Pisano v South Metropolitan Health Service

(2023) 414 ALR 130; [2023] WASCA 80

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Misfeasance in public office
3. › Public officer
4. › Whether CEO of private hospital providing health services to public patients under services agreement with Minister is a public officer
5. › Whether contracting out of public health services creates public office in private employee
6. › Health Services Act 2016 (WA), s 32
7. › Hospitals and Health Services Act 1927 (WA), s 5A
1. Tort
2. › Misfeasance in public office
3. › Public power
4. › Whether power to credential medical practitioners at private hospital is a public power
5. › Whether contractual obligations under services agreement constitute exercise of public power
1. Practice and Procedure
2. › Summary judgment
3. › Defendant's application
4. › Whether clear there is no real question to be tried
5. › Principles governing summary dismissal
6. › Rules of the Supreme Court 1971 (WA), O 16 r 1(1)

Quick Take

The CEO of a private hospital operated under a services agreement with the State to provide health services to public patients is not a 'public officer' for the purpose of the tort of misfeasance in public office. A person whose capacity to act is entirely a creature of contract with the executive arm of government is not thereby constituted a public officer. The Minister's statutory duty to provide health services under s 5A(1) of the Hospitals and Health Services Act 1927 (WA) is discharged, not divested, by entering into arrangements under s 5A(3), and the Minister's counterparty does not assume a correlative public duty. The question whether public power must 'attach to' the office (Cannon v Tahche) or whether it suffices that the officer is entitled to perform public acts by virtue of their position (Obeid v Lockley) remains unresolved.