Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital)

1. [1]

   GLEESON JA: This appeal concerns a claim for damages by a medical practitioner against a Health District and a recruitment company which arranged the placement of the medical practitioner with the Health District to provide locum services as a visiting medical officer (VMO).

2. [2]

   As to parties, the appellant, Dr Sujatha Chandrasekaran, is a qualified medical practitioner and specialist psychiatrist. The first respondent is the Western Sydney Local Health District (the Health District). It operates several hospitals at various locations, including at Blacktown and Westmead. The Westmead hospital campus comprises: (i) Westmead Hospital, a comprehensive public general hospital, (ii) The Children’s Hospital, and (iii) Cumberland Hospital, a public psychiatric hospital. Redbank Acute Adolescent Unit (Redbank House) is a unit of Westmead Hospital which provides an inpatient facility that cares for patients who are children and adolescents. The second respondent, Charterhouse Medical Pty Ltd (Charterhouse), is an international recruitment company whose business included the recruitment of medical practitioners.

3. [3]

   In December 2017, Charterhouse arranged a placement for the appellant with the Health District for the provision of locum services as a VMO psychiatrist at Redbank House. At all material times Dr Ashwini Padhi was the clinical director of Redbank House. The short-term placement was for the period 27 December 2017 to 2 March 2018. It came to an end on 15 January 2018 in the circumstances described below.

4. [4]

   In June 2018, the appellant commenced proceedings against the Health District and Charterhouse. The claims which were ultimately pressed against the Health District were for alleged misleading or deceptive conduct, breach of contract, breach of confidence and injurious falsehood. The claims pressed against Charterhouse were for alleged misleading or deceptive conduct and injurious falsehood.

5. [5]

   The appellant was represented at the trial by counsel. The hearing was initially fixed for five days. The hearing was protracted and occupied some 19 days between December 2019 and July 2020. In closing submissions, the appellant claimed damages of $57,005.54 for the balance of the fixed term of her contract, past economic loss from 4 March 2019 of $868,989, future economic loss from 4 December 2019 of $1,472,170, together with out-of-pocket expenses, general damages/non-economic loss and aggravated damages.

6. [6]

   After judgment had been reserved, the appellant sought to re-open her case by notice of motion filed 16 December 2020. That application was dismissed on 12 March 2021.

7. [7]

   On 29 July 2021, the primary judge (Button J) rejected all claims and entered judgment for the Health District and Charterhouse: Chandrasekaran v Western Sydney Local Health District [2021] NSWSC 920 (the principal judgment). On 16 December 2021, the primary judge made the following costs orders in favour of the Health District and Charterhouse:

8. [8]

   By her appeal the appellant challenges the whole of the decision below. The appellant was unrepresented in this Court. She sought leave to adduce further evidence on appeal. The Court indicated that it would deal with that application in its reasons for judgment. For the reasons set out below, the appeal should be allowed in part, in relation to the breach of contract claim, however, the appellant failed to prove that she suffered any actual loss. The appellant is entitled to an award of nominal damages in the amount of $100 for the breach of contract which has been established. The application to adduce further evidence on appeal should be refused.

The parties and the contractual relationships

1. [9]

   There were several different agreements between the parties. The appellant and Charterhouse entered a written agreement dated 14 July 2017 which recorded the terms upon which Charterhouse proposed to register the appellant’s interest in providing services to its medical clients (the recruitment agreement). Clause 2 of the recruitment agreement provided that “[a]lthough [Charterhouse] will use its every available resource to place you with a client, it makes no guarantees that it will successfully secure work for you, nor does it have any obligation to do so”. In oral submissions in this Court, the appellant complained about the failure of Charterhouse to obtain a placement for her in Darwin in late 2017; however, no claim was made against Charterhouse in the underlying proceedings for breach of the recruitment agreement.

2. [10]

   The other agreements, each dated 11 December 2017, were (i) the placement agreement between Charterhouse and the Health District, (ii) the confirmation of the placement between Charterhouse and the appellant (the confirmation), and (iii) the locum agreement between the appellant and the Health District, which was an annexure to the confirmation signed by the appellant. It is necessary to refer in some detail to the circumstances in which those agreements were entered into.

3. [11]

   In November 2017, Mr Daniel Harvey, a consultant with Charterhouse, discussed with the appellant a VMO position in adult psychiatry at Blacktown Hospital. The timing of that position did not suit the appellant. On 28 and 29 November 2017, Ms Aimee Greenfield, another consultant with Charterhouse, exchanged several emails with the appellant in relation to a potential locum placement sought by “Cumberland” for a “C& A role”, that is, child and adolescent role. The appellant informed Ms Greenfield on 28 November 2017 that she was willing to cover a child and adolescent role until an adult role became available, stating in her email response at 11:11 am:

4. [12]

   On 5 December 2017, Ms Greenfield and the appellant exchanged further emails in relation to the appellant’s availability “to cover Redbank covering the C&A role, but with a potential adult position”. Ms Greenfield gave the appellant the contact details for Dr Padhi and encouraged her to speak with him directly about the role. The appellant telephoned Dr Padhi on 5 December 2017 who told her that she would be performing services at Redbank House and described the unit, the age group of patients, and the number of patients allocated to a staff specialist per week. His evidence was that he did not tell the appellant that she would be working at Cumberland Hospital. The appellant informed Ms Greenfield that she would like to go ahead with the child and adolescent role at Redbank House, stating in her email of 5 December 2017 at 1:46 pm:

5. [13]

   On 8 December 2017 at 11:24 am, Mr Harvey circulated by email to Ms Parmjit Rai of the Health District a draft of the placement agreement in relation to the appellant as a “VMO Adult Psychiatrist” with a start date of 1 January 2018 until 30 March 2018. In an email from Ms Rai to the appellant at 12:16 pm that day, Ms Rai said that the copy of the confirmation “I have sent you”, “needs to be rectified as the start date is incorrect”. The appellant, Mr Harvey and Ms Rai exchanged emails on 8 December 2017 concerning the proposed rate of pay and start date. The appellant sent an email at 5:35 pm to Ms Rai, copied to Mr Harvey, Dr Padhi and Ms Greenfield purporting to accept an offer:

6. [14]

   On 11 December 2017 Mr Harvey circulated to the appellant several drafts of the confirmation relating to the locum VMO position with the Health District, which included as annexure A the draft locum agreement. There is no dispute that in making these offers, Charterhouse was acting as agent for a disclosed principal, the Health District. Mr Harvey also circulated by email to the Health District on 11 December 2017 drafts of the placement agreement recording the terms on which Charterhouse was to engage the appellant on behalf of the Health District to provide locum services.

7. [15]

   In the draft confirmation which Mr Harvey emailed to the appellant at 11:20 am, the role title was described as “VMO Adult Psychiatrist” and the term was 2 January 2018 to 2 March 2018. The appellant responded by email at 12:55 pm to Mr Harvey, Ms Greenfield, Dr Padhi and Ms Rai, noting that the start date and end date needed to be corrected. She also queried her role title and asked:

8. [16]

   Further emails followed, including from Ms Rai to Mr Harvey, the appellant and Ms Greenfield at 1:25 pm stating that she needed to speak with Mr Harvey to get the paperwork sorted, specifically the contract needed changing, a CV was required from the appellant, and several things needed to be sorted and signed off “from our end as well”.

9. [17]

   Mr Harvey sent further revised drafts of the confirmation to the appellant in the afternoon of 11 December 2017. In an email to Mr Harvey at 3:34 pm, copied to Ms Greenfield and Ms Rai, the appellant again queried the role title of “Adult VMO Psychiatrist”, and asked:

10. [18]

    At 3:58 pm the appellant emailed Mr Harvey, Dr Padhi and Ms Rai, and asked:

11. [19]

    Ultimately, the role title was amended to “VMO Psychiatrist” in the final version of the confirmation and annexed locum agreement circulated by Mr Harvey to the appellant on 11 December 2017, which the appellant signed and returned that day. The locum agreement described the Hospital/Practice or Client as “Cumberland Hospital”; the location of services as “1-11 Hainsworth Street, Westmead”; and the “Term” of services as 27 December 2017 to 2 March 2018.

12. [20]

    The locum agreement stated that the appellant was an independent contractor, and provided:

13. [21]

    At 6:16 pm, the appellant emailed Dr Padhi stating:

14. [22]

    Dr Padhi replied to the appellant by email at 9:47 pm, copied to Ms Greenfield, Mr Harvey and Ms Rai:

15. [23]

    On 12 December 2017 at 3:25 pm, the appellant emailed Mr Harvey and Dr Padhi, among others, stating that she “never had any doubts” and had turned down another locum “to work for you”, explaining that she wanted clarification from a medical defence perspective as to the role title. Also on that day, Mr Harvey telephoned the appellant who confirmed she required no changes to the confirmation.

16. [24]

    On 20 December 2017, the appellant spoke with Dr Padhi about her reporting arrangements for her first day of her placement. Dr Padhi informed the appellant that she should meet him at Redbank on her first day.

The appellant’s placement at Redbank House

1. [25]

   On 27 December 2017, the appellant commenced duties as a locum VMO at Redbank House, reporting to Dr Padhi. At lunch that day with the appellant, among others, Dr Padhi mentioned his love of Berlin (the Berlin statement).

2. [26]

   During the appellant’s placement with Redbank House, Dr Padhi became aware of verbal complaints about the appellant from the parents of two patients. Those incidents on 9 and 10 January 2018 were recorded in Advanced Incident Management System (AIMS) reports prepared on 16 January 2018, and revised on 18 January 2018 by Ms Sumithira Joseph, the Health District’s operations manager attached to Redbank House. Ms Joseph was responsible for managing the AIMS reports.

3. [27]

   On 10 January 2018, Dr Padhi had an informal meeting with the appellant to discuss the concerns that had been raised by staff at Redbank House and the families in relation to the incidents involving the two patients. Also on 10 January 2018, Mr Harvey telephoned the appellant to check whether the placement was proceeding as she expected. The appellant stated that all was going well. The appellant gave evidence that she did not recall this conversation.

4. [28]

   Conversations with the appellant on Friday, 12 January 2018, led Dr Padhi to the view that the appellant was exhibiting symptoms consistent with paranoia as a result of which he became concerned about her employment in a position involving caring for troubled children and adolescents. The detail of those conversations was disputed at trial. However, it is convenient, at this point, to reproduce Dr Padhi’s note of the conversations recorded in his statement:

5. [29]

   The appellant claimed in the proceedings that the statements made by Dr Padhi (i) about his love of Berlin, (ii) that he had done the D58 course at the Tavistock and Portman Clinic in London, and (iii) he had seen Mr Kannan Navaratnem, a psychoanalyst, in London, involved parody skits and gaslighting of the appellant by repetition of her personal information – which allegedly had been obtained through hacking of her online accounts – in conversations with her. Those allegations were relied upon by the appellant for claims of misleading or deceptive conduct, injurious falsehood, breach of confidence, fraud and conspiracy. In closing submissions at trial, only the breach of confidence claim was pressed in relation to this alleged conduct.

6. [30]

   On Monday, 15 January 2018, Dr Padhi raised with Ms Joseph his concerns about the appellant. Together, they had a telephone discussion with Ms Kristin Adair, human resources manager, who told Dr Padhi to escalate the matter to Associate Professor Beth Kotze, executive director mental health service, and to prepare a risk assessment and a brief to the chief executive. After a discussion with Dr Padhi, A/Prof Kotze told him that (i) it seemed that the appellant was not well and the Health District could not take the risk of allowing her to continue working as her work involved looking after vulnerable patients, (ii) the matter needed to be escalated to the chief executive verbally, (iii) once approval was obtained, Dr Padhi should meet with the appellant and terminate her services, and (iv) he also needed to prepare a written brief as soon as possible.

7. [31]

   Ms Joseph commenced preparing a risk assessment in respect of the appellant using the Health District’s Risk Assessment Tool (RAT), which was an internal document intended to record risks and concerns that were operational as opposed to clinical in nature. Ms Joseph graded the risk presented by the appellant as “Extreme”.

8. [32]

   Ms Joseph also commenced preparation of a brief to be sent to Mr O’Connor, the chief executive of the Health District. At about 4:00 pm on 15 January 2018, Ms Adair informed Dr Padhi that he could go ahead and inform the appellant that her services would be terminated. Dr Padhi and Ms Joseph met with the appellant at about 5:20 pm and Dr Padhi informed the appellant, “[u]nfortunately, we will not be able to allow you to continue in your current role”.

9. [33]

   Dr Padhi’s note of this meeting with the appellant records:

10. [34]

    Ms Joseph’s note of this meeting recorded her observations that when informed of the termination of the placement, the appellant said among other things:

Events after 15 January 2018

1. [35]

   On or about 17 January 2017, Dr Padhi told Mr Harvey that there had been concerns about the appellant which he could not go into and that her placement had been terminated. Mr Harvey passed that information to Mr David Pereira at Charterhouse, who instructed Mr Harvey, “[a]t this stage, Charterhouse shouldn’t arrange further placements for Dr Chandrasekaran” (the Pereira statement). Although not pleaded, in closing submissions at trial the Pereira statement was relied upon by the appellant as one of the injurious falsehood claims against Charterhouse.

2. [36]

   On 18 January 2018, Ms Joseph updated the AIMS reports for two patients by changing the Severity Assessment Code (SAC) for each of the reports. The initial SAC for both incidents of “2” was downgraded to “4” based on the advice of Ms Joumana Khoury of the clinical governance team. Ms Joseph gave evidence that a SAC 1 means an incident presents an extreme risk, requiring immediate action; and a SAC 4 means that the incident presents a low level of risk for the patient.

3. [37]

   The Risk Assessment prepared by Ms Joseph dated 18 January 2018 was not fully completed, nor was it signed by either Dr Padhi or any member of the executive management of the Health District as contemplated in the document prepared by Mr Joseph.

4. [38]

   The brief to the chief executive seeking formal approval of the termination of the VMO appointment was finalised by Ms Joseph on or about 20 January 2018. The list of attachments to that brief included the Risk Assessment, one of the AIMS reports, and statements from Dr Mahmood, Ms Joseph, Dr Surabhi, Ms Elissa Yoo, and Dr Padhi.

5. [39]

   On 9 February 2018, Dr Padhi made a notification about the appellant to the Australian Health Practitioners Regulation Authority (AHPRA), annexing several statements (it seems from Dr Mahmood, Dr Verma and Dr Balaji) and a statement from Ms Yoo. On the same day, AHPRA forwarded this notification to the Health Care Complaints Commission (HCCC) by email.

6. [40]

   On 17 July 2018, in response to a request by the HCCC for “all reports and documentation in relation to the Health District’s investigation into the conduct and health issues concerning [the appellant]”, A/Prof Kotze sent a letter to the HCCC containing 11 attachments, which included the brief sent to the chief executive, two AIMS reports (2545437-20 and 2545439-20), the Risk Assessment, and the statements of Dr Padhi, Ms Joseph, Dr Verma, Dr Mahmood, Dr Balaji and Ms Yoo.

7. [41]

   The notification by Dr Padhi to the AHPRA on 9 February 2018 (which was on-forwarded by AHPRA to the HCCC), and A/Prof Kotze’s 17 July 2018 letter to the HCCC, were the subject of the injurious falsehood claim against the Health District.

8. [42]

   The appellant commenced the underlying proceedings on 7 June 2018. By email of 1 July 2018 to Mr Harvey, copied to Ms Greenfield, the appellant sought Charterhouse’s address for service of legal proceedings. Mr Harvey intended to forward that email to his supervisor, Mr Pereira, but inadvertently replied to the appellant and Ms Greenfield on 2 July 2018, in which he referred to the appellant as follows: “Dave, this woman is cray. This is the cray google car lady who got fired from WSLHD” (the Harvey statement). Mr Harvey attempted to recall the email and it was not distributed any further. The Harvey statement was also the subject of the injurious falsehood claim against Charterhouse.

9. [43]

   On 24 October 2018, the Medical Council suspended the appellant’s registration as a medical practitioner by imposing a condition on the appellant’s registration not to practice “as a psychiatrist” or “medicine”, pursuant to s 150(1)(b) of the Health Practitioner Regulation National Law (NSW) (the National Law). The Medical Council also referred the matter to an Impaired Registrant’s Panel subject to the consultation provisions of s 150 of the National Law. The appellant brought an appeal out of time under s 159B of the National Law before the Tribunal. On 26 November 2020, the Tribunal refused an extension of time in which to appeal from the decision of the Medical Council of 24 October 2018. The appellant sought leave to appeal against that interlocutory decision of the Tribunal. That application was refused by this Court on 6 August 2021.

Issues on appeal

1. [44]

   The further amended notice of appeal filed 7 October 2022 (the notice of appeal) is a lengthy and discursive document; the nine appeal grounds occupy 33 pages with numerous subparagraphs. Some of the grounds were not the subject of the appellant’s written submissions. The notice of appeal does not comply with the rules as it fails to state briefly, but specifically, the grounds relied on in support of the appeal: Uniform Procedure Rules 2005 (NSW) (UCPR), r 51.18(1)(e).

2. [45]

   Although there is substantial overlap in the contentions under some grounds, it is appropriate to deal with the grounds separately in the following order: (1) bias; (2) refusal of re-opening application; (3) procedural fairness; (4) errors of law; (5) misleading or deceptive conduct; (6) breach of contract; (7) breach of confidence; (8) injurious falsehood; (9) other grounds; and (10) the application to adduce further evidence on appeal.

Bias (ground 4)

1. [46]

   Questions of bias should be addressed first, as the High Court explained in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 (Concrete). That is because the necessary result, if bias is established, is a retrial: Concrete at [2]-[3] (Gummow ACJ), [117] (Kirby and Crennan JJ).

2. [47]

   The notice of appeal contained complaints of prejudgment (pars 1.63, 1.68, 1.8.1). The appellant did not specifically address this ground in her written submissions. She was asked in this Court whether she was alleging actual or apprehended bias. She answered that she was alleging both.

3. [48]

   Allegations of actual bias against a judicial officer are serious and should not lightly be made. Nor are they readily made out. An allegation of actual bias must be distinctly made and clearly proved: see the discussion in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[74]. An allegation of actual bias in the form of pre-judgment requires that the appellant establish that the trial judge was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72] (Gleeson CJ and Gummow J; Hayne J agreeing at [176]). As Gleeson CJ and Gummow J observed at [71], “the question is not whether a decisionmaker’s mind is blank; it is whether it is open to persuasion”.

4. [49]

   The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 (Michael Wilson) at [31]. The plurality judgment in Michael Wilson observed at [63], it is necessary for the party asking a judge to disqualify him or herself, having identified the conduct said to give rise to the apprehension of bias through pre-judgment, to articulate the connection between the conduct and the possibility of departure from impartial decision-making with respect to the questions to be decided.

5. [50]

   Three aspects of the conduct of the trial were relied on by the appellant for the complaint of actual or apprehended bias. It is said that the primary judge (i) repeatedly denied the admission into evidence of the patient health records (PHR) of two patients, where there was no objection by the appellant to being re-cross-examined, if necessary, (ii) repeatedly refused to admit IT reports of Mr Stephen New demonstrating that the appellant’s accounts were being illegally accessed and hacked, and (iii) denied the appellant cross-examination of Mr Harvey beyond one day.

6. [51]

   In addition, the appellant relied on the reasons for judgment which are said to contain repeated attacks on the appellant’s credibility, yet the primary judge refused to assess demeanour and credibility of Dr Padhi. This complaint can be taken to be an allegation of actual bias because, as explained in Michael Wilson at [67]-[68], it is wrong to take into account the reasons for judgment published after the trial in deciding whether there was a reasonable apprehension of bias: cf the contrary view of Callinan J in Concrete at [179].

7. [52]

   It is of assistance first to explain the circumstances in which his Honour made the evidentiary and procedural rulings of which complaint is now made.

8. [53]

   The PHRs concerned the two young patients under the appellant’s care. The patient’s respective mothers raised concerns about the appellant’s care of their daughters.

9. [54]

   Contrary to the appellant’s submissions, the circumstances in which the PHRs were not admitted into evidence were as follows: (a) the appellant, represented by trial counsel, objected to the tender by the Health District of PHRs relating to one of the patients during cross-examination of the appellant; the Health District did not press the tender and these records were marked MFI 7, (b) although the notes in MFI 7 and other PHRs relating to that patient in MFI 9 were shown to the appellant in re-examination, her counsel did not seek to tender the notes at that time, (c) after the appellant had concluded her evidence on Day 4 (5 December 2019), the appellant’s counsel foreshadowed an intention to tender the PHRs after subpoenaing further documents. The Health District objected to the appellant not closing her case unless counsel for the appellant was prepared for the appellant to be further cross-examined on the notes. The appellant’s counsel did not offer to recall the appellant, rather her counsel opposed that course, (d) later in the trial, the appellant sought to tender the PHRs while cross-examining the Health District’s witnesses on Day 11 (9 June 2020). The Health District successfully objected on the basis that it had been denied the opportunity to fully cross-examine the appellant on those documents, and it was unfair to permit the appellant to cross-examine its witnesses, who had not written many of the notes in issue; the primary judge’s ruling appears at T592-593, and (e) the appellant again attempted to tender the PHRs during cross-examination of Dr Padhi on Day 15 (8 July 2020) and again, the Health District successfully objected, although five pages of clinical notes to which Dr Padhi had referred in cross-examination were tendered without objection and became Ex X; the primary judge’s ruling appears at T881.39-.46.

10. [55]

    Further and contrary to ground 1 (par 1.63) of the notice of appeal, there was no suggestion by the appellant’s counsel that she would return to the witness box. Indeed, on Day 4, counsel for the appellant agreed with an observation by the primary judge it would be “inconceivable” that were the PHRs admitted, the appellant would be recalled to the witness box.

11. [56]

    A report of Mr New dated 16 September 2016 addressed “To whom it May Concern” was tendered by the appellant’s counsel at trial on Day 4 (5 December 2019) on a limited basis. It was admitted not as to the truth of the fact of the unauthorised access to the appellant’s electronic accounts, but as “to the possible effect it may have had upon the belief of the [appellant]” and as evidence that the appellant had obtained that report at that time.

12. [57]

    On Day 8 (2 April 2020), the appellant sought to tender a further report of Mr New dated 29 March 2020, which her counsel described as “nothing more than updating material”. That tender was opposed by the Health District and Charterhouse. The primary judge rejected the tender for the reasons given in an ex tempore judgment on 2 April 2020 which included:

13. [58]

    On 16 December 2020, the appellant filed a notice of motion seeking leave to reopen her case to admit further evidence. The evidence was described in the appellant’s affidavit of 9 December 2020 as “new available” evidence of the hacking of her email accounts and the degree of digital compromise to her communications and identity. An amended notice of motion filed on 27 January 2021 sought additional relief, being orders in the nature of certiorari quashing the decisions of the Medical Council and the Tribunal referred to at [43] above. The appellant’s affidavit of 19 February 2021 annexed a further report of Mr New dated 15 February 2021 (the February 2021 report). The re-opening application was opposed by both respondents. The primary judge dismissed the amended notice of motion for the reasons given in an ex tempore judgment given on 12 March 2021, which included:

14. [59]

    Mr Harvey gave evidence on Day 16 (9 July 2020) of the trial. He was cross-examined extensively by the appellant’s counsel. The transcript records that following the morning tea adjournment, his Honour informed counsel for the parties that 15 minutes needed to be allowed for re-examination by counsel for Charterhouse and hence the cross-examination must finish by 3:45 pm that day. Counsel for the appellant responded that this timing did not trouble him. Cross-examination by the appellant’s counsel concluded later that afternoon. No complaint was made by the appellant’s counsel of inadequate time for cross-examination of Mr Harvey.

15. [60]

    The focus of the claim of apprehended bias is not on whether the judge decided the case adversely to one party, but whether there is a reasonable apprehension the judge will not decide the case impartially or without prejudice: Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39, where Mason J explained at 352:

16. [61]

    Further, as Wheelahan J said in Kazal v Thunder Studios Inc (California) [2023] FCAFC 174 at [260] (Wigney and Abraham JJ agreeing):

17. [62]

    In this case there are two difficulties with the assertion of apprehended bias. First, the appellant’s submissions did not identify what might have led the judge to decide the case other than on its legal or factual merits. Second, assuming that the appellant is alleging prejudgment, the appellant failed to articulate any logical connection between the primary judge’s conduct in making rulings on evidence, procedural decisions in the course of the trial and the re-opening application after judgment had been reserved, and the possibility that the judge might depart from impartial decision-making in determining the issues to be decided in the proceedings: Michael Wilson at [67].

18. [63]

    It is also said that the primary judge yelled or spoke inappropriately towards the appellant during the re-opening application. The transcript of the hearing on 12 March 2021 was not provided to the Court by the appellant, despite this omission from the Appeal Books being brought to the appellant’s attention prior to the hearing of the appeal. There is no material from which an inference could be drawn that the primary judge behaved in the manner alleged by the appellant.

19. [64]

    Contrary to the appellant’s submission, the primary judge made an assessment of the credibility and demeanour of both the appellant and Dr Padhi, noting at [49] that demeanour played a very limited role in his assessment of their evidence. His Honour considered that Dr Padhi was “thoroughly honest”, and that the appellant was “sincere” in the sense of believing in the assertions that she was making and was not dissembling or deliberately lying, and that any confusion in the appellant’s evidence, of which there was some, could be put down to the passage of time, the plethora of lengthy affidavits when self-represented, and her emotional investment in the proceedings, but did not consider her to be a dishonest person: at [49].

20. [65]

    The nature of legal proceedings involves the judge making decisions. On the materials before this Court this is no basis for inferring that his Honour was not open to persuasion because the appellant had been unsuccessful on some evidentiary and procedural rulings made in the course of the trial and on the re-opening application.

21. [66]

    The circumstances in which actual bias can be demonstrated solely from the published reasons for decision are considered to be rare and exceptional: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] (von Doussa J), approved in Toth v State of New South Wales [2022] NSWCA 185 at [46]; Reece v Webber (2011) 192 FCR 254; [2011] FCAFC 33 at [47]. See also Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [74]. This is not an exceptional case. The credit and demeanour findings by his Honour do not provide any basis for a conclusion that the judge was not open to persuasion on any issue to be decided at the trial.

22. [67]

    Ground 4 is not made out.

Refusal of re-opening application (ground 7)

1. [68]

   The appellant was self-represented on the re-opening application in March 2021. One basis of that application was to seek leave to adduce further evidence prior to judgment (which had been reserved) of the alleged hacking of the appellant’s email account and the degree of digital compromise to her communications and identity. The other basis of that application was to seek relief by way of judicial review in relation to the decisions of the Medical Council on 24 October 2018 and the Tribunal on 26 November 2020 which are referred to at [43] above.

2. [69]

   In written submissions dated 19 February 2021, the appellant referred to “new evidence that has come to light regarding where the emails she sends are being forwarded to, and the undeniable link between the persons hacking her accounts with those to whom her emails are being forwarded, as detailed in the expert witness report (‘Report’) prepared on 15 February 2021”. This was a reference to Mr New’s February 2021 report. It was submitted that the further evidence was precise, short and technical, and should leave be granted to adduce further evidence after re-opening, a subpoena to produce electronic evidence and oral evidence was sought to be issued to a person named in the report.

3. [70]

   It is said that the primary judge erred in refusing the re-opening application without providing reasons and that in doing so he favoured the respondents. That cannot be accepted. His Honour gave an ex tempore judgment at the conclusion of the hearing on 12 March 2021. Insofar as those reasons addressed the foreshadowed further evidence, they have been extracted at [58] above. It is not otherwise necessary to reproduce his Honour’s reasons for refusing leave to re-open to allow the appellant to add a new claim for relief way of judicial review in relation to the decisions of the Medical Council and the Tribunal. That is because there is no ground of appeal challenging the refusal of the re-opening application for that purpose.

4. [71]

   The interlocutory decision to refuse the appellant’s re-opening application involved the exercise of the Court’s discretion. Accordingly, the “constrained” or “deferential” standard of appellate review of the exercise of a judicial discretion in House v The King applies: (1936) 55 CLR 499 at 504-505; [1936] HCA 40. As stated in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45], it is necessary for the appellant to demonstrate that the primary judge:

5. [72]

   The appellant’s written submissions did not identify any House v The King-type error in his Honour’s discretionary decision. When the Court drew this to the appellant’s attention, the appellant said in reply that his Honour acted on wrong principle and mistook the facts. However, no relevant principle or material error of fact was identified by the appellant.

6. [73]

   Given (i) the lengthy delay in making the re-opening application, (ii) the different purpose for which the appellant sought to adduce further evidence from Mr New as distinct from the limited basis on which the September 2016 report had been admitted at trial, (iii) the fact that the February 2021 report did not comply with the expert witness code of conduct (UCPR, r 31.23) and (iv) allowing the re-opening application would significantly expand the issues beyond those which had been contested at a protracted trial of 19 days over a period of six months, it was well open to his Honour in the exercise of his discretion to refuse the re-opening application for the purpose of adducing further evidence. Ground 7 should be rejected.

Procedural fairness (ground 5)

1. [74]

   Ground 5 overlaps with ground 4, however, it is necessary to deal with ground 5 separately as it asserts that the hearing miscarried due to a denial of procedural fairness in the conduct of the trial. It is said that the primary judge denied the appellant the opportunity to present her case relying upon particular evidence and the opportunity to cross-examine particular witnesses on certain topics by:

   1. (1)

      denying the admission of the PHRs of both patients and to allow the appellant to cross-examine on those documents;

   2. (2)

      refusing to admit into evidence the February 2021 report of Mr New indicating unauthorised and illegal access to the appellant’s accounts which included hacking;

   3. (3)

      refusing the appellant’s request for the transcript of the hearing of her motion to re-open on 12 March 2021; and

   4. (4)

      limiting cross-examination of Mr Harvey to one day only.

2. [75]

   As to (1), the complaint of unfairness concerning the PHRs is based on the appellant’s dissatisfaction with the forensic decisions made by her counsel at trial with respect to the tender of the PHRs, which decisions were sought to be redressed by her counsel later in the trial, as explained at [54]-[55] above, in a manner which would have resulted in manifest unfairness to the Health District. No error in rejecting that tender has been demonstrated.

3. [76]

   As to (2) above, the appellant’s inability to rely upon the February 2021 report was a consequence of the refusal of the re-opening application and no error has been shown in that discretionary decision. There was no unfairness to the appellant in not being permitted to adduce the February 2021 report from Mr New after judgment had been reserved.

4. [77]

   As to (3) above, the complaint about access to the transcript of the hearing on 12 March 2021 proceeds upon a misconception as to the procedure for parties to obtain a court transcript. In accordance with Practice Note SC Gen 2 – “Access to court files”, parties and their legal representatives are entitled to obtain transcripts of court proceedings. Transcripts can be ordered through the online registry or from Reporting Services Branch (court reporting). It was a matter for the appellant to make an application to court reporting to obtain a copy of that transcript.

5. [78]

   As to (4) above, there was no unfairness in his Honour’s procedural ruling limiting cross-examination of Mr Harvey by a mere 15 minutes on Day 16 (9 July 2020), to ensure that Charterhouse was permitted appropriate time for re-examination that day. The transcript records that the small limitation on the time permitted for cross-examination of Mr Harvey was agreed with all counsel. There was no subsequent complaint by the appellant’s counsel of inadequate time, nor any request for further time to cross-examine Mr Harvey.

6. [79]

   None of the matters complained of constitutes a denial of procedural fairness in the conduct of the trial. Ground 5 should be rejected.

Errors of law (ground 8)

1. [80]

   Ground 8 overlaps in part with ground 5. It is contended that evidentiary rulings with respect to (i) the PHRs, (ii) the IT report, (iii) a medical certificate about the appellant, and (iv) a reference concerning the appellant, were errors of law.

2. [81]

   The complaints in (i) and (ii) have been addressed in ground 5 above. No error of law has been demonstrated. The complaints in (iii) and (iv) were not the subject of any written submissions by the appellant. Those complaints are without merit.

3. [82]

   As to (iii), although the Court was not taken to any medical certificate in the appeal books, it seems that the appellant has in mind the document referred to in the appellant’s email to Ms Kless, solicitor for the Health District, in October 2019, as to which the appellant submitted on the re-opening application that email “tracings” showed that Ms Kless forwarded the October 2019 email to unidentified persons in October and November 2020 containing a “3 sentence paragraph about a medical certificate for the [appellant]”. A footnote to this submission refers to annexure SC-13 to the appellant’s affidavit of 9 December 2020. However, annexure SC-13 does not include the contents of the email which refers to a medical certificate about the appellant.

4. [83]

   Since no error has been demonstrated in relation to the interlocutory decision refusing the re-opening application, there is no basis for asserting any error of law with respect to the evidentiary status of material annexed to the appellant’s affidavit in connection with the unsuccessful re-opening application.

5. [84]

   As to (iv), on Day 3 (4 December 2019) the appellant unsuccessfully sought to read an affidavit of Dr Annette Foster of 27 November 2019. That affidavit was not included in the appeal books, but it seems from the transcript of Day 3 that Dr Foster had worked with the appellant at Kalgoorlie Hospital and had expressed her impressions about the appellant in her affidavit. His Honour rejected this affidavit on the ground of prejudice to the defendants, given the late service of the affidavit meant that the defendants were deprived of the opportunity to meet Ms Foster’s account which related to a different hospital. No attempt was made by the appellant in oral argument to demonstrate any error in that evidentiary ruling.

6. [85]

   None of the matters complained of constitute an error of law. Ground 8 should be rejected.

Misleading or deceptive conduct

1. [86]

   The applicable principles are well-established. Conduct will be misleading or deceptive if, viewed as a whole, it has a tendency to lead a person into error: Australian Competition and Consumer Commission v TPG Internet Pty Limited (2013) 250 CLR 640; [2013] HCA 54 at [39] (French CJ, Crennan, Bell and Keane JJ). The required analysis is objective, requiring analysis of all the circumstances: Butcher v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592; [2004] HCA 60 (Butcher) at [111] (McHugh J), [39] (Gleeson CJ, Hayne and Heydon JJ).

2. [87]

   Conduct will not be misleading or deceptive if all it does is to cause confusion or wonderment: Campomar v Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12 at [106] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

3. [88]

   Although the factual sub-stratum of the claims against the Health District and Charterhouse overlap it is appropriate to address these claims separately.

4. [89]

   In closing submissions at trial, the appellant reframed her pleaded claim and contended that (i) the Health District engaged in misleading or deceptive conduct by representing to the appellant that the locum position at Redbank House was an adult, rather than a child and adolescent, position, and (ii) there was never any intention to have the appellant work for the duration of the contract.

5. [90]

   The Health District objected that the claim as reframed was never pleaded and should not be permitted in those terms. It also submitted that the claim must fail on the facts because the evidence overwhelmingly confirmed that the nature of the role at Redbank House, as a child and adolescent role, was fully disclosed prior to the appellant’s entry into the locum agreement on 11 December 2017, and that the appellant was subjectively aware of that fact upon it executing the contract.

6. [91]

   The primary judge addressed the misleading claim at [60]-[85]. After summarising the appellant’s submissions at [63]-[72], the dispositive reasons for rejecting this claim are given at [73]-[85]. It is convenient to set out [74]-[75], [76] (in part) and [78]-[80]:

7. [92]

   His Honour said that the working conditions at Redbank House may have been sub-optimal, but that did not establish a cause of action: at [81]. His Honour rejected the appellant’s contention that officers of the Health District deliberately “set the plaintiff up to fail” and never intended her to fulfil the entire proposed period as a VMO: at [82].

8. [93]

   His Honour also made a contingent finding at [83]-[84] that the appellant had failed to establish causation.

9. [94]

   It is said that the appellant was “misled by deliberate misrepresentations that were intended to confuse” by failing to clarify her role, “indicating that she had no option but to assume the contractual agreement between herself and [Charterhouse] and the Health District, and [Charterhouse and the Health District], that she would be working at Cumberland Hospital in adult services, which is a location and hospital distinct from Redbank House”.

10. [95]

    Contrary to the appellant’s submissions, the appellant did not labour under an erroneous assumption as to either her role or the location at which she was to provide locum services, namely Redbank House.

11. [96]

    The description of the appellant’s role as a “VMO Psychiatrist” in the confirmation and annexed locum agreement signed on 11 December 2017, is to be read and understood in the context of the following matters.

12. [97]

    First, the prior email exchanges between the appellant and Charterhouse in late November 2017 in which she was informed that the temporary VMO role was a child and adolescent position at Redbank House with the possibility of an adult role later.

13. [98]

    Second, the telephone conversation between the appellant and Dr Padhi on 5 December 2017 in which he explained to the appellant the child and adolescent role at Redbank House.

14. [99]

    Third, the appellant’s emails on 8 and 11 December 2017 acknowledging that the role involved child and adolescent psychiatry.

15. [100]

    Fourth, the queries by the appellant on 11 December 2017 in relation to her role title, which was ultimately amended to read “VMO Psychiatrist”.

16. [101]

    Fifth, the acknowledgment by the appellant in her email on 11 December 2017, that she understood the temporary VMO role involved the treatment of children and adolescents at Redbank House and her email to Dr Padhi on 12 December 2017 that she “never had any doubt”.

17. [102]

    Consistent with the understanding reflected in the contemporaneous emails, the appellant conceded in cross-examination that she was aware from Ms Greenfield’s email of 5 December 2017 that the role being offered to her involved the treatment of children and adolescents. She also conceded that in her telephone conversation with Dr Padhi on 5 December 2017, he said that he was happy for her to trial a position at Redbank House which was a child and adolescent role.

18. [103]

    No error has been demonstrated in his Honour’s findings rejecting the misleading or deceptive conduct claim against the Health District.

19. [104]

    The pleaded claim against Charterhouse was that it engaged in misleading and deceptive conduct by representing to the appellant that she was to be employed in adult psychiatric services (role representation) at Cumberland Hospital (venue representation).

20. [105]

    The primary judge addressed this claim at [128]-[132], by reference to the earlier factual findings at [74]-[80] (see [91] above).

21. [106]

    His Honour found at [76] that the email communications between Charterhouse and the appellant leading up to her placement “soundly demonstrate” that the appellant was well aware of the nature of the work she was to undertake and at [80] that the evidence established that the appellant was well aware that she would be working with children and adolescents at Redbank.

22. [107]

    His Honour’s dispositive reasons for rejecting this claim are given at [129]-[131]:

23. [108]

    It is said that all contracts prepared by Charterhouse, including the final draft executed on 11 December 2017, stated that the appellant would be working at Cumberland Hospital, and Mr Harvey did not change the location despite an email on the same day (11 December 2017) generated by Charterhouse regarding Redbank House.

24. [109]

    As to the role representation, the appellant repeated the submission recorded at [94] above made against the Health District.

25. [110]

    The characterisation of the conduct of Charterhouse must have regard to its circumstances and context: Butcher at [37]. Here, as his Honour correctly found, the relevant context included (i) the email chains between Charterhouse and the appellant and the Health District and the appellant, and (ii) the telephone conversation on 5 December 2017 between the appellant and Dr Padhi. All these communications made plain to the appellant that she would be working with children and adolescents at Redbank House.

26. [111]

    There was no error in finding that Charterhouse did not engage in any misleading or deceptive conduct. Nor was there any error in finding that the appellant was not misled into accepting the temporary placement at Redbank House.

Breach of contract

1. [112]

   In closing submissions at trial, the appellant refined her pleaded claim of breach of contract. It was contended that:

   1. (1)

      the relevant contract for services was a sessional contract entered into on 8 December 2017 between the appellant and the Health District;

   2. (2)

      the determination pursuant to the Public Health Act 2010 (NSW) known as the “Public Hospitals (Visiting Medical Officers – Sessional Contracts) Determination 2014 (NSW)” (the sessional determination) was incorporated into the contract;

   3. (3)

      by s 105 of the Health Services Act 1997 (NSW), reasons were required to be given in writing within seven days in the event of termination of a VMO, which never happened in this case as the Health District acknowledged; and

   4. (4)

      thus, the appellant was deprived of the important protections under the Health Services Act, including Ministerial consideration and due process with respect to any appeal against the termination.

2. [113]

   As to (1) above, the Health District said that the locum agreement was made on 11 December 2017.

3. [114]

   As to (2) above, it was common ground at trial that the Sessional determination made by Walton J, acting as an arbitrator appointed under s 90 of the Health Services Act, was contractually binding on the appellant and the Health District, as the terms of s 98 of the Health Services Act provided:

4. [115]

   As to (3) above, although the appellant did not plead that the failure to comply with s 105 of the Health Services Act was a breach of contract, it was accepted by the Health District at trial that it had failed to provide reasons for termination, as required by s 105 of the Health Services Act which provided:

5. [116]

   As to (4) above, the Health District said that breach of s 105 of the Health Services Act was not a breach of contract.

6. [117]

   By its defence, the Health District admitted that it terminated the services of the appellant without notice on 15 January 2018. Its case was that the decision to terminate the appellant’s placement at will, and without notice, was authorised by the express terms of the locum agreement which are set out at [20] above.

7. [118]

   The Health District pleaded in the alternative that the appellant had not suffered any loss or damages because (i) even if it wrongfully terminated the appellant’s services on 15 January 2018, it was authorised by cl 5(1) of the sessional determination to suspend the appellant’s services where the Health District considered it necessary in the interests of the hospital, (ii) if the Health District had not terminated the services of the appellant on 15 January 2018, it would have been entitled to suspend the services of the appellant under cl 15(1) of the Sessional determination, and (iii) pursuant to cl 15(2) of the sessional determination, if the appellant was suspended, she would have had no right to receive remuneration.

8. [119]

   The primary judge summarised the breach of contract claim at [29]:

9. [120]

   His Honour addressed this claim at [95]-[124]. After rejecting the appellant’s contention that the contract was made on 8 December 2017 on the basis that fundamental matters were not sufficiently agreed by that date, his Honour’s dispositive reasons at [115]-[122], can be summarised as follows:

10. [121]

    Against the possibility that his conclusion on the breach of contract claim was wrong, his Honour made a contingent finding with respect to damages at [126]:

11. [122]

    Further, to the extent that the appellant claimed damages for the period after 2 March 2018, his Honour made contingent findings of fact at [152]-[155] rejecting the appellant’s damages claim under each of the damages claims pressed in closing submissions, including the claim for breach of contract:

12. [123]

    It is said that the Health District breached the locum agreement in specific respects, which it is convenient to refer to as the venue breach and the conditions of work breach.

13. [124]

    It is also said that the termination of the locum agreement was a breach of contract because:

    1. (1)

       Dr Padhi erroneously diagnosed the appellant as being mentally ill, which led to the breach of contract or evidenced the “intentional” nature of the breach;

    2. (2)

       the termination by the Health District was not justified due to a lack of available work, as the evidence disclosed that was not the case;

    3. (3)

       the broad discretion in the locum agreement not to require the appellant’s services is inconsistent with cl 16 of the Sessional determination, which is the exclusive basis for termination of the locum agreement; and

    4. (4)

       the failure of the Health District to give written notice of the decision to terminate the locum agreement and its reasons for decision within 14 days of the date of making the decision was a breach of s 105 of the Health Services Act which “deprived her of the right to a hearing, including ministerial consideration under due process”.

14. [125]

    It is said that the locum agreement specified that the placement would be at Cumberland Hospital, and accordingly, the requirement that the appellant work at Redbank House constituted a breach of contract which the primary judge failed to address or find.

15. [126]

    The Health District’s response is that this asserted breach of the locum agreement was never pleaded or run at trial. That objection is well made. The only pleaded breach of the locum agreement was that the Health District “without lawful justification and without notice terminated the services of the [appellant] with immediate effect”. As to the way the case was run at trial, it was not submitted at trial that the placement at Redbank House, rather than Cumberland Hospital, was a breach of contract; rather in closing submissions the appellant’s claim for misleading or deceptive conduct included that the locum VMO placement was at Redbank House. That his Honour did not address or make findings with respect to a claim for breach of contract that was never pleaded or run at trial is not an error.

16. [127]

    It is said that the appellant’s sub-optimal conditions of work during her placement evidenced the intention of the Health District not to see her contract through to its stated end. This was a reference to administrative and workplace difficulties the appellant complained of, such as security key access, car parking and computer access.

17. [128]

    Again, the Health District takes a pleading point; the asserted administrative and workplace difficulties were not pleaded as a basis for a claim for damages for breach of contract. Again, the objection is well made. As to the way the case was run at trial, the Health District accepts that the appellant raised an unpleaded complaint in her opening submissions that the Health District “created an occupational and health hazard to the [appellant]” by providing no orientation and not complying with “processes to enable her to work safely”, however, this submission was not referred to by the appellant in closing. In these circumstances, it was appropriate for his Honour to proceed on the basis that this unpleaded claim was not pressed as a breach of contract.

18. [129]

    The appellant made a related complaint in ground 1 (par 1.28) that she was deliberately placed at Redbank House, not Cumberland Hospital. It is said that this intention is to be inferred from the fact that she was harassed by Dr Padhi’s mention of his travels to Berlin within hours of her arrival on the first day. That cannot be accepted. As explained below in relation to the claim for breach of confidence, that Dr Padhi mentioned his love of Berlin during a lunch conversation with the appellant on 27 December 2017 did not involve any form of harassment, nor breach of confidence. In addition, at [103]-[104] his Honour rejected the contention that the Health District had deliberately placed the appellant in the position at Redbank House with administrative and workplace difficulties which she complained of:

19. [130]

    No error has been demonstrated in relation to those findings.

20. [131]

    Matters not in issue: One matter not in issue should be noted. No case was pleaded or run by the appellant at trial, by analogy with the implied terms discussed in Meehan v Jones (1982) 149 CLR 571; [1982] HCA 52, a case involving a subject to finance clause (“on satisfactory terms and conditions”), that the decision of the Health District as to the amount of work required of the appellant during the term of the locum agreement is not an unfettered discretion – it must be reached honestly, or honestly or reasonably: cf Meehan v Jones at 581 (Gibbs CJ), 597 (Murphy J) and 597 (Wilson J) finding an implied term that a party will act honestly in deciding whether or not the party is satisfied that the available finance is satisfactory, and at 591 (Mason J) leaving open the possibility of an implied term that a party must act honestly and reasonably in deciding whether or not the party is satisfied.

21. [132]

    Intentional breach: Contrary to the appellant’s submission, whether the alleged breach by the Health District was “intentional” or not is of no relevance to the claim of breach of contract. Nor were Dr Padhi’s opinions, formed by reference to the appellant’s behaviour during her placement at Redbank House, relied upon by the Health District to prove that the appellant was suffering from a mental illness. Rather, as the transcript of Day 10 (4 June 2020) records, Dr Padhi’s evidence was relied upon, not to prove that the appellant was suffering from some form of psychiatric or mental illness, but as providing a reasonable basis for the decision to terminate the appellant’s placement.

22. [133]

    That this was the purpose for which Dr Padhi’s evidence was relied on by the Health District was noted by his Honour at [53]:

23. [134]

    Further, given his Honour declined to make any findings as to the appellant’s mental state, the appellant’s complaint about the asserted “erroneous” nature of Dr Padhi’s beliefs does not advance her contention of breach of contract.

24. [135]

    Availability of work: It is said that the appellant’s services “could not be terminated dependent on a lack of work available”. This misstates the Health District’s case at trial and misreads the judgment. The absence of work was not advanced by the Health District to justify, nor found by his Honour to have been the justification for, the Health District’s decision to cease obtaining the appellant’s services.

25. [136]

    Rather, his Honour found at [119]-[120] that the termination of the appellant’s placement at Redbank House was justified by the terms of the locum agreement, relevantly, the provision that the Health District could not guarantee the amount of work that the appellant would ultimately be called upon to perform or any resultant total fee for service, and that the amount of work to be required of her was at the “complete discretion” of the Health District. Whether there was error in that reasoning is next addressed.

26. [137]

    Whether inconsistency between cll 15 and 16 and the broad discretion: The appellant advanced several arguments concerning the asserted inconsistency between the powers of suspension and termination under cll 15 and 16 of the Sessional determination and the broad discretion in the locum agreement to determine the amount of work performed by the appellant.

27. [138]

    The terms of the Sessional determination relevantly included rights of suspension of a sessional contract by cl 15 as follows:

28. [139]

    A right of termination of the sessional contract was provided by cl 16 as follows:

29. [140]

    It is said that the discretion in the locum agreement to regulate the amount of work performed by the appellant must be read together with the powers of suspension and termination in the Sessional determination. At a level of generality that can be accepted.

30. [141]

    It is said that his Honour’s finding that the power to terminate the appellant’s services is to be found in the locum agreement (because it provided a complete discretion to determine the amount of work performed by the locum), depended on an implied term, which the appellant characterised as a power to terminate “at will” and that this term ought “not to be implied”. This submission misapprehended his Honour’s reasoning which did not depend on an implied term analysis. Rather, it involved interpreting the express terms of the discretion conferred by the locum agreement.

31. [142]

    It is said that the power of termination in cl 16 of the Sessional determination is an exclusive code for termination of the locum agreement which is inconsistent with the Health District exercising the discretion in the locum agreement not to require the appellant’s services. There was no inconsistency between cl 16 of the Sessional determination and the discretion in the locum agreement as they each addressed different subject matters: cl 16 dealt with express rights of termination of the locum agreement (putting to one side questions of termination based on repudiation or fundamental breach), whilst the discretion to regulate the amount of work under the locum agreement dealt with the hours the appellant was required to provide locum VMO services to the Health District during the term of the locum agreement.

32. [143]

    It is said that there is a distinction between (a) a decision by the Health District in the exercise of its discretion to regulate the amount of work performed by the appellant, that is, the number of hours the appellant is to provide her locum services “during the Term”, being the period 27 December 2017 to 2 March 2018, and (b) a decision by the Health District to terminate the locum agreement, that is, not to require any future services at all from the appellant. The appellant says the discretion conferred on the Health District by the locum agreement did not permit the Health District to terminate the locum agreement, as it did on 15 January 2018, which amounted to a termination of the contract unauthorised by cl 16 of the Sessional determination.

33. [144]

    The distinction adverted to by the appellant was correctly acknowledged by counsel for the Health District who said that “a decision not to require the appellant to provide any services during any part of the term … does not operate as a formal termination of the contract” (emphasis added), whereas “the way in which the contract was effectively brought to an end was a termination of the contract”.

34. [145]

    In my view, the Health District’s discretion to regulate the amount of work to be performed by the appellant during the term of the locum agreement could not be used to terminate the locum agreement. But that is what the Health District did on 15 January 2018. The Health District purported to exercise the discretionary power conferred by the locum agreement to regulate the amount of work performed by the appellant “during the Term” to terminate the contract, rather than for the stated purpose for which such power was conferred by the locum agreement.

35. [146]

    The Health District sought to avoid this conclusion, relying on Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359; [1931] HCA 21 (Shepherd), for the submission that a contract-breaker is entitled to invoke an alternative valid basis for termination. Shepherd does not assist the Health District. As I have said, what the Health District did on 15 January 2018 was not a decision to regulate the amount of work performed by the appellant on some or all future days “during the Term”. The Health District decided to terminate the locum agreement with immediate effect and did so on 15 January 2018. That had the consequence that the appellant was precluded from providing any further VMO locum services “during (the balance of) the Term” of the contract.

36. [147]

    It should be concluded that the termination of the locum agreement by the Health District was a breach of contract. However, that is not the end of the matter. It is necessary to consider the Health District’s pleaded defence that in the event the discretion to control the amount of work did not provide a lawful basis for termination of the locum agreement, damages for wrongful termination are to be assessed on the basis of the least onerous method of contractual performance.

37. [148]

    A plaintiff claiming damages for loss of a contract bears the onus of establishing on the balance of probabilities what would have been the value of the contract to the plaintiff had it not been wrongfully terminated: Berry v CCL Secure Pty Ltd (2020) 271 CLR 151; [2020] HCA 27 (Berry) at [37] (Bell, Keane and Nettle JJ). The plurality in Berry continued at [37]-[38]:

38. [149]

    In Berry at footnote (77), the plurality cited among others Maredelanto Compania Naviera SA v Bergbau-Handel GmbH (The Mihalis Angelos) [1971] 1 QB 164 at 196-197 (Lord Denning MR); at 202-203 (Edmund Davies LJ); at 209-210 (Megaw LJ). What is sometimes called the “Mihalis Angelos principle” was described in Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd (2008) 234 CLR 237; [2008] HCA 10 at [89], (Gleeson CJ, Kirby, Heydon, Crennan and Kiefel JJ) as follows:

39. [150]

    In Berry at footnote (79) the plurality cited among others Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54, including the passage by Mason CJ and Dawson J at 92:

40. [151]

    Applying this principle to the present case, at the time the Health District breached the locum agreement, circumstances had arisen which would have entitled the Health District to have exercised its power under cl 15 of the Sessional determination to suspend the appellant’s appointment, given the dual concerns held by Dr Padhi for patient safety with respect to the vulnerable young children and adolescents treated at Redbank House, and the appellant’s own wellbeing, with which A/Prof Kotze concurred. That suspension under cl 15 of the Sessional determination was the appropriate course of action available to the Health District to address its concerns, was acknowledged by the appellant’s counsel at trial, who said in closing submissions, “there are, of course, other steps that the Health District could have taken under this contract that could have dealt with the situation”.

41. [152]

    The natural inference is that the Health District would have acted in a way that was most beneficial to it, and there are no facts which point in the opposite conclusion: TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 at 156, Hope JA (Priestley and Meagher JA agreeing at 161, 163). Given the dual concerns mentioned above held by Dr Padhi, with which A/Prof Kotze concurred, it can readily be inferred that but for the termination of the locum agreement the Health District would have exercised the power of suspension of the appellant under cl 15 of the Sessional determination.

42. [153]

    Suspension of the appellant by the Health District would have had two consequences. First, the effect of cl 15(2) of the Sessional determination is that upon suspension, the appellant would have had no entitlement to payment of any fees under the locum agreement while the suspension remained in place.

43. [154]

    Second, it would have enlivened the procedural fairness provisions in ss 105 to 113 of the Health Services Act, which would have involved (i) the Health District giving notice of its reasons for suspension within 14 days of making the decision (s 105(1)), (ii) the appellant’s right of appeal to the Minister under s 106(1), (iii) the appointment by the Minister of a Committee of Review to determine the appeal under s 108(1), (iv) the giving of 14 days’ notice of hearing of the appeal under s 109(b), and (v) the determination of the appeal under s 112.

44. [155]

    Assuming suspension of the appellant and an appeal by the appellant to the Minister against that decision, there is no basis for finding, nor did the appellant submit that a finding should be made, that the Committee of Review appointed by the Minister would have determined any appeal (and potentially made an order re-appointing the appellant) before the end of the term of the locum agreement on 2 March 2018.

45. [156]

    Nor would there have been any basis for the appellant to claim substantial damages for breach of contract, as she did at trial, for the period after 2 March 2018: see [5] above. The locum agreement was a short-term contract. His Honour made contingent findings about the appellant’s damages claim at [152]-[155], which have been set out at [122] above. None of those findings has been challenged on appeal.

46. [157]

    To the extent that the appellant referred in ground 1 (par 1.34) of the notice of appeal to the finding at [154], her complaint that “she has been denied a hearing relating to her registration based on its merits in every court”, related to the decisions of the Medical Council, the Tribunal and this Court: see [43] above. That ground did not challenge the contingent findings on causation. Given the unchallenged findings, the appellant failed to establish causation of loss in relation to her claim for breach of the locum agreement for the alleged loss suffered after 2 March 2018. In addition, the appellant failed to adduce any evidence of the quantification of that alleged loss.

47. [158]

    Although the appellant did not claim nominal damages, she is entitled to an award of nominal damages for the breach of contract which has been established. An appropriate award by way of nominal damages as a token of the Health District’s breach of contract is the amount of $100: see State of New South Wales v Stevens (2012) 82 NSWLR 106; [2012] NSWCA 415 at [37], [79].

48. [159]

    Breach of s 105 Health Services Act: Given the above conclusion it is not strictly necessary to address the appellant’s argument that non-compliance with the notice provision in s 105 of the Health Services Act is a breach of the locum agreement. Nevertheless, I will briefly indicate my view why there was no error by his Honour in rejecting this claim.

49. [160]

    Compliance with the notice provision in s 105 of the Health Services Act is irrelevant to the anterior question of whether there existed a power in the locum agreement to make the termination decision. Nothing in the Health Services Act suggests that a breach of the notice provision in s 105 leads to a conclusion that a contract for the provision of services, to which s 105 applies, had itself been breached. Nor is there any contractual term to that effect in the locum agreement. Section 105 is part of the administrative review procedure conferred on the Minister by the Health Services Act, which applies after a decision, such as the termination decision that has been made.

50. [161]

    No occasion arises to consider whether the appellant may have had any administrative law remedies for non-compliance with s 105 of the Health Services Act. No such claim was made by the appellant in this case.

Breach of confidence

1. [162]

   The elements of a claim for breach of confidence were correctly stated by his Honour at [57] with reference to Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 443 (Gummow J); [1987] FCA 266. On a claim for final relief for breach of confidence, a plaintiff must show (1) that there is information capable of being identified with some specificity, (2) that such information has the necessary quality of confidence (which requires that it is not otherwise in the public domain), (3) that it was received by the defendant in circumstances which imparted an obligation of confidence, and (4) there is actual or threatened misuse of the information: see also Smith Kline & French Laboratories (Australia) Ltd & AlphaPharm Pty Ltd v Department of Community Services (1990) 22 FCR 73 at 87 (Gummow J). In the present case, the second and third elements were in issue at trial.

2. [163]

   In closing submissions at trial, the appellant reframed her pleaded case and submitted in the alternative that:

3. [164]

   It was further submitted that (i) the repetition of private confidential information in public is a form of harassment and breach of confidence and privacy, (ii) it is doubtful that Dr Padhi had been to Berlin, (iii) it is improbable that Dr Padhi did both D58 and D59 courses at the Tavistock Clinic, London, and (iv) it is improbable that Dr Padhi saw Mr Navaratnem, or did so frequently over five years, bearing in mind the appellant’s evidence in cross-examination that Mr Navaratnem told the appellant that he did not know Dr Padhi.

4. [165]

   The Health District objected to the appellant’s attempt to recast her case in closing submissions. It also submitted that, in any event, (i) there was no evidence that Dr Padhi in fact obtained personal or private information about the appellant which was confidential and was conveyed to him subject to an obligation of confidence, (ii) there was no evidence that Dr Padhi had obtained the appellant’s personal information by speaking to a colleague about her, accessing her online communications or via a former colleague (Dr Boman), and (iii) whether or not the appellant had a reasonable basis to suspect that Dr Padhi had gained access to her personal information was irrelevant to substantiate a breach of confidence.

5. [166]

   The primary judge summarised the appellant’s claim at [41] and [42]:

6. [167]

   His Honour rejected the contention that Dr Padhi received confidential information about the appellant, finding at [45]:

7. [168]

   His Honour also rejected the appellant’s challenge to Dr Padhi’s credit in relation to his mention of Berlin at [46], his qualifications at [47] and his connection with Mr Navaratnem at [48]. Finally, after recording at [49] that he found Dr Padhi “thoroughly honest” and the appellant was sincere and not a dishonest person, his Honour made the following findings in relation to the disputed conversation on 12 January 2018 at [51]-[56]:

8. [169]

   His Honour concluded at [59] that he was not satisfied that Dr Padhi had ever obtained confidential information about the appellant and expressly rejected that proposition.

9. [170]

   Ground 1 (par 1.14) of the notice of appeal contends that:

   1. (1)

      colleagues of the appellant had advised that her confidential information was obtained by Dr Boman and then shared with Dr Padhi with the intention to parody or send her up, all of which is in evidence and which the trial judge referred to in closing submissions, yet no reference is made to Dr Boman in the judgment;

   2. (2)

      the information was misused for the sake of inflicting nervous shock to the appellant with the intention to ridicule her and undermine her ability to work; and

   3. (3)

      the information was used to send the appellant up, undermine her work at the direction of Dr Boman, undermine her income at the placement, and to have her removed from the profession, without any real overt reasons.

10. [171]

    In writing it is said that Dr Padhi’s comments to the appellant about his travels to Berlin, having completed the D58 course at the Tavistock Clinic, and his acquaintance with Mr Navaratnem in London were untrue, and were only explicable upon the basis that he had hacked the appellant’s online accounts, or had received confidential information from some third party who had hacked her accounts.

11. [172]

    Even if it be assumed, as the appellant asserted, that persons unknown or Dr Boman had obtained unauthorised access to the appellant’s online communications which contained confidential information about the appellant, or Mr Navaratnem had received confidential information from the appellant when they met in London, the appellant failed to demonstrate any error in his Honour’s finding that Dr Padhi did not receive any confidential information about the appellant. That is for several reasons.

12. [173]

    First, as the appellant acknowledged in oral argument, there is no evidence that the unknown persons whom the appellant said were hacking her digital communications had provided any such information to Dr Padhi.

13. [174]

    Second, there is no evidence that either Dr Boman or Mr Navaratnem shared any confidential information about the appellant with Dr Padhi.

14. [175]

    Third, Dr Padhi was never cross-examined as to his alleged association with Dr Boman, or his alleged receipt of confidential information about the appellant from Dr Boman. Nor was it put to Dr Padhi in cross-examination that he received any confidential information about the appellant from Mr Navaratnem.

15. [176]

    Notwithstanding these difficulties, the appellant asserted that Dr Padhi must have received confidential information about the appellant because it is “obvious” that confidential information was used by Dr Padhi to send up the appellant on 27 December 2017 and 12 January 2018. That submission directs attention to the appellant’s challenge to his Honour’s credit-based findings accepting Dr Padhi’s evidence that he had been to Berlin, he had done the D58 course at the Tavistock Clinic and he had seen Mr Navaratnem in London. For the following reasons, the appellant’s challenge to those findings should be rejected.

16. [177]

    Berlin: It is common ground that, without being prompted by the appellant, Dr Padhi mentioned his love of Berlin during a lunchtime conversation with the appellant and others at Redbank House on 27 December 2017. Contrary to the appellant’s submission, Dr Padhi did not “slip up” in cross-examination and make an admission that he had not been Berlin. His affidavit evidence was that he had been to Berlin once; he adhered to that evidence in cross-examination. In accepting Dr Padhi’s evidence, his Honour, in failing to infer that Dr Padhi had accessed the appellant’s confidential personal information about her own travels, found Honour said at [46]:

17. [178]

    It is not to the point, as the appellant emphasised, that Dr Padhi agreed in cross-examination that he would not have any idea of certain fashion stores or places in Berlin, which the cross-examiner suggested the appellant had mentioned during this lunchtime conversation: (i) a shoe store in Hackescher Markt, (ii) an unnamed store in Oranienburger Strasse, and (iii) Bikini Berlin near the Tiergarten. That Dr Padhi could not recollect those specific matters being mentioned in the conversation and said that he would not have had any idea where those places were in Berlin was not an admission that he had not been to Berlin. That a person who had travelled to Berlin, might not know of three specific shopping stores or places is of no weight in assessing the credibility of their evidence. Moreover, in the same passage of cross-examination on which the appellant relied for the alleged “admission” by Dr Padhi, he adhered to his evidence that he had been to Berlin once. It was well open to his Honour to accept that evidence of Dr Padhi, which was not directly challenged in cross-examination.

18. [179]

    D58 course: His Honour found with respect to Dr Padhi’s qualifications at [47]:

19. [180]

    Dr Padhi’s evidence of having completed the D58 course at the Tavistock Clinic, was supported by documentary evidence in the form of a copy of a certificate from Essex University annexed to his affidavit. None of the matters raised by the appellant for doubting the authenticity of that certificate or Dr Padhi’s evidence on this topic is compelling.

20. [181]

    It is said that an adverse inference should be drawn from Dr Padhi’s purported non-compliance with a notice to produce addressed to him about his attendance at the D58 and D59 course. The flaw in that submission is that the notice to produce was ineffective, given that Dr Padhi was not a party to the proceedings. No adverse inference should be drawn against Dr Padhi for not complying with the purported notice to produce. In any event, the transcript of Day 14 (12 June 2020) records that in answer to the cross-examiner’s proposition that he had not done the D58 course, Dr Padhi answered:

21. [182]

    Following that answer, no call for the certificate was made by the appellant’s counsel.

22. [183]

    Mr Navaratnem: As to Dr Padhi’s past interactions with Mr Navaratnem, his Honour accepted that Dr Padhi and the appellant had a “shared knowledge” of Mr Navaratnem at [51]. Again, none of the matters raised by the appellant in relation to this finding is compelling. However, reference should be made to two of the matters relied upon by the appellant.

23. [184]

    It is said that his Honour was bound to accept the appellant’s evidence in cross-examination that Mr Navaratnem had told her in a telephone conversation on 30 March 2019, when asked if he knew Dr Padhi, that he did not. There are several reasons why his Honour was not bound to accept this evidence. First, although it seems that no limiting order was made under s 136 of the Evidence Act 1995 (NSW), the evidence was hearsay and of limited weight as to the truth of the out of court representation said to have been made by Mr Navaratnem. Second, the hearsay evidence was not corroborated by Mr Navaratnem. Third, the hearsay evidence was contradicted by Dr Padhi, whom his Honour found was an honest witness.

24. [185]

    It is also said that it is “plainly obvious” that Dr Padhi did not complete the D58/D59 courses at the Tavistock Clinic, because his certificate varying completion of the D58 course at the Tavistock Clinic, which was exhibited to his affidavit, “differed in title” and did not bear the university seal, and that “as an employee of the NHS and the university’s course structure proved that he could not have attended anymore than three months of the 3-year course. That submission ignored the following evidence. First, when the proposition was put to Dr Padhi in cross-examination that he had not completed that course, he responded that he had done the course, he strongly objected to that proposition, and that he had brought to court the certificate the previous day and was happy to produce it to the court if required. Second, Dr Padhi adhered to that denial in cross-examination when challenged as to how he completed the course while working as a Registrar-equivalent for the National Health Service in the United Kingdom. Dr Padhi explained “it was very difficult to do the course”. Third, Dr Padhi explained that he was able to meet the demands of the course while working as a Registrar-equivalent as he worked at Tavistock every Wednesday for two years while he was working 40-hour weeks because as an advanced Registrar he was given one day to do a special interest and his supervisor, who was also a Tavistock-trained psychotherapist, allowed him that one day to go to Tavistock, which was a Wednesday, which he did as part of his advanced training. Fourth, contrary to the appellant’s complaint concerning the impossibility of completing both the D58 and D59 courses within the timeframes specified by Dr Padhi on his CV and in his evidence, Dr Padhi made clear in cross-examination that he had only completed the D58 course and that, while his statements may have given the appellant the impression that he had completed both, that was not his intent. Contrary to the appellant’s submissions, the evidence does not provide any rational basis for the conclusion, asserted by the appellant, that Dr Padhi was engaged in a malevolent campaign of harassment of the appellant facilitated by his breach of confidence. Nor was such proposition ever put directly to Dr Padhi in cross-examination. It has not been demonstrated, as the notice of appeal contends, that “there had been several breaches of confidence”; nor that “Dr Padhi was contacted intentionally by a person who sought interfere (sic) or induce a breach of the appellant’s contract maliciously” (ground 1, par 1.8(xxiv)).

25. [186]

    Nor has the appellant demonstrated any error in his Honour’s credit-based finding that the appellant’s beliefs, feelings, assertions, and evidence about the actions and motivations of others, relevantly, that Dr Padhi had received confidential information directly or indirectly from Mr Navaratnem, were not based on objective fact.

26. [187]

    There was no error in rejecting the claim of breach of confidence.

Injurious falsehood

1. [188]

   It is not in dispute that the elements of a claim for the tort of injurious falsehood were correctly stated by the primary judge at [31] with reference to the four elements identified by Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 (Palmer Bruyn) at [52]: (1) a false statement of or concerning the plaintiff’s goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement. It was not suggested that there is any material difference between these four elements of the tort and the elements identified by Kirby J at [114] or by Callinan J at [192].

2. [189]

   The evidential and legal onus was on the appellant to establish each element: Palmer Bruyn at [58] (Gummow J). The requirement of malice is well-recognised as causing the most difficulties for courts in resolving cases of injurious falsehood: Palmer Bruyn at [61] (Gummow J). In Fleming’s The Law of Torts (10th ed, 2011, Thomson Reuters) at [30.240] the authors say that the dominant view today is that “malice, in the sense of some indirect, dishonest or improper motive, or at any rate an intent to injure without just cause or excuse, must be proved by the plaintiff.

3. [190]

   That was accepted by Griffiths J in National Roads & Motorists’ Association Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1491; (2019) 291 IR 28 (NRMA v CFMMEU), who observed at [192] that “[m]alice is often understood to involve an intent to injure another without just cause or excuse or by some indirect, dishonest or improper motive”. His Honour emphasised that malice involves that the statement was made mala fide or with a lack of good faith, whereas a person who acts in good faith is not liable and referred with approval to the summary of the authorities by Brereton J in AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd & Ors [2010] NSWSC 1395 (Fairfax Media) at [31].

4. [191]

   It is said in Fleming’s at [30.240], concerning proof of malice:

5. [192]

   In Fairfax Media, after reviewing the authorities, Brereton J said at [36] that although mere carelessness or lack of honest belief in the truth of what is published is not conclusive of malice, reckless indifference as to the truth of what is published, as well as knowledge of its falsity, will justify an inference of malice. Griffiths J was to similar effect in NRMA v CFMMEU at [195]:

6. [193]

   One preliminary matter should be noted. The primary judge proceeded on the basis that the Health District and Charterhouse were each vicariously liable for the words spoken by natural persons in their employ: at [31], [134]. That was a slip. It reflected an erroneous assumption by his Honour in discussion with appellant’s counsel in closing submissions, which was not corrected by counsel. In fact, the pleaded basis of the injurious falsehood claim against the Health District and Charterhouse was agency.

7. [194]

   In closing submissions at trial, the appellant contended that (1) the creation and circulation of documents within the Health District, being the AIMS reports in which the SAC rating was unamended, and the risk assessment pertaining to the appellant recorded in the Risk Assessment, constituted false claims about the appellant, and (2) the notifications made by Dr Padhi to AHPRA and the HCCC were equally false and based on the false foundation of unamended AIMS reports and the Risk Assessment. The damage of which the appellant complained was harm to her income earning capacity and loss of income, including future income.

8. [195]

   The primary judge dealt with this claim at [86]-[94]. After identifying the two factual bases of the claim at [86]-[87], his Honour addressed the requirement for proof of malice and rejected the proposition that Dr Padhi or any other employee of the Health District was motivated by malice against the appellant at any stage: at [89]. His Honour was affirmatively satisfied at [90] that Dr Padhi and others were motivated by good faith in what they wrote and said about the appellant. His Honour continued at [91]:

9. [196]

   An understanding of the appellant’s submissions in this Court is assisted by reference to some further facts concerning the preparation of three documents of which complaint is made: (i) the AIMS reports, (ii) the Risk Assessment, and (iii) the draft and final brief to the chief executive.

10. [197]

    The AIMS reports describe the “Incident recorded date” as 16 January 2018 and identify Ms Joseph as the “Senior staff member” responsible for each report. In a section corresponding to the heading “[n]otes text”, report 2545437-20 reads:

11. [198]

    Ms Joseph gave evidence that she could not determine the identity of the source of the AIMS reports given that in the section titled “Notifier details”, the “Source of Notification” is recorded as “Direct notification” on both reports, which she said means that a person has made the report anonymously. Ms Joseph said that Ms Khoury, of the clinical governance team, proposed downgrading the SAC in the notes section of the reports on 16 January 2018 from a Risk Assessment of “2” to “4”. Ms Joseph made that change to the SAC for each report. She believed that she did so on 18 January 2018 which was the date of the footers to the reports.

12. [199]

    Ms Joseph gave evidence that she prepared the Risk Assessment, which required sign-off by Dr Padhi, however, Dr Padhi did not assist her in preparing this document. Dr Padhi agreed in cross-examination that the Risk Assessment was prepared by Ms Joseph; he said that he had “an overview look at it” before it was sent to A/Prof Kotze. He also agreed that he sent it to AHPRA who sent it to the HCCC and from there it went to the Medical Council. Despite space for Dr Padhi and “Executive Management” to sign the Risk Assessment, no signatures appear on the document.

13. [200]

    The Risk Assessment lists seven “risk assessment factors” with corresponding boxes for the assessor to provide their response. Against each of the seven risk factors, the “severity” of the risk in respect of the appellant is recorded as “EXTREME RISK”. Ms Joseph gave evidence that she made those assessments based on information she had at the time, from the families of patients, the nursing unit manager and the other staff working with the appellant. The “frequency” of the risk was left incomplete.

14. [201]

    In response to the first factor – “what is the alleged behaviour/concern?” – the concern in relation to the appellant is recorded as her “interactions and behaviour with patients and families” and Health District staff. In response to the second risk factor concerning the evidence upon which the assessment of the seriousness of the concern is based, reference is made to “[e]mail and verbal notification from patients and families” and Health District staff, as well as the AIMS reports 2545437-20 and 2545439-20. A reference to the AIMS reports also appears in response to the fifth risk factor, being “[i]ssues about the safety of patients”. Ms Joseph accepted in cross-examination that the references to the AIMS reports in the Risk Assessment were to the unamended versions. The seventh risk factor required an evaluation of whether the risks to patients/clinical risks, risk of further breaches to code of conduct and risk to the organisation and reputation was low, medium, high or extreme. Each risk was assessed as extreme. The final section required the provision of a “rationale” for their assessment of the risk; this was left incomplete. With respect to the recommended action, the document states “[i]mmediate termination” and “[n]otification to AHPRA”.

15. [202]

    Ms Joseph was asked in cross-examination whether she ever gave any consideration to correcting the risk assessment in the Risk Assessment after it was signed off by Dr Padhi and sent to Ms Adair. She answered “[n]o”. She disagreed with the cross-examiner’s proposition that that was malevolent on her part.

16. [203]

    Ms Joseph gave affidavit evidence that the SAC rating in the AIMS reports focused on clinical risk to patients and was different to the risk matrix that was used to complete the Risk Assessment, which was not limited to clinical risk. She adhered to her evidence in cross-examination when it was put to her that her evidence about the basis of her conclusions in the Risk Assessment was false, a proposition which she rejected.

17. [204]

    The draft version of the brief to the chief executive was circulated by Ms Joseph to senior management on 18 January 2018. The brief recommended the chief executive “approves the termination of temporary contract of agency VMO”. Under the heading “Key reasons” the document reads:

18. [205]

    In response to an email on 18 January 2019 at 9:36 pm from Ms Adair requesting comments on the draft brief, A/Prof Kotze replied by email on 19 January 2018 at 5:08 pm that the “brief needs to be reworked”. The final version of the brief recommended that the chief executive “formally approves the termination of the VMO appointment” and identified, in expanded form, the concerns raised by the two parents of patients treated by the appellant and the concerns of Dr Padhi. The “Further analysis” section stated that the documents attached to the brief relate to the appellant’s interactions with two patients and their family members, as well as an “incident with [a] staff member on 12 January 2018” and “[s]taff member’s report of various incidents”. The listed attachments to that brief included:

19. [206]

    It is said that the primary judge erred in two respects. First, his Honour ought to have concluded that the AIMS reports, the risk assessment recorded in the Risk Assessment, the complaints made about her by the mothers of two patients, and Dr Padhi’s opinions with respect to the appellant’s mental health, were false. Second, his Honour erred in concluding that the complaints to AHPRA, the HCCC and the Medical Council were not motivated by malice.

20. [207]

    It is convenient first to address the issue of malice, given that his Honour disposed of the injurious falsehood claim against the Health District by reference to that issue, and the appellant challenges the finding of absence of malice.

21. [208]

    The focus of the appellant’s attack on the finding of an absence of malice is the intention and state of mind of Dr Padhi, as he made the relevant notification to AHPRA which was onforwarded by AHPRA to the HCCC: AMI Australia Holdings Pty Ltd v Fairfax Media Publications [2009] NSWSC 1290 at [31]; Joyce v Sengupta [1993] 1 All ER 897; [1993] 1 WLR 337 at 345.

22. [209]

    In the notification to AHPRA on 9 February 2018, Dr Padhi described what had occurred in the following terms:

23. [210]

    Thus, there were three aspects of the notification by Dr Padhi to APHRA: (i) verbal complaints about the appellant from parents of patients, (ii) similar concerns raised by junior doctors/registrars and nursing unit manager, and (iii) Dr Padhi’s own concerns about the appellant and his belief that the appellant was unwell and in need of urgent medical attention.

24. [211]

    As to (i) above, Dr Padhi gave affidavit evidence of the verbal complaints about the appellant from parents of patients that were brought to his attention by (a) Ms Yoo, the acting nurse unit manager on 28 December 2017, (b) Ms Yoo and Ms Joseph on 3 January 2018, (c) Dr Mahmood and the mother of one patient on 5 January 2018, (d) Ms Yoo on 9 January 2018, and (e) his discussion with Ms Yoo on 10 January 2018. It is not necessary to set out the evidence of what was reported to Dr Padhi. Plainly, it provided a well-founded basis for Dr Padhi’s belief that the parents of two patients had expressed concerns about the appellant and also staff had expressed concerns about the appellant’s poor attitude whilst dealing with children and patients.

25. [212]

    As to (ii) above, again it is not necessary to set out the content of the statements of Dr Mahmood, Dr Balaji, Dr Verma or Ms Yoo that were attached to the notification to AHPRA. Their content is consistent with his Honour’s finding that Dr Padhi and other employees of the Health District were not motivated by malice and made statements about the appellant in good faith pursuant to a sincere desire to ensure the appropriate medical treatment of its patients.

26. [213]

    As to (iii) above, the evidence of Dr Padhi amply justified his belief that the appellant was unwell and needed urgent medical attention. His Honour found that the concerns held by Dr Padhi about the mental state of the appellant were sincerely held and that all of his actions based upon those beliefs were motivated by a sincere desire to ensure the appropriate medical treatment of its patients: at [91]. Since those findings were at least partly credit-based, it is necessary for the appellant to show that the findings are wrong by “incontrovertible facts or uncontested testimony” or because they are “glaringly improbable” or “contrary to compelling inferences”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [29]; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]. The appellant’s submissions did not attempt to surmount this hurdle.

27. [214]

    It is said that the letter from A/Prof Kotze to the HCCC dated 17 July 2018 attaching the AIMS reports and the Risk Assessment are “completely unsupportable and rely on unproven and unsupportable allegations” from the mothers of two patients and that these statements were made maliciously. There are three answers to this submission.

28. [215]

    First, it ignored the context of A/Prof Kotze’s letter to the HCCC. She was responding to a request by the HCCC for documents and reports. In answering that request on behalf of the Health District, A/Prof Kotze was acting in good faith in providing material to the HCCC, as requested by the regulator. There is no basis for inferring that A/Prof Kotze had an intent to injure the appellant without just cause or excuse or by some indirect, dishonest or improper motive

29. [216]

    Second, accepting that the brief to the chief executive attached to the 17 July letter to the HCCC only attached one AIMS report, there was nothing malicious in A/Prof Kotze providing the brief its (correct) final form to the HCCC. Importantly, the brief to the chief executive referred to the incidents involving the two patients in par 2(a) and (b), and A/Prof Kotze also separately attached to her 17 July letter both AIMS reports. The implicit suggestion in the appellant’s submissions that A/Prof Kotze was acting maliciously because she withheld documents from the HCCC, is misconceived.

30. [217]

    Third, no inference of malice should be drawn from the circumstance that while the amended AIMS reports, recording the updated SAC for the incidents as “minor” were provided to HCCC, the change to that risk assessment for those incidents was not reflected in the severity of the risk referred to in the Risk Assessment which was also provided to the HCCC on 17 July 2018. That ignored the different purpose of the AIMS reports and the Risk Assessment, of which both Dr Padhi and Ms Joseph both gave evidence.

31. [218]

    Dr Padhi explained in re-examination that while the severity of the incidents recorded in the AIMS reports were downgraded to minor, the risks associated with them and recorded in the Risk Assessment were extreme due to the likelihood of a recurrence of such incidents (were the appellant’s placement not terminated), which could be of greater severity due to the appellant’s inability to de-escalate such incidents. The appellant’s submissions did not advance any reason to doubt the credibility of that evidence.

32. [219]

    It is said that Dr Padhi accepted in cross-examination that he did not consider varying the risk assessment in the Risk Assessment when he became aware that the SAC in the AIMS reports was reduced to “minor”; but that is not evidence of malice. Whilst the omission by Dr Padhi to consider changing the Risk Assessment might arguably involve carelessness on his part (a matter on which it is unnecessary to form any concluded view), it did not involve recklessness; indeed, such a proposition was not put to Dr Padhi.

33. [220]

    Ms Joseph gave corroborative evidence that the AIMS reports and the Risk Assessment addressed different subject matter, as the SAC rating in the AIMS reports focused on clinical risk to patients and was different to the risk matrix that was used to complete the Risk Assessment, which was not limited to clinical risk. When challenged in cross-examination, Ms Joseph adhered to that evidence.

34. [221]

    It is said that Ms Joseph failed to complete the Risk Assessment. That can be accepted, but as Ms Joseph explained in cross-examination the Risk Assessment was a draft which she prepared, which is then sent to the human resources manager and the executive director for mental services. It seems that did not occur in this case. That the Risk Assessment, which was included in the attachments to the 17 July letter to the HCCC, was unsigned and incomplete was apparent on the face of the document. The omission to expressly state in the 17 July letter to the HCCC that the Risk Assessment was incomplete might be considered as “sloppy”, that is, careless, but was not malicious. It cannot be inferred that in sending the incomplete Risk Assessment in that form, A/Prof Kotze intended to injure the appellant without just cause or excuse, or had some indirect, dishonest or improper motive.

35. [222]

    Having seen and heard the evidence, it was well-open to his Honour, to accept that Dr Padhi and the other employees of the Health District, including Ms Joseph, were acting in good faith. In these circumstances it is not necessary to decide whether the notification made by Dr Padhi to AHPRA and the letter from A/Prof Kotze to the HCCC contained false statements about the appellant.

36. [223]

    There was no error in rejecting the injurious falsehood claim on the basis that the appellant had not demonstrated malice against the Health District.

37. [224]

    The pleaded claim against Charterhouse for injurious falsehood was based solely on the Harvey statement of 2 July 2018. It was alleged that this statement was made mala fides with a lack of good faith.

38. [225]

    In oral closing submissions, the claim against Charterhouse for injurious falsehood was expanded to include the Pereira statement made on about 17 January 2018. It was contended that (i) the Pereira statement involved an assertion that the appellant was not a proper candidate for the market, (ii) the statement was malicious because Mr Pereira immediately assumed that the appellant, for whom he had excellent references, was in the wrong, and (iii) he made no investigation and made no enquiry and “just simply accept[ed] the word of the client that this result must follow”.

39. [226]

    The damage of which the appellant claimed was the loss of all future appointments with Charterhouse and with others with whom Charterhouse communicated about the appellant.

40. [227]

    Charterhouse objected in closing submissions to the late raising of this claim and said that there could be no criticism of it not having called Mr Pereira. It also said that the Pereira statement was not about the appellant’s business, was not made to a third party, and was not malicious.

41. [228]

    His Honour rejected both claims against Charterhouse. Addressing the Pereira statement, his Honour found that the first, second and third elements of the tort of injurious falsehood were not established because: (i) the words spoken by Mr Pereira were not a statement about the appellant, Mr Pereira did not say anything injurious about the appellant, those words were in the nature of a command or firm suggestion as to what Charterhouse should not do in the future, (ii) the statement was not made to a third party, it was made by one employee of Charterhouse to another, and (iii) malice was not established: at [136]-[138].

42. [229]

    Addressing the Harvey statement, whilst finding at [141], [143] that Mr Harvey intended to convey that, in his opinion, the appellant was mentally disturbed, his Honour found that the second, third and fourth elements of the tort were not established because: (i) the statement was not made to a third party; it was made to Ms Greenfield, an employee of Charterhouse, and the appellant, (ii) the statement could not be characterised as malicious, notwithstanding its flippant tone, and (iii) there was no evidence that the email sent by Mr Harvey occasioned any damage to the professional practice of the appellant, given that the email was sent many months after Dr Padhi made his complaint to the HCCC and it was that complaint that led the appellant being unable to practice as a psychiatrist: at [146]-[148].

43. [230]

    The appeal grounds did not identify any specific error in his Honour’s findings rejecting the injurious falsehood claim against Charterhouse. In writing, the appellant submitted that (1) the primary judge erred by denying the appellant procedural fairness by refusing to allow Mr Pereira to be called as a witness; and (2) the Harvey statement published to the appellant and Charterhouse was gratuitously malicious and that the primary judge erred in finding to the contrary.

44. [231]

    Contrary to the appellant’s submissions, there was no basis for a Jones v Dunkel inference from the failure of Charterhouse to call Mr Pereira as a witness. It was not until closing submissions that the appellant first articulated the unpleaded claim based on the Pereira statement: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.

45. [232]

    The Pereira statement (“at this stage, Charterhouse shouldn’t arrange further placements for Dr Chandrasekaran”) was not a statement concerning the appellant’s goods or business, nor indeed a false statement; it was a statement about what Charterhouse intended to do. That instruction reflected a business decision of Charterhouse, consistent with the terms of the recruitment agreement, which provided that Charterhouse was entitled to refuse to place the appellant at all, for any reason.

46. [233]

    It is said that because Mr Harvey subsequently left the employ of Charterhouse, the Pereira statement was made to a third party, being Mr Harvey’s new employer. That argument is misconceived. Mr Pereira was Mr Harvey’s supervisor, and he was communicating an instruction to Mr Harvey as an employee of Charterhouse. It makes no difference that an employee of Charterhouse who receives the communication, subsequently leaves Charterhouse and becomes an employee of another business. Information received by a former employee of Charterhouse is not a statement made by Charterhouse to the new employer of its former employer. There was no error in finding that the Pereira statement was not a communication to a third party.

47. [234]

    Nor was there any no error in finding that the appellant had not demonstrated that the Pereira statement was made with malice. It can be inferred that the statement was made to protect Charterhouse’s business not with an intent to injure the appellant’s business.

48. [235]

    The Harvey statement was not made to a third party, nor was the statement malicious in the sense of involving some indirect, dishonest or improper motive or an intent to injure without just cause or excuse. The fact that a person uses “language that is strong” or conducts themselves in a way that is “upsetting” to the plaintiff does not, of itself, evidence malice: Aldi Foods Pty Ltd v Transport Workers Union of Australia [2017] FCA 1004 at [22] (Perram J).

49. [236]

    As to the pleaded damage of which the appellant complained (see [194] above) (i) there was no evidence that the Harvey statement was communicated to anyone outside Charterhouse, (ii) Charterhouse’s decision not to place the appellant in future roles, was made in January 2018, and (iii) the Harvey statement had no effect on the earlier decision by Charterhouse; the decision not to place the appellant in further roles, having already been made by Charterhouse by the time the 2 July email was sent.

50. [237]

    There was no error in his Honour’s contingent finding on causation, that even if there had been a falsehood, causation could not be established given that the Harvey statement was contained in the 2 July 2018 email, which was sent many months after Dr Padhi had notified his concerns to the AHPRA on 9 February 2018. Further, there was no evidence of actual damage beyond, as his Honour noted, “mere assertion”.

Other matters

1. [238]

   Ground 6 contends that the primary judge provided inadequate reasons. It is said that this omission is “admitted” by his Honour given the reference at [37]-[38] to an “orthodox” approach to resolving the issues, whereas the stated approach by his Honour was to discuss each cause of action separately, making relevant findings of fact, and applying those findings of fact cumulatively to the relevant causes of action against each defendant as applicable.

2. [239]

   The obligation to give reasons has to be considered in the light of the issues raised for consideration by the parties. There was no error in his Honour’s approach, especially given the substantial factual overlap in some of the allegations against the Health District and Charterhouse. On a fair reading of the judgment, his Honour identified the essential contentions on which each claim was based, addressed the parties’ competing submissions, considered the conflicting evidence, including the appellant’s challenge to Dr Padhi’s credibility, and made findings of fact and conclusions with respect to the relevant elements of each cause of action which could not be established, by reference to the available evidence or as a matter of law.

3. [240]

   This is not a case where the reasons for judgment are inadequate because it is not possible to discern from them the reasoning upon which the decision is based and thus justice is not seen to have been done: Li v Attorney-General for New South Wales (2019) 99 NSWLR 630 at [116] (Brereton JA). Ground 6 should be rejected.

4. [241]

   Ground 9 contends that the primary judge failed to calculate the appellant’s damages. This ground was not addressed in the appellant’s written submissions but was briefly mentioned in oral argument. This criticism of his Honour’s judgment is misplaced for several reasons.

5. [242]

   First, insofar as the appellant failed on all causes of action at trial, the question of damages did not strictly arise.

6. [243]

   Second, notwithstanding his primary conclusions, his Honour did make some contingent observations about loss and damage: see, for example, at [152]-[155] set out of [122] above.

7. [244]

   Third and importantly, Exhibit H, the appellant’s document on quantum, was in the form of a submission only. As his Honour correctly observed at [155], the bare assertions in that document did not support a finding of damages given the lack of evidence supporting the claim made by the appellant at trial.

8. [245]

   Ground 3 (par 1.55) contends that the judgment is plainly unreasonable or unjust because it was delivered eleven months after the trial.

9. [246]

   In assessing the significance of the delay, it is appropriate to take into account the extent to which any delay was occasioned by the appellant’s application to re-open her case. Here, this application was filed in December 2020 and resolved in March 2021.

10. [247]

    It is not in dispute that the trial judge’s advantage in seeing the witness give evidence weakens with time, and specific reasons for accepting or rejecting evidence of certain witnesses should be provided where publication of a judgment is significantly delayed: Monie v Commonwealth (2005) 63 NSWLR 729 at [43] (Hunt AJA); [2005] NSWCA 25. Nevertheless, his Honour provided adequate reasons for his acceptance of Dr Padhi’s evidence (at [42]-[58]). Thus, acceptance of Dr Padhi’s evidence, where it conflicted with that of the appellant, was not devoid of rational explanation.

11. [248]

    To the extent that the appellant complains that Dr Padhi’s evidence ought to have been characterised as lacking in credibility due to “slips” under cross-examination or alleged inconsistencies in his evidence, there is no substance in this complaint for the reasons given at [177]-[178] above.

12. [249]

    Although not a ground of appeal, in writing the appellant complained that the primary judge erred in failing to draw Jones v Dunkel inferences against the Health District on the basis that several persons were not called as witnesses in its case: the mothers of Patient 1 and Patient 2; A/Prof Kotze, Mr O’Connor, Dr Gilbert and Dr Butler and other registrars who contributed to statements about the incidents the subject of the AIMS reports.

13. [250]

    This submission overlooked that the Health District called four witnesses who had the primary dealings with the appellant during the period of her placement, namely, Dr Mahmood, Dr Padhi, Ms Joseph and Ms Yoo. At the relevant time, Dr Mahmood was a registrar at Redbank House whose responsibility included the assessment and management of adolescents admitted to Redbank House under the supervision of Dr Emma Gilbert, her supervisor at the time. Dr Mahmood gave evidence of the incidents involving Patient 1 and Patient 2 and the complaints made by their respective mothers. Ms Yoo was the acting nurse unit manager of Redbank House and Ms Joseph was the then nurse manager. They also gave evidence concerning the incidents with Patient 1 and Patient 2 and the complaints by their respective mothers.

14. [251]

    The submission also ignored that there is limit in the use and reliance of the Jones v Dunkel “rule”. Relevantly, no inference will be drawn merely because corroborative or cumulative witnesses are not called: Manly Council v Byrne [2004] NSWCA 123 at [60]-[67] (Campbell JA). As Kirk JA recently said in Ling v Pang [2023] NSWCA 112 at [28]:

15. [252]

    Given the issues at trial and the extensive affidavit and documentary evidence adduced by the Health District, it has not been demonstrated that the other witnesses to whom the appellant referred could have relevantly added to the evidence adduced by the Health District.

16. [253]

    The appellant also complained that Charterhouse failed to call Mr Pereira and Ms Greenfield to give evidence. As indicated, there is no basis for drawing a Jones v Dunkel inference in relation to Mr Pereira given that the claim in relation to the Pereira statement was first made in closing submissions by the appellant.

17. [254]

    As to Ms Greenfield, that she received the 2 July 2018 email containing the Harvey statement did not require corroborative evidence from her. Further, insofar as the appellant’s submissions contain conjecture as to the extent of circulation into the medical profession of the Harvey statement, there is no basis for drawing a Jones v Dunkel inference that Charterhouse feared that, if called, Ms Greenfield would have exposed facts unfavourable to Charterhouse: Jones v Dunkel at 320-1 (Windeyer J).

18. [255]

    The appellant complained in writing that the Harvey statement was grossly defamatory of her. Charterhouse objected to the raising of this claim on appeal given that the pleaded claim for defamation was not the subject of any written or oral closing submissions at trial, and counsel for the appellant did not suggest otherwise in response to counsel for Charterhouse expressly indicating in closing submissions that she was proceeding on the basis that the defamation claim had been abandoned.

19. [256]

    It is no answer for the appellant to assert, as she did in this Court, that the defamation claim was abandoned by her trial counsel contrary to her instructions. The adversarial system of litigation operates on the basis that a party is generally bound by the conduct of counsel, and that counsel has a wide discretion as to the manner in which proceedings are conducted: Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 at [46] (Gleeson CJ, Heydon and Crennan JJ).

20. [257]

    It should be inferred that in conducting the case on behalf of the appellant, trial counsel was exercising his wide and independent discretion in not pressing the defamation claim. For completeness, it is noted that there is no ground of appeal alleging a miscarriage of justice on the ground of incompetent representation by trial counsel: R v Birks (1990) 19 NSWLR 677.

21. [258]

    The appellant should not be permitted to advance a new claim on appeal which was abandoned at trial: Water Board v Moustakas (1998) 180 CLR 491; [1998] HCA 12 at 497; University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68 at 71.

Application to adduce further evidence on appeal (ground 7)

1. [259]

   The appellant sought leave to adduce further evidence on appeal by notice of motion filed 28 March 2023. It is of assistance first to explain the lengthy procedural history of this application.

2. [260]

   On 9 May 2023, Meagher JA stood over this application made by notice of motion filed 28 March 2023 to the hearing of the appeal. His Honour otherwise dismissed an application by the appellant for leave to issue subpoenas and set aside notices to produce addressed to Dr Padhi: Chandrasekaran v Western Sydney Local Health District [2023] NSWSC 106.

3. [261]

   The appellant issued new notices to produce and sought leave to issue subpoenas. On 11 September 2023, Meagher JA set aside the notices to produce served on the Health District and Charterhouse and refused leave to issue subpoenas to the Health District and Charterhouse. His Honour also ordered that the appellant be restrained from serving any further notice to produce addressed to the Health District or Charterhouse with prior leave of the Court: Chandrasekaran v Western Sydney Local Health District [2023] NSWCA 219.

4. [262]

   By a further notice of motion filed 23 September 2023, the appellant sought leave to issue differently framed notices to produce or subpoenas to the Health District and Charterhouse. On 25 October 2023, White JA dismissed that application: Chandrasekaran v Western Sydney Local Health District & Anor (No 4) [2023] NSWCA 253. His Honour said at [29]:

5. [263]

   On 26 October 2023, the appellant filed an affidavit relating to the “new” evidence which, together with annexures, was more than 280 pages. The Health District and Charterhouse opposed the grant of leave to adduce further evidence on appeal. The appellant also relied upon her further affidavit of 30 October 2023 which annexed further documents sought to be adduced on appeal.

6. [264]

   Annexure SC-10 to the appellant’s 26 October 2023 affidavit was a copy of the appellant’s affidavit of 23 September 2023 containing notices to produce and subpoenas to the Health District and Charterhouse in the form of annexures SC1 to SC4. In oral argument on the appeal, the appellant sought leave to issue notices to produce and subpoenas in the form of SC1 to SC4. Contrary to the appellant’s submission, the proposed notices to produce and subpoenas in the form of annexures SC1 to SC4 were in exactly the same terms as those which White JA had refused leave to issue on 25 October 2023, when dismissing the appellant’s notice of motion filed 25 September 2023.

7. [265]

   As White JA observed at [32], it is an abuse of process for a litigant to bring repeated applications on the same materials seeking marginally different relief which could have been but was not sought on the earlier application. Here, the position is even stronger. The appellant seeks the same relief relying on the same materials as were before White JA. This is an abuse of process. The informal application for leave to issue further notices to produce and subpoenas should be refused.

8. [266]

   The items or categories of evidence which the appellant sought to adduce on appeal comprised:

   1. (1)

      IT reports of Mr New dated 29 March 2020, 15 February 2021, 11 May 2021 and 4 April 2023;

   2. (2)

      the reasons for decision of the Medical Council dated 24 October 2018;

   3. (3)

      an affidavit of the appellant’s solicitor, Mr Peter McKell, of 15 July 2021 filed in proceedings in the Common Law Division brought by the appellant against the Commonwealth of Australia and Dr Bruce Boman;

   4. (4)

      annexures to the appellant’s affidavit of 19 February 2021 which was relied upon in support of the re-opening application in March 2021, relevantly: (a) SC3 – internet searches relating to Blue Coat Inc dated February 2021 and L3 Technologies dated 29 July 2020, (b) SC4 – newspaper article from the Canberra Times dated 4 January 2021 headed “The Australian Signals Directorate offers a ‘licence to hack’”, and (c) SC5 – an undated post on expedia.com relation to a loft apartment in Balmain which the appellant said was taken from the appellant’s site on Airbnb;

   5. (5)

      emails from the appellant to the Health District and Charterhouse between 2020 and 2023 and “tracing” reports which the appellant said revealed the opening and forwarding of such emails using the same IP address “as those seen to be hacking [the appellant’s] accounts” which were opened on the internet service provider of Cloudfare.net;

   6. (6)

      a collection of other documents from the internet said to be evidence of hacking or attempts of hacking of the appellant’s digital communications.

9. [267]

   The appellant says in her 26 October 2023 affidavit that the further evidence is fresh and was not available at the trial which concluded on 9 July 2020, although it is acknowledged that some of the evidence was brought to the attention of the Court on the re-opening application in March 2021. It is said that the further evidence is:

   1. (1)

      credible and of the highest digital standard relying on software (for tracing of emails) used by law enforcement internationally and is incontrovertible and uncontested by the respondents;

   2. (2)

      relevant to the appellant’s claims against the Health District that the breaches of confidence (by Dr Padhi) “were made possible by third persons hacking my online email accounts”; and

   3. (3)

      relevant to the appellant’s claims against Charterhouse with respect to the defamation and injurious falsehood claims, relevantly, that email accounts which the appellant used to communicate with Mr Harvey and Mr Pereira have been “accessed by and published to the third persons hacking my accounts”.

10. [268]

    In oral argument the appellant said that an inference should be drawn that “the Health District is in communication with the same third persons that are hacking my accounts and feeding information to others, such as Dr Padhi and the Medical Council, and the Medical Council is in communication with the same third party”. When asked by the Court “[t]o what end?” the appellant responded “to destroy my life”.

11. [269]

    The Court indicated that it would reserve its decision on the application to adduce further evidence on appeal and give its reasons in this judgment. Argument on appeal proceeded on the alternative assumptions that the further evidence was or was not admitted on appeal.

12. [270]

    Under the Supreme Court Act 1970 (NSW), s 75A(7), the Court may receive further evidence on appeal. However, after a hearing on the merits the court is to do so only on special grounds: s 75A(8), other than where it is evidence concerning matters occurring after the trial: s 75A(9).

13. [271]

    The applicable principles are well-established. Although it is not possible to formulate a universal test, in general, special grounds calls for three conditions to be satisfied: (1) the evidence could not have been obtained by reasonable diligence for use at the trial; (2) the evidence is credible; and (3) the evidence is such that there is a high degree of probability that there would be a different result: Akins v National Australia Bank (1994) 34 NSWLR 155 (Akins) at 160 (Clarke JA); Harrison v Schipp (2002) 54 NSWLR 612 at 642; [2002] NSWCA 78 at [195] (Giles JA): Tjiong v Tjiong [2012] NSWCA 201 at [166].

14. [272]

    The three requirements or conditions referred to in Akins are “not exhaustive”: Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 at [14]. As Campbell JA explained in Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 at [136], the power to receive further evidence on appeal should be approached on the basis that the three Akins tests are the ones usually applied, although there can be circumstances in which the balancing of the demands of justice and public interest of bringing suits to final end, come down on the side of allowing a particular item of further evidence to be received, notwithstanding that it does not comply with the Akins tests. See also the discussion by Bell P (Bathurst CJ and Basten JA agreeing) in Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127 at [174].

15. [273]

    As to the items in (1) above, the March 2020 report was available at the time of the trial and the appellant’s attempt to tender this report on Day 8 was rejected: see [57] above. No error has been demonstrated in relation to that evidentiary ruling. The March 2021 report was the subject of the appellant’s unsuccessful application to re-open her case at trial. Again, no error has been demonstrated in relation to the refusal of the re-opening application.

16. [274]

    The appellant cannot circumvent such evidentiary rulings and interlocutory decisions by seeking leave to adduce such material as further evidence on appeal. Nor can the appellant achieve the same result by seeking to adduce as “new” evidence later reports of Mr New in May 2021 (in separate proceedings) and April 2023 as further evidence on appeal.

17. [275]

    There are other difficulties in receiving these reports. First, none of the reports is in admissible form as expert evidence because Mr New has failed to comply with the expert witness code of conduct: UCPR, r 31.23. Second, given the limited basis on which the appellant’s counsel tendered the 2016 report at trial `as being relevant to the appellant’s belief at the time of her conversations with Dr Padhi in December 2017 and January 2018, the later reports of Mr New do not relevantly supplement Mr New’s 2016 report; the later reports concern matters brought to the appellant’s attention well after the relevant conversations with Dr Padhi.

18. [276]

    As to item (2) above, the decision of the Medical Tribunal was in the appellant’s possession and was readily available for use at the trial. The appellant is bound by the forensic choices made by her counsel at trial not to seek to tender this document.

19. [277]

    As to item (3) above, the appellant acknowledged in oral argument that she was aware in 2017 of Mr McKell’s conversation with an unidentified man on the ferry, known only as Ray, who worked in debt collection at Google. The evidence of Mr McKell, if sought to be adduced at trial in the court below, should have been rejected as hearsay; it is not evidence of the truth of the contents of what “Ray” told Mr McKell. Further, such evidence should not be admitted as it is otherwise unfairly prejudicial because the respondents cannot test that evidence by cross-examination of any witness: Evidence Act, s 135. Even if the evidence was admitted on a limited basis as evidence of the fact that something was said to Mr McKell by a man known only as “Ray”, and not the truth of what was said, there is not a high degree of probability that there would be a different result.

20. [278]

    As to item (4) above, accepting that the articles in SC3 and SC4 published by “Channel Futures”, “Daily Intelligence” and the “Canberra Times” were not available at the time of the trial concluded on 9 July 2020, none of these articles would have been admissible at trial as to the truth of their contents. Nor could they have affected the outcome of the trial. The articles do not provide any arguable basis for an inference that Dr Padhi received any confidential information of the appellant. Nor is the copy of a search page on Expedia.com persuasive of any matter in issue at the trial.

21. [279]

    As to items (5) and (6) above, these documents concern matters occurring after the trial, and thus it is not necessary for the appellant to demonstrate special grounds to adduce these documents.

22. [280]

    The documents in item (5), being emails from the appellant to the Health District and Charterhouse between 2020 and 2023 and “tracing” reports are not relevant to any matter in issue at trial. Further, the appellant is not qualified as an expert to explain the documents such as IP logs and read notification reports of tracing searches. The documents in item (6) which are said to be evidence of hacking or attempts of hacking of the appellant’s digital communications, concern matters allegedly occurring after the trial of which the appellant could not have been aware in December 2017/January 2018.

23. [281]

    None of the documents in items (5) or (6) is such that there is a high degree of probability that there would have been a different result if admitted into evidence at trial.

24. [282]

    The application to adduce further evidence on appeal should be refused.

Costs

1. [283]

   Costs are in the discretion of the Court: Civil Procedure Act 2005 (NSW), s 98(1). The default rule in UCPR, r 42.1 is that costs follow the event, unless the Court considers some other order should be made as to the whole or in part of the costs. Generally, the “event”, as referred to in r 42.1, refers to the event of a claim or counter-claim, as the case may be. It may be understood as referring to the practical result of a particular claim: Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15], referring to Windsurfing International Inc v Petit [1987] AIPC 90-441 at 37.861-37.862 (Waddell J).

2. [284]

   The appellant has failed against Charterhouse and there is no reason why costs should not follow the event.

3. [285]

   The appellant has succeeded against the Health District on a single issue – breach of contract – however, she is only entitled to nominal damages of $100. Although the appellant and the Health District have not had an opportunity to consider the cost consequences of this outcome, I will briefly indicate my reasons for the costs order I propose.

4. [286]

   The question ultimately is whether a party who is awarded nominal damages is to be regarded as the successful party; each case turns on its own facts and circumstances. In State of New South Wales v Stevens at [22], McColl JA (Ward JA and Sackville AJA agreeing) referred to authorities for the propositions that (i) in an action for breach of contract, if a plaintiff establishes liability, and obtains an order for payment of nominal damages, that plaintiff is usually not to be regarded as the successful party in the action, and (ii) costs should be awarded against a plaintiff who has obtained an order for nominal damages because that award was not the event at which the plaintiff was aiming.

5. [287]

   Here, the appellant sought to recover substantial damages for breach of contract; she has failed in that regard and is only entitled to nominal damages. That very limited success on appeal turned on the proper construction of the locum agreement, which occupied very little time on the appeal. The practical result of the appeal against the Health District is that the appeal was wholly unsuccessful, given that nominal damages are not compensatory damages. Nor can the appellant be regarded as the successful party on appeal as nominal damages is not the event at which the appellant was aiming. The appropriate order is that the appellant pay the Health District’s costs in this Court.

6. [288]

   However, as the appellant and the Health District have not had an opportunity to address on costs, the orders I propose will allow the appellant to seek a different costs order in this Court upon written application within 14 days of the date of the Court’s judgment.

Conclusion

1. [289]

   I propose the following orders:

   1. (1)

      Appeal allowed in part.

   2. (2)

      Set aside order (1) made in the court below on 29 July 2021.

   3. (3)

      In lieu of order (1) below, direct entry of judgment for the appellant against the first respondent in the sum of $100.

   4. (4)

      Otherwise dismiss the appeal.

   5. (5)

      Paragraph 1 of notice of motion filed 28 March 2023 be dismissed with costs.

   6. (6)

      The appellant’s oral application for leave to issue further notices to produce and subpoenas is refused.

   7. (7)

      Subject to order (9) below, the appellant to pay the costs of the first respondent in this Court.

   8. (8)

      The appellant to pay the costs of the second respondent in this Court.

   9. (9)

      In the event that the appellant seeks a different costs order to that in (7) above, direct the appellant to file and serve written submissions within 14 days of the date of these orders, such submissions not to exceed three pages, the first respondent to file and serve within 10 days thereafter written submissions in response, not to exceed three pages. Note that any such application will be determined on the papers.

2. [290]

   LEEMING JA: I agree with Gleeson JA.

3. [291]

   ADAMSON JA: I agree with Gleeson JA.