Background
Rubasin pursued a workers compensation claim for psychological injury alleged to arise from workplace bullying. Workcover appointed Murphy, a consultant forensic psychiatrist, to conduct an independent medical examination. Murphy produced a report dated 5 June 2020 that Workcover relied upon to reject the claim. Rubasin subsequently sought to commence civil proceedings against Murphy, alleging he had misrepresented her responses to questions, fabricated details, falsely diagnosed her with Schizophrenia, and made manipulated statements in his report. She claimed damages including economic loss, non-economic loss, and aggravated and punitive damages.
The registrar referred Rubasin’s proposed originating process to a Supreme Court judge, who directed that it not be issued without leave of court. On 3 September 2025, Rubasin filed an originating application seeking leave to commence the proceeding. The trial judge (Williams J) refused leave on 31 October 2025, finding that no duty of care as alleged arose between a medical practitioner conducting an independent examination under the Workers’ Compensation and Rehabilitation Act and the examinee. The trial judge also made costs orders against Rubasin. Rubasin appealed to the Court of Appeal.
The Court’s Holding
The Court of Appeal held that the trial judge erred in principle by addressing the substantive merits of whether a duty of care existed when deciding whether to grant leave to commence proceedings. Bond JA stated: “Although the primary judge recognised by reference to authority that an application for leave was not the occasion for a hearing or determination on the merits, the primary judge’s ex tempore reasons reveal that she made just such a determination.” The court noted that where a novel or unusual cause of action in tort is pleaded, it may be appropriate to defer the duty of care question to trial rather than decide it on an application for leave—particularly when the pleading itself contains serious deficiencies.
However, the Court of Appeal upheld the refusal of leave, but on procedural grounds. The pleading was seriously deficient in multiple respects: it failed to distinguish between material facts and evidence, pleaded rolled-up conclusions without adequate factual support, and failed to plead serious allegations (such as intentional wrongdoing or falsification) in the manner warranted by those allegations. The court found that these pleading inadequacies alone justified refusal of leave to commence, without the trial judge needing to address the substantive merits of the duty of care question.
On costs, the Court of Appeal departed from the trial judge’s order. While acknowledging that the respondent won below, the court found that he “won for reasons he should not have” and that the applicant was justified in appealing the decision on the point of law, as it could have proven an obstacle to future attempts to plead the case. The court ordered that each party bear their own costs of both the application and the appeal.
Key Takeaways
- When a court considers whether to grant leave to commence proceedings based on a seriously deficient pleading, it should focus on the pleading deficiencies rather than the substantive merits of novel duty of care claims.
- A pleading advancing serious allegations (such as fraud, fabrication, or intentional wrongdoing) must plead those allegations in a manner proportionate to their gravity, not merely as rolled-up conclusions.
- The distinction between material facts and evidence is critical to valid pleading; pleadings that blur this distinction or plead evidence instead of facts may be struck down without addressing substantive legal questions.
- Self-represented litigants seeking to advance novel causes of action must meet the same pleading standards as represented litigants, although courts may provide limited procedural guidance.
Why It Matters
This decision clarifies the proper procedural approach when an application for leave to commence proceedings involves both pleading deficiencies and a novel legal question. It establishes that courts should not conflate the two inquiries: deficiencies in pleading can justify refusal without requiring the court to opine on unsettled questions of law. This protects litigants who wish to advance genuinely novel duties of care, while ensuring that the threshold for leave to commence is not set so low as to allow seriously inadequate pleadings to proceed to trial.
The decision also has practical significance for independent medical examiners and the workers compensation system. By declining to address the merits of whether such examiners owe a duty of care to the examinee, the court left that substantive question open for future decision on a properly pleaded case. However, the decision underscores that any such claim must be clearly pleaded with appropriate factual particularity and without rolled-up legal conclusions, signalling that future attempts will face the same pleading scrutiny.