply with the Court Orders made on 8 December 2020.

 33.     The lay witnesses include:

(a)     witnesses from the Applicant's former medical defence organisation;

(b)     witnesses from the Applicant's former solicitors;

(c)     unknown persons who have also been the subject of disciplinary action;

(d)     representations of various other medical defence organisations;

(e)     other witnesses who, if permitted to give evidence, would likely be called to give opinion evidence, not evidence of fact;

(f)     witnesses who intend to provide character references.

34.     If granted leave, the Applicant will be calling an additional 23 witnesses. That is, in addition to the proposed witness list she filed on 11 April 2021 which does not specifically identify all witnesses the Applicant proposes to call, listing some by "group" but names in excess of 50 individuals. Thus, the Applicant proposes to call around 73 witnesses.

35.     The additional proposed witnesses, and the witnesses identified in her list of 11 April 2021, make clear that the Applicant does not intend to limit her claim to the iron infusion incident. While the Applicant has the right to bring her claim in the manner she sees fit, within the parameters of the Rules of the Court, the requirement of procedural fairness, expediency and efficiency means that whether she is self-represented or not she must identify, with sufficient particularity, the case she intends to bring.

36.     If the trial proceeds with 50, or indeed 73 witnesses from the Applicant, it is impossible to contemplate that it could be completed within the current allocation of 5 days. The Respondent itself has 7 witnesses (albeit there is overlap with the Applicant's list) and a bare examination in chief of those witnesses will, I anticipate, extend to at least 2 days.

37.     Moreover, I anticipate that the Respondent will object to any submissions, or evidence advanced, on behalf of the Applicant in respect of matters which extend beyond what the Respondent understands to be the Applicant's case. This is likely to cause significant delay in the running of the trial.

36    I accept those submissions. It is greatly to be regretted that the trial dates must be vacated but it would be entirely unfair to the Respondent for the Court to accede to the course the Applicant proposes as would permit her to conduct the trial remotely as she would wish it to be conducted when scheduled.

37    For the above reasons I will dismiss the Applicant's application for leave to conduct the trial remotely. I will order that the trial dates be vacated. Having regard to those conclusions the Applicant's contingent Interlocutory Application of 6 August 2021 advanced on that rejected premise is also to be dismissed. The Court will schedule a case management hearing on a date to be advised to address all contingent issues relating to the future management of this proceeding to trial.

38    Having regard to the external events which have impacted on these proceedings I am conditionally minded to accept that an application by the Applicant to respond to the risk of travel to attend a hearing in Melbourne during the COVID-19 crisis was to be expected, if not inevitable. Nonetheless the two Interlocutory Applications she has advanced have been dismissed. I am conditionally of the view that in the balance the Court should order that the costs of both proceedings be the Respondent’s costs in the cause. That means that if the Respondent ultimately succeeds in resisting the Applicant's substantive application it will recover its costs, but if otherwise no liability for costs on will fall on the Applicant. If either party wishes to submit for alternative orders they may do so by filing and serving written submissions limited to no more than 2 pages within 7 days of the publication of these reasons. If such an application is made the opposing party may file and serve any responsive submissions, limited to 2 pages within 7 days of service upon it or her. The Court will hear and determine any such application on the papers.

Associate:

Dated:    9 August 2021