Arnold Mann v the Board of Health of the Australian Capital Territory, John Arthur Bissett, Leonard Edward Withers, Anthony Charles Clarke, John James O'Donnell, Brian Peter Hurley and Noel Tait [1995] ACTSC 160 (22 December 1995)

SUPREME COURT OF THE ACT

ARNOLD MANN v. THE BOARD OF HEALTH OF THE AUSTRALIAN CAPITAL TERRITORY, JOHN
ARTHUR BISSETT, LEONARD EDWARD WITHERS, ANTHONY CHARLES CLARKE, JOHN JAMES
O'DONNELL, BRIAN PETER HURLEY AND NOEL TAIT
No. SC 458 of 1991
Number of pages - 14
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Practice and Procedure - appeal from Master - qualified privilege malice - need for particulars of malice to allege facts and matters from which defendant's state of mind is to be inferred.

Practice and Procedure - appeal from Master - directions - direction for separate trial of defamation claim from trial of contract claim - no appeal from direction - circumstances in which Court will order separate trials.

Practice and Procedure - appeal from Master - order striking out reply denying occasion of qualified privilege - whether plaintiff bound by facts pleaded in statement of claim which establish qualified privilege - lack of power to order a party to make admissions.

Ashmore v. Corp of Lloyd's (1992) 2 All E.R. 486

eform to the Adversarial Process in Litigation, (1995) 69 ALJ 365
(Justice Ipp of the Supreme Court of Western Australia)
Gatley on Libel and Slander, 8th ed. at para.794
Calwell v. IPEC Australia Limited [1975] HCA 47; (1975) 135 CLR 321
Spill v. Maule (1869) L.R.4 Ex.232
Horrocks v. Lowe (1975) AC 135
Australian Broadcasting Corporation v. Comalco Ltd (1985) 68 ALR 259
King v. John Fairfax and Sons Ltd (1983) 1 NSWLR 31
Turner v. Metro-Goldwyn-Mayer Pictures, Ltd. (1950) 1 All E.R.449
Hanrahan v. Ainsworth (1990) 22 NSWLR 73
English Annual Practice (1995) para.18.12.2
Allbutt v. The General Council of Medical Education and Registration (1889)

23 QBD 400

HEARING

CANBERRA, 30 November and 1 December 1995
22:12:1995

Counsel for the plaintiff: Dr A. Mann in person

Counsel for the defendants: Mr. K. Crispin, QC

Solicitors for the defendants: Blake Dawson Waldron

ORDER

THE COURT ORDERS THAT: 1. The appeal be dismissed and the Master's orders made and directions given on 27 October 1995 be confirmed save for the following.

2. Further submission be stood over to the next directions hearing with regard to order numbered 10 and that order numbered 13 be varied to the following:

"I order the plaintiff within 28 days to amend particulars (q) and
(r) so as to make clear that the particular allegations and
statements referred to are those in the matters complained of.
Time to run in vacation."

3. Further consideration be reserved until the next directions regarding the

time from which the Master's time-table for the continuation of the proceedings should begin.

4. The question of costs of the appeal be reserved to the next directions hearing.

5. The next directions hearing be fixed for Friday, 2 February 1996 at 9.30 a.m. or such time on that date as may be notified.

DECISION

MILES CJ This is an appeal against certain orders and directions amongst numerous orders made and directions given by the Master on 27 October 1995. The orders subject to appeal may be divided into three main groups, namely:

1. Orders striking out and otherwise affecting certain parts of the
plaintiff's replies to the amended defences of the sixth and seventh
defendants.
2. A direction that the issues raised in certain parts of the
pleadings (namely the issues raised by the plaintiff's claims in
defamation) be tried separately from the other issues on the
pleadings (mostly issues arising out of claims of a contractual
nature, including equitable estoppel).
3. Various other directions for the further conduct and management
of the case.

2. In his published reasons for decision, the Master set out in careful detail the relevant history of the relationship between the parties, the history and nature of the litigation, and a summary of the pleadings. Since this judgment is directed primarily towards the parties and only incidentally to the disinterested reader, I do not intend to repeat what the Master said. However, I do acknowledge expressly that the Master's reasons deal with these matters with accuracy and, so far as the case permits, with commendable succinctness.

3. The plaintiff is a specialist surgeon who was for many years engaged as a visiting medical officer by what was then the Board of Health of the Australian Capital Territory. He commenced proceedings against the Board of Health for breach of contract which he claimed arose out of the Board of Health dispensing with his services. He alleged breach of what was called a fee for service agreement dated 18 January 1988, a renewal agreement made on 20 November 1990 and a retirement agreement made earlier on 18 July 1986. He amended the statement of claim to include allegations of defamation on the part of the other six defendants. Various publications were relied upon, some oral and some written. The present appeal is concerned only with the actions in defamation against the sixth and seventh defendants, Dr Hurley and Dr Tait. At relevant times Dr Hurley was Chairman of the Medical Staff Committee of the Board of Health. Dr Tait was a general surgeon engaged by the Board of Health on a fee for service basis.

4. Before dealing with the three main groups of orders the subject of the appeal, it is appropriate to state the significance of the discretionary and interlocutory nature of the orders appealed against. It is well established that an appellate court will interfere with a discretionary judgment only if it be shown to be wrong in law or based upon demonstrable error of law, or if no error can be detected a manifest injustice. Furthermore, the appellate tribunal will be particularly cautious before interfering where the discretion is exercised in deciding a matter of practice or procedure in the process leading up to the hearing and final adjudication of the rights and liabilities of the parties.

5. The role of pre-trial procedures in assisting the parties to identify the real issues and thereafter to confine the adjudication process to deciding those issues without unduly protracting the proceedings with the familiar disadvantages of cost and delay, have become increasingly important in recent years in courts throughout the English speaking world. As Lord Roskill in Ashmore v. Corp of Lloyd's (1992) 2 All E R 486 at 488 said:

"It is part of (the duty of a trial judge) to identify the crucial
issues and to see they are tried as expeditiously and as
inexpensively as possible. It is the duty of the advisers of the
parties to assist the trial judge in carrying out his duty.
Litigants are not entitled to the uncontrolled use of a trial
judge's time. Other litigants await their turn. Litigants are only
entitled to so much of the trial judge's time as is necessary for
the proper determination of the relevant issues."

6. A convenient survey of these developments is set out in an article by Justice Ipp of the Supreme Court of Western Australia in (1995) 69 ALJ 365,

Reform to the Adversarial Process in Litigation.
7. It is against this background of the need to define the real issues and to conduct the litigation within the ambit of those issues, that the appeal in the present case is to be decided.

8. It should also be observed that whilst it is sometimes convenient for the judge who is to preside over the eventual trial and to determine the issues which have been formulated to decide any procedural matters that arise pending trial, this is not necessary either for justice or for expedition. Many courts entrust interlocutory decisions to judicial officers who may not exercise the full jurisdiction of the court. Invariably such officers are very experienced in matters of practice and procedure and often in specialised areas of procedural law. The Supreme Court Act 1933 and the Rules of Court combine to confer a power and responsibility on the Master of the Supreme Court of the Australian Capital Territory in relation to procedural matters which is no less than that of the Judges of the Court. Hence, while the Master has no power to try the case between the present parties when it comes to trial, the Master's decisions as to the procedures to be followed leading to the trial are binding on the parties and are to be respected as decisions of the Court, save to the extent that a judge may see fit to overturn or vary such decisions on appeal by applying the ordinary principles observed in such appeals and to which I have already referred.

9. I now deal with the three main groups of orders, the subject of the appeal.

1. Plaintiff's replies to amended defences
10. The actions against both Dr Hurley and Dr Tait are in libel and slander. The alleged libel by Dr Hurley is contained in a letter which Dr Hurley wrote on 24 September 1990 in reply to a letter from Dr O'Donnell (the fifth defendant) dated 17 September 1990.

11. Dr O'Donnell was the Executive Director, Clinical Services, employed by the Board of Health. Dr O'Donnell's letter concerned the plaintiff ceasing to treat a patient, Carolyn Thompson, who presented psychiatric and surgical problems. Dr O'Donnell sought advice from Dr Hurley as Chair of the Medical Staff Committee, about an appropriate course of action. Dr O'Donnell expressed the belief that there were three options, namely, advising the plaintiff that his conduct was unprofessional, referring the matter to the ACT Medical Board, and suspending the plaintiff's contract. Dr O'Donnell's letter is also relied upon by the plaintiff in a separate claim in libel against Dr O'Donnell, but the present appeal is not concerned with that.

12. Dr Hurley's reply of 24 September 1990 expressed the view that the onus of patient care remained with the plaintiff and that referral to the Patient Care Review Committee in the first instance would be appropriate.

13. The alleged slander on the part of Dr Hurley occurred on 22 March 1991 at a meeting of the Board of Health at which meeting Dr Hurley and Dr Tait spoke. The purpose of the meeting was to consider a report by Mr. Bissett, the second defendant, who was the Chief Executive Officer and General Manager of the Board of Health. The report was about the plaintiff. At the meeting Dr Hurley is alleged to have said, inter alia, that the plaintiff had used the Executive Director, Clinical Services "as a receptacle upon which to dump the care of a public hospital patient" and that the plaintiff's conduct "showed a disregard for his contractual obligations" and that the plaintiff's conduct was unreasonable.

14. The alleged libel by Dr Tait is contained in a letter also dated 24 September 1990 in reply to a letter from Dr O'Donnell dated 17 September 1990 substantially in terms identical to the letter by Dr O'Donnell of the same date already mentioned.

15. Dr Tait's letter advised that the Medical Board and the AMA should be invited to comment and expressed the view that it was difficult to accept that the plaintiff's action in passing the responsibility of care to a non-clinician was a reasonable response to the difficulties in which he found himself.

16. Dr Tait is alleged to have said at the meeting that the lack of recent progress in the public hospital system was "mainly because of Dr Mann's management of his role in the hospital and his obligations under his contract" and that there had been "great difficulty" in obtaining the information from the plaintiff during examination of the matters raised in the report prepared by Mr. Bissett.

17. The statement of claim in its present form (described as "amended amended statement of claim") alleges that the following imputations arose from the letters and words relied on, namely that the plaintiff -

"(a) Had breached his fee for services contract.
(b) Had deliberately withheld from the proper authorities
information concerning patients.
(c) Was not a competent and ethical medical practitioner.
(d) Remained under great suspicion of having caused the death of
Myra Clarice Hayes.
(e) Was neglectful of his duty of care for patients admitted under
him.
(f) Had given just cause for his contract to be suspended and not
renewed."

18. In addition to claiming ordinary compensatory damages for loss of reputation, the plaintiff claimed aggravated or exemplary damages, or both, relying upon lack of honest belief in the truth of the words both written and spoken or reckless disregard for their truth.

19. It should be observed also that the plaintiff claimed that all defendants conspired with one another without just cause or proper motive to having the plaintiff's contract suspended and not renewed. This allegation appears to be a reliance upon the tort of conspiracy independently of the allegations supporting the claim for aggravated and exemplary damages for the defamation. In his submissions the plaintiff may have confused matters which go to aggravated and exemplary damages and matters which go to malice.

20. In their defences, Doctors Hurley and Tait put in issue the speaking of the words at the meeting. In respect of both the alleged libel and slander they denied the defamatory meanings and denied the circumstances of aggravation. They denied the conspiracy alleged. To the claims in defamation they each raised a defence based on qualified privilege.

21. The plaintiff replied to the defences denying that the occasions of publication were occasions of qualified privilege. The reply asserted in the alternative that the defendants were each actuated by malice. The particulars of malice in respect of each defendant are substantially similar, but with some minor differences. They are set out in the Master's judgment and I will not repeat them.

22. The Master considered that the allegations in the statement of claim showed that the publication of the letters and the speaking of the words took place on occasions of qualified privilege. The Master further considered that the denial by the plaintiff of qualified privilege would only add to expense and delay and he accordingly ordered that the denials in each reply be struck out.

Malice
23. The Master's judgment clearly indicates that he understood properly the principles to be applied to the question of malice as a matter which destroys the protection afforded to a publication on an occasion of qualified privilege. Again, it is unnecessary to repeat everything the Master said in his judgment. It is sufficient to emphasise that the Master recognized that the onus lay upon the plaintiff to prove that the dominant motive on the part of the defendant was a desire to injure the plaintiff. The Master was aware of the difficulties that may arise from an allegation of malice in reply to a claim of qualified privilege because as Gatley on Libel and Slander, 8th ed. at para.794 comments'.

"There is hardly any case of privilege in which there is not some
circumstance which is consistent with malice."

24. It is not enough that the evidence be equally consistent with either the existence or the non-existence of malice: the evidence must raise a positive probability of malice.

25. Further, as Mason J (as he then was) said in Calwell v. IPEC Australia Limited [1975] HCA 47; (1975) 135 CLR 321 at 333:

"Whether in a given case there is an inference reasonably open that
the defendant was actuated by ill will or some other improper motive
will depend on the extravagance of the allegation or the language in
which it is expressed, having regard to the facts." (Emphasis
added.)

26. Mason J also appears to have approved Spill v. Maule (1869) LR 4 Ex 232 to the effect that the plaintiff must show that the extremity and exaggeration of language is explicable only by reference to ill will in the defendant.

27. However, the dominance of the ill will is presumed if, at the time of publication, it is shown that, unless the defendant is under a duty to report, the defendant lacks any genuine belief in the truth of the matter complained of. The law on this subject was the subject of the decision by the House of Lords in Horrocks v. Lowe (1975) AC 135. That decision was followed by a Full Court of the Federal Court in Australian Broadcasting Corporation v. Comalco Ltd (1985) 68 ALR 259 (a case of a public broadcast) on appeal from the former Chief Justice of this Court (1985) 64 ACTR 1. Blackburn CJ at 73, in considering the House of Lords' decision, observed that it was to the effect that where the plaintiff establishes that the defendant did not believe the defamatory statements to be true, or was recklessly indifferent as to their truth or falsity, this was sufficient to establish malice such as to destroy the privilege. His Honour also noted from that case that where the defendant believes the defamatory statements to be true then (save for the exceptional cases of pursuing a private advantage unconnected with the occasion of privilege) the plaintiff must show an actual and dominant desire to injure the plaintiff. The Federal Court upheld the judgment of Blackburn CJ on this issue. Smithers J said at 283:

"....privilege may exist although the publisher believes the matter
published to be untrue where there is a sufficient interest in the
potential audience to receive the published material. Thus, the
quality of the occasion as one of privilege depends rather on the
nature of the subject matter and of the interest of the audience
therein, than on the degree of belief of the publisher in the truth
of what is published."

28. The Master concluded that there was nothing intrinsic in the Hurley letter or the Tait letter upon which a conclusion could be drawn that either of the letters were published on an occasion when the writer lacked belief in what he had written or when the dominant motive on the part of the writer was to injure the plaintiff. The Master reached a similar conclusion in relation to all but three or four of the numerous particulars of malice set out in the statement of claim.

Particulars
29. Particulars of malice must refer to the facts and circumstances from which the plaintiff will seek to have the Court draw the inference that the defendant's dominant motive was to injure the plaintiff. Proof that the defendant lacked a belief in the truth of the allegations is usually conclusive that the defendant was not so motivated: King v. John Fairfax and Sons Ltd (1983) 1 NSWLR 31. However, it is not sufficient to state in the particulars that the defendant knew that the matter complained of was untrue, or was indifferent to its truth or falsity, or lacked an honest belief in its truth. Those propositions themselves are all matters of inference to be drawn from facts and circumstances to be proved and of which the defendant should have notice by way of particulars.

30. Hunt J in King v. John Fairfax and Sons put it in the following terms at 33:

"Indeed, it should be said in relation to both these particulars of
malice relied upon by the plaintiff that the allegation of
actual falsity should never have been made for, although in some
cases it is permissible to prove knowledge of falsity from the
fact of falsity itself, proof of the relevant condition of mind
does not necessarily depend upon that fact and in many cases
it is proved without falsity itself being proved. In point of
principle, a defendant is actuated by malice in the publication
if he has no honest belief in the truth of what he publishes
even if what he has published is objectively true. And the
occasion should not be allowed to pass without reminding
plaintiffs that Pt 67, r 19(d) requires them to give as
particulars of malice the facts and matters, and not merely
the unsubstantiated conclusions, upon which they rely to
establish their allegation of malice. The defendant in
defamation litigation is entitled to a proper warning of the
case to be made against him, for he is entitled to justify the
acts which he is alleged to have done and which are alleged to
establish that his publication of the matter complained of was
actuated by malice: A Code of Actionable Defamation, 2nd ed.
(1923), Spencer Bower, at 138, 139."

31. The principles thus enunciated are not restricted to an application of the particular Rule of the Supreme Court of New South Wales to which Hunt J referred. They are applicable to all cases of defamation in which malice is relied upon in reply to a defence of qualified privilege, as the reference to Spencer Bower illustrates. They are applicable in such cases brought in this Court and the Court should insist upon their observation.

32. Moreover, although evidence of ill will either before or after the time of publication may support a claim of malice, the circumstances must be such that they "are so connected with the state of mind of the defendant as to lead to the conclusion that he was malicious at the date when the libel was published" and that "each particular instance of malice must be carefully analysed and if the result is to leave the mind in doubt, then that piece of evidence is valueless as an instance of malice, whether it stands alone or is combined with a number of similar instances": Turner v. Metro-Goldwyn-Mayer Pictures, Ltd. (1950) 1 All ER 449 at 445 per Lord Porter, approved in Hanrahan v. Ainsworth (1990) 22 NSWLR 73 at 105 per Clarke JA

33. The plaintiff submitted correctly that there is a difference between particulars and matters of evidence. He further submitted that the effect of the Master's decision was to rule in advance of the trial on matters of evidence, thus usurping the function of the trial judge and going beyond the powers of the Master. The plaintiff further submitted that the nature of particulars is such that there is no power either in the Master or in the Court to strike out particulars which are not vexatious or frivolous, although he conceded that there is power to strike out a paragraph in a pleading.

34. The plaintiff submitted that pleadings are "warnings pure and simple to the other party". It is true that particulars do serve the purpose of warnings. But they serve several purposes. A comprehensive, if not exhaustive statement of the nature and functions of particulars, is set out in the English Annual Practice (1995) para. 18.12.2 as follows (omitting references).

1. To inform the other side of the nature of the case they have to
meet as distinguished from the mode in which that case is to be
proved.
2. To prevent the other side from being taken by surprise at the
trial.
3. To enable the other side to know what evidence they ought to be
prepared with and to prepare for trial.
4. To limit the generality of the pleadings or of the claim or the
evidence.
5. To limit and define the issues to be tried and as to which
discovery is required.
6. To tie the hands of the party so that he cannot without leave go
into any matters not included, although if the opponent omits to ask
for particulars, evidence may be given which supports any material
allegation in the pleadings.

35. It is important that the facts for which malice at the relevant time is to be inferred be stated with precision and care.

36. It is important also that particulars be restricted to what is necessary so that the opposing party does not have to give discovery or answer interrogatories or prepare to meet a case which need not be fought. In the Commercial List in England, there is a formal rule of court that no particulars shall be applied for or ordered except such particulars as are necessary to enable the party applying to be informed of the case he has to meet or some other reason necessary to secure the just, expeditious and economical disposal of any question at issue in the action. The practices in commercial lists are designed to expedite litigation and to shorten hearing times. To these ends they rely on judicial monitoring and active case management. It is, in my view, a salutary practice that courts be careful not to allow particulars that are prolix, unnecessary and embarrassing, because particulars of such a nature can only add to needless delay and cost to the preparation of a case for hearing and to the length and to the cost of the hearing itself. If particulars are unnecessary or tautologous, there is nothing to stop the courts striking them out. Similarly, if particulars descend into matters of evidence they should be struck out. In either case they are not properly part of the pleading.

37. There are, however, grey areas, and the approach of the court should be flexible. In a simple case of a claim for damages by a passenger in a motor vehicle alleging negligence on the part of the driver, particulars which state that the driver failed to have due regard to the safety of the plaintiff are tautologous. On the other hand, particulars that another motorist driving at 60 kilometres per hour was overtaken by the defendant just before the defendant lost control, are not true particulars but a statement of the evidence on which the plaintiff intends to rely. Proper particulars would state that the defendant drove at an excessive speed, and if further and better particulars were sought, the plaintiff could reply by alleging that the speed was excessive because it was in excess of the speed limit, or because the road was slippery by reason of rain or whatever the circumstances were. If the plaintiff was unable to give further particulars, it would prevent the plaintiff from relying upon any such specific circumstance such as a speed limit or slipperiness of the road surface.

38. In many jurisdictions court rules prescribe the particulars which a plaintiff is obliged to furnish in an allegation of malice in a reply to a defence of qualified privilege. In England Order 82 Rule 3(3) and in New South Wales Part 67 Rule 19(d) lay down specific rules which provide that the plaintiff must give particulars of the facts and matters from which malice is to be inferred. There is no such specific rule in this Court, but none is needed. It is in the nature of particulars as they relate to an allegation of malice in reply to a defence of qualified privilege that the defendant and the Court know what overt facts and circumstances would be relied upon by the plaintiff to support the inference contended for that at the time of publication the defendant was actuated by malice. As already indicated, malice in this context consists of a dominant intention to injure and this intention will be presumed if the defendant has no belief in the truth of the matter complained of unless the case is the exceptional one of a defendant with a duty to report.

39. Thus it is necessary that the plaintiff furnish particulars of malice which set out facts from which it is made clear whether the plaintiff is relying upon an actual and dominant intention to injure which goes beyond the presumption raised by an allegation of an absence of belief in the truth of the matter complained of. If there is no allegation of an actual and dominant intent to injure, the plaintiff must give particulars of facts, that is to say, overt acts or words other than the matter complained of on the part of the defendant that the defendant at the time of publication spoke or wrote the words without any belief in their truth. If the plaintiff is unable to furnish such particulars, or if such particulars are not furnished when requested, then the plaintiff is left in the position that the inference as to the defendant's state of mind must be drawn from the matter complained of itself and not from other facts or circumstances.

40. It is correct, as the plaintiff submits, that if some of the particulars upon which he replies are disallowed, then the matters in dispute may be restricted and to that extent evidence which the plaintiff may have wished to call to support the disallowed particulars may not be admitted. This is the effect of disallowing what are propounded as particulars of malice but which, even if proved, do not advance the resolution of the true issues. But the disallowing of such particulars relates essentially to the issues themselves and not to the evidence. Disallowing particulars which are unnecessary or tautologous or which amount merely to a statement of evidence to be called eliminates false or unnecessary issues but does not affect the trial judge's decision as to what evidence should be admitted or rejected at the hearing.

41. The notice of motion seeks an order that para. 3 of the reply be struck out. The Master was correct in approaching the application by looking at the particulars furnished under para.3 in order to ask the question whether any one of them, or a combination of more than one of them, amounted to a fact or matter which if proved was capable of supporting an inference that at the time of publication the defendant in question lacked a belief in the truth of what he wrote in the letter or what he said at the meeting or an inference that at the time the defendant's dominant motive was to injure the plaintiff. If the answer to the question is in the affirmative, the paragraph should be allowed to stand. But any particulars which did not meet the test should be struck out or, alternatively, the plaintiff ordered to amend the paragraph to remove the offending particulars.

42. I will assume without deciding, as it was not argued, that what each defendant said at the meeting is capable of reflecting his state of mind at the time of the publication of the letter and conversely that what he wrote in the letter is capable of reflecting his state of mind when he spoke at the meeting.

43. I agree with the Master, however, that there is nothing in either letter taken by itself which is capable of showing malice. Each letter is, on the face of it, a measured response to an inquiry to which the defendant had or was entitled to see himself having a professional duty to respond. Therefore, the particulars of extrinsic facts and matters are crucial.

44. The Master observed that it is nowhere expressly alleged in the pleadings or particulars that either defendant did not believe in the truth of what he said at the meeting. That observation is not quite correct. An allegation of reckless indifference to the truth in failing to disclose relevant correspondence with the plaintiff to the meeting is made in para.(o). An allegation of knowing that Dr Tait's allegations at the meeting were untrue is made in para.(p). The absence of such an express allegation in the rest of the particulars would tend to mean that the pleader was seeking to rely on an actual intent to injure above and beyond the presumption of ill will which attaches to absence of belief in the truth of the matter complained of. However, as Dr Mann appears in person (and despite his statement that his draft of the particulars received the approval of experienced counsel) I would not disallow particulars which were capable of proving absence of belief in the truth of the matter complained of.

45. Without setting out all the particulars in these reasons, I think it is convenient to divide them into various categories, namely:

1. Failing to give notice to the plaintiff of what the defendant
intended to say at the meeting, or failing to obtain from the
plaintiff his response to matters likely to be raised at the
meeting.
2. Hypocrisy in failing to apply to himself the standards that he
applied to the plaintiff and failing to inform the Board of Health
accordingly.
3. Failing to take into account and/or failing to draw to the
attention of the meeting proven professional misbehaviour or
allegations of misbehaviour on the part of other medical
practitioners.
4. Failing to disclose to the meeting professional opinion which was
supportive of the plaintiff.
5. Using the occasion of publication to further the defendant's own
professional interests.
6. Failing to consult others before delivering to the meeting an
opinion adverse to the plaintiff.
7. Failure to disclose to the meeting correspondence with the
plaintiff.
8. Failure to apologise.

46. Broadly I agree with the Master that subject to the specific exceptions discussed below, none of these allegations if proved can give rise to an inference-either that the defendant lacked a belief in the truth of what he wrote in the letter or of what he said at the meeting, or, with the possible exception of category 5. above, that his dominant motive was to injure the plaintiff's reputation by means of the matter complained. As to category 5., whilst it is possible that the defendant's mental processes were not free of a desire to further his own professional interests, there is nothing in the facts otherwise alleged in the particulars from which it could be inferred that such an intention was dominant. However, as the Master did not disallow para.(e) (which falls into category 5. above) of the particulars, and there is no cross- appeal, I would simply observe that para.(e) is incomplete in that whilst it does raise a matter which if proved may be evidence of improper motive, it does not set out the circumstances from which the Court will be asked to infer that the defendant at the time of the publication sought to advance his own professional interests.

47. Paragraphs (o) and (p), which expressly allege knowledge of the untruth of what was said, were allowed by the Master to stand. Again, I do not offer any comment except to observe that these paragraphs are incomplete like para.(e) in that they do not set out the facts from which the defendant's knowledge of, or indifference to, the falsity of the statements is to be inferred.

48. Particulars (q) and (r) were the subject of a direction by the Master to amend in order to remove ambiguity. The ambiguity is in the introductory words in (q) "he made his allegations of and concerning the plaintiff" and in (r) "what he was saying to the Board". The Master thought that these words could be construed to refer to allegations and statements outside the matters complained of. I think that it is more likely that they are meant to be restricted to the matters complained of. However, the direction given by the Master was open to him and I would not interfere with it except to the extent of making it more precise in the terms which appear at the end of these reasons.

49. For the above reasons I would dismiss the appeal as it relates to the orders made by the Master numbered 12 and 13.

Separate trial of defamation claim
50. The Master directed that there by a separate trial of the claim in defamation. The plaintiff appeals against that direction. Strictly speaking, there can be no appeal because the Master did not make an order. A direction does not have the binding effect of an order and there is no sanction for failure to abide by a direction whether it be given by the Master or a Judge. Directions are an increasingly common technique used by courts for the purposes of case management. It is because they lack the solemnity of an order by the Court, that the Court expects that they will encourage practitioners to observe them rather than compel the practitioners to obey them upon pain of penalty for non- compliance.

51. It is open to the Court under Order 22 Rule 9 to order a separate trial of particular issues raised on the pleadings. The issues raised in the claims in defamation are very distinct from those raised in the claim in contract. The issues in the contractual claim are already settled by the pleadings and that claim is at the stage where it is appropriate to give firm directions for the further conduct of the proceedings in order to facilitate proper and prompt preparation for trial both from the point of view of the parties and that of the Court. The Master, in fact, gave such directions. It is unlikely that much oral evidence will be needed in the claim for contract. Hence it was appropriate for the Master to direct that in the first instance at least the parties set out their evidence in affidavit form. In stark contrast, the claim in defamation has not reached the same state of preparedness. In a defamation action, affidavit evidence is usually inappropriate and the credit of witnesses is likely to be important. There was every reason for the Master to direct a separate trial for the claim in contract. Subject to hearing further from the parties, if they wish at the next directions hearing, I propose to make a formal order that there be a separate trial of the claim in contract and that it proceed in accordance with the directions and time-table laid down by the Master.

52. I invite the parties at the next directions hearing also to make submissions on whether or not there should be a separate trial of the claim in equitable estoppel or the claim in tortious conspiracy or both. I make the observation that neither of these claims has been formulated in such a way that it can be ready for trial simply by observing the directions given by the Master.

Plaintiff's denial of qualified privilege
53. The Master said in his reasons that he would direct the plaintiff to amend the replies so as to admit that the occasions were occasions of qualified privilege. In fact, what the Master did was to order the plaintiff to amend the replies by omitting para.2 and deleting certain words from para.3. If those amendments were carried out, then the replies would lack any denial that the occasions attracted qualified privilege. The Master did not fix any time during which the amendments are to be made.

54. The plaintiff argued strongly on the appeal that to order a party to make an admission is against fundamental principles of modern justice. And so it is, strictly speaking. But a court can strike out a denial when it is inconsistent with other parts of a pleading which the party relies upon and which should clearly stand. That I expect was what the Master intended to do. He considered that the very facts upon which the plaintiff relied in his pleading established that there was that reciprocity of interest between Dr O'Donnell and the defendants in relation to the letters and between the Board of Health and the defendants in relation to the meeting which gave rise to an occasion of qualified privilege in all instances. It is very difficult to see what argument could be put to deny that the occasions were ones of qualified privilege. Allbutt v. The General Council of Medical Education and Registration (1889) 23 QBD 400, is a case directly in point. The facts of that case and indeed of any other case in this area of the law may not be identical, but the principle is surely the same and a very clear one. The plaintiff in his otherwise very full submissions, did not advance any reason why the occasions in question did not attract qualified privilege except to say that the facts cannot be established until the trial. The latter submission again is strictly speaking correct and it may be, subject to a special order as to costs, that the plaintiff's right to argue that the occasions were not privileged should be reserved until the trial.

55. I think that the plaintiff may have misconceived the position in relation to qualified privilege and I invite him to reconsider the question. It may be a matter of semantics to say that an occasion is privileged unless the privilege is destroyed by malice rather than to say that malice prevents an occasion of privilege from arising. However, traditional legal method seems to be to determine first whether, regardless of malice, the occasion is one of qualified privilege and then and only then to inquire into whether the privilege is destroyed by malice. However, if the plaintiff confirms at the next directions hearing that he insists on denying that the occasions were never occasions of qualified privilege, I will give further consideration to that question.

Other matters
56. There were several other complaints by the plaintiff about the Master's decision, but I think that they are all subsumed into the issues with which I have already dealt, or that they do not require specific rulings or discussion by me.

Orders

1. The appeal is dismissed and the Master's orders made and
directions given on 27 October 1995 are confirmed save for the
following.
2. I stand over to the next directions hearing further argument
withregard to order numbered 10. I vary order numbered 13 to the
following:
"I order the plaintiff within 28 days to amend particulars (q) and
(r) so as to make clear that the particular allegations and
statements referred to are those in the matters complained of. Time
to run in vacation."
3. I reserve until the next directions hearing the time from which
the Master's time-table for the continuation of the proceedings
should begin.
4. I reserve the question of costs of the appeal to the next
directions hearing.
5. I fix the next directions hearing for Friday, 2 February 1996 at
9.30 a.m. or such time on that date as may be notified.