The former PSR director’s counsel is not contesting the finding that she didn’t read Dr Kitchen’s submission.
Former Professional Services Review director Professor Julie Quinlivan’s legal team is arguing that even if she didn’t read ophthalmologist Dr David Kitchen’s submission prior to referring him to a committee, her actions did not amount to misfeasance in public office.
The long-running civil case is now in the Queensland court of appeal, following a December 2025 ruling that Professor Quinlivan committed misfeasance in public office while looking into Dr Kitchen’s conduct back in 2018.
The appeal was heard on Thursday by three Supreme Court of Queensland judges: Justice David Boddice, Justice Soraya Ryan and court of appeal president Justice Debra Mullins.
The heart of the case so far has been a 17-minute window between Professor Quinlivan being emailed a copy of Dr Kitchen’s 96-page written submission and Professor Quinlivan starting the formal process of referring him to a PSR committee.
Under the Health Insurance Act 1973, the PSR director is legally obliged to take all submissions from a practitioner under review into account before taking further action.
In her December ruling, Supreme Court of Queensland Justice Rebecca Treston said she was “comfortably satisfied” that Professor Quinlivan did not take Dr Kitchen’s full submission into account and that this amounted to an abuse of process.
“It is submitted on behalf of the Director that her reading of Dr Kitchen’s 2018 submission is inconsistent with a state of mind intending to cause harm to the plaintiffs,” Justice Treston wrote.
“Whilst that may well have been true if that were the finding, it follows that the converse is also true.
“Having found that the Director did not read the submission, I am satisfied she proceeded with reckless indifference to the consequences, making the conduct as blameworthy as deliberately seeking such consequences.”
This specific paragraph came under specific scrutiny during the appeal hearing, with Justice Mullins noting several times that she felt Justice Treston’s conclusion did not follow.
Related
Professor Quinlivan’s legal team drew specific attention to the use of “could” rather than “likely” in another of Justice Treston’s conclusions as to the director’s state of mind.
“The Director knew that an invalid Referral to the Committee could cause damage including stress, anxiety, loss of income and, potentially, damage to reputation,” the paragraph in question read.
“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.”
To satisfy the legal standards, Professor Quinlivan’s counsel contended, Justice Treston should have applied a higher standard and found that the director knew the referral either “likely” or “would” lead to damage for Dr Kitchen.
Dr Kitchen’s counsel, on the other hand, pointed out that Justice Treston had actually used the phrase earlier in the same section, writing that she had “little difficulty reaching the conclusion that the Director was recklessly indifferent as to whether her Referral of Dr Kitchen to a Committee, with all that followed, would cause harm to him”.
There is a lot riding on the Quinlivan v Kitchen appeal.
For a start, if Professor Quinlivan’s appeal succeeds, it seems unlikely that Dr Kitchen will receive the full $2.1 million awarded to him by Justice Treston in December.
But Dr Kitchen’s initial win also represented a potential path forward for other practitioners reviewed by the PSR under Professor Quinlivan; rumours of a potential class action have been swirling since earlier this year.
It’s also drawn attention outside of medicine. The idea that not reading a submission may amount to misfeasance could be useful for people whose NDIS or disability support payments have been cut, for instance.
The Medical Republic will cover the appeal outcome when it is handed down.
