Kitchen v Quinlivan (No 3)

The Court held that the Director of the Professional Services Review Agency committed the tort of misfeasance in public office by referring an ophthalmologist to a PSR committee without reading or genuinely considering his statutory submission, in circumstances where the Director knew she could not validly exercise the referral power without taking the submission into account. The consent declaration in prior Federal Court proceedings that the Director 'did not take into account' the submission operated as a res judicata, precluding the Director from giving evidence that she intellectually engaged with the submission, though she could give evidence about whether she physically read it. On the evidence — including the 17-minute response time to a 96-page submission with 207 annexures, internal PSR emails suggesting no printing occurred, failure to call corroborating witnesses attracting Jones v Dunkel inferences, and the Director's lack of credibility — the Court found the Director did not read the submission and acted with reckless indifference or deliberate blindness to the invalidity of her decision and the likely harm to the plaintiffs, awarding $1,986,300.66 in damages.