Supreme Court New South Wales Medium Neutral Citation: Katelaris v Medical Council of New South Wales (formerly New South Wales Medical Board) [2012] NSWSC 282 Hearing dates: 23 March 2012 Decision date: 02 April 2012 Jurisdiction: Common Law Before: Bellew J Decision: (1) I adjourn the Notice of Motion for further directions on Tuesday 24 April 2012 at 9.30 am. (2) I grant leave to the plaintiff to file and serve a Further Amended Statement of Claim on or before Friday 13 April 2012. (3) I grant either party liberty to restore the matter to the list upon 48 hours notice. Catchwords: Misfeasance in public office - elements of tort - pleadings and particulars - no reasonable cause of action disclosed - embarrassing pleadings Legislation Cited: Medical Practice Act 1992 Uniform Civil Procedure Rules 2005 Cases Cited: General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 Dr Andrew Katelaris v Medical Tribunal of New South Wales and Medical Board of New South Wales (No 1) and Dr Andrew Katelaris v Medical Tribunal of New South Wales and Medical Board of New South Wales (No 2) [2011] NSW CA 102 Gunns v Marr [2005] VSC 251 Leerdam & Anor v Noori & Ors (2009) 255 ALR 553 Shelton v National Roads and Motorists Association Ltd (2004) 51 ACSR 278 Category: Procedural and other rulings Parties: Medical Board of New South Wales (Defendant/Applicant) Dr Andrew Katelaris (Plaintiff/Respondent) Representation: Ms A Horvath (Applicant) In person (Respondent) Anne Harvey (Applicant) File Number(s): 11/397251 Publication restriction: / Judgment Introduction 1On 8 December 2011 the plaintiff filed a Statement of Claim in which he sought relief in the following terms: (1)Lost (sic) of professional salary following de-registration in December 2005. (2)Any additional damages that the Court sees fit. 2The amount of the claim was therein specified as being $840,000. 3On 30 January 2012 an Amended Statement of Claim was filed with the consent of the defendant. Leaving aside the differences in the form of the pleadings, the relief claimed is expressed as follows: (1)Financial restitution for eight years of lost professional income, loss of future earning potential and for anguish and suffering. (2)Unconditional reinstatement to the Medical Register of New South Wales. 4By an Amended Notice of Motion filed on 22 December 2011, the defendant seeks (inter alia): (1)an order that the proceedings be dismissed generally pursuant to r 13.4 of the Uniform Civil Procedure Rules; or alternatively (2)an order that the whole of the plaintiff's Statement of Claim filed 30 January 2012 be struck out pursuant to r 14.28. 5An affidavit of Anne Harvey sworn 21 December 2011, to which no objection was taken, was relied upon in support of the Motion. No evidence was filed by the plaintiff in response to the Motion. Background 6The background to this matter is set out in the affidavit of Ms Harvey along with the documents annexed to that affidavit. The plaintiff, who was unrepresented on the hearing of the Motion, informed me that he did not disagree with the fact that the events to which Ms Harvey deposed had happened. The agreed background was helpfully outlined by Ms Horvath at the commencement of the hearing of the Notice of Motion, and may be summarised as follows. 7The plaintiff was formerly a medical practitioner registered under the Medical Practice Act 1992 ("the Act"). On 1 July 2010, pursuant to legislative amendment, the Medical Board of New South Wales ("the Board") which was previously the body charged with (inter alia) the registration of medical practitioners in this State, became known as the Medical Council of New South Wales ("the Council"). Accordingly, it is the Council who is named as the Defendant in the present proceedings. 8In early March 2002, the Board was informed by the Northern Sydney Area Health Service of an incident involving the plaintiff. This led to (inter alia) the plaintiff being requested, by the Board, to attend for assessment by Dr Jonathon Phillips, a Consultant Psychiatrist, who had been retained by the Board to provide a report to it in relation to the plaintiff. 9Part 13 of the Act makes provision for the constitution of an Impaired Registrants Panel. In May 2002 the plaintiff appeared before an Impaired Registrants Panel and voluntarily agreed to the imposition of various conditions upon his registration as a medical practitioner. Those conditions included: (i)that he not self prescribe any medication; (ii)that he consult his General Practitioner at specified intervals; (iii)that he not self administer Schedule 4 or Schedule 8 drugs; and (iv)that he attend for review every three (3) months with a Psychiatrist nominated by the Board who, as I have previously noted, was (initially at least) Dr Phillips. 10In August 2002 the Board received a report from the Director of the Pharmaceutical Services Branch of the New South Wales Department of Health. That report included a transcript of an interview that had been conducted with the plaintiff, in the course of which he made admissions to prescribing Schedule 8 drugs. The prescription of such drugs was, of course, a breach of the conditions which had previously been imposed upon the plaintiff, and to which, as noted in paragraph (11), he had agreed. 11Notwithstanding that report, the conditions of the plaintiff's registration remained unchanged, at least initially. The plaintiff was assessed by Dr Phillips on 17 October 2002 and again on 31 January 2003 in accordance with such conditions, and in addition was also assessed by another psychiatrist nominated by the Board, a Dr O'Connor. 12On 28 January 2003, pursuant to s. 50(1) of the Act, the Board referred a complaint to the Health Care Complaints Commission (HCCC) in relation to the plaintiff. That complaint raised the question of whether or not the plaintiff may be guilty of unsatisfactory professional conduct because of a breach or breaches of conditions attaching to his registration as a medical practitioner. 13Shortly after the referral of the complaint, and after Dr Phillips had examined the plaintiff on 31 January 2003, Dr Phillips contacted Andrew Dix who, at the time, was the Registrar of the Board. Included in the documents annexed to the Amended Statement of Claim is a document dated 28 February 2003 which is a file note of Mr Dix concerning his conversation with Dr Phillips on that occasion. Shortly after this, Dr Phillips ceased to be the Board nominated psychiatrist responsible for assessing the plaintiff, and Dr O'Connor was substituted. There does not appear to be any issue between the parties that at all relevant times, Dr Phillips was retained solely for the purpose of examining the plaintiff, and reporting to the Board as to his fitness to practice. 14In August 2003 a sub-committee of the Board resolved to refer the plaintiff to what was referred to in submissions as a "Section 66 inquiry". Section 66 of the Act provides (inter alia) that the Board must, in certain defined circumstances, impose upon a registered medical practitioner's registration such conditions relating to the practitioner's practising medicine as it considers appropriate. Section 66B further provides that the Board must, as soon as practicable after taking any action under s 66, and in any event within seven (7) days of taking that action, refer the matter to the HCCC for investigation. As I have noted, a complaint had in fact been referred by the Board to the HCCC in July of 2003, prior to any decision being made pursuant to s 66. 15On 17 September 2003, pursuant to its powers under s 66, the Board resolved to place an additional condition upon the plaintiff's registration as a medical practitioner, namely that the plaintiff consent to random urine analysis for a period of at least six months. Unlike the conditions set out in paragraph (11) above, that condition was imposed over the plaintiff's objection. 16On 14 January 2004, the plaintiff attended a meeting of the Board. During the course of that meeting, the plaintiff was informed that the results of random urine analysis which had been undertaken over the preceeding four months revealed the presence of cannabis metabolites. There was a further meeting in April 2004 at which the plaintiff was similarly informed. 17On 12 August 2004 the HCCC made a decision to refer the complaint which had been made to it by the Board to the Medical Tribunal. On 15 December 2005 the Medical Tribunal, comprising his Honour Judge Puckeridge QC of the District Court, along with two medical practitioners and one lay person, made an order that the plaintiff's name be removed from the Register of Medical Practitioners. 18On 23 December 2008, a little over three years after the decision of the Medical Tribunal, the plaintiff sought a review of the Tribunal's decision pursuant to s 92 of the Act. That application came before a differently constituted Medical Tribunal, constituted by her Honour Judge Ainslie-Wallace of the District Court of New South Wales (as her Honour then was), two medical practitioners and one lay person. On 16 October 2009 that Tribunal concluded that it was not satisfied that the plaintiff was a fit and proper person to be permitted to practise medicine and dismissed his application for review. In doing so, the Tribunal took into account (inter alia) the events leading up to the original decision to remove the plaintiff's name from the Register. 19The plaintiff then sought to bring proceedings in the Court of Appeal against the Medical Tribunal's decision of 16 October 2009. Leaving aside some procedural issues which are not relevant for present purposes, the plaintiff's application for leave to appeal was dismissed by Handley AJA on 18 April 2011 (see Dr Andrew Katelaris v Medical Tribunal of New South Wales and Medical Board of New South Wales (No 1) and Dr Andrew Katelaris v Medical Tribunal of New South Wales and Medical Board of New South Wales (No 2) [2011] NSWCA 102). 20It is against this agreed background that the present proceedings have been commenced by the Plaintiff. The Amended Statement of Claim 21In addition to the affidavit evidence to which I have referred and which sets out much of the agreed background, I obviously have before me the Amended Statement of Claim filed on 30 January 2012, annexed to which are various documents. Given the nature of the relief which is sought by the defendant, it is appropriate that I make reference to some aspects of the Amended Statement of Claim. 22To begin with, part of the relief sought by the plaintiff is "unconditional re-instatement to the Medical Register of New South Wales". As I indicated to the parties in the course of the hearing of the Motion, there is, at the very least, a real question as to whether or not the Court has power to grant relief in those terms. 23The Amended Statement of Claim, under the heading "Background", then purports to state a number of legal principles said to be applicable to the tort of misfeasance in public office. To that extent, the Amended Statement of Claim tends to infringe a number of fundamental rules of pleading, including the rule that what must be pleaded are facts. 24Subsequently, under the heading "The Facts", there is a recitation of a number of matters, many of which appear to have little or no relevance to any cause of action which the Plaintiff seeks to bring. Such lack of relevance is demonstrated by the fact that, having set out such matters, the Amended Statement of Claim pleads (at page 5) that they are "not the subject of this claim". If they are not the subject of the claim then they are irrelevant and ought not be pleaded at all. 25The Amended Statement of Claim, again under the heading "The Facts", then proceeds to assert the following: "The plaintiff alleges that the Board, in its dealing with Dr Katelaris, has acted in an illegal manner in the exercise of its authority. The plaintiff further alleges that members of the Board were quite aware that their actions would have, as a direct cause, the effect of harm. The plaintiff asserts that this was not merely reckless indifference to the possibility of doing harm, but intentional activity sustained over time and involving more than one Board member. The plaintiff asserts that this case is adequately presented and made out in the pleadings and particulars. The enumerated particulars are not an exhaustive account of the Board's negative interaction with the plaintiff. Further particulars will be provided if requested by the Court". 26Although this passage makes allegations against "the Board", no particular member(s) of the Board have been identified. Moreover, and contrary to this passage, there are no proper "enumerated particulars" which set out (inter alia) how it is said that any Board member(s) acted illegally. 27There follows, under the heading "Pleadings and Particulars", seventeen (17) numbered paragraphs, the first of which is in the following terms: "The Medical Council of New South Wales (formerly the Medical Board) is a statutory body. Mr Andrew Dix was a Registrar of the Medical Board during the relevant time. From time to time consultant psychiatrists are contracted by the Medical Council to interview and provide reports on nominated Registrants. Dr Jonathon Phillips was acting as a Board appointed psychiatrist when he interviewed and provided reports to the Board concerning Dr Andrew Katelaris. They are therefore public officers directly and by proxy respectively". 28As I have previously noted, and as is evident from that part of the Amended Statement of Claim extracted in paragraph (27) above, there is no issue between the parties that Dr Phillips was engaged by the Board to report to it in relation to issues concerning the fitness of the plaintiff to continue practice as a medical practitioner. Paragraphs (3) to (9) of the Amended Statement of Claim set out a number of matters concerning Dr Phillips and what the plaintiff asserts were shortcomings in his examinations and opinions. 29Later, at paragraph (15), the Amended Statement of Claim takes issue with the basis of the opinions expressed by Dr Phillips and at paragraph 16, having made further criticisms of Dr Phillips, the following is stated: "By refusing to obtain and consider important details concerning Dr Katelaris' medical history from people well qualified to provide it, Dr Phillips has displayed indifference to such a degree as to constitute malice". 30Subsequently, in that same paragraph, the Amended Statement of Claim makes reference to passages from the evidence of Dr Phillips in proceedings before the Medical Tribunal and asserts: "For a medical professional acting in a public capacity to behave in this way and give such testimony at a Medical Tribunal hearing is so severely prejudicial as to constitute malice and malice of a high order". 31Paragraph (17) of the Amended Statement of Claim then pleads (inter alia): "Malicious behaviour by Board members led to an entirely unnecessary escalation in jeopardy for Dr Katelaris resulting in de-registration". 32Once again, no particular Board member(s) have been identified, nor are there any particulars of how it is alleged that any Board member(s) acted maliciously. 33It will be apparent from the foregoing paragraphs, and from an examination of the Amended Statement of Claim as a whole, that the terms in which it is pleaded are, amongst other things, wholly discursive. The allegations made by the plaintiff tend to oscillate between: (1)allegations against Dr Phillips; (2)allegations against Mr Dix; and (3)allegations against "the Board", in circumstances where no member(s) of the Board have been identified, and where such allegations are not properly particularized. 34In the form in which it is presently pleaded, the Amended Statement of Claim is inherently confusing. Such confusion prompted me to enquire of the plaintiff, in the course of the hearing of the matter, whether or not he sought to bring an action in misfeasance in public office on the basis of the actions of Dr Phillips and/or Mr Dix. The plaintiff's response was to the effect that he did seek to bring the action against those two persons, although he added "amongst others". The Amended Notice of Motion 35The Amended Notice of Motion firstly seeks relief pursuant to r 13.4 of the Uniform Civil Procedure Rules. Rule 13.4 is in the following terms: Frivolous and vexatious proceedings (1)If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a)the proceedings are frivolous or vexatious, or (b)no reasonable cause of action is disclosed, or (c)the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2)The court may receive evidence on the hearing of an application for an order under subrule (1). 36In the alternative, the defendant seeks relief pursuant to r 14.28 of the Uniform Civil Procedure rules which is in the following terms: Circumstances in which court may strike out pleadings (1)The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a)discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b)has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2)The court may receive evidence on the hearing of an application for an order under subrule (1). 37In the course of the hearing of the Motion Ms Horvath informed me that for the purposes of the relief sought under r 13.4 she relied on paragraph (b), namely that the Amended Statement of Claim did not disclose any reasonable cause of action. In respect of r 14.28, Ms Horvath informed me that she relied, firstly, on paragraph (a), namely that no reasonable cause of action was disclosed as well as paragraph (b), namely that the pleading had a tendency to cause prejudice, embarrassment or delay in the proceedings. The applicable principles 38Prima facie, a plaintiff is entitled to have his case come to trial and applications to deprive him or her of that right will succeed only in the clearest of cases. Accordingly, when the Court is asked to exercise its power pursuant to r 13.4, fatal defects in the plaintiff's case must be very clear before the Court will intervene and dismiss the proceedings generally. In General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125, Barwick CJ observed (at 129): "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed: "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow (the pleadings) to stand would involve useless expense". 39In contrast, the power of the Court under 14.28 is concerned with those cases where there is a defect in the pleadings. It is not directed to cases where, after examining the evidence, the Court comes to the conclusion that the plaintiff's case, as opposed to his pleading, is hopeless. When a pleading is defective, in that the pleading discloses no cause of action or the pleading tends to cause prejudice, embarrassment or delay, or the pleading is otherwise an abuse of process, the Court has power under r 14.28 to strike out the whole or part of the pleading. 40For the purposes of r 14.28 a pleading is embarrassing if it is unintelligible, ambiguous or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim or defence (see Gunns v Marr [2005] VSC 251 at [15]). A pleading may also be embarrassing it if contains inconsistent, confusing or irrelevant allegations (Shelton v National Roads and Motorists Association Ltd (2004) 51 ACSR 278 at [18]). The competing arguments 41Ms Horvath submitted that in order to establish the tort of misfeasance in public office, the Plaintiff was required to establish that: (i)the person or persons against whom the action was brought was a public officer; (ii)such person(s) exercised a public power in a manner which was improper; and (iii)the improper exercise of such public power was causative of damage. With these matters in mind, she submitted that: (i)if the plaintiff's case was based upon the actions of Dr Phillips, it must fail because, leaving aside the fact that Dr Phillips is not named as a defendant, he was not a public officer; (ii)even if a conclusion were reached that Dr Phillips was a public officer, he exercised no relevant public power; (iii)if the plaintiff's case was based upon the actions of Mr Dix then although it might be arguable that Mr Dix was a public officer (which Ms Horvath did not concede), and again leaving aside the fact that Mr Dix is not named as a defendant, he did not exercise any relevant public power; (iv)if the plaintiff's case was based upon the actions of the Board, no cause of action is disclosed against the Board, or any members of the Board, because (inter alia) (a)no member of the Board is identified in the pleading; (b)no abuse of public power is identified. 42Finally, Ms Horvath submitted that even if the plaintiff was able to overcome one or more of the hurdles set out in paragraph (41) above, he faced an insurmountable problem in being able to establish that any tortious conduct on the part of any person(s) was causative of the loss for which he seeks damages. 43The plaintiff submitted that both Dr Phillips and Mr Dix were public officers in the relevant sense. In the case of Dr Phillips, the plaintiff submitted, it seemed, that actions of Dr Phillips should be regarded as actions of the Board. 44The Plaintiff also submitted that he had a cause of action against the Board because the Board exercised its authority in a "capricious and sometimes cruel way". The Amended Statement of Claim contains no proper particulars of how the Board is said to have done so, nor was the basis of that allegation made clear in the course of argument. The tort of misfeasance in public office 45In Leerdam & Anor v Noori & Ors (2009) 255 ALR 553 Spigelman CJ (at 554; [4]) said: "The concept of "public office" or "public officer" appears in various legal contexts, both statutory and at common law: see the summary of the wide range of case law by Byrne J in R v McCann [1998] 2 Qd R 56 at 67 - 74. There is no authoritative statement of a test for determining what constitutes a public officer for purposes of the tort of misfeasance. Nor is one needed. In almost all cases the answer will be obvious. ..... Where there is any doubt about whether a particular person occupies a "public office" for purpose of the tort, it will ordinarily be enough to approach the matter on the basis that the tort is "concerned with" the "misuse" or "abuse" of public power .... or that the tort is "concerned with performance of public duties". 46His Honour continued (at 555; [6]): "The identification of a power to act, which has or has not been exercised, is a necessary step in determining whether the conduct complained of occurred in purported performance of the functions of a public office. The relevant consideration is the link." 47In the same case, Macfarlan JA observed (at 575; [103]): "That the tort is concerned with the misuse of public powers or authorities is evident from the decision of the High Court in Northern Territory v Mengel (1995) 185 CLR 307. The plurality judgment in that case speaks repeatedly in these terms: at 345-8. Likewise Brennan J in that case said that (at CLR 357): "Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff." The plaintiff's case based upon the actions of Dr Phillips 48As I indicated at the outset of this judgment there are a number of background facts which are undisputed. One of those undisputed facts is that Dr Phillips was retained by the Board to report in relation to (inter alia) issues impacting upon the fitness or otherwise of the plaintiff to remain on the Register of Medical Practitioners. Although the precise terms and conditions of Dr Phillips' retainer are not part of the evidence before me, it is apparent (and indeed it is not in dispute) that he was retained in the capacity of what might be described as a private contractor for the specific purpose of reporting to the Board in relation to matters which were relevant to a determination of whether or not the plaintiff was fit to practice. It is common ground that Dr Phillips was not, at any time, a member of the Board. 49In these circumstances, in my view Dr Phillips is clearly not a public officer for the purposes of the tort of misfeasance in public office. In this regard, Spigelman CJ in Leerdam (supra) relevantly observed (at 556; [16]): "In the present case there is no "office" or governmental power of any character. The concept of an "office", in the context of liability for abuse of power, connotes an official position to which continuing functions or duties are assigned. Those duties or functions must be of a "public" nature. It is not sufficient merely to be employed by a public authority for public purposes: compare Ex parte Kearney (1917) 17 SR (NSW) 578." 50His Honour continued (at 556; [18] - [19]): "It may well be that a person who is a public officer, acting in pursuance of contractual powers, is acting as a public officer. The tort has been said to extend to both statutory and common law powers. However, a person whose capacity to act is entirely a creature of contract with the executive arm of government is not, in my opinion, thereby constituted a public officer for purposes of the tort: see for example P D Finn "Public Officers: Some Personal Liabilities", (1977) 51 ALJ 313 at 314. The conduct complained of in the present case is not capable of constituting either the exercise of a public power or the discharge of a public duty. Not only is the role entirely contractual, the function performed is not itself a public function. The fact that the function was performed in the context of the performance of a public function by the tribunal, or on behalf of a person who does perform such functions, does not infect the quite distinct role of a legal representative with the public character of either the tribunal or of the minister." 51Dr Phillips' function was, similarly, "entirely contractual" and the function that he performed was not a public function. Dr Phillips held no relevant office, and carried out no relevant public duty. The tort of misfeasance in public office is concerned with the exercise of governmental or executive power vested in a person with a power or duty to exercise it (see Leerdam (supra) at [50] per Allsop P). There was no relevant government or executive power vested in Dr Phillips. The fact that in carrying out his functions, Dr Phillips was performing an important function which involved a matter of public interest, is not sufficient conclude that he was a public officer (see Leerdam (supra) at [23]; 557 per Spigelman CJ). 52I do not accept the plaintiff's submission that the actions of Dr Phillips should be regarded as the actions of the Board for present purposes. There is simply no basis upon which that conclusion is open. As I have indicated, it is common ground that Dr Phillips was not a member of the Board and was not part of any decision making process in which the Board engaged. 53It follows that in my view, any case which the plaintiff seeks to bring against the Board on the basis of the actions of Dr Phillips is untenable. The plaintiff's case based upon the actions of Mr Dix 54As I have previously indicated, Mr Dix was the Board Registrar. Section 141 of the Act is in (inter alia) the following terms: Registrar (1)A Registrar of the Board is to be employed by the Board as a member of the staff of the Board. (2)The Registrar: (a)is responsible, as the chief executive officer of the Board, for the management of the affairs of the Board subject to and in accordance with any directions of the Board, and (b)has and may exercise such other functions as are conferred or imposed on the Registrar by or under this or any other Act. 55Section 141, which is headed "Administration", is contained in Division 2 of Part 10 of the Act. It is evident from the express terms of s 141(1) that Mr Dix, in his capacity as Registrar, was a member of the staff of the Board. However, he was not a member of the Board itself, a fact which is generally confirmed by the provisions of s. 130 of the Act which makes provision for membership of the Board. 56Ms Horvath certainly did not concede that Mr Dix was a public officer, although I understood her to accept that it may be arguable that this was so. However, Ms Horvath submitted that even if a conclusion were reached that Mr Dix fell within that description, he did not exercise any relevant public power, such powers as he had being purely administrative in nature by virtue of his position. 57In my view there is considerable force in Ms Horvath's submission. This is particularly so where, in circumstances where the named Defendant is the Council, Mr Dix was not a member of the Board which preceded it. 58It follows that in my view, even if the conclusion were reached that Mr Dix was a public officer, he was not vested with, and thus did not exercise, any relevant public power. Accordingly, to the extent that the plaintiff's case is based upon the actions of Mr Dix, it is in my view similarly untenable. The issue of causation 59The third primary submission made by Ms Horvath was that even if it could be established that either Dr Phillips and or Mr Dix were public officers, and that one or both of them exercised a relevant public power, the plaintiff faced an insurmountable hurdle in terms of causation. In particular, Ms Horvath submitted that in circumstances where the plaintiff is seeking damages arising from the loss of income from his practise as a medical practitioner, nothing done by Dr Phillips or Mr Dix was causative of that loss. In the submission of Ms Horvath, the reason that the plaintiff is not practising as a medical practitioner is because of the decision of the Medical Tribunal of 15 December 2005, and not otherwise. 60In view of the conclusion I have reached regarding the respective positions of Dr Phillips and Mr Dix, it is not necessary for me to determine whether the causation issue would otherwise render the plaintiff's case untenable. However, I should say, in view of the fact that I propose to give the plaintiff a further opportunity to plead his claim, that Ms Horvath's submissions on this issue are certainly not without considerable merit. Depending upon how the matter proceeds from this point, those submissions may require further consideration at some future point in time. Conclusion 61The principal relief sought by the defendant is that the proceedings generally be dismissed pursuant to r 13.4(1)(b) on the basis that no reasonable cause of action is disclosed. In my view, to the extent that the plaintiff's cause of action may be based upon any action of Dr Phillips and/or Mr Dix, the test set out in General Steel Industries Inc v Commissioner for Railways NSW (supra) has been met. For the reasons I have expressed, no cause of action is maintainable against the Council on the basis of the actions of either person. 62However, as I previously noted, the Plaintiff indicated to me in the course of the hearing of the matter that his claim was sought to be brought on the basis of the actions of "others" who, at this stage, are not identified. Further, and although the language adopted is to say the least infelicitous, the Amended Statement of Claim does make broad allegations against "the Board". 63Ms Horvath accepted in the course of argument that a claim for misfeasance in public office was at least capable of being brought against a group of persons such as the Board, or some of its members. Accepting this to be the case, it is not appropriate, at least at this stage, for the Court to exercise its power pursuant to r 13.4. However, I accept the essence of Ms Horvath's submission that if the plaintiff seeks to bring such an action, the pleadings necessarily require (inter alia) the proper identification of: (i)those members of the Board who are said to be public officers; (ii)the relevant public power(s) said to have been exercised by such public officer(s); and (iii)the basis upon it is alleged that such power(s) were exercised improperly. 64Those, of course, are the minimum, but certainly no the sole, requirements of such a pleading. The Amended Statement of Claim fails to meet those (and other) requirements. Leaving aside the fact that part of the relief which is sought appears to be a form of relief which is beyond the powers of the Court to grant, the Amended Statement of Claim in its present form is largely unintelligible, inherently ambiguous and wholly imprecise in its identification of material factual allegations. In its present form, it completely deprives the defendant of the ability to be appraised of the precise case of which it has to meet. It does not disclose a cause of action against the Board, or any member of the Board, and it has a tendency to cause (inter alia) embarrassment within the meaning of r 14.28(1)(b). 65For all of these reasons, it would be open to me to exercise my discretion pursuant to r 14.28 and to strike out the Amended Statement of Claim in its entirety. However even if I were to take that course, the plaintiff would not be prevented from filing a further pleading to commence proceedings. It is also within my power to grant the plaintiff leave to file a Further Amended Statement of Claim, bearing in mind the conclusions that I have expressed in this judgment. 66Ms Horvath submitted to me that in the event that I was minded to allow the plaintiff a further opportunity to properly plead his case, the most appropriate course in terms of the management of the matter would be to stand the motion over part heard before me, and make appropriate ancillary orders. She pointed out that if that course were taken, rather than having the matter dealt with by another Judge of the Court, the matter could remain before me in circumstances where I am appraised of its history and, at least in a general sense, appraised of the issues between the parties. In my view this is an appropriate course. Orders 67In view of the foregoing I make the following orders: (1)I adjourn the Notice of Motion for further directions until Tuesday 24 April 2012 at 9.30am; (2)I grant leave to the plaintiff to file and serve a Further Amended Statement of Claim on or before Friday 13 April 2012; (3)I grant either party liberty to restore the matter to the list upon 48 hours notice. 68I will hear the parties on the question of costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 April 2012