Arnold Mann v Australian Capital Territory, John Anthony Bissett, Leonard Edward Withers, Anthony Charles Clarke, John James O'Donnell, Brian Peter Hurley and Noel Tait [1997] ACTSC 43 (19 June 1997)

SUPREME COURT OF THE ACT

ARNOLD MANN v. AUSTRALIAN CAPITAL TERRITORY, JOHN ANTHONY BISSETT, LEONARD
EDWARD WITHERS, ANTHONY CHARLES CLARKE, JOHN JAMES O'DONNELL, BRIAN PETER
HURLEY and NOEL TAIT
No. SC 458 of 1991
Number of pages - 6

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

HIGGINS J

CATCHWORDS

Supreme Court Rules, O34 rr1,8

Civil Procedure ACT, 10807-8 par 9625.1

Evidence Act 1995

Aspar Autoboard Cooperative Society v Dovala Pty Ltd (1987) 74 ALR 550

Ryan v Federal Capital Press of Australia Pty Ltd [1990] ACTSC 45; (1990) 101 FLR 396

Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44

Permanent Finance Corp Ltd v Europacific (Plant Hire) Pty Ltd [1970]QWN 45

R v Statutory Visitors to St Lawrence's Hospital, Caterham; ex parte Pritchard [1953] 2 All ER 766

Chantrey Martin & Co v Martin [1953] 2 QB 286

Derham v Aniev Life Insurance Co Ltd (1978) 20 ACTR 23

HEARING

CANBERRA, 19 June 1997 (decision)

19:6:1997

The Plaintiff appeared in person.

Counsel for the Seventh Defendant: Dr K Crispin, QC

Instructing solicitors: Blake Dawson Waldron

ORDER

THE COURT DIRECTS AS FOLLOWS:

1. Question 7(c)(ii) does not require further answer. 2. Question 8 requires no further answer. 3. Question 17 does not require further answer. 4. Question 21 requires no further answer. 5. Question 30 requires a direct answer. 6. Question 32 and 34 require no further answer. 7. Question 40 requires further answer. 8. Questions 48, 53, 54 and 55 should be properly answered. 9. Question 57 requires a responsive answer. 10. Question 75 need not be further answered. 11. Question 76 need not be further answered.

DECISION

HIGGINS J

This is an application by the plaintiff for further and better answers to certain interrogatories delivered to the sixth and seventh defendants.

The questions and answers are similar in respect of each defendant. The objections to answer are also similar. I will, therefore, first consider the seventh defendant's (Dr Tait) answers as they are more detailed and apply the rulings thereon mutatis mutandis to the answers of the sixth defendant (Dr Hurley). That was the approach taken in argument.

Answers of seventh defendant

Question 7(c)(ii)

The question asked Dr Tait's basis for asserting in a named document,

General Surgery in the public hospital system has made little progress of recent years, mainly because of Dr Mann's management of his role in the hospital and his obligations under his contract.

It is apparent from his answer that Dr Tait relied on matters told to him by Dr O'Donnell (fifth defendant). As a result, Dr Tait formed certain opinions both as to those matters and as to the plaintiff's personality and character generally.

The plaintiff's objection is twofold. First, he objects that the answer impliedly relies on allegations expressly eschewed in the Federal Court by counsel on behalf of the first defendant which, at least by necessary implication, appeared then to represent the view of all defendants.

The second objection is that the answer is insufficiently precise.

In response to the first objection, whilst I accept that the defendants have indicated an intention not to rely on any allegation of improper practice or conduct justifying the non-renewal of the plaintiff's contract, that does not imply that, in answer to an allegation of malice proposed for the purpose of negating a defence to a claim for defamation, a defendant may not advance reasons for his or her or its actions or words based on a belief in improper conduct or practice on the part of the plaintiff even if such conduct or practice is not alleged to have occurred in fact or be properly so characterised if the acts referred to did occur.

It is true that the terms "progress" and "recent years" used in the quotation from Dr Tait are imprecise.

However, Dr Tait was not asked by the interrogatory in question to define those terms. He was merely asked to explain the factual or other basis for the assertion referred to. He was directed specifically to identify any informant. He did so, identifying Dr O'Donnell.

I do not consider it appropriate on either basis to order further answers to Q7(c)(ii).

Question 8

The response to Q8 refers to Q7. It follows that no further answer is required.

Question 17

The answers are "I do not know". The plaintiff might well say that Dr Tait must have had, or should have had, some level of knowledge of the matters referred to.

However, his claim to have no level of knowledge is not so palpably mistaken or incredible as to require further answer.

Question 21

In Q21 attention was addressed to the "Einfeld Report". Q21 is in the following terms,

On 22 March 1991 was it true that: (a) Mr Withers was "not in a position to form a view about Dr Mann's professional competence". (b) Dr Mann has refused to cooperate with the defined dispute process. In relation to Minuted O'Donnell Words: (c) "... every attempt to gain information about the incidences outlined in the Report, by clearly defined management practices have been thwarted by Dr Mann himself." (d) "Dr Mann has breached four (4) of the clauses of his contract, three (3) of a clinical nature, and the other a breach of the obligations of his contract in that he failed to obey a reasonable direction of the Executive Director, Clinical Services.: In relation to the Minuted Hurley Words: (e) "Any one of the incidences referred to in the Report would not alone provide reason enough cause not to renew Dr Mann's contract. However, combined the incidences show a disregard by Dr Mann for his contractual obligations." ...

The answer is "I do not know. The document no doubt speaks for itself."

The first part of the answer may be inappropriate though that depends on Dr Tait's powers of comprehension. No doubt, if Dr Tait read the report he could well have drawn one or other of the conclusions in question or none of them. He must have drawn some conclusion unless he was extraordinarily obtuse. The second part of the answer, however, reflects a proper objection to the question.

The issue is malice. The interpretation which Dr Tait might place on the Einfeld Report is not relevant. It may have been relevant to ask if, before the decision not to renew the plaintiff's contract was taken, the allegations against the second defendant allegedly sourced to the Einfeld Report were or were, at least, believed by Dr Tait to be true. If Dr Tait had accepted that the second defendant had behaved as impliedly alleged in Q21, it may be that the conclusion that he made his allegedly defamatory statements of and concerning the plaintiff by reason of malice could more readily be concluded.

However, that was not the question asked. The answer is in substance appropriate. No further answer is required.

Question 30

The question refers to a Minute authored by the third defendant. Part of it refers to a "similar fact circumstance". That is, it seems, a circumstance relating to two other patients similar to the first mentioned.

Insofar as the question required that a view be expressed as to who the author intended to refer to, it is rightly objected to. However, it does not purport to do so. It simply cites a statement and its source and asks, not what the author meant, but what the seventh defendant understood the cited proposition to mean. It may be that Dr Tait does not know. If so, the plaintiff is entitled to know that. Conversely, if Dr Tait does know, or has a belief as to who the person referred to is, he should say so.

A direct answer to Q30 is, therefore, required.

Questions 32 and 34

These also refer to "adverse findings" allegedly made by Mr Einfeld against the second defendant (Mr Bissett). It raises a similar issue as raised in relation to Q21. For similar reasons, no further answer is required.

Question 40

The question asked is,

What were Thompson's diagnoses at the time she was in the Board's hospitals in August and September 1990?

Dr Tait declines to answer this question and, indeed, some others on the basis that,

... it would involve the disclosure of patient privileged information, contrary to the obligations imposed upon me by the AMA Code of Ethics.

It is common ground that the Code would prohibit such disclosure without consent of a patient unless otherwise compelled by law.

Order 34 rule 1, Supreme Court Rules, permits a party to deliver interrogatories "relating to any matter in question". Leave of the court is required only for "further interrogatories", see O34 r1(2).

An answer may be in the form of an objection to answer, see O34 r8, or a party may apply to set aside interrogatories but that must be done, unless time is extended, within four days after their delivery.

The delivery of a proper interrogatory in accordance with these rules does impose a legal obligation to make proper answer, see Aspar Autoboard Cooperative Society v Dovala Pty Ltd (1987) 74 ALR 550, per Woodward J at 552.

That does not preclude disallowance of interrogatories on the ground of lack of utility or prolixity, see Ryan v Federal Capital Press of Australia Pty Ltd [1990] ACTSC 45; (1990) 101 FLR 396, per Miles CJ at 397.

Generally, a question is allowable to the same extent as it would be if asked orally, see Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44 per Hunt J at 57. One exception, however, seems to be in relation to conversations. Only the substance thereof may be requested, see Permanent Finance Corp Ltd v Europacific (Plant Hire) Pty Ltd [1970] QWN 45.

There are other objections, as referred to in Civil Procedure ACT, 10807-8 par 9625.1.

A claim for confidentiality is not one which can excuse a legal obligation to answer unless by virtue of the Evidence Act 1995. There is no provision for the confidentiality of doctor/patient communications in that Act. That is not to say that such communications are not confidential though such confidentiality is not protected by a statutory provision.

It is not inappropriate for a person bound, otherwise than by statute, to keep a communication confidential to decline to do so without a specific order, see R v Statutory Visitors to St Lawrence's Hospital, Caterham; ex parte Pritchard [1953] 2 All ER 766. Particularly is this appropriate when some special restriction on further disclosure than to the Court or opposing party is considered desirable, see Chantrey Martin & Co v Martin [1953] 2 QB 286.

Given that the plaintiff is also a medical practitioner bound by the same Code of Ethics as is Dr Tait, I would direct Dr Tait (and Dr Hurley) to provide an answer notwithstanding the confidentiality obligation if otherwise an answer is required. That is subject to disclosure being made only for the purposes of and no further than necessitated by the purposes of this litigation.

The other objection is as to consultation with documents and records as well as to the vagueness of the question.

The latter objection I do not consider valid. A diagnosis is a well understood term in medical practice. It does not matter who made it. The relevance of such a diagnosis depends not on the question asked but on the answer given. Thus, the question could produce a relevant answer, the appropriateness of treatment in the Thompson case so far as the knowledge of Dr Tait is concerned being raised as supporting malice.

As to the second aspect of the objection, it is true that a defendant is required to answer to the best of his or her knowledge, information and belief after due enquiry of all relevant servants and agents, see Derham v Aniev Life Insurance Co Ltd (1978) 20 ACTR 23.

However, that does not require reference to records in the possession or control of another unless the party answering may require or obtain access to the same without undue difficulty or search. If such undue difficulty was involved, it might be oppressive to require an answer. The objections advanced are not sustained. A further answer is required.

Questions 48, 53, 54 and 55

There is an objection based on confidentiality and relevance. I have dealt with confidentiality. Each seems a relevant question and should be properly answered.

Question 57

The answer is objected to as unresponsive. The question asks for details of enquiries made in relation to the stated subject matter. The answer states,

I commented upon the factual situation [sic] supplied by Dr O'Donnell and my own experience and my views of the plaintiff.

That answer is plainly unresponsive.

The attention of Dr Tait is drawn to "the information" he provided. He was then asked to detail the enquiries, if any, he undertook to ensure its accuracy.

A responsive answer is required.

Question 75

Part (a) is answered. Part (b) requires an answer only if "and" as expressed between (a) and (b) is treated as including "or". The alternative part, if it be such, is, I agree, argumentative and assumes facts not admitted.

Even if "and" be read as including "or", the question need not be further answered.

Question 76

Part (a) is answered. Part (b) does assume a fact not admitted and is argumentative.

The question, therefore, need not be further answered.

Generally, as previously indicated, the objections to answer in relation to Dr Hurley are to be dealt with mutatis mutandis to the objections of Dr Tait.