The decision in Kitchen v Quinlivan may ripple outwards to robodebt victims and NDIS participants.
Health practitioners ordered to repay Medicare benefits by Professor Julie Quinlivan are not the only ones watching the civil case against the former Professional Services Review director closely, with speculation that the decision could have relevance far beyond medicine.
In December, Supreme Court of Queensland Justice Rebecca Treston found in favour of ophthalmologist Dr David Kitchen, who sued Professor Quinlivan under the tort of misfeasance in public office.
The matter hinges on whether Professor Quinlivan properly considered Dr Kitchen’s submissions – as she was legally obligated to do in her role as PSR director – before deciding to refer him to a committee of peers.
Dr Kitchen’s success has jump-started rumours of a potential class action for other health practitioners who were subject to PSR review under Professor Quinlivan’s 2017 to 2022 term.
Now, advocates and legal experts have drawn a connection between the precedent set in the Kitchen case and people who have their NDIS or disability support payments cut, as well as the victims of the robodebt scandal.
“Everybody who goes through the NDIS has to make submissions – you have expert submissions, and maybe your support workers put in a submission, maybe your GP puts in a submission,” robodebt digital activist Asher Wolf told The Medical Republic.
“… Time and time again, we hear, ‘Centrelink ignored my submissions and said that their expert was the only one that they had listened to’.
“This won’t fly after Kitchen.”
This precedent, they said, gives people a way forward to consider their rights under the law.
“It’s great that [Dr] Kitchen has been awarded damages, because we have to send a message to public servants that if you ignore evidence before you, if you make decisions that ignore natural justice, if you make decisions that ignore the rights of citizens, then yes, the law will implement remedy,” Wolf said.
Email records indicate that Professor Quinlivan only had a 17-minute window to read, digest and understand Dr Kitchen’s 96-page submission and its multiple appendices before making that decision.
Justice Treston said she was “satisfied that the Director acted with reckless indifference to the harm that was likely to ensue” and that there was “the absence of an honest attempt to perform the functions of her office, and that constituted an abuse of process”.
The tort of misfeasance in public office is relatively obscure and has rarely been tried in Australia.
An unnamed lawyer told The Saturday Paper earlier this week that the Kitchen finding was “a big wallop that should sound a warning to public servants everywhere”.
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“In many ways we simply haven’t tested the boundaries of what the tort of misfeasance actually is, because it just never gets very far, often not even before an actual court,” the lawyer told The Saturday Paper.
“But this is a very interesting development when you piece it together with robodebt, because, a bit like defamation law, the pendulum seems to be swinging toward accountability, slowly.
“When there are so few decisions in an area, every new one means something chunky.”
For her part, Professor Quinlivan claimed that she had printed and read a hard copy of Dr Kitchen’s submission over a weekend.
She is now appealing.
