Kitchen v Quinlivan (No 3) [2025] QSC 351 (19 December 2025) (Treston J) demonstrates the high cost of not giving a person natural justice!

In this case Dr Kitchen was an ophthalmologist. In 2017, ‘he became the subject of a review under the Health Insurance Act 1973 (Cth) (the Act), in relation to his professional ophthalmological services…’ Dr Kitchen made a submission to ‘Professor Quinlivan who was then the Director of the Professional Services Review Agency’.  After receiving that submission, Ms Quinlivan referred Dr Kitchen to a Professional Services Review Agency Committee to further investigate his practices. ‘As a consequence of the Referral, Dr Kitchen became involved in a protracted, time consuming and expensive review process’.  Dr Kitchen commenced proceedings in the Federal Court. In 2021 Professor Quinlivan ‘consented to a declaration that in making the Referral she “did not take into account” Dr Kitchen’s 2018 submission, hence the Referral was void and of no effect’.  Dr Kitchen then commenced proceedings in the Victorian Supreme Court alleging misfeasance in public office (see [1]-[7]).

Justice Treston said (at [10]) ‘Misfeasance in public office is not a commonly litigated tort, no doubt because it is “a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power.”  In Northern Territory v Mengel (quoted at [12]) the High Court said ‘… liability requires an act which the public officer knows is beyond power and which involves a foreseeable risk of harm’.  At [18] Treston J further quoted from Mengel’s case, she said:

Also in Mengel, Deane J described that the “critical element” is malice and that the requirement of malice will be satisfied if:

“… if the act was done with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury.  Finally, malice will exist if the act is done with reckless indifference or deliberate blindness to that invalidity or lack of power and that likely injury.  Absence such an intention, such knowledge and such reckless indifference or deliberate blindness, the requirement of malice will not be satisfied.”

(my emphasis, footnotes omitted).

Having reviewed the earlier authorities, her honour said (at [27])

To succeed therefore, the plaintiffs must establish that the Director:

(a) knowingly acted in excess of her power, and with knowledge that it would cause or be likely to cause such injury; or

(b) acted with reckless indifference or deliberate blindness to that invalidity or lack of power, and the likely injury.

Specifically, in this case the critical allegation was ([266]) ‘that the Director knew that she had not taken Dr Kitchen’s 2018 submission into account – and … the Director proceeded with reckless indifference as to whether she was acting validly or not’.

These are big claims and a difficult hurdle to clear. In this case Dr Kitchen relied on evidence that showed Professor Quinlivan ‘received by email the first plaintiff’s submission comprising 96 pages and 207 annexures and 17 minutes later sent an email stating that she had decided to refer the first plaintiff to a committee’.  Her Honour said (at 281]-[284]):

I do not accept the Director’s evidence that she read Dr Kitchen’s 2018 submission carefully or at all … I am satisfied, on the balance of probabilities, that the Director did not read the 2018 submission before making the Referral.

Having concluded that the Director did not read the 2018 submission, it follows that the Director must have known that she was acting in excess of her power. Her pleaded case is that she knew she was required to firstly, read the 2018 submission and, secondly, properly consider it before making the Referral. It could not have been otherwise. The Federal Court declaration establishes that she did not do the latter; I find that she did not do the former…

Alternatively, but for the same reasons, I conclude that the Director acted with reckless indifference or deliberate blindness to the invalidity or lack of power.  I find that she knew she had not read the submission, properly or at all, before making the decision to refer Dr Kitchen to a Committee, but she made the Referral regardless. Reckless indifference as to the availability of power is a state of mind inconsistent with an honest attempt to perform the functions of public office, and it is the absence of the honest attempt to perform the functions of the office that constitutes the abuse of the office.

And at [298]:

The Director knew that an invalid Referral to the Committee could cause damage including stress, anxiety, loss of income and, potentially, damage to reputation. In the circumstances I conclude that the Director’s overall state of mind was one of reckless indifference as to the harm that could be caused to the plaintiffs by an invalid Referral to the Committee.

Professor Quinlivan was liable for the tort of misfeasance in public office and was ordered to pay damages of $1,986,300.66. plus costs which will no doubt take the final bill to over $2 million.

It is worth noting that in Northern Territory v Mengel the High Court said ‘although the tort is the tort of a public officer, he or she is liable personally…’. I don’t know if the Commonwealth offers some form of insurance or what arrangements there are, but prima facie Professor Quinlivan is personally liable for that $2m. 

Discussion

The importance of this case is not simply the value of the damages that Dr Kitchen was entitled to. That amount reflects his costs, loss of income, expenses in running his practice when he could not claim Medicare benefits etc and so are personal to him.  Employed paramedics, or firefighters (readers of this blog) may not have the same amount of losses.

What is important is that all employees are entitled to natural justice and there have been many cases here where people are called upon to show cause why disciplinary proceedings should not be started, adverse findings made or penalties imposed. For the health practitioners there are opportunities to make submissions on whether they should be referred to a relevant tribunal. In all these cases the decision maker is required to consider those submissions that is genuinely consider whether the respondent has persuaded them.  It is not sufficient to simply read them; it is definitely not sufficient to not read them at all and the consequence for the decision maker can be significant – in this case 2 million dollars worth of significance. 

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.