Arnold Mann and Capital Medical Centre Pty Limited v the Medicine Group Pty Limited and Denis P Mackey [1989] ACTSC 38 (4 August 1989)

SUPREME COURT OF THE ACT

ARNOLD MANN AND CAPITAL MEDICAL CENTRE PTY LIMITED v. THE MEDICINE
GROUP PTY LIMITED AND DENIS P. MACKEY
S.C. No. 143 of 1989
Defamation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Defamation - application to strike out statement of claim - defamation of a group - identification of plaintiffs - plaintiffs not identified by name or description - readers possessing knowledge of certain circumstances - whether article capable of being understood to refer to plaintiffs.

Eastwood v. Holmes (1858) 1 F & F 347

Knupffer v. London Express Newspaper Limited [1944] UKHL 1; (1944) AC 116

Morgan v. Odhams Press Ltd and Another (1971) 1 WLR 1239

HEARING

CANBERRA
4:8:1989

ORDER

The application be dismissed with costs.

DECISION

This is an application to strike out a statement of claim in defamation on the ground that it is incapable of identifying the plaintiff.

2. The publication was on 20 January 1989 in a newspaper called "Australian Dr Weekly" and is alleged to have occurred in the Australian Capital Territory and "other areas of Australia to medical practitioners and other persons who cannot be identified until after discovery".

3. The complaint is about the following article:
"GREED IS THE MOTIVE

Editor - Dr Blewitt's dear friends the bulk-billing
doctors, are increasing among NSW GPs.
The rest of the GPs appear to be cringing in the
fear of the AMA's new fee structure, worried about
unfair competition from bulk-billers and therefore
rejecting a change away from a government fee
schedule.
We must never forget that a doctor bulk-bills not
because of concern for the patient, but because he
wants to be paid and doesn't care who pays him.
His motive is greed. His actions are contrary to
the Hippocratic ethic of medicine which states
that the medical service is "a contract,
exclusively between patient and doctor without any
third party involvement".
Medicine in Australia is way down the road to
nationalisation because of these greedy inadequate
bulk-billing doctors, who have sold their souls to
the 'devil'. They deserve social and professional
ostracism from the rest of us.
The next time a patient asks your receptionist
"does the doctor bulk-bill?" the answer should be
a resounding "No - do you want a crook for a
doctor".
Denis P Mackey
Lindisfarne, Tas"

4. The first plaintiff alleges that he is a specialist surgeon who bulk-bills his patients and is known by general practitioners in the ACT to do so.

5. The second plaintiff alleges that it is the proprietor of a clinic and rents facilities to medical practitioners who bulk-bill their patients and is generally known by the medical profession in Canberra as a clinic at which patients are bulk-billed.

6. On the hearing of the application to strike out, there was admitted into evidence an article in the Canberra Times of 25 July 1988 which reported that the ACT Council of Social Services had published a list of Canberra doctors who "will bulk-bill their patients .....". At the foot of the article there appeared a list which contained the name of the second plaintiff but not the first plaintiff.

7. In the Canberra Times of 2 August 1988, also admitted into evidence, there appeared what was entitled "The ACT Council of Social Services updated list of Canberra doctors who will bulk-bill". The list contained the names of some seventy-five doctors. It included the names "Capital Medical Centre: Dr Mann".

8. A defendant who applies to strike out a statement of claim before the action goes to trial will be successful only where the claim as pleaded is hopeless. This has been stated on many occasions and in many ways and it is unnecessary to refer to the authorities.

9. A plaintiff in defamation has to show that the publication concerned is "of and concerning" the plaintiff. In other words it must identify the plaintiff as one defamed. Where the plaintiff is not identified by name or description but belongs to a group of persons which is so identified, the question is raised whether the material is capable of identifying the plaintiff at all. Hence, long ago Willes J. in Eastwood v. Holmes (1858) 1 F & F 347 at 349 remarked that the statement "all lawyers are thieves" is incapable of defaming any particular lawyer. The statement is so broad, so absurdly broad indeed, that the ordinary reader would not take it to be referring to anyone in particular. On the other hand, a person may not escape liability by casting a libel at two or more persons rather than at a singular individual. Such a publication may in itself, or taken in conjunction with relevant circumstances, be capable of referring to one or more members of the group.

10. The issue is not simply the size of the group. The surrounding circumstances, which might have to be pleaded especially or made the subject of particulars, might point to the publication being understood by the ordinary reader as referring to the plaintiff. Hence, every case has to be treated according to the circumstances.

11. In the present case the defendants' solicitors sought particulars "of all facts and matters relied upon" in relation to identification of the plaintiff. The plaintiffs' solicitors in their reply referred, inter alia, to the list published in the Canberra Times referred to above, and gave the names of some Canberra doctors who read the material and took it to be referring to the plaintiffs.

12. The defendants in the present case relied upon the decision of the House of Lords in Knupffer v. London Express Newspaper Limited [1944] UKHL 1; (1944) AC 116. That case was concerned with a newspaper article published in 1941. The article was about a Russian emigre group. The article stated that Hitler intended to replace the leaders of the Kremlin with a puppet fuehrer from the ranks of this organization. The article went on "Established in France and the United States they claim to have secret agents able to enter or leave the Soviet Union at will". The evidence established that the total membership of the organization in Britain and elsewhere was about two thousand and that the British branch, of which the plaintiff was the head, comprised twenty-four members. The House of Lords held that the words concerned could not reasonably be understood to refer to the plaintiff.

13. However, as Mr. Nicholas Q.C. submitted on behalf of the plaintiffs, the case is of doubtful application to the present case. The speeches of Viscount Simon L.C. at p 118 and of Lord Porter at p 123 indicate that it was conceded that there could be no claim that each member of the group was defamed. That concession is not made by the plaintiffs in this case. Lord Atkin pointed out at p 122 of Knupffer, that too much attention can be paid to the example given in the ruling of Willes J. in Eastwood v. Holmes and concluded "it will be as well for the future for lawyers to concentrate on the question whether the words were published of the plaintiff rather than on the question whether they were spoken of a class".

14. In Knupffer's case Lord Russell of Killowen related the question to the evidence and said this at p 123:

"The crucial question in these cases in which an
individual plaintiff sues in respect of defamation
of a class or group of individuals is whether on
their true construction the defamatory words were
published of and concerning the individual
plaintiff. Unless this can be answered in the
affirmative he has no cause of action. It is not,
I think, the case of a defined primary rule with
defined exceptions to the rule. I would rather
say that in every case it is the question
indicated above. When the construction of the
matter complained of comes under consideration,
there may be something in the defamatory matter or
in the circumstances in which it is published,
which indicates, and enables a jury to find, that
particular individuals are defamed, although they
are not named."

15. The importance of the evidence relating to the circumstances surrounding the publication was stressed by Lord Morris of Borth-y-Gest in the following passage in Morgan v. Odhams Press Ltd and Another (1971) 1 WLR 1239 at p 1252:

"The question for the judge at the end of the
plaintiff's case was whether there was evidence
upon which the jury could (not would) decide in
favour of the plaintiff. That in turn raised the
question whether the jury could decide that some
readers (having knowledge of certain circumstances)
would reasonably understand the words as
referring to the plaintiff. If no reasonable
reader could have understood the words as
referring to the plaintiff, then there would be
nothing to be left to the jury."

16. This application to strike out the statement of claim falls to be considered before the evidence has been given. In my view, it has to be assumed in favour of the plaintiffs that evidence will be given that there were medical practitioners in Canberra who read the defendant's article and, having knowledge of the previous publicity in the Canberra Times, took it to refer to the plaintiffs. Hence there would be a real question whether the tribunal of fact could decide that, in the words of Lord Morris of Borth-y-Gest "some readers (having knowledge of certain circumstances) would reasonably understand the words as referring to the plaintiff". Further, at this preliminary stage, the question is whether those readers could so understand.

17. Once that is realised it seems to me that it is impossible to say that the plaintiffs' claim as pleaded must fail because the material is incapable of identifying the plaintiff.

18. Having reached that conclusion for the reasons already given, it is unnecessary for me to say anything about another matter that occupied the attention of counsel during the hearing of the application, namely, whether the intention of the defendants is relevant to the question of identification of the plaintiffs.

19. The application will be dismissed with costs. However, before finally disposing of it I should say that this is not the sort of action that should be allowed to proceed at a pace determined by the parties or those advising them and I propose to give further directions on the future conduct of the case.