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Supreme Court of the ACT Decisions |
COURT
IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J
CATCHWORDS
Pleadings - application by the defendants to strike out particulars of malice given in the plaintiff's reply to a request for particulars - function of particulars - defamation - malice - qualified privilege - vicarious liability - suppression order - considerations that support a finding of malice.
Supreme Court Rules, Order 23 rr7, 28
Civil Procedure ACT Vol 1, Butterworths, 1997
Evidence Act 1995 (Cth), s135
McCarron, Bird & Co v Syme (1889) 15 VLR 282
Bruce v Odhams Press Ltd [1936] 1 KB 697
Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99
Gatley, Libel & Slander (8th ed), Sweet & Maxwell, London, 1981, 328, par 762
Mann v Board of Health, ACT and Ors, unreported, FCA, Wilcox, Higgins and RD Nicholson JJ, 21 June 1996, 12-15
Hay v Australasian Institute of Marine Engineers [1906] HCA 31; (1906) 3 CLR 1002
Guise v Kouvelis (1946) 46 SR (NSW) 419
Dixon v Commonwealth of Australia (1981) 61 ALR 173
HEARING
CANBERRA, 18 March 1997 (hearing), 9 May 1997 (decision)
9:5:1997
Counsel for the Plaintiff: Mr M A Dreyfus
Instructing solicitors: Michael T Helman
Counsel for the Defendants: Dr K J Crispin, QC
Instructing solicitors:
First - Fifth defendants: ACT Australian Government Solicitor
Sixth and Seventh defendants: Blake Dawson Waldron
ORDER
THE COURT ORDERS THAT:
The challenged particulars be amended as follows:
First Defendant Particular Order (e) Amend by deleting "used every means to encourage" and replace with "encouraged". (g) Amend by deleting "enjoy the implied term that they". G4 Delete final sentence. G5 Delete. (l) Stand unamended. (q) All names of specialists and patients not be published. Reference to instances of alleged malpractice (1), (5) and (22) be deleted unless it was before the decision complained of. Otherwise particular should stand. (r) First sentence of R5 p22 further particulars (8/8/96) be deleted. (s) Suppression order relating to the names of doctors and patients referred to earlier. (t) Strike out. (u) Strike out. Second Defendant Particular Order (a) Strike out. (b) Amend to read "He intentionally failed to table vital documents". (c) Amend to read "He intentionally failed to table the correspondence from the plaintiff's solicitors of 5 April 1991 at the meeting of 10 April 1991. (j) See (q), first defendant. (k) Delete "should have made it his business to know", "ought to have known" or the like phrase. Replace with "or, at least, suspected". (k)(4) Further particulars needed. (t) Stand unamended. (v) Delete the words "namely, amongst others ..." to the end of paragraph (i). (x) Stand unamended. (y) Stand unamended. Third Defendant Particular Order (a) Stand unamended. (b) Stand unamended. (c) Stand unamended. (d) Delete paragraph (i). Delete further particulars of (d)(i). (D)(ii) delete reference to unspecified instances. D2(ix) Stand unamended but read as relying only on specific facts and matters referred to. (g) Delete words "or ought to have known". Replace with "believed or suspected". No further particularisation required. (h) Subject to amendments made in relation to the similar particular (k), no further particularisation needed. (i) "Malpractice" material be confined as previously noted. (j) Stand unamended. (k) Stand unamended. (l) Strike out. (m) "Reckless indifference" should be read as "believing or suspecting". Otherwise stand unamended. (n) Strike out. (o) Strike out. (p) Stand unamended. (r) Amend as for (v) second defendant. (ii) to stand. (s) Stand unamended. (t) Delete words "Great controversy ... to two journalists". (u) Strike out particular instances of drunken behaviour. U1-U18 In final paragraph, delete all words after "afflicted him". Save as amended, the particular should stand. (v) Stand unamended. (w) Stand unamended. Fourth Defendant Particular Order (s) Stand unamended. (t) Amend as for (t), third defendant. (x) Strike out. (y) Strike out. (z) Strike out. Fifth Defendant Particular Order (c) Stand unamended. (d)(i) Delete for similar reasons to (d)(i), third defendant. (g) Stand, similarly amended to (h), third defendant. (h) Stand, similarly amended as (i), third defendant. (j) Similar to (k)(i) and (ii), third defendant. Stand similarly amended. (u) Similar to (r), third defendant. Stand for same reasons. (w) Stand unamended. (x) Stand unamended. Sixth Defendant Particular Order (a) Similar to (a), third defendant. Stand. (b) Similar to (b), third defendant, no further particularisation needed. (c) Stand unamended. (d) Similar to (d), third defendant save as to (i). D2(ii) Stand unamended. (f) Similar to (g), third defendant. Stand similarly amended. (g) Similar to (h), third defendant. Similar amendments. (h) Similar to (i), third defendant. Similar amendments. (i) Similar to (j), third defendant. Stand similarly confined. (j) Similar to (k)(i) and (ii). Delete from (j)(ii) the words "which it should have been his business to discover". Replace with "or which he believed or suspected". Otherwise allowed. (k) Same as (l), third defendant. Strike out. (l) Same as (m), third defendant. Treat same. (m) Same as (n), third defendant. Strike out. (n) Same as (o), third defendant. Strike out. (q) Similar to (r), third defendant. Stand as amended. (r) Same as (s), third defendant. The particular will stand. (s) Same as (t), third defendant. The particular will stand but the further particulars will be similarly amended. (t) Same as (u), third defendant. The particular will stand but the further particulars will be similarly amended. (u) Stand unamended. (v) Same as (w), third defendant. The particular will stand, similarly confined. Seventh Defendant Particular Order (d)(i) Similar to (d)(i), third defendant. Stand unamended. (g) Similar to (h)(i), third defendant and (g)(i), sixth defendant. The particular will stand, similarly confined and amended. (l) Same as (m), third defendant and (l), sixth defendant. The particular wills stand to the same extend. (u) Same as (v), third defendant and (v), sixth defendant. The particular will stand.
DECISION
HIGGINS J
This is an application to strike out particulars of malice given by the plaintiff in his Reply.
Some particulars have already been the subject of an application to strike them out. It remains open to the defendants to object to those particulars on grounds other than lack of relevance to the issue of malice.
Reliance is placed upon Order 23 rule 28, Supreme Court Rules (ACT),
The Court may, at any stage of the proceedings, order to be struck out or amended any matter in any indorsement or pleading which is unnecessary or scandalous, or may tend to prejudice, embarrass, or delay the fair trial of the action and may in any such case, if it or he thinks fit, order the costs of the application to be paid as between solicitor and client.
A pleading or a particular must be intelligible. It should allege material facts or particulars thereof which are capable of being proved at trial. Allegations which are merely offensive or abuse or prejudice a party may be regarded as "scandalous", see Civil Procedure ACT Vol 1, p8779-10.
Order 23 rule 7 permits the Court to order further and better particulars "of any matter stated in any pleading ...".
It is useful to note that the role of particulars is not to provide the evidence by means of which the plaintiff intends to prove the allegation in question, see McCarron, Bird & Co v Syme (1889) 15 VLR 282.
As Scott LJ stated in Bruce v Odhams Press Ltd [1936] 1 KB 697, 712-3, the function of particulars is,
... to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial.
They are also intended to limit the issues of fact to be investigated, see Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99.
The plaintiff's cause of action is, so far as malice is relevant, defamation. The defendants' plead qualified privilege. The plaintiff contends that each defendant was guilty of malice, that is, that the occasion of qualified privilege was misused.
As defined in Gatley, Libel & Slander (8th ed), Sweet & Maxwell, London 1981, 328, par 762,
The plaintiff will succeed in proving the existence of express malice if he can show that the defendant was not using the occasion honestly for the purpose for which the law gives protection, but was actuated by some indirect motive not connected with the privilege, ie actual malice.
It is using the occasion for some "indirect or wrong motive".
These issues were considered by the Full Court of the Federal Court in the course of this litigation, see Mann v Board of Health, ACT and Ors, unreported, FCA, Wilcox, Higgins and RD Nicholson JJ, 21 June 1996, 12-15.
That appeal directly related to the particulars of malice alleged against the sixth and seventh defendants. It has relevance, however, to the particulars alleged against the other defendants.
It should also be noted that material which is argumentative and not factual does not require particularisation.
A special difficulty does arise where, as with the first defendant, the allegation of malice is made against a body corporate. The particulars refer to "the Board". That is now the Australian Capital Territory for legal purposes. Such a body does not necessarily act with malice merely because one of its members is tainted by malice.
It is certainly arguable that a body acting through a malicious agent will be vicariously tainted, see Hay v Australasian Institute of Marine Engineers [1906] HCA 31; (1906) 3 CLR 1002.
It would not be so tainted if the defamatory matter was merely channeled through a fortuitously malicious agent, or where the malice of one or more members does not represent the motivation of the whole body.
However, that is a question of fact.
It seems to me, contrary to the defendants' submissions, that s135 Evidence Act 1995 (Cth) is not of assistance. That is for the reason that particulars are required to state what facts the plaintiff will seek to prove. That may be by direct evidence of a fact or by inference from other facts. How the asserted fact or facts will be proved is not a matter for particulars.
The defendants ask for further particulars only in respect of some particulars of malice. I therefore need to rule only in respect of those.
Particular (e),
The Board offered all of the personally named defendants a shelter of presumed legal privilege in which to utter false statements, thereby encouraging them in their defamations; the Board used every means to encourage the personally named defendants to defame the plaintiff, by providing a special forum which the Board believed offered these defendants a secure place in which to defame the plaintiff without fear of cross-examination, the purpose of these actions being unfairly to deny the plaintiff renewal of his contract.
The allegation as to using "every means" is objected to. I agree it is sweeping and ill-defined. I order amendment of it by deleting "used every means to encourage" and replacing it by "encouraged".
The particulars of that "encouragement" are sufficiently given.
Particular (g),
It acted against its own raison d'etre and against the public interest by failing to see to it that all specialists working in its hospitals, including the plaintiff should enjoy the implied term that they be immune from intolerable and unjustifiable personal attacks so they could properly perform their duties.
It is true that the response is discursive and argumentative but it is clear enough that the plaintiff is complaining of what he characterises as "intolerable and unjustifiable personal attacks" upon him. Those are sufficiently particularised. The reference to the "implied term" could raise confusion as to whether the expectation is contractual. It is, to me, plainly not used in that sense.
However, to avoid ambiguity, I order the amendment of the particular by deleting "enjoy the implied term that they".
The reference to files and annotations in the further particulars of 8 August 1996 is not a particular of malice. It is, at best, a reference to evidence by which it might be shown that "the Board" persisted in defending allegations "it" knew and now accepts as being either untrue or, at least, unsustainable. That allegation is, without objection, made elsewhere.
To avoid confusion I would order deletion from G4 (further particulars 8/8/96) of the final sentence.
For the same purpose, G5, which also seems to me to refer to matters of evidence, should be deleted. Whether the plaintiff would be permitted to adduce the evidence at trial is a matter for the trial judge.
Particular (l),
It offered the defamers every chance to defame, and indeed offered them every encouragement to do so.
It is true that this particular, perhaps more succinctly, repeats the proceeding allegations, particularly (e). However, I can see no useful purpose in striking it out.
Particular (q),
It allowed its officers to act in a discriminatory fashion as evidenced by not refusing contract renewal to specialists who had been found guilty of serious malpractice (or had admitted liability) on one or more occasions, when the plaintiff had never been found guilty of any malpractice nor had any reasonable expectation of being found guilty.
This particular is framed widely. However, I believe the defendants' concerns as expressed are somewhat exaggerated.
There are a number of limits which seem to me to be necessarily implied. The first is that the essence of the allegation is not that other specialists had been guilty of malpractice. Rather it is that persons "the Board" knew, believed or suspected to have been guilty of malpractice were offered renewals but the plaintiff, though known to be innocent of malpractice, was not.
Instances are given. Of "Group I", (1) and (5) occurred well after the action was commenced. (22) is not given a date of occurrence.
Group II are those the subject of press reports. Presumably these instances, given the plaintiff's explanation of them at p13 (further particulars 8/8/96), are before the non-renewal was decided upon by "the Board".
The instance in question are specifically identified. However, it seems to me that the expressed fear of the defendants that any of them will need to be each litigated or re-litigated on their merits is unfounded. The instances can only be referred to as relevant if known to a Board member or members. Insofar as it is, it is not the objective truth of the event which is relevant but the belief of Board members about it. The particular of malice is the discriminatory treatment of the plaintiff. Whether other specialists were guilty or not in fact of malpractice is not relevant.
No doubt, appropriate orders to prevent untoward embarrassment to other specialists and patients will be made. For the interim, I order that the names of such persons not be published.
I order deletion of the reference to the instances of alleged malpractice (1), (5) and of (22) unless it was before the decision complained of.
It should be noted that I reject the submission that the relevant period for "awareness" is limited to the life of "the Board". It is the "awareness" that the members brought to bear when making the impugned decision that is relevant to this particular of malice.
The defendant's submissions (par 26) continue to confuse the sufficiency of the fact particularised to establish malice with relevance to proof of malice. The Board's decision might not be, and is not alleged to be, based on the plaintiff's perceived incompetence or any incident of malpractice on his part. Yet, if it renewed the contracts of specialists without demur, though they were known, believed or suspected to have been guilty of malpractice, it could be inferred that the Board's reasons for not doing so in the case of the plaintiff were unfairly discriminatory. That would depend on what in fact were the reasons, if any, for the refusal to re-new the plaintiff's contract. That is a matter of fact for trial.
Paragraph 29 of the submissions also confuses possible difficulty of proof with relevance.
Otherwise the particular should stand.
Particular (r),
When the Board discovered that its Chief Executive, Defendant Bissett, had been shown to be dishonest by the Enfield Report, and had precipitately resigned in April 1991, it failed to review or to offer to review, the allegations against the plaintiff.
This particular, admittedly somewhat clumsily, asserts that "the Board",
- should have inferred from the Enfield Report that its Chief Executive, the second defendant, was or had been dishonest; - should have inferred from his sudden resignation in April 1991 that he accepted those adverse findings; - should have re-examined his recommendations and report in relation to the non-renewal of the plaintiff's contract; and - failed to do so because it was not concerned with the soundness of that advice but had some other and malicious motive for the non-renewal.
The defendant may well say that to draw such an inference from the Enfield Report is to misinterpret it. That is, however, a matter for trial.
Assuming it is reasonably open to draw the adverse inference for which the plaintiff contends, it may be that it would not be concluded that the Board would, but for its malice towards the plaintiff, have re-examined the issue of his contract.
Those are issues for trial.
I agree, however, that "the perception of medical staff" about the second defendant's probity is immaterial. The first sentence of R5 p22 further particulars (8/8/96) should be deleted.
Particular (s),
The Board took no action against Defendant Hurley when the latter refused to treat Mr M Saad with plasmapheresis thereby demonstrating bias.
If it was known to or accepted by "the Board" that the sixth defendant had been guilty of malpractice and it took no action when it could and should have, that might support a conclusion of bias in favour of the sixth defendant and against the plaintiff.
Subsequent conduct may elucidate the intention with which prior conduct was performed. The relevance of this incident will depend on the proximity of it in time to the non-renewal of the plaintiff's contract.
It is not objected that insufficient particulars are given. Any objection that the allegation may unfairly prejudice others can be cured by the suppression order relating to the names of doctors and patients referred to earlier.
Particular (t),
The Board has deleted the defence of fair comment contained in the draft defence annexed to the affidavit of Russell Bayliss dated 25 November 1994.
I agree with the submission that to withdraw an allegation does not support malice. To use the trial process or, perhaps, even the pleadings further to blacken a plaintiff's name may evidence prior malice, see Guise v Kouvelis (1946) 46 SR (NSW) 419.
The fact of the withdrawal is not necessarily irrelevant for all purposes. However, it does not support malice.
I would strike out this particular.
Particular (u),
The Board in a letter from its solicitors dated 13 July 1995, refused to make available to the plaintiff the hospital notes concerning Carollane Thompson, one of the persons about whom allegations were made by all the defendants including itself.
This particular is capable of supporting malice only if the refusal emanated from the Board members themselves so as to illuminate the Board's motive in making the defamatory statements it did. Further, it would have to be inferred that the refusal was contrary to legal advice. That, having regard to the timing of the refusal, seems impossible.
I do not think that the facts particularised under this head are capable of supporting an inference of malice.
I would strike it out.
Particular (a),
Defendant Bissett, to the disadvantage of the plaintiff, caused or allowed to remain uncorrected or incomplete, the Minutes of the Meetings of the Board dated 22 March 1991 and 10 April 1991, in that he inaccurately or carelessly recorded and allowed to remain uncorrected, the words spoken by witnesses, as stated in the defences of some of them.
This particular would be rendered immaterial if the second defendant, the Chief Executive, admitted the Minutes were accurate as the plaintiff asserts. It is, however, not a particular of the plaintiff's case. It might well be evidence of malice to falsify minutes by act or omission. However, it is not the plaintiff's case that the Minutes were inaccurate. Rather, he asserts they were accurate and the defendant has failed to admit it. This particular should be struck out.
Particular (b),
He failed to record that vital documents had not been tabled.
The particular is, perhaps, inelegantly phrased. The plaintiff appears really to be saying,
He intentionally failed to table vital documents.
The plaintiff has, by his further particulars, indicated the class of documents he alleges to have been "vital". It is not necessary for the plaintiff to identify every document he would contend was "vital".
I would order this particular to be amended as above. The further particulars (B1-4, 8/8/96G) will then stand.
Particular (c),
He failed to record whether the correspondence from the plaintiff's solicitors was tabled at the 10 April 1991 meeting.
If the defendant had received the letter in question and failed to bring it to the Board's attention before the impugned decision was made, that would support an inference of malice only if the failure was intentional.
The word "intentionally" seems necessarily implied by the plaintiff's further particulars but, in any event, would be essential to support the allegation of malice.
The particular should, therefore, be amended to state as seems intended,
He intentionally failed to table the correspondence from the plaintiff's solicitors of 5 April 1991 at the meeting of 10 April 1991.
Particular (j),
He supervised the campaign of vilification organised by his subordinate Withers without arresting the latter's unlawful conduct despite his knowledge that the alleged misdemeanours attributed to the plaintiff, which are denied, concerning Thompson and Minter, were trivial in the extreme compared with the proven acts of very serious malpractice, of which the defendant knew or ought to have known, were committed by other salaried and fee-for-service contract holders.
The "campaign of vilification" is confined by the further particulars to the alleged defamatory publications.
The remainder, shorn of hyperbole, refers to the same instances of malpractice referred to in relation to the first defendant and alleges discriminatory treatment. The reference therefore to "proven acts of very serious malpractice" will be confined to the same instances relied on to assert that the Board discriminated against the plaintiff (see (q) above). They may be used only for the same purpose, that is to show knowledge not the objective truth thereof, and will be subject to the same restrictions on publication until otherwise ordered.
Particular (k),
He discriminated against the plaintiff by selecting only the plaintiff as his object of attack, even though he knew or should have made it his business to know that other specialists: (i) had serious malpractice allegations made against them, including Defendant Clarke. In particular, he failed to report the actions of Defendant Clarke in relation to patient Valerie Walker or to make any inquiry of Defendant Clarke as to whether he had himself committed any acts of malpractice; (ii) had verdicts against them in favour of various plaintiff's in other actions.
This particular restates the second aspect of (j). The phrase "should have made it his business to know" is objectionable as is "ought to have known". To support an inference of malice, it would need to be found that the defendant deliberately refrained from enquiring as to the matters in question because he believed or, at least, suspected that to do so would have rendered it apparent that the case for not renewing the plaintiff's contract was not supportable by comparison with the case for the non-renewal of the contracts of others which, however, were renewed without demur.
The particular and further particulars should therefore delete "should have made it his business to know" or "ought to have known" or the like phrase, where occurring and replace it with "or, at least, suspected".
Further particular (k)(4) (8/8/96) is objected to because it concedes that the second defendant did not know of each of the instances of malpractice alleged. It is alleged only that he knew of those instances referred to by the plaintiff in the letter he identifies in the further particulars.
It seems to me that the plaintiff should particularise which of the remaining relevant instances of apparent malpractice it is alleged the second defendant knew, believed or suspected to exist.
If the answer is "some, but I cannot further say without interrogating with respect thereto", the answer will suffice. If some can be excluded, the factual issues will then be further confined.
Particular (t),
He maliciously with reckless indifference as to the truth thereof, adopted and promoted or failed to refute false allegations to the effect that the plaintiff had refused to provide information when the defendant had available to him relevant correspondence which he had either not read or in some instances at least had deliberately concealed the contents thereof.
This allegation is sufficiently particularised to enable the second defendant to meet it.
Particular (v),
He made his allegations of and concerning the plaintiff: (i) without having made any or any adequate effort in 1990 or since, to seek relevant professional opinions from persons properly qualified to express such opinions, namely, among others, Dr Peter Brown (Chairman of the Division of Surgery in 1991), Dr Peter Hughes (former President of the ACT Medical Association), Dr Raymond Newcombe (Neurosurgeon), Dr Grahame Bates (gynaecologist, the then current President of the ACT Branch of the AMA) and Dr Gavin Carney (salaried nephrologist and graduate in law); (ii) knowing that what he was expressing were opinions which were not shared by the body of properly qualified and experienced senior members of the Division of Surgery.
The particular, as amplified in the further particulars, is quite clearly intended to assert that the defendant failed to make any sufficient enquiry to support the allegations he is said to have made of and concerning the plaintiff and knowing that his opinions lacked or would be contradicted by competent professional advice had he sought it.
The defendant's objection seems to misconstrue the allegation. The named professional persons are, in my opinion, to be regarded merely as an example of the persons of whom enquiry could have been made.
The particular, so understood, is sufficiently explained to enable the defendant to meet it. However, the words "namely, amongst others ..." to the end of paragraph (i) should be deleted as unnecessary and confusing.
Particular (x),
He maliciously failed to inform the Board that it would be improper for the Board to fail to obtain outside opinions to avoid the possibility of personal animosities and ambitions possessed by the defendants influencing the decision of the Board.
The allegation is that each of the defendants, being members of or persons providing evidence to the Board, were affected or might be seen to be affected by bias or interest against the plaintiff. The failure to act as referred to might, of course, be referable to a lack of perception of any such bias or interest. If so, it will not support malice. The contrary inference is, however, arguably open. This does no more than assert, as the particulars not objected to or allowed already do that the defendants were affected by such "personal animosities and ambitions".
This particular does not permit the plaintiff to raise any "new allegations".
The particular statements concerning the defendant and the Enfield Report likewise raise no new allegation. It merely restates the allegations already particularised, albeit with additional pejorative flourishes.
It is unnecessary to amend or further particularise this allegation.
Particular (y),
In being selective as to what he chose to say, or to conceal from, the Board he: (i) sought to cause prejudice to the plaintiff, and he acted more like an advocate for the administration than an impartial, professional witness, which he falsely held himself out to be; (ii) failed to alert the Board to the ailment which Withers then suffered which he must have known was apt seriously to impair judgment, which ailment was widely known.
The general part of the allegation is no more than a restatement of the allegations already made, that the defendant orchestrated and manipulated the Board's processes so as to achieve a result unfairly prejudicial to the plaintiff.
The second part is more particular but is not objected to on grounds of either relevance or insufficient particularisation.
Objection is taken to the reference to the defendant's "conduct from October 1990 to the time of his enforced resignation". That must be taken to refer only to the defendant's conduct as alleged insofar as it occurred between those dates.
It seems to me that is a sufficient answer so as to enable the defendant to meet that allegation so confined.
Particular (a),
The communications not addressed to the plaintiff were imparted in the plaintiff's absence, without notice to the plaintiff of what the defendant intended to convey.
"The communications" are defined elsewhere. It was a minute addressed by the defendant to the Minister of Health. It is open to conclude that it was defamatory of the plaintiff.
It may be the defendant's submission that there was no duty to obtain the plaintiff's comment thereon before dispatch and, indeed, a duty not to reveal its content, would find favour. That is, however, an issue of fact.
Further, the substance of the allegation is not the document as such but its contents. It may well have been possible for the defendant to have put allegations to the plaintiff so that his responses could have been also minuted to the Minister without breaching any confidentiality.
It is enough to say that it is arguable that the circumstances alleged could support malice.
It is not necessary to have it further particularised.
Objection is, however, also taken to the further particulars which were provided.
That objection misconceives the use which may be made of the citation of the sixth defendant's opinions. Of course, if the defendant merely conveyed the opinion of another which turned out to be wrong or, even, malicious, that does not, per se, support a contention that the defendant was malicious in so acting.
However, it would be otherwise if the defendant knew that opinion to be false or otherwise flawed yet conveyed it with the intention of damaging the plaintiff. The fact that it was conveyed without notice to the plaintiff may support, though it would be insufficient to establish, that view.
This particular should stand.
Particular (b),
The said communications not addressed to the plaintiff were not put to him with a view to obtaining his opinion as to whether those words reflected the true position.
This particular restates (a) and proceeds to set out the further inference I have referred to above. It alleges that the intention of the defendant was to deprive the plaintiff of any opportunity to comment on the adverse opinions expressed in the communications.
The submissions of the defendant, par 95 and 96, are an attempt at reductio ad absurdem but they fail to recognise that the existence of a possible, even a strong answer to the allegation rendering it inconsistent with malice, is a matter for a trial judge to evaluate. Whether or not there was, or could have been, or should have been, an opportunity for the plaintiff to respond before the Minister was informed is clearly open to argument.
Otherwise, for reasons stated in (a), this particular should stand.
Particular (c),
In his capacity as Executive Director Hospital Services the defendant conducted himself with reckless indifference to the rights of the plaintiff in that he: (i) did not allow the plaintiff any, or any reasonable opportunity to put to the defendant his case concerning the allegations under consideration before making the defamatory statements; (ii) recklessly failed to inquire and recklessly remained in ignorance of facts which, upon reasonable inquiry, would have shown that what he said to the Board was insupportable by: - fact; - law; - the ACT Branch of the Australian Medical Association; and - many if not most of the members of the Division of Surgery.
This is an assertion of "reckless" failure to inquire or ascertain matters which would have contradicted the allegations made in the documents or on the occasions particularised. Ignorance alone is not enough. Recklessness must be read as knowing, believing or suspecting that his allegations would be shown by such inquiry to be "insupportable".
That the allegation is relevant is illustrated by a consideration of the misapprehension perpetrated by par 80 of the defendant's submissions. It is "axiomatic" that to respond meaningfully to an allegation you must first know what it is, see Dixon v Commonwealth of Australia (1981) 61 ALR 173. It is not good enough to assume the other party has addressed the issue. Of course, mere lack of natural justice, if demonstrated, does not prove malice, but if that denial of natural justice was intended to support the objective of damaging the plaintiff unfairly, then it would be evidence of malice. A step in that process is to demonstrate that there was a denial of natural justice.
It is enough to demonstrate that there were avenues of inquiry that were not pursued. What avenues of inquiry were in fact pursued is within the knowledge of the defendant not the plaintiff. It is not a matter the plaintiff is required to particularise.
The plaintiff has indicated the avenues of inquiry which he alleges would have been reasonable. It may be that the avenues of inquiry, if any, pursued by the defendant as proved at trial will be adjudged reasonable. However, it is open to the plaintiff to seek to prove otherwise. The request for further particulars should be denied.
Particular (d),
Manifested bias against the plaintiff by: (i) failing to ensure that action was taken in respect of the plaintiff's letter dated 3 October 1990 (copy to Dr O'Donnell) headed "Restraint of Irrational Patients" concerning the problems created by self-mutilating persons and did not table this letter at the 22 March 1991 Board meeting; (ii) siding and co-operating with persons whom he knew or should have known, were pursuing the plaintiff with improper motive, namely the defendants Bissett, Tait, Clarke, O'Donnell and Hurley.
The manifestation of bias against the plaintiff could support an inference of malice, though it may not be sufficient to prove it. I agree with the defendant's submissions that declining to implement suggestions of the plaintiff's as to patient management is not capable of supporting a conclusion as to bias, when there is no allegation that the letter was in some way relevant, or perceived as relevant, to the question of the non-renewal of the plaintiff's contract.
Thus paragraph (i) and the further particulars of it should be deleted.
Sub-paragraph (ii) is no more than a restatement of previously particularised facts and circumstances. However, they are to be used by the plaintiff to invite a conclusion as to a further fact, namely, this defendant's "bias".
It follows that the plaintiff is confined for that purpose to the particulars of malice otherwise alleged against the other defendants. Of course, they are only probative of malice against this defendant insofar as he knew, believed or, at least, suspected the malicious motive of that other defendant or those other defendants.
The defendant, however, also takes objection to the further particulars of (d)(ii). Those particulars do exceed the obligation of a party to give particulars by detailing the, or some of the, evidence by means of which the allegation might be proved. Insofar as certain factual examples are referred to, it would be appropriate to confine the plaintiff, on the usual basis, to proof of those instances. The proposition, for example, that there are other unspecified instances should not be permitted to be the subject of proof. That allegation should be regarded as deleted from the statement of further particulars wherever appearing.
Particular objection is made to further particular D2(ix). It offers no additional facts. In essence, it relies upon an inference from the other facts particularised. The pejorative comments as to other defendants are clearly matters of comment or inference not additional facts in themselves.
I appreciate that the objection proceeds on a contrary assumption. However, in my view, that assumption is mistaken. The particulars should stand but be read as relying only on the specific facts and matters referred to.
Paragraph (g),
He said the words and wrote the letter despite his knowledge that the alleged misdemeanours attributed to the plaintiff, which are denied, concerning Thompson and Minter, were trivial in the extreme compared with the proven acts of very serious malpractice, of which the defendant knew, or ought to have known, were committed by other salaried and fee-for-service contract holders.
I have already ruled that the acts of malpractice should be confined to the specific examples given so far as may be found to be within the defendant's knowledge or belief. I have reduced the number.
The words 'or ought to have known' should be struck out and 'believed or suspected' inserted instead.
It should be emphasised that it is not to the point whether the defendant had any duty to inquire. It is only relevant whether, as a result of inquiry or his own general knowledge, he had an awareness of the alleged instances of malpractice referred to at the relevant time. The essence of the allegation is that he singled out the plaintiff unfairly for adverse treatment.
No further particularisation is required.
Particular (h),
He discriminated against the plaintiff by selecting only the plaintiff as his object of attack, even though he knew or should have made it his business to know that other specialists: (i) had serious malpractice allegations made against them, including Defendant Clarke. In particular, he failed to report the actions of Defendant Clarke in relation to patient Valerie Walker or to make any inquiry of Defendant Clarke as to whether he had himself committed any acts of malpractice; (ii) had verdicts against them in favour of various plaintiffs in other actions.
This relies on the same material as previously referred to. It will be relied on as evidencing discrimination. Subject to the amendments made in relation to the similar particular (k), second defendant, it needs no further particularisation.
The 'serious malpractice allegation' referred to cannot be permitted to go outside of the remaining examples and, then, for the limited purpose and subject to the protection previously mentioned.
Particular (i),
He discriminated against the plaintiff who had not caused any injury to or delay in treatment of Minter or Thompson, by selecting him as the one person while taking no action to bring before the Board members evidence of malpractice on the part of other defendants and other contract holders where serious injury did result.
The only difference from (h) is the different focus. It is the bringing before the Board of the matter concerning the plaintiff rather than the antecedent choice of the plaintiff as the "object of his attack" that is focused on.
The matter before the Board is already sufficiently particularised.
The "malpractice" material should be confined as previously noted.
Particular (j),
He failed or refused to apologise for his remarks about the plaintiff made in relation to Thompson and Minter.
This is sufficiently particularised. It is a question of fact whether an apology was or is called for. Failure to do so, if called for, may support malice but, of course, will not necessarily do so. The "remarks" are sufficiently particularised.
It may be that a perusal of the material and consideration of oral evidence will indicate otherwise. That is a question of fact for the trial.
Particular (k),
He failed to put before the Board members fairly, or in any adequate way, or at all: (i) the fact that the plaintiff had not caused the death of Myra Hayes; (ii) the contents of the report of Professor Little which was known to him; (iii) he failed to ensure that the cause of death of Myra Hayes would be properly investigated, and in particular the administration of glyceryl trinitrate by Dr O'Neill which was followed soon after by the death of the patient; (iv) on 29 November defendant Withers wrote to the Chief Magistrate enclosing a copy of the report of Nurse Heather Austin which accused the plaintiff of malpractice, inferring that he had caused her death, but failed to enclose a copy of the exonerating report of Professor Little dated 7 November 1989.
There is an apparent misconception in the objections of the defendant, as contained in submissions. The alleged failure concerning the Hayes death is not relied upon so as to give the plaintiff any cause of action. Nor is it said to support any. The incident is relied upon only to support malice.
It can do so only to the extent that the defendant knew of the content of the report and/or the other matters particularised.
Further, even if he was aware of the matters referred to, it would also need to be shown that the defendant was aware of the relevance of those matters to the Board's deliberations.
However, whilst that task may be formidable, it is not impossible and it is properly, albeit over-fulsomely and colourfully, particularised.
Otherwise, the particular should stand.
Particular (l),
He failed to familiarise himself adequately or at all with the concept of informed consent before making allegations with respect to Thompson and Minter.
First, the "allegations" must be considered confined to those previously particularised.
The particular asserts that the defendant made allegations which were baseless. The true explanation for the matters alleged, the plaintiff says, is because he was legally obliged to act as he did. He was so obliged because the patients in question could not give informed consent. Thus the plaintiff had to do that of which the defendant complained, namely, desist from undertaking treatment. The defendant complained, the plaintiff says, because he did not understand the concept of "informed consent".
Unless it be alleged that the defendant knew, believed or, at least, suspected that the allegations were not valid criticisms of the plaintiff because of the legal requirement of "informed consent", this particular is incapable of supporting malice. The mere fact that the defendant was mistaken, even to the point of incompetence in concluding as he did, cannot support a finding of malice.
This particular should be struck out.
Particular (m),
He maliciously or with reckless indifference omitted to give the Board fair and proper information, about how Dr Tait managed Gary Minter, which if he had done, would have placed the plaintiff in a proper light in the eyes of the Board and could have cast doubt on the malicious evidence of Defendant Tait.
This is a particular example of allegedly concealing relevant material from the Board. The example relates specifically to material, adverse to the seventh defendant, being concealed from the Board. It is said that if that material had been revealed, the alleged failings of the plaintiff would have seemed less by comparison and the seventh defendant's credibility would have been placed in doubt.
That allegation is, of course, capable of supporting malice. However, that can be so only if there was knowledge, belief or at least suspicion in the defendant as to the conduct of the seventh defendant in the case referred to. It is his belief that goes to malice. Not his negligence, incapacity or foolishness. "Reckless indifference" should be read as "believing or suspecting".
It is true that, the plaintiff has alleged that the defendant was incapable, by reason of lack of appropriate qualifications, of knowing or understanding what the seventh defendant allegedly did. However, it seems on reading the further particulars, that this allegation goes to belief not understanding. He does allege awareness by the defendant of the relevance of the matter referred to, even if the defendant did not understand the ramifications of it. Therefore, it is an allegation of a deliberate omission properly to inform the Board of the particular matter referred to which he understood might have favoured the plaintiff. That, if proved, could support a finding of malice.
So understood, the particular requires no further elaboration.
Particular (n),
He maliciously or with reckless indifference omitted to give to the Board fair and proper information about the fact that no other surgeon in Canberra could be found to treat Ms Thompson or Mr Minter.
Failure to inform, if motivated by improper purpose, can be malicious. Thus the failure to inform might support a finding of malice. However, it cannot do so unless the defendant possessed the relevant information and knew, believed or suspected that it would advantage the plaintiff or disadvantage his adversaries to give it.
I have to say this particular seems to me to fail the second part of that test in that the information seems incapable of having that effect. Thus, it could not be argued that it was seen by the defendant as doing so.
Particular (n) should be struck out.
Particular (o),
He maliciously or with reckless indifference omitted to give to the Board fair and proper information about the fact that Minter refused treatment and that he was discharged from the hospital (after being accepted as a patient by Dr Tait) with a nail file still embedded in his abdomen.
This refers to the same information as referred to in (m). It refers to the same failure to give information to the Board which might, if given, have favoured the plaintiff's case.
I agree that it is repetitive and should be struck out.
Particular (p),
He maliciously failed to refute the allegation that the plaintiff was the reason that general surgery had made little progress of recent years because of actions of the plaintiff, which allegations the defendant knew were not true, could not be true, and which were prejudicial to the plaintiff.
It may be that the defendant had no view about the allegation referred to. However, he did not need to be medically qualified to have an opinion.
Although it is unlikely that the defendant had a refutation to offer in respect of the allegation, it is not unarguable that he might have. His failure to offer a refutation which it was in his power to give could arguably evidence malice.
The factual content of the allegation is sufficiently particularised.
Particular (r),
He made his allegations of and concerning the plaintiff: (i) without having made any or any adequate effort in 1990 or since, to seek relevant professional opinions from persons properly qualified to express such opinions, namely, among others, Dr Peter Brown (Chairman of the Division of Surgery in 1991), Dr Peter Hughes (former President of the ACT Medical Association), Dr Raymond Newcombe (Neurosurgeon), Dr Grahame Bates (Gynaecologist, the then current President of the ACT Branch of the AMA) and Dr Gavin Carney (salaried Nephrologist and graduate in law); (ii) while choosing to support the policies being advanced by Messrs Bissett and Withers, which included the desired exclusion of the plaintiff and others who were critical of their policies; (iii) knowing that what he was expressing were opinions which were not shared by the body of properly qualified and experienced senior members of the Division of Surgery.
This is substantially the same as the particular (v), second defendant, save for (ii). Point (ii) adds nothing.
Otherwise, it should stand but similarly amended as for second defendant, particular (v).
Particular (s),
He maliciously failed to disclose or concealed from the Board that what he was saying to the Board: (i) did not represent the views of the Medical Staff Committee which committee had not had the opportunity to consider what he was planning to say to the Board thereby creating the false impression that his views were the views of the said committee; (ii) deviated from the views of the substantial body of properly experienced members of the Division of Surgery; (iii) deviated from the views of psychiatrists then contracted or employed by the Board.
It may be that the views referred to were not known to the defendant. It may be they were not perceived by him as relevant, even if known.
If the defendant knew, believed or suspected that the non-disclosed facts might advantage the plaintiff or harm his opponents, then malice could be supported. That meaning is conveyed by the use of "maliciously" as qualifying the alleged failure.
It is a question for trial whether the motivation for the failure was the latter or not. The further particulars may fail to be established by admissible evidence. However, shorn of pejorative epithets and observations, the "views" are sufficiently identified to enable the defendant to judge his awareness of them and their relevance.
This particular should stand.
Particular (t),
He maliciously failed to inform the Board that it would be improper for the Board to fail to obtain outside opinions to avoid the possibility of personal animosities and ambitions possessed by the Department influencing the decision of the Board.
This, of course, assumes that it would have been "improper" for the Board to proceed as it did because of the improper motives of the named defendants. Their alleged improper motives are already particularised.
Obtaining an outside, presumably more objective, opinion might have avoided an appearance of bias. It has to be open to the plaintiff to argue that the defendant knew (or believed or suspected) others held biased views but because of his own malice, declined the opportunity to advise the Board as to how that conflict of interest might be resolved.
It is arguable that is so. However, the reference to "great controversy" and to Dr Carney's confrontations, referred to in further particulars T3, are plainly irrelevant. Unless the list of "troublemakers" includes the plaintiff, that reference is also irrelevant.
The words "Great controversy ... to two journalists", subject to that qualification, should be struck out. Otherwise, the particular should remain.
Particular (u),
In being selective as to what he chose to say, or to conceal from, the Board he: (i) sought to cause prejudice to the plaintiff, and he acted more like an advocate for the administration than an impartial, professional witness, which he falsely held himself out to be; (ii) sought to ingratiate himself with holders of administrative power; (iii) failed to alert the Board to the ailment which he then suffered which he must have known was apt seriously to impair judgment, which ailment was widely known to medical practitioners towards the end of 1990.
Save as to the alleged "ailment" of the third defendant, the particular is the same as second defendant (x). To that extent, it requires no deletion or amendment.
Whilst the second defendant is alleged to have concealed the "ailment" so as to ensure the defendant's complicity, it is not clear why the defendant should volunteer that information to the Board. If he did, the Board might ignore his opinions. No inference from his failure to advise the Board fully would follow.
If the defendant concealed that disability, it is not clear how that supports malice on his part. The particular instances of drunken behaviour seem irrelevant and inappropriate and should be struck out.
The particular motive for concealment of the "ailment" is the alleged desire to succeed to the second defendant's office. Insofar as it is alleged that he allied himself to the second defendant to achieve that, it is proffered only as a reason for supporting that conclusion. It may be an improper purpose to have caused or permitted unwarranted harm to the plaintiff to achieve career advancement. However, it is the failure to inform the Board which is being paticularised.
A reference to the "ailment" is arguably relevant but not the whole of U1-U18 (further particulars 8/8/96) final paragraph. All words after "afflicted him" should be deleted but it would be open to the plaintiff to cross-examine the third defendant as to specific instances if he denied the existence of the "ailment" referred to.
Save as so amended, the particular should stand.
Particular (v),
He failed to apply the standards he adopted in connection with the defendant Tait, to the plaintiff, but instead chose to use entirely different discriminatory standards.
This is an allegation of unfair discrimination favouring the seventh defendant.
It is plainly confined to the treatment of one particular patient. Whether the defendant knew of the matter and, if so, adopted a different standard unduly favourable to the seventh defendant and unduly adverse to the plaintiff is a question of fact.
It is reliant on the particulars of the incident referred to in (m). That particular was struck out. However, this particular alleges discrimination as an inference from that event whereas (m) relied on failure properly to advise the Board of it.
Discriminatory behaviour could support an inference of malice, if sufficiently proximate to the alleged wrongful act, that is, the non-renewal of the plaintiff's contract. That is also a question of fact.
This particular should stand.
Particular (w),
He adopted an entirely different standard when: (i) defendant Clarke failed to call a surgeon for one month when Clarke perforated the duodenum of Valerie Walker, a fact made known to the defendant by the plaintiff in 1989; (ii) many specialists, such as Dr David McNicol in particular, who were repeatedly responsible for damaging patients admitted under their care.
The plaintiff should be confined to the specific instances of malpractice alleged, so far as they remain for other purposes. The fact or not of malpractice by others is not the relevant issue but rather the defendant's belief concerning it.
If it appeared that other practitioners who made errors of judgment received renewals of contract but the plaintiff did not, though his perceived defects were less, discrimination or "double standards" could be inferred. That is arguable.
So confined, the particular may stand.
Generally, particulars repeated against this defendant are intended to be similarly permitted, amended, or struck out. The following are additional particulars to which objection is taken for different reasons.
Particular (s),
He maliciously failed to disclose or concealed from the Board that what the other defendants had stated to the Board: (i) did not represent the views of the Division of Surgery, or its 1991 Chairman, Dr Peter Brown, nor that the Division had not had any opportunity to consider what the Defendant Tait stated to the Board on 22 March 1991; (ii) deviated from the views of the substantial body of properly experienced members of the Division of Surgery; (iii) deviated from the views of psychiatrists then contracted or employed by the Board.
The objections of the defendant misconceive the purpose of particulars. The additional objection is that the defendant was not at the relevant meeting and had no duty to make any disclosures to it, either prospectively or retrospectively.
That is not the plaintiff's allegation. The plaintiff alleges as a fact the lack of disclosure. He invites the inference that the non-disclosure was a manifestation of malice. That is also a question of fact. Even though the event occurred after the occasion of publication by the defendant of allegedly defamatory material, it is still capable of supporting an inference of malice.
The objection is really only as to relevance. As it seems to me to be relevant, the particular requires no amendment.
Particular (t),
He maliciously failed to inform the Board that it would be improper for the Board to fail to obtain outside opinions to avoid the possibility of personal animosities and ambitions possessed by the defendants influencing the decision of the Board.
This is the same particular as (t), third defendant. The additional objection on the basis of relevance, whilst having some weight, does not render the particular unarguably irrelevant.
It should, however, be amended similarly to particular (t), third defendant. Otherwise it should stand.
Particular (x),
He failed to rectify the record in the Minutes of the 22 March 1991 meeting as to the reasons why he and his lawyer, Peter Hohnen, had absented themselves from the Board meeting of 22 March 1991 allowing the record to remain that there was a conflict of interest between the defendant and the plaintiff, which was untrue, and known by the defendant to be untrue.
In this particular, the plaintiff seems to misunderstand "disqualification" and its relationship to "conflict of interest".
The allegation appears to be that the defendant absented himself from the meeting in question, as also did his lawyer. Mr Hohnen was, it is alleged, a member of the Board although he is not a defendant. Those persons allegedly excluded themselves from the meeting referred to for the stated reason of "conflict of interest". The plaintiff says that is not a true statement. They had stated they were "disqualified" by reason of litigation then pending involving the plaintiff and the defendant. Mr Hohnen was, it seems, the defendant's lawyer acting for him in that litigation. In fact, there is no difference in the two statements. The defendant was disqualified from attending the meeting because of his conflict of interest, which he is alleged to have voluntarily recognised and acted upon.
Far from supporting malice, it would, no doubt, be a matter relied on by the defendant as being indicative of a lack of improper motive.
This particular should be struck out. It is incapable of supporting malice.
Particular (y),
His whole conduct towards the plaintiff from around August 1989 onwards was malicious and designed by him to inflict maximum harm upon the plaintiff, to offer him no comfort as a medical colleague, by acting in secrecy at all times, in order to ensure that neither the plaintiff nor the Board would be properly informed, and that the Board would be misled into making a decision injurious to the plaintiff.
This is a summary of the particulars (a) to (x). It relies on no further allegations of fact or any additional circumstance. It amounts to saying that those circumstances together support an inference of malice by the defendant towards the plaintiff.
However, that allegation is made by the pleading and is further particularised by the remaining matters (a) to (x). They are not required to be read severally. As such, this particular is strictly unnecessary.
Accordingly, it should be struck out.
Particular (z),
The words published in the letter addressed to the Executive Director Clinical Services were: (i) defamatory and published by him maliciously, without care and in recklessness as to whether they were true; (ii) intended by him unfairly to prejudice and injure the plaintiff; and (iii) intended by him to induce the Board of Health not to renew the plaintiff's fee-for-service contract or to condone its proposed actions.
This, again, repeats the assertion that the particulars may be read together as well as severally. That is unnecessary and repetitive and should be struck out accordingly.
FIFTH DEFENDANT (John James O'Donnell)
Again, the following refer to objections additional to those considered already in relation to particulars in identical form.
Particular (c),
In his capacity as Executive Director Clinical Services, the defendant has conducted himself with reckless indifference to the rights of the plaintiff in that he: (i) did not allow the plaintiff any, or any reasonable opportunity to put to the defendant his case concerning the allegations under consideration before making the defamatory statements; (ii) recklessly failed to inquire and recklessly remained in ignorance of facts which, upon reasonable injury, would have shown that what he said to the Board was insupportable by: - fact; - law; - the ACT Branch of the Australian Medical Association; and - many if not most of the members of the Division of Surgery; (iii) wrote his letter dated 17 September 1990 only to those specialists who had indicated in telephone conversations were willing to do his bidding; and (iv) wrote his letter dated 17 September 1990 in a manner designed to educe the answers he wanted, and instructed the recipients to treat his communication with secrecy so the plaintiff would not get to know what was afoot.
This is similar in effect to (c), third defendant. In general, it is permissible for similar reasons notwithstanding the different relationship between the defendant and the Board.
For similar reasons, it is arguable that if the facts and circumstances here particularised are proved, a possible inference, not the only or even the most likely, is that the actions referred to manifested the defendant's malice.
This particular should stand.
Particular (d)(i),
Manifested bias against the plaintiff by: (i) failing or refusing to respond to the plaintiff's letter, and in particular he did not reply to the plaintiff's letter dated 3 October 1990 (copy to Dr O'Donnell) headed "Restraint of Irrational Patients" concerning the problems created by self-mutilating persons and did not table this letter at the 22 March 1991 Board meeting.
This is similar to (d)(i), third defendant. It should be deleted for similar reasons.
Particular (g),
He discriminated against the plaintiff by selecting only the plaintiff as his object of attack, even though he knew or should have made it his business to know that other specialists: (i) had serious malpractice allegations made against them, including Defendant Clarke. In particular, he failed to report the actions of Defendant Clarke in relation to patient Valerie Walker even though Defendant Tait possessed full knowledge of Defendant Clarke's malpractice; (ii) had verdicts against them in favour of various plaintiffs in other actions.
This is similar to (h), third defendant. It should be allowed to stand similarly amended for the same reasons.
Particular (h),
He discriminated against the plaintiff who had not caused any injury to or delay in treatment of Minter or Thompson, by selecting him as the one person while taking no action to bring before Board members evidence of malpractice on the part of other defendants and other contract holders where serious injury did result.
This is similar to (i), third defendant. It should be allowed to stand similarly amended for the same reasons.
Particular (j),
He failed to put before the Board members fairly, or in any adequate way, or at all: (i) the fact that the plaintiff had not caused the death of Myra Hayes; (ii) the contents of the report of Professor Little which was known to him, or which it should have been his business to discover.
This is similar to (k)(i) and (ii), third defendant. It should be allowed to stand similarly for the same reasons, save that "or which it should have been his business to discover", should be deleted.
It is true that the matter complained of does not refer to the matters adverted to in (i) and (ii) above. However, the plaintiff does assert that the defendant knew of the content of the Little Report. That material and the matter in (i) to which it related could be said to be matters necessary for balance in fairness to the plaintiff, if the defendant relevantly knew of them. If he did not know, or have a relevant belief or, at least, suspicion as to those matters, this allegation will fail, but that is a matter for trial.
It should stand similarly amended as for (k)(i) and (ii), third defendant.
Particular (u),
He failed to apply the standards he adopted in connection with patient Humphrey, left not properly attended by Dr Dhall, to the plaintiff, but instead chose to use entirely different discriminatory standards.
Although referable only to a particular case, this allegation is similar to (v), third defendant.
It should stand for the same reasons.
Particular (w),
He endeavoured to ensnare the plaintiff in an attempt, being made by Mr G Williams in 1991, to pervert the course of justice or alternatively, when notified of the serious nature of what he was endeavouring to achieve, failed to withdraw his malicious reprimand directed to the plaintiff and failed to apologise to the plaintiff.
The defendant does not seem to have properly understood the allegation.
That is, in part, due to the colourful language employed by the plaintiff. As amplified in the further particulars, it seems the plaintiff refused to treat a person who was seeking to use the fact of that treatment, otherwise elective, to avoid a court appearance. The defendant reprimanded the plaintiff for refusing treatment. The plaintiff's explanation that if he had treated the patient he would have aided and abetted a perversion of justice was either ignored or rejected.
That could be because the defendant was unaware of the legal characterisation of the patient's conduct, if it was as the plaintiff suggests. It may be that the defendant neither knew, believed or suspected the true facts. In that case, of course, the defendant's acts would not support an inference of malice whatever the truth of the matter so far as the patient's reason for seeking treatment was concerned.
However, the failure of the defendant to withdraw his reprimand of the plaintiff when appraised of the truth or, at least, of the plaintiff's belief about it in good faith, could support an inference of malice. It is not an allegation that the defendant was implicated in the offence the patient was attempting to commit.
The facts to support this allegation are sufficiently particularised. It should stand.
Particular (x),
He acted maliciously towards the plaintiff when he endeavoured not to allow the plaintiff to complete the treatment of patient Amanda Peters and withdrew his directive only when prevailed upon by Dr Peter Brown.
Of course, it may have been entirely reasonable for the defendant to reject the plaintiff's clinical advice. It may have been a genuine error that he overlooked or did not receive the correspondence referred to by the plaintiff in the further particulars, assuming it was sent. It may be that Dr Brown explained the situation more appropriately than had the plaintiff. However, it could not be said to be unarguable that the acts referred to resulted from or manifested malice towards the plaintiff.
The alternative explanation canvassed in the defendant's submissions may find favour with the court at the hearing. It is, however, a question of fact whether that will be so found.
It is not necessary to particularise why an assertion by a party is said to be a lie in that it does not represent truly a state of mind or knowledge. That is a matter to be inferred from all the circumstances including the demeanour of parties as witnesses.
It should also be noted that the question is not as to the facts concerning of the treatment of the patient, whose privacy the suppression order made will protect, but the defendant's awareness in relation to it.
This particular should stand.
SIXTH DEFENDANT (Brian Peter Hurley)
General:
Even if the sixth defendant had allegedly defamed the plaintiff only by alleging that he had failed to provide information, but knew of allegations made by others which he refrained from refuting though he knew them to be untrue, it would be possible to infer or support a finding of malice from that latter consideration. It is not necessary to find he was a party to the publication of those other allegations.
The general effect of the particulars given by the plaintiff are quite accurately summarised by the defendant in submissions.
That demonstrates to me that, at a general level, the defendant is well aware of the way in which the plaintiff puts his case on malice.
I now turn, however, to the particular objections.
Particular (a),
The said communications were imparted in the plaintiff's absence, without notice to the plaintiff of what the defendant intended to convey.
This is similar to (a), third defendant. The further particulars given are similar.
I would similarly allow them to stand.
Particular (b),
The said communications were not put to the plaintiff with a view to obtaining his opinion as to whether those words reflected the true position.
This is similar to (b), third defendant. The objections to it are misconceived insofar as they are based on confidentiality. It may be that the circumstances of the defendant's response to the Board's request and the state of his knowledge (or lack of it) of any malice on the part of others will lead to a conclusion that his failure to seek the plaintiff's views on allegations concerning him neither evidence nor support a finding of malice on his part.
His belief or otherwise in the truth of the allegations conveyed can only be assessed as a matter of credit. It cannot be other than "axiomatic" in that sense. That the defendant was expressing a view which he was unqualified to support may either evidence malicious or reliance in good faith on information received. It is a question of fact as to which inference should be drawn.
The reference to the prior relationship of friendship between the plaintiff and the defendant may make malice the least likely explanation of the actions complained of but it is not unarguable that the defendant (albeit reluctantly), had agreed to participate in or acquiesced in what he knew was a scheme to get rid of the plaintiff from medical practice by unjust or improper means. If so, he would share in the alleged malicious motive or objective.
The reference to the conduct and allegations of other named defendants can only be understood as a reference to the matters particularised as such.
It may be that the words spoken and written by the defendant (the "said communications") will not be interpreted by the tribunal of fact as conveying an imputation against the plaintiff of unethical conduct in relation to Thompson. The words are, however, capable of that construction. Thus, whether they were motivated by malice is a potential issue.
Whether the expressed opinion that the plaintiff's conduct in relation to the matter was "unreasonable" or in breach of contract was held or not in good faith is a matter for the trial. There is no apparent need for further particularisation.
Particular (c),
In his capacity as Chairman of the Medical Staff Committee, the defendant conducted himself with reckless indifference to the rights of the plaintiff in that he: (i) did not allow the plaintiff any, or any reasonable opportunity to put to the defendant his case concerning the allegations under consideration before making the defamatory statements; (ii) recklessly failed to inquire and recklessly remained in ignorance of facts which, upon reasonable injury, would have shown that what he said to the Board was insupportable by: - fact; - law; - the ACT Branch of the Australian Medical Association; and - many if not most of the members of the Division of Surgery.
That particular is similar to (c), third defendant. It is merely another aspect of the alleged failure to refer allegations of and concerning the plaintiff to an appropriate authority for verification. It further alleges that the defendant believed, or at least suspected, ("reckless indifference") that the plaintiff's rights would be infringed if he put his allegations to the Board whilst having no belief in or suspecting the untruth or eccentricity of them.
If the views expressed by the defendant were not honestly held, conflicting not merely with those of the plaintiff but also the persons referred to in the particulars, then that consideration could support a finding of malice.
The additional submission is made that mere ignorance would not bespeak malice. That is true, but if the ignorance bespeaks or is a consequence of lack of honest belief in the truth of defamatory allegations or in stating opinions adverse to the plaintiff, then a finding of malice may be supported.
I have already commented on the possible relevance of subsequent actions, or failure or refusal to act.
Observations concerning confidentiality and the alleged need to specify inquiries which ought to have been made have been dealt with above.
As for (c), third defendant, this allegation needs no further particularisation and will stand.
Particular (d),
Manifested bias against the plaintiff by: (i) failing or refusing to respond to the plaintiff's letters; (ii) siding and co-operating with persons whom he knew or should have known, were pursuing the plaintiff with improper motive, namely the defendants Bissett, Withers, Clarke, O'Donnell and Tait.
This is similar to (d)(ii), third defendant, though particular d(i) is different. The failure to respond to letters would not, of course, without more, support a finding of malice. However, the submissions appear to persist in the misconception that a particular should be capable, by itself, of proving malice. It is enough that the facts and circumstances particularised could support such a conclusion.
It would be open to argue that the failure to respond, like a failure to apologise, manifested a mind set against the plaintiff's case before the Board. It could be taken to indicate that he had no honest answer that he could make. It may also be that he thought no answer would or could satisfy the plaintiff and would therefore be a waste of time.
The proper inference to be drawn is a matter for trial.
Particular (d)(ii) has already been commented upon in relation to the third defendant. The same result should follow.
The further particulars D2(ii) have been objected to on various grounds.
The "coincidences" referred to seem, in context, to be a reference to the specific events referred to. How they should be characterised is a matter of inference.
Allegations of knowledge or lack of it require no further particularisation.
The references made to other defendants, though pejorative, clearly include only the matters particularised against them.
The "rebuke" referred to in further particulars D2(ix), though clearly enough confined to the "Hayes matter", is, however, not particularised sufficiently.
Was it oral or in writing? If the former, what were the words used? Can the writing be identified? When, in relation to the "Hayes matter", was the rebuke administered?
The plaintiff is not obliged to answer those questions save to the best of his ability but he should, at least, specify what he means by that reference. If it is based on indirect circumstances, they should be specified.
The "Rubber Stamp" reference is no more than an inference. The plaintiff asserts it should be drawn from the facts referred to. The "hope of suitable reward" is the improper motive the plaintiff alleges of this defendant. It may be a "scurrilous" accusation and entirely unfair if it is false, but whether or not it is true is a question for trial.
If the benefits said to have been conferred on the defendant were supported by other defendants only after the defendant had supported their cause (as particularised), it would be possible to infer that the alleged improper motive was the explanation for that support.
It requires no more than affirmation or not of the alleged benefits and the timing of them compared with the events of which the plaintiff complains in relation to the defendant to enable, but not require, the inference suggested.
The particular itself does not require amendment but if D2(ix) is not better particularised, it will require amendment to remove the offending allegation.
Particular (f),
He said the words and wrote the letter despite his knowledge that the alleged misdemeanours attributed to the plaintiff, which are denied, concerning Thompson and Minter, were trivial in the extreme compared with the proven acts of very serious malpractice, of which the defendant knew, or ought to have known, were committed by other salaried and fee-for-service contract holders.
This is similar to (g), third defendant. Observations have already been made concerning the alleged incidents of malpractice. They apply equally to this allegation.
It should stand similarly amended.
Particular (g),
He discriminated against the plaintiff by selecting only the plaintiff as his object of attack, even though he knew or should have made it his business to know that other specialists: (i) had serious malpractice allegations made against them, including Defendant Clarke. In particular, he failed to report the actions of Defendant Clarke in relation to patient Valerie Walker or to make any inquiry of Defendant Clarke as to whether he had himself committed any acts of malpractice; (ii) had verdicts against them in favour of various plaintiff's in other actions.
This is similar to (h), third defendant. Similar observations apply. The particular is to be similarly confined and stand as amended.
Particular (h),
He discriminated against the plaintiff who had not caused any injury to or delay in treatment of Minter or Thompson, by selecting him as the one person while taking no action to bring before the Board members evidence of malpractice on the part of other defendants and other contract holders where serious injury did result.
This is similar to (i), third defendant. It should be similarly confined and stand as amended.
Particular (i),
He failed or refused to apologise for his remarks about the plaintiff made in relation to Thompson and Minter.
This is similar to (j), third defendant. The same observations apply. It will stand similarly confined.
Particular (j),
He failed to put before the Board members fairly, or in any adequate way, or at all: (i) the fact that the plaintiff had not caused the death of Myra Hayes; (ii) the contents of his own report about Myra Hayes; (iii) the contents of the report of Professor Little which was known to him, or which it should have been his business to discover.
This is similar to (k)(i) and (iii), third defendant. The particular (j)(iii) additionally refers to "which it should have been his business to discover". The words "or which he believed or suspected" should be substituted.
The issue of relevance has been otherwise ruled upon. So also has the capacity of the material cited in the defendant's submissions (par 63) to convey the imputation of which the plaintiff complains.
The general observations concerning particular (k), third defendant are otherwise equally applicable.
The particulars are allowed as amended.
Particular (k),
He failed to familiarise himself adequately or at all with the concept of informed consent before making allegations with respect to Thompson and Minter
This is the same as for (l), third defendant. This particular is struck out for the same reasons. It has not been so further particularised or recast so as to make it relevant.
Particular (l),
He maliciously or with reckless indifference omitted to give the Board fair and proper information, about how Dr Tait managed Gary Minter, which if he had done, would have placed the plaintiff in a proper light in the eyes of the Board and could have case doubt on the malicious evidence of Defendant Tait.
This is the same as for (m), third defendant. It is true that "reckless indifference" is not an alternative to malice. However, a "reckless indifference" to truth or fairness or propriety could support a finding of malice for the reasons previously given in respect of that particular.
What the defendant's opinion really was, as opposed to that which he expressed, is a question for trial.
The particular will be allowed to stand to the same extent as for (m), third defendant.
Particular (m),
He maliciously or with reckless indifference omitted to give to the Board fair and proper information about the fact that no other surgeon in Canberra could be found to treat Ms Thompson or Mr Minter.
This is the same as (n), third defendant. The same observations and result follow. It will be struck out.
Particular (n),
He maliciously or with reckless indifference omitted to give to the Board fair and proper information about the fact that Minter refused treatment and that he was discharged from the hospital (after being accepted as a patient by Dr Tait) with a nail file still embedded in his abdomen.
This is the same as (o), third defendant. The same observations and result follow. It will also be struck out.
Particular (q),
He published the Hurley letter referred to in paragraph 30 of the Statement of Claim and spoke to Hurley referred to in paragraph 41 of the Statement of Claim: (i) without having made any or any adequate effort in 1990 or since, to seek relevant professional opinions from persons properly qualified to express such opinions, namely, among others, Dr Peter Brown (Chairman of the Division of Surgery in 1991), Dr Peter Hughes (former President of the ACT Medical Association), Dr Raymond Newcombe (Neurosurgeon), Dr Grahame Bates (Gynaecologist, the then current President of the ACT Branch of the AMA) and Dr Gavin Carney (salaried Nephrologist and graduate in law); (ii) while choosing to support the policies being advanced by Messrs Bissett and Withers, which included the desired exclusion of the plaintiff and others who were critical of their policies; (iii) knowing that what he was expressing were opinions which were not shared by the body of properly qualified and experienced senior members of the Division of Surgery.
This applies to the matter published by the defendant the same allegations as are made in respect of the third defendant's "allegations", in (r), third defendant.
The same observations and result will follow. It will stand as amended accordingly.
Particular (r),
What he wrote in the Hurley letter referred to in paragraph 30 of the Statement of Claim and what he spoke to Hurley referred to in paragraph 41 of the Statement of Claim: (i) did not represent the views of the Medical Staff Committee which committee had not had the opportunity to consider what he was planning to say to the Board thereby creating the false impression that his views were the views of the said committee; (ii) deviated from the views of the substantial body of properly experienced members of the Division of Surgery; (iii) deviated from the views of psychiatrists then contracted or employed by the Board.
This applies to the matter published by the defendant the same allegations as are made in respect of the third defendant's "allegations" in (s), third defendant.
The same observations and result will follow. The particular will stand.
Particular (s),
He maliciously failed to inform the Board that it would be improper for the Board to fail to obtain outside opinions to avoid the possibility of personal animosities and ambitions possessed by the Department influencing the decision of the Board.
This is the same as (t), third defendant. With the reminder that the question of a duty to inform the Board is not decisive, the same observations and result will follow. The particular stands but the "further particulars" are amended accordingly.
Particular (t),
In being selective as to what he chose to say, or to conceal from, the Board he: (i) sought to cause prejudice to the plaintiff, and he acted more like an advocate for the administration than an impartial, professional witness, which he falsely held himself out to be; (ii) sought to ingratiate himself with holders of administrative power; (iii) failed to alert the Board to the ailment which might have caused Mr Withers to suffer from impaired judgment, which ailment was widely known to medical practitioners towards the end of 1990.
This is equivalent to (u), third defendant. With the reminder that selectivity need not have been an element of any cause of action or damage to the plaintiff to be relevant to malice, the same observations and result will follow, with the particular standing but the further particulars being similarly amended.
Particular (u),
He failed to apply the standards he personally adopted when he himself declined to treat the patient Saad with Plasmapheresis, to the plaintiff, but instead chose to use entirely different discriminatory standards.
The incident referred to, intended to illustrate a "double standard", is sufficiently particularised. It may refer to an incident after the alleged defamation to illustrate that the previous treatment of the plaintiff was discriminatory. There may well be a perfectly valid distinction between or explanation for the alleged differences or they may appear unhelpful on the issue of malice but that is a question for trial.
The particular will stand.
Particular (v),
He adopted an entirely different standard when: (i) defendant Clarke failed to call a surgeon for one month when Clarke perforated the duodenum of Valerie Walker, a fact made known to the defendant by the plaintiff in 1989; (ii) many specialists, such as Dr David McNicol in particular, who were repeatedly responsible for damaging patients admitted under their care.
This is the same as in (w), third defendant. The same observations and result will follow.
The particular will stand, similarly confined.
SEVENTH DEFENDANT (Noel Tait)
(Additional matters)
Particular (d)(i),
Failing or refusing to respond to the plaintiff's letter, and in particular he did not reply to the plaintiff's letter dated 3 October 1990 (copy to Dr O'Donnell) headed "Restraint of Irrational Patients" concerning the problems created by self-mutilating persons and did not table this letter at the 22 March 1991 Board meeting.
This is similar to (d)(i), third defendant save that a failure to respond or reply to the letter is alleged instead of a failure to ensure that action was taken on it.
Whilst relatively tenuous, the failure to respond or reply could arguably support a finding of malice as noted in (d), sixth defendant. The particular correspondence and its alleged relevance are sufficiently particularised.
The particular will stand.
Particular (g),
He discriminated against the plaintiff by selecting only the plaintiff as his object of attack, even though he knew or should have made it his business to know that other specialists: (i) had serious malpractice allegations made against them, including Defendant Clarke. In particular, he failed to report the actions of Defendant Clarke in relation to patient Valerie Walker even though Defendant Tait possessed full knowledge of Defendant Clarke's malpractice; (ii) had verdicts against them in favour of various plaintiffs in other actions.
This is similar to (h)(i), third defendant and (g)(i), sixth defendant. The same observations and result will follow.
The particular stands, similarly confined and amended.
Particular (l),
He maliciously or with reckless indifference omitted to give the Board fair and proper information, about how he himself had managed Gary Minter, which if he had done, would have placed the plaintiff in a proper light in the eyes of the Board and could have cast doubt on his own malicious evidence.
This is essentially the same as (m), third defendant and (l), sixth defendant. The same observations and result follow.
The particular will stand to the same extent.
I would note, additionally, that the question of unilateral relinquishment of a patient and its propriety is one of the matters at issue. It is, with respect, the seventh defendant who seems not to understand the issue raised by the plaintiff relevant to malice. It is the plaintiff's contention that whilst the defendant knew, believed or suspected that what the plaintiff did was appropriate, the defendant knew, believed or suspected that his own management of the case was deficient and inappropriate. Thus, it is alleged, it is an example of double standards, supporting the view that he was motivated by malice.
Particular (u),
He failed to apply the same standards to the plaintiff which he adopted for himself, when he failed to treat Minter, but instead chose to use entirely different discriminatory standards.
This is the same as for (v), third defendant and (v), sixth defendant. The submissions repeat the same misapprehension as referred to in the previous paragraph. The same observations and result otherwise follow.
The particular will stand.
Generally the observations on the particulars challenged in respect of the seventh defendant will be treated, mutatis mutandis, the same otherwise.
SCHEDULE OF ORDERS AND DIRECTIONS IN RESPECT OF CHALLENGED PARTICULARS
First Defendant Particular Order (e) Amend by deleting "used every means to encourage" and replace with "encouraged". (g) Amend by deleting "enjoy the implied term that they". G4 Delete final sentence. G5 Delete. (l) Stand unamended. (q) All names of specialists and patients not be published. Reference to instances of alleged malpractice (1), (5) and (22) be deleted unless it was before the decision complained of. Otherwise particular should stand. (r) First sentence of R5 p22 further particulars (8/8/96) be deleted. (s) Suppression order relating to the names of doctors and patients referred to earlier. (t) Strike out. (u) Strike out. Second Defendant Particular Order (a) Strike out. (b) Amend to read "He intentionally failed to table vital documents". (c) Amend to read "He intentionally failed to table the correspondence from the plaintiff's solicitors of 5 April 1991 at the meeting of 10 April 1991. (j) See (q), first defendant. (k) Delete "should have made it his business to know", "ought to have known" or the like phrase. Replace with "or, at least, suspected". (k)(4) Further particulars needed. (t) Stand unamended. (v) Delete the words "namely, amongst others ..." to the end of paragraph (i). (x) Stand unamended. (y) Stand unamended. Third Defendant Particular Order (a) Stand unamended. (b) Stand unamended. (c) Stand unamended. (d) Delete paragraph (i). Delete further particulars of (d)(i). (D)(ii) delete reference to unspecified instances. D2(ix) Stand unamended but read as relying only on specific facts and matters referred to. (g) Delete words "or ought to have known". Replace with "believed or suspected". No further particularisation required. (h) Subject to amendments made in relation to the similar particular (k), no further particularisation needed. (i) "Malpractice" material be confined as previously noted. (j) Stand unamended. (k) Stand unamended. (l) Strike out. (m) "Reckless indifference" should be read as "believing or suspecting". Otherwise stand unamended. (n) Strike out. (o) Strike out. (p) Stand unamended. (r) Amend as for (v) second defendant. (ii) to stand. (s) Stand unamended. (t) Delete words "Great controversy ... to two journalists". (u) Strike out particular instances of drunken behaviour. U1-U18 In final paragraph, delete all words after "afflicted him". Save as amended, the particular should stand. (v) Stand unamended. (w) Stand unamended. Fourth Defendant Particular Order (s) Stand unamended. (t) Amend as for (t), third defendant. (x) Strike out. (y) Strike out. (z) Strike out. Fifth Defendant Particular Order (c) Stand unamended. (d)(i) Delete for similar reasons to (d)(i), third defendant. (g) Stand, similarly amended to (h), third defendant. (h) Stand, similarly amended as (i), third defendant. (j) Similar to (k)(i) and (ii), third defendant. Stand similarly amended. (u) Similar to (r), third defendant. Stand for same reasons. (w) Stand unamended. (x) Stand unamended. Sixth Defendant Particular Order (a) Similar to (a), third defendant. Stand. (b) Similar to (b), third defendant, no further particularisation needed. (c) Stand unamended. (d) Similar to (d), third defendant save as to (i). D2(ii) Stand unamended. (f) Similar to (g), third defendant. Stand similarly amended. (g) Similar to (h), third defendant. Similar amendments. (h) Similar to (i), third defendant. Similar amendments. (i) Similar to (j), third defendant. Stand similarly confined. (j) Similar to (k)(i) and (ii). Delete from (j)(ii) the words "which it should have been his business to discover". Replace with "or which he believed or suspected". Otherwise allowed. (k) Same as (l), third defendant. Strike out. (l) Same as (m), third defendant. Treat same. (m) Same as (n), third defendant. Strike out. (n) Same as (o), third defendant. Strike out. (q) Similar to (r), third defendant. Stand as amended. (r) Same as (s), third defendant. The particular will stand. (s) Same as (t), third defendant. The particular will stand but the further particulars will be similarly amended. (t) Same as (u), third defendant. The particular will stand but the further particulars will be similarly amended. (u) Stand unamended. (v) Same as (w), third defendant. The particular will stand, similarly confined. Seventh Defendant Particular Order (d)(i) Similar to (d)(i), third defendant. Stand unamended. (g) Similar to (h)(i), third defendant and (g)(i), sixth defendant. The particular will stand, similarly confined and amended. (l) Same as (m), third defendant and (l), sixth defendant. The particular wills stand to the same extend. (u) Same as (v), third defendant and (v), sixth defendant. The particular will stand.
I will now hear the parties as to costs and further directions.
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