Bateman & Primary Health Care Ltd v Nationawide News Pty Ltd [2002] ACTSC 73 (26 July 2002)

Last Updated: 29 July 2002

EDMUND BATEMAN and PRIMARY HEALTH CARE LIMITED (ACN 064 530 156) v NATIONWIDE NEWS PTY LIMITED (ACN 008 438 828) [2002] ACTSC 73 (26 July 2002)

CATCHWORDS

PRACTICE AND PROCEDURE - interrogatories - objections to - whether interrogatories vexatious, oppressive or irrelevant - where defence of fair comment pleaded and facts upon which defence based identified, interrogatories may be delivered on those facts - whether interrogatories in proper form.

Adams v Dickeson [1974] VR 77

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

Aspar v Dovala (1987) 74 ALR 550

Seidler v John Fairfax [1983] 2 NSWLR 390

Barbarian Motor Cycle Club Inc v Koithan (1984) 35 SASR 481

Aldridge v John Fairfax & Sons Ltd [1984] 2 NSW LR 544

Peter Walker & Son Ltd v Hodgson [1909] 1 KB 239

Herald Weekly Times Ltd v Hawke [1984] VR 587

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250

Lustre Hosiery v York [1935] HCA 71; (1935) 54 CLR 134

Smith v Joyce [1954] HCA 15; (1954) 89 CLR 529

Supreme Court Rules, O 34 r 1(4), O 34 r 8

No SC 437 of 2000

Judge: Gray J

Supreme Court of the ACT

Date: 26 July 2002

IN THE SUPREME COURT OF THE )

) No. SC 437 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: EDMUND BATEMAN

First Plaintiff

AND: PRIMARY HEALTH CARE LIMITED

ACN 064 530 156

Second Plaintiff

AND: NATIONWIDE NEWS PTY LIMITED

ACN 008 438 828

Defendant

ORDER

Judge: Gray J

Date: 26 July 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The second plaintiff answer interrogatories 1(c), 20, 33 and 34 contained in the Notice to the Second Plaintiff to Answer Interrogatories.

2. The defendant's Notice of Motion is otherwise dismissed.

1. The defendant seeks answers to interrogatories delivered to each of the plaintiffs in this matter. The plaintiffs' response is to object to answering certain of these interrogatories on the basis that particular interrogatories are "vexatious, oppressive and [do] not relate to any matter in issue between the parties".

Objections to interrogatories

2. The plaintiffs are trenchant in their criticism of the defendant's interrogatories as the product of a word processing prolixity which denies individual consideration of the question sought to be asked. An equal criticism could be made of the plaintiffs' standard response which I have set out above. This would appear to be a barren debate best left with the machines.

3. The rules permit the administration of interrogatories. Their object is to enable a party to obtain discovery of material facts in order to support or establish proof of that party's case, or to find out the case to be met, or to destroy or damage the opposing case (Adams v Dickeson [1974] VR 77 at 79). The general intention is that interrogatories be administered if necessary and if they serve a useful purpose (Ryan v Federal Capital Press [1990] ACTSC 45; (1990) 101 FLR 396). The fact that they are the product of precedent or standard form of word processing does not condemn them on that ground but it does not incline a court to make allowance for those that are unnecessary or over elaborated. Equally, I am unimpressed with a formula objection where on proper consideration part at least of what is asked could be answered. (cf Aspar v Dovala (1987) 74 ALR 550 at 552 per Woodward J)

4. In respect of this matter I apply these principles:

* interrogatories must relate to the matters in question in the action (SCR O 34 r 1(4));

* they are permitted to the same extent as questions may be asked in oral examination (O 34 r 1(4);

* interrogatories enable a party to obtain from the opposite party particular information as to the facts material to the questions in dispute between them and for the purpose of securing admissions about such facts. (Adams v Dickeson supra);

* they should relate to a matter in question if it has some relevant association or connection with an issue. (Seidler v John Fairfax [1983] 2 NSWLR 390 at 393);

* an interrogatory must be sufficiently material at the stage that it is administered (SCR O 34 r 8) and whether it is so is a discretionary judgment to be made by the court. That judgment is to be made in light of the purposes for which interrogatories are allowed (Barbarian Motor Cycle Club Inc v Koithan (1984) 35 SASR 481 at 484);

* an order compelling the answering of interrogatories should be made only where it serves some necessary and useful purpose. (Ryan v Federal Capital Press (supra) at 398 per Miles CJ.)

The article which is said to be defamatory

5. In this matter the defamation alleged relates to an article in these terms:

Doctors racing the clock in business of medicine

Richard Zachariah

In an emerging scandal, "five minute medicine" dispensed by the infamous Dr Geoffrey Edelsten in the 1980s has become common practice in Sydney.

Anti-hero Dr Edelsten is the role model as big business takes over Sydney's medical practices and our GP's become contractors dispensing scripts up against the clock.

Yet while NSW AMA president Dr Michael Ridley bemoans the death of the individual doctor-patient relationship as "desperately sad", public companies like Primary Health Care swallow up more private practices into their $100 million-plus group.

With seven major clinics, employing more than 300 doctors and spread from Chatswood and Castle Hill in the north and Campbelltown and Blacktown in the west, PHC is about to set up shop in Bondi Junction and Darlinghurst.

In their wake, they leave the closed sign at small, neighbourhood practices favoured for years by Australians.

PHC has already acquired several practices in the eastern suburbs with the aim of relocating them into Bondi Junction. Doctors contracted to the big groups claim that under their conditions of employment, it is impossible to give patients the time needed.

It is clear from a contract I was shown that the GP who is paying the company 55 per cent of his fees as overhead would need a turnover of up to nine patients every hour to earn the industry average of about $90.

That equates to a little more than five minute consultations.

This is well short of the Government's recommendation of up to 25 minutes, for which they rebated $22.50.

Of that bulk billing fee, the doctor receives $10.

If the doctor was following the Government's instructions, he or she would be earning $30 an hour - about half of what a plumber charges.

And even more serious is the claim by doctors that if they were to give the patients the time they need, they would be working a 100-hour week, endangering their own health as well as that of the patients.

AMA president Dr Kerryn Phelps says the average consultation the AMA recommends is 15 minutes.

She says she is deeply concerned about the ethical questions inherent in corporatisation of medicine.

"The ownership of private health records by a company leads to all sorts of ethical questions", she says.

Dr Ridley says it is important corporatised medicine is at least owned and run by doctors.

"Doctors employed by other doctors are in a position to protest", he says.

PHC is the brainchild of its founder and practising GP Dr Edmund Bateman.

6. I have set out a text of the publication complained of, as by letter dated 14 February 2001 the defendant put in issue what it had said were "the facts stated in the matter complained of". It did so by referring to the text of the publication and identifying the facts by passages of that text. This is a highly unsatisfactory way of identifying what are said to be the facts upon which the comment is based. The alleged facts to which these particulars refer become identified by this process as either subjective generalities or conclusions which are in my view themselves more akin to comment.

Whether interrogatories should be permitted

7. There is an argument that the defendant in defamation proceedings should not be permitted to interrogate the plaintiff as to the truth or falsity of facts in the absence of a claim for aggravated damages particularising the matter complained of as false, by way of defence of truth, or where an allegation of truth in mitigation of damages has been particularised. That may be so in New South Wales, (see Aldridge v John Fairfax & Sons Ltd [1984] 2 NSW LR page 544 at 549 per Hunt J). However, there is also authority for the proposition that where fair comment is pleaded and the defendant has given particulars of the material upon which the comment was based, the plaintiff may be interrogated as to the truth of the matter relied upon in the particulars. (Peter Walker & Son Ltd v Hodgson [1909] 1 KB 239). The plaintiffs did not seek to argue against this proposition and in light of that I am prepared to assume that interrogatories may be delivered as to the facts upon which a defendant seeks to base his defence of fair comment if those facts can be properly identified.

The facts which may be the subject of interrogatories

8. As best as I am able to ascertain the facts upon which the defendant wishes to now interrogate the plaintiff may be said to be,

* "five-minute medicine" dispensed by the "infamous" Dr Geoffrey Edelsten in the 1980's has become "common practice" in Sydney,

* "big business" takes over Sydney's "medical practices",

* public companies like Primary Health Care are bringing more "private practices" into their $100 million-plus group,

* Primary Health Care (PHC) has seven major clinics, employing more than 300 doctors, spread from Chatswood and Castle Hill in the north and Campbelltown and Blacktown in the west, and PHC is about to "set up shop" in Bondi Junction and Darlinghurst,

* "in their wake" small neighbourhood practices "favoured for years by Australians" are now closed,

* PHC have already acquired several practices in the Eastern suburbs with the aim of relocating them into Bondi Junction,

* [the author of the publication was shown a contract which forms the foundation for a fact that there is a] "GP who is paying the company 55% of his fees as overhead",

* there is a Government recommendation of up to 25 minutes (for consultations),

* the rebate for consultations is $22.50 and that is a bulk billing fee,

* of the bulk billing fee, the doctor [presumably GP who is paying the company 55% of his fees as overhead] receives $10,

* if the doctor [GP who is paying the company 55% of his fees as overhead] was following the "Government's instructions", he or she would be earning $30 an hour,

* $30 an hour is about half of what a plumber charges,

* AMA President, Dr Kerryn Phelps says the average consultation the AMA recommends is 15 minutes,

* PHC is the "brainchild" of its founder and practising GP, Dr Edmund Bateman.

9. I have placed references to matters like "five-minute medicine", "infamous", "common practice" etc in quotation marks because of the subjective conclusion that they represent. I do so to highlight that they may imply other facts or be simply an expression of an opinion or comment. I would suggest that for the defendant to succeed in his application to administer interrogatories in respect of the facts upon which he says the comment is based, a far more rigorous analysis is required.

10. To further support the interrogatories, the defendant points to a letter dated 28 August 2001 in which the plaintiffs gave particulars of the express malice that they relied upon in their Reply. Those particulars referred to the falsity of statements contained in the publication namely: -

(i) "that the industry average take home pay for a GP is about $90 per hour;

(ii) that the government's recommended time for a consultation is up to 25 minutes;

(iii) that the fee for 25 minute consultations is $22.50;

(iv) that the costs of running a normal medical centre are dissimilar to the overhead costs paid by doctors contracted to Primary Health Care;

(v) that doctors who work for Primary Health Care earn less than doctors who do not;

(vi) that the plaintiffs relied upon Dr Geoffrey Edelsten as a role model."

11. The particulars as expressed do not refer to the plaintiff's state of mind or actions in the context of express malice but they do directly raise the issue of the truth or falsity of the statements. That is surprising because it is the defendant's belief which is in issue. A person's belief in the truth of an objective fact is not established by showing that the fact is true (Aldridge v John Fairfax (supra)). I assume that the particulars given are to be read in conjunction with a letter dated 8 November 2000 from the plaintiff's solicitors, which alleged that the false statements were as particularised in an earlier letter of 11 September 2000. Those particulars are identical to the particulars given in paras (i) to (v) above. That letter of 8 November 2000 alleged that the publication of the false statements was done consciously or alternatively with reckless indifference to their truth or falsity.

12. Nothing was said before me as to why I should not regard interrogatories regarding the truth or falsity of the particularised statement as relevant and material even though the questions asked by way of the interrogatories were criticised on other grounds. However, I consider that I should approach this matter only by regarding as relevant and material at this stage those interrogatories which can be related to the facts upon which the comment is said to be based, and including what can be said to be crystallised as to those facts from the particulars of malice that the plaintiffs have given.

The interrogatories as to damages: the second plaintiff

13. Apart from the interrogatories on the factual matters to which the plaintiff objected, objection was taken to part of an interrogatory administered in respect of damages. The first interrogatory sought answers from the second plaintiff to the following question:

"1 Has any person or persons (and how many) since publication of the matter complained of said to or reported to any representative of PHC, or to any other person (and to whom) to your knowledge, and (and, if so, which) of the following:

(a) that such person or persons had read the matter complained of;

(b) that such person or persons had identified PHC as having been referred to in the matter complained of;

(c) that such person or persons believed the matter complained of or any (and which) of the imputations set out in the statement of claim;

(d) that such persons believe that PHC was the company in respect of which the imputations (and particularise which of them) alleged in the statement of claim referred;

(e) that such person or persons would in future avoid association with or dealing with PHC as a consequence of the publication of the matter complained of?"

The plaintiff answered all parts of this interrogatory but 1(c) to which the formula objection was taken. In argument it appears that the plaintiff's real objection was that it asks the second plaintiff to form a view as to what other persons believed. That objection is misconceived. Properly understood, that is not what the interrogatory seeks. Rather it asks whether any person has "complained of said to or reported" that such person believed the matter complained of. In Herald Weekly Times Ltd v Hawke [1984] VR 587 at 591 the Full Court of the Supreme Court of Victoria remarked:

"It may also be correct that, in order to bolster a claim for hurt feelings as part of the claim for general damages the plaintiff could give evidence of the hurt to his feelings caused by persons informing him that they believed that the libel was true"

No objection has been taken to the appropriateness of this interrogatory being addressed to the second plaintiff and answer has been made to the other parts.

I would order the second plaintiff to answer this part of the interrogatory.

The interrogatories as to facts: the second plaintiff

14. It is convenient to deal with the interrogatories administered to the second plaintiff first as they seek direct answers from the second plaintiff whereas similar questions asked of the first plaintiff are prefaced by the first plaintiff's "awareness" of the matter asked.

The employment contracts

15. Interrogatory 13 asked whether PHC or its related bodies corporate had general practitioners in its employ or that it engaged them as independent contractors at the time of publication of the matter complained of. It elicited an affirmative answer. A number of questions were then asked concerning the terms and conditions of employment of such practitioners, including requests to produce such contracts. Each of those interrogatories produced the formula response of vexation, oppression and relevance. Calls for production of such contracts in the interrogatories were clearly inappropriate but I was referred to a letter requesting those documents, which I assume I was to treat as a letter for further and better discovery. The issue is the same, the documents can only be discoverable if they are relevant and in the letter requesting their production it is asserted that they are relevant "as they related to the truth of the matter complained of and to comment".

16. I am satisfied that the interrogatories and the documents sought do not relate to the facts upon which it is said that the defence of fair comment is based, even as extended by the particulars said to be particulars of malice, in so far as those particulars may be said to extend the "facts" upon which the comment is said to be based.

17. I say so because there is no clear fact discernable from the article to bring in direct issue the employment or other contracts that the second plaintiff has with medical practitioners as a basis for the comment made. What is said to be the fact which founds the interrogatories in question is the assertion by the author of the article that "It is clear from the contract I was shown that the GP who is paying the company 55 per cent of his fees as overhead would need a turnover of up to nine patients every hour to earn the industry average of about $90". Yet the only fact that this statement is based upon is that the author was shown a contract. It may be that there were terms of that contract that caused the author to express his opinions or comment but the fact upon which the comment is based is the contract that the author alleges that he was shown. Once this is appreciated, the attempt by the interrogatories and by the application for further discovery to generally put in issue the contracts that the second plaintiff might have with its employees as independent contractors must fail as not being material at this stage. Questions directed to the particular contract that the author alleges that he was shown might be, but otherwise it can be said that the defendants are in a very real sense "fishing". As Owen J said in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254, "a person who has no evidence that there are particular kind of fish in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not".

18. The interrogatories directed to the terms and conditions of employment to which objection was taken comprise interrogatories 13 to 21. As I consider that a substantive objection is made out as to their materiality, it is not necessary to consider the technical objections related to the time frame, width, and ambiguity levelled at the individual questions. I would direct answer only to interrogatory 20, which asks:

"20. At the time of publication of the matter complained of were any general practitioners employed or engaged by PHC or its related bodies corporate employed or engaged on contracts which provided that 55 per cent of their consultancy fees are paid to PHC."

I accept that this interrogatory can be criticised for some ambiguity but I take it to be related to the existence of contract terms not the overall effect of the contract. I would allow this interrogatory. I consider the subsequent interrogatory as to the number employed on such terms as unnecessary.

The purchase of medical practices

19. Interrogatories 22 to 24 related to the second plaintiff purchasing medical practices and relocating them. Although the defendant indicates that it relies upon the words in the article "In their wake, they leave the closed sign at small neighbourhood practices favoured for years by Australians". I do not regard this as an identifiable factual matter but a mixture of fact and comment presumably based upon the fact of PHC acquiring private practices. Because of the difficulty in ascertaining what may be said to be the fact on which the comment is said to be based I would not direct that answer be made to these interrogatories.

The earnings calculation

20. Interrogatories 25 to 32 appear to be framed to refer to the facts justifying the author's comment that the "GP who is paying the company 55 per cent of his fees as overhead" would be "earning $30 an hour - about half of what a plumber charges". The defendant identifies this conclusion as fact but it is clearly comment as is the reasoning process involving the Government recommendations as to consultations and rebates given. In attempting to disentangle fact from comment I am only satisfied that the factual basis for the comment may be said to be:

* the Government has recommended up to 25 minutes as a time to be spent on consultations.

* the Government rebate is a "bulk billing fee",

* the "Government rebate" for consultations is $22.50.

I consider that interrogatories are inappropriate to elicit these facts particularly couched in terms of the second defendant's knowledge of the matters asked. These are factual issues which are much better suited to a notice to admit facts. I do not propose to direct that answers be made to them.

The AMA recommendation

21. Interrogatory 33 asks:

"At the time of publication of the matter complained of did PHC know the time that the AMA recommended general practitioners spend per patient consultation."

Interrogatory 34 asks:

"If the answer to the proceeding interrogatory is yes, what was the time recommended by the Australian Medical Association."

The fact asserted is:

"AMA president Dr Kerryn Phelps says the average consultation the AMA recommends is 15 minutes."

There are difficulties with interrogatories that ask for a response related to the knowledge of the party being questioned as a precursor to the question being asked. I think that this was acknowledged by the defendant's counsel, but was said to be a lead in to the direct question. I do not see how the second plaintiff can object to a direct question seeking to elicit the fact asserted in this instance. Notwithstanding the somewhat unsatisfactory form of the interrogatory, I propose to direct the second plaintiff to answer those questions

Average hourly wages of general practitioners

22. Interrogatories 35 to 38 seek answers to questions concerning the average hourly wage of general practitioners. They are said to arise from the facts asserted in the particulars given to the plaintiffs' Reply in respect of the allegation of malice which specifies as a particular the falsity of the statements in the article. I do not see how the alleged falsity of these statements justifies questions concerning average hourly wages. There is a reference in the article to "would need a turnover of up to nine patients every hour to earn the industry average of about $90". That is not identified in the defendant's particulars as a fact upon which the comment is based but, even if it were, there is no necessary correlation between "the industry average of $90" and average hourly "wages". There is no useful purpose to be served in these particular interrogatories and I would uphold an objection to answer as not being sufficiently material at this stage.

Interrogatories as to facts: the first plaintiff

23. As far as the interrogatories to the first plaintiff are concerned, a general question arose as to the form in which the questions were asked. Counsel for the plaintiffs sought to justify the questions concerning the first plaintiff's awareness of matters concerning the second plaintiff as evidence of the fact which was said to found that knowledge. He said that he relied upon the High Court case Lustre Hosiery v York [1935] HCA 71; (1935) 54 CLR 134 for the proposition that a person's knowledge of facts was evidence of those facts. That case does not support the proposition for which he contends. It was concerned with a different proposition, namely the capability of words or conduct on the part of a party to constitute an admission by disclosing an intention to affirm or acknowledge the existence of a fact whatever be the party's source of information or belief. The statement becomes an admission because its meaning is clear and the source of knowledge is therefore immaterial (Smith v Joyce [1954] HCA 15; (1954) 89 CLR 529). In the case of the matters here the subject of the interrogatories, in general, I would not direct that answers be made to those questions seeking to ask about the first plaintiff's awareness.

24. In any event, generally the subject matter of a number of the questions were also the subject of questions directed to the second plaintiff and which I have declined to order the second plaintiff to answer. In so far as those questions are concerned, for the same reasons as I have given, I would decline to order that the first plaintiff answer those like questions. The wording of the subject matter in some differs slightly but it does not appear to me to be material. I propose to order that answers be given to interrogatories 20, 33 and 34 of the second plaintiff's interrogatories. They correspond to interrogatories 31, 43 and 44 administered to the first plaintiff. I see no utility in requiring answers to these interrogatories from the first plaintiff because of the form in which they are framed concerning the first plaintiff's awareness. Accordingly, putting to one side for the moment interrogatory 20, I do not direct that any further answer be made to the interrogatories administered to the first plaintiff.

25. A separate argument was put to support interrogatory 20. That interrogatory asked:

"On the date of publication of the matter complained of were you aware of debate within the Australian Medical Association or amongst the medical profession generally regarding the provision of medical services by companies such as the second plaintiff?"

It was sought to justify the interrogatory by reference to the defendant's own particulars where it was said that the comment was based upon matters of public interest and the particulars set out those matters as being:

"(A) the success and expansion of the second plaintiff in the provision of health care;

(B) the terms on which doctors in the second plaintiff's employ were required to work, to the extent that such terms might impact upon the quality of health care dispensed by the second plaintiff and its employees;

(C) the replacement of traditional small practice partnerships by health care companies employing GPs, such as the second plaintiff;

(D) the views on the above matters by leading members of the medical profession and/or the leaders of doctors' representative bodies;

These particulars may imply the fact of "a debate within the Australian Medical Association or amongst the medical profession generally" but it is not an asserted fact.

The generality and uncertainty of the question comprising the interrogatory compared to the particularity which the defendant itself has given as to the public interest make it a most unsuitable question to obtain information about what are said to be the facts upon which the comment was based. I would not regard it as either necessary or material for the first plaintiff to answer this interrogatory.

Conclusion

26. I order that the second plaintiff answer interrogatories 1(c), 20, 33 and 34 contained in the Notice to the Second Plaintiff to Answer Interrogatories filed in these proceedings, otherwise I dismiss the defendant's Notice of Motion.

27. The plaintiffs have substantially succeeded in this matter and unless the parties wish to be heard I would order that the defendant pay the plaintiffs' costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 26 July 2002

Counsel for the plaintiff: Mr B McClintock SC

Solicitor for the plaintiff: Colquhoun Murphy as agents for Corrs Chambers Wesgarth

Counsel for the defendant: Mr T Blackburn

Solicitor for the defendant: Blake Dawson Waldron

Date of hearing: 28 June 2002

Date of judgment: 26 July 2002