Anand v Armstrong
[2020] SADC 34
•31 March 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ANAND & ANOR v ARMSTRONG & ANOR
[2020] SADC 34
Judgment of Her Honour Judge Schammer
31 March 2020
DEFAMATION - ACTIONS FOR DEFAMATION - TRIAL - EVIDENCE - PLAINTIFF'S REPUTATION AND CREDIT
DEFAMATION - JUSTIFICATION - TRUTH
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - REBUTTAL OF PRIVILEGE BY MALICE
DEFAMATION - FAIR COMMENT
DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT - IN GENERAL
DEFAMATION - DAMAGES - SPECIAL DAMAGES
TORTS - MISCELLANEOUS TORTS - INTERFERENCE WITH CONTRACTUAL AND OTHER RELATIONS - RELEVANT PRINCIPLES
At all material times, both the first plaintiff and the first defendant were medical practitioners who delivered educational workshops through their respective company structures directed at providing advice to medical practitioners with respect to Medicare billings and the use of the Medicare Benefits Schedule (MBS).
The first plaintiff conducted such workshops through IqMed Pty Ltd (the second plaintiff), in collaboration with Adelaide to Outback GP Training Program Limited (ACN 601 797 371) (AOGP). The seminars were presented under the banner ‘ProMBS’.
The first defendant is the sole director of Business for Doctors Pty Ltd (the second defendant) (BFD) and together the defendants operate a Facebook group, open only to medical practitioners, named ‘Business for Doctors’.
The plaintiffs claim damages, including aggravated damages, from the defendants for alleged defamation and interference in contractual relations arising from the publication by the first defendant of three Facebook posts (and comments made in response thereto), two emails and one phone call between 9 and 22 September 2017 (the Publications). By way of summary, in the Facebook posts and the emails, the first defendant stated, inter alia, that the first plaintiff had used and sold the second defendant’s intellectual property when he delivered a workshop on the MBS, in collaboration with AOGP, on 3 September 2017 (the initial ProMBS workshop). In the Second Email, the first defendant stated, inter alia, that the first plaintiff had misrepresented himself as an expert, was lacking in knowledge and insight and may have been defrauding Medicare.
The plaintiffs allege that the natural and ordinary meaning of the Publications is defamatory and that as a result, the first plaintiff has suffered serious injury to his personal and professional reputation, considerable embarrassment and distress. The first plaintiff claims to have suffered economic loss ‘through the second plaintiff’.
In addition, it is alleged that by the publication of the emails and the phone call, the first defendant deliberately interfered with the contractual relationship between the plaintiffs and AOGP, as a result of which the second plaintiff suffered loss.
The defendants do not dispute that the first defendant published the three Facebook posts or sent the emails as pleaded. The defendants deny the first defendant said the words as claimed in the phone call, but admit the phone call was made and some of the content as alleged. The defendants plead by way of defence that insofar as the Publications conveyed the imputation that the first plaintiff ‘has knowingly passed off the work of BFD as his own’, the imputation is true or substantially true and/or that the imputations conveyed by the Facebook posts and emails are subject to qualified privilege, either at common law or pursuant to s 28 of the Defamation Act 2005 (the Act). The defendants also plead that insofar as any defamatory imputations arise from the Publications, those imputations were expressions of opinion or were in the nature of fair comment rather than statements of fact and that such opinions related to matters of public interest and were based on proper material. Further, the defendants plead that the first plaintiff was not and is not well known in the Australian medical community and did not have an established reputation that could be damaged by the Publications, insofar as they conveyed the alleged imputations.
The defendants deny any alleged interference in the plaintiffs’ contractual relationship with AOGP.
HELD:
1. Each of the Publications is defamatory of the first plaintiff.
2. The defendants have failed to establish any of the defences as pleaded.
3. The defendants’ interference in the contractual relationship between the second plaintiff and AOGP did not cause a breach of any contract, nor was it productive of any loss to either plaintiff.
4. At the time of the Publications the first plaintiff did not have the depth of knowledge and understanding of the MBS and/or the National Health Act 1953, or experience associated with their use in practice, to be considered an expert in those areas.
5. At the time of the Publications, the first plaintiff did not have an established reputation in Australia as a provider of education to general practitioners on the MBS.
6. At the time of the Publications, the first plaintiff had been a resident in Australia for approximately ten years and had worked as a general practitioner for just over three years, such that he had some, but only a limited reputation and standing within the medical community.
7. General Damages assessed in the sum of $40,000.00.
8. Aggravated Damages awarded and assessed in the sum of $10,000.00.
9. The plaintiffs have not established any claim for damages for economic loss as specified.
10. The parties are to be heard on interest and costs.
Defamation Act 2005 ss 4, 9, 22, 23, 28, 29, 32, 36; National Health Act 1953 ; Evidence Act 1929 s 53, referred to.
Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; Al-Amoudi v Brisard [2007] 1 WLR 113; Sands v Channel Seven Adelaide (2009) 104 SASR 452; OBG Ltd v Allen [2008] 1 AC 1; Lumley v Gye (1853) 2 E & B 216; Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; Spiller v Joseph [2010] UKSC 53; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; O’Shaughnessy v Mirror Newspapers Ltd (1970) 72 SR (NSW) 347; Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524; Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183; Duffy v Google Inc (No 2) [2015] SASC 206; Bristow v Adams [2012] NSWCA 166; Crampton v Nugawela (1996) 41 NSWLR 176; Chakravati v Advertiser Newspapers Limited (1998) 193 CLR 519; Selecta Homes and Building Co Pty Ltd v Advertiser-Weekend Publishing Co Pty Ltd (2001) 79 SASR 451; Feo v Pioneer Concrete (Vic) Pty Ltd [1999] 3 VR 417; Andrews & Anor v John Fairfax & Sons Ltd & Ors [1980] 2 NSWLR 225; Roberts v Rossiter (1984) Aust Torts Reports 80-678; Duffy v Google (2015) 125 SASR 437; Bruce v Odhams Press Ltd [1936] 1 KB 697; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; Jones v Skelton (1963) 1 WLR 1362; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; Trkulja v Google LLC [2018] HCA 25; Fleming v Advertiser-News Weekend Publishing Company & Anor [2016] SASCFC 109; Eustice v Channel Seven Adelaide Pty Ltd & Ors [2020] SASC 4; Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1772; Google Inc v Duffy [2017] SASCFC 130; Webb v Times Publishing Ltd [1960] 2 QB 535; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; Horrocks v Lowe [1975] AC 135; Roberts v Bass (2002) 212 CLR 1; Clarke v Molyneux (1877) 3 QBD 237; Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254, considered.
ANAND & ANOR v ARMSTRONG & ANOR
[2020] SADC 34Introduction
Rajan Anand (the first plaintiff) and April Lynette Armstrong (the first defendant) are both medical practitioners.
At all material times, both the first plaintiff and the first defendant delivered educational workshops through their respective company structures directed at providing advice to medical practitioners with respect to Medicare billings and the use of the Medicare Benefits Schedule (MBS).
The first plaintiff conducted such workshops through IqMed Pty Ltd (the second plaintiff), a company of which he is the sole director[1] and sole beneficial shareowner, in collaboration with Adelaide to Outback GP Training Program Limited (ACN 601 797 371) (AOGP). The seminars were presented under the banner ‘ProMBS’.
[1] As pleaded in the Second Statement of Claim (Second SOC) at [1.4], but noting that as per Exhibit P1 item 13, the first plaintiff’s wife, Ridha Anand, signed a Collaborative Partner Agreement on 18 May 2017 in the purported capacity of Director of the second plaintiff.
The first defendant is the sole director of Business for Doctors Pty Ltd (the second defendant) (BFD) and together the defendants operate a Facebook group, open only to medical practitioners, named ‘Business for Doctors’ (the BFD Facebook group).
By Second Summons and Second Statement of Claim dated 5 July 2019, the plaintiffs claim damages, including aggravated damages, from the defendants for alleged defamation and interference in contractual relations arising from the publication by the first defendant of three Facebook posts (and comments made in response thereto), two emails and one phone call between 9 and 22 September 2017 (the Publications).
By way of summary only, in the Facebook posts and the emails, the first defendant stated, inter alia, that the first plaintiff had used and sold the second defendant’s intellectual property when he delivered a workshop on the MBS, in collaboration with AOGP, on 3 September 2017 (the initial ProMBS workshop).
The plaintiffs allege that the natural and ordinary meaning of the Publications is defamatory and that as a result, the first plaintiff has suffered serious injury to his personal and professional reputation, considerable embarrassment and distress. He claims to have suffered economic loss ‘through the second plaintiff’.
In addition, it is alleged that by the publication of the emails and the phone call, the first defendant deliberately interfered with the contractual relationship between the plaintiffs and AOGP, as a result of which the second plaintiff suffered loss.
The defendants do not dispute that the first defendant published the three Facebook posts or sent the emails as pleaded. The defendants deny the first defendant said the words as claimed in the phone call, but admit the phone call was made and some of the content as alleged.
The defendants plead by way of defence that insofar as the Publications conveyed the imputation that the first plaintiff ‘has knowingly passed off the work of BFD as his own’, the imputation is true or substantially true and/or that the imputations conveyed by the Facebook posts and emails are subject to qualified privilege, either at common law or pursuant to s 28 of the Defamation Act 2005 (the Act).[2]
[2] Noting that the term ‘Publications’ was defined in the Statement of Claim to include only the Posts, the Emails and the Phone Call. The Statement of Claim was amended in July 2019, at which time the definition of ‘Publications’ was extended to include ‘the Comments’. The defendants did not file a defence to the Second Statement of Claim.
The defendants also plead that insofar as any defamatory imputations arise from the Publications, those imputations were expressions of opinion or were in the nature of fair comment rather than statements of fact and that such opinions related to matters of public interest and were based on proper material. The defendants deny any alleged interference in the plaintiffs’ contractual relationship with AOGP.
Further, the defendants plead that the first plaintiff was not and is not well known in the Australian medical community and did not have an established reputation that could be damaged by the Publications, insofar as they conveyed the alleged imputations.
Trial
The trial proceeded to hearing over three days commencing 23 September 2019.
The plaintiffs were represented by counsel, Mr Lincoln Smith.
The first defendant was self-represented and, by permission of the court granted on 6 March 2019, also represented the second defendant.
Shortly prior to the commencement of the trial, the first defendant advised the plaintiffs’ solicitors and the court that the defendants did not intend to call any evidence in the defence of the claim. The first defendant made it clear that she had received legal advice and therefore understood the impact such decision may have on the defendants’ ability to establish the defences as pleaded.
The plaintiffs called evidence from the following witnesses:
1The first plaintiff;
2Dr Nirej Rewal, a dentist who is married to the first plaintiff’s sister-in-law;
3Dr Timothy Kelly, the Chief Executive Officer of AOGP;
4Ms Carolyn Cheah, the Business Manager of AOGP; and
5Ms Ridha Anand, the first plaintiff’s wife.
The plaintiffs tendered documents, namely:
Exhibit P1 Various documents contained in Tender Books marked Volumes 1 and 2.[3]
[3] Excluding documents 16, 21, 23, 24, 41, 49, 52, 57, 67-72, 77, 80-82, 84, 85, 88, 90, 91, 93-95, 98-101.
Exhibit P2 A USB containing a video recording of a presentation delivered by the first plaintiff on 25 October 2016 as part of a Flinders University course he was completing.
Exhibit P3 Emails between the first plaintiff and ‘askMBS’ dated 2 and 12 April 2017.
Exhibit P4 Bundle of contractual documents evidencing the relationship between the first plaintiff and Idameneo Pty Ltd (No.123) Pty Ltd (Primary Health).
Exhibit P5 Extract from ‘Business for Dentists’ Facebook group.
Key Issues
The initial ProMBS workshop delivered by the second plaintiff in partnership with AOGP on 3 September 2017 was the first time the first plaintiff had ever presented a workshop, for fee or reward, on the MBS.
There is no dispute that the first plaintiff joined the BFD Facebook group in July 2016, met personally with the first defendant in April 2017 and attended a conference on the MBS delivered by BFD on 3 June 2017.
Having regard to the content of the Publications, the key issue to be determined at trial is whether the second defendant’s intellectual property, and in particular intellectual property relating to the use of combination billing techniques, was used by the plaintiffs in the content of the initial ProMBS workshop delivered on 3 September 2017.
Related to this issue, is a determination as to what was the first plaintiff’s knowledge and understanding of the MBS and the National Health Act 1953 (the Health Act) at the time of the Publications, being relevant to a consideration of his expertise and reputation in that area within the medical profession, both before and after the Publications.
Background Information/Chronology
First Plaintiff’s Qualifications/Employment History
The first plaintiff gave evidence that he studied for his primary medical degree (MBBS) in India. As to his other qualifications, he said he held a MRCS-UK (membership of the Royal College of Surgeons – Edinburgh) and a MRCGP from UK International (membership of the Royal College of General Practitioners). He received his Fellowship of the Royal Australasian College of General Practitioners, sitting his last examination in 2016. [4]
[4] T 12.11-21.
In cross-examination, the first plaintiff confirmed that he moved from India to the United Kingdom in 2003. He said he sat exams in the MRCS, but had not sat the exam for Membership of the Royal College of General Practice in the UK (MRCGP), rather in 2015 he had sat the exam for Membership of the Royal College of General Practitioners (MRCGP International). He was not a fellow of either of those colleges.[5]
[5] T 104.8-105.9.
The first plaintiff first practised in Australia in 2007. He initially worked at the Flinders Medical Centre as an Orthopaedic Registrar, but ceased such work following the birth of his first child in 2010 due to the inflexible and difficult hours. He then commenced working in general practice as a locum, visiting a nursing home and homes ‘after hours’.
At the end of 2011, he commenced a salaried position working as a doctor for aged care residents.
He remained working in aged care until August 2014, when he commenced as an Incorporated Medical Practitioner working at the Primary Medical and Dental Centre in Royal Park. The first plaintiff remained there until the end of June 2018.
In the Plaintiffs’ Closing Submissions, it is stated that thereafter he commenced his own private practice at the Glenelg Medical Centre and remains self-employed in this capacity.[6] However, the first plaintiff gave no specific evidence to that effect during examination-in-chief, instead confirming only, during cross-examination, that he currently works as a general practitioner,[7] in a practice that he purchased,[8] with around 100 patients.[9]
[6] Plaintiffs’ Closing Submissions at [10] and [66].
[7] T 81.29-31.
[8] T 110.32-33; 154.20.
[9] T 115.28-29.
Interest in MBS/MBS Training
The first plaintiff said he never had proper training in the MBS but first came to learn of special item numbers that could be billed for after-hours consultations when he was working as a locum in about 2011.
When he was first employed as a salaried solicitor he had no need to utilise MBS item numbers as he was paid a standard salary, but later was able to charge for various items under a special exemption, being items relevant to aged care services.
The first plaintiff explained that when he commenced working with Primary Health in 2014 he was given a ‘cheat sheet’ with a list of the ‘usual’ item numbers charged, but that as a ‘non-vocationally registered doctor’ he earned less than other doctors, and needed to supplement his income by either doing after hours work or by learning how to use some special item numbers which would increase his earnings. He explained that this piqued his interest in the MBS and that he started going through the MBS to ascertain ‘safe’ item numbers to use for the provision of various services.[10]
[10] T 14.28-15.7.
In cross-examination, the first plaintiff was asked what if any other seminars or conferences he had attended with respect to the MBS other than the BFD conference in June 2017. The first plaintiff said he attended an MBS workshop run by Dr Zakaria Baig from Primary Health and he said there was a Power-Point presentation through the Primary Health Care Institute (PHCI). He did not clarify if these were two separate presentations, or when he attended such presentation(s).[11]
[11] Noting that in the Plaintiffs’ Closing Submissions at [18] and [19] it is submitted that the plaintiff attended a Webinar conducted by Primary Health on 2 March 2017 regarding changes to the MBS following an update to the schedule in November 2016. The first plaintiff did not give specific evidence to this effect, although an email pertaining to this Webinar was in evidence at Exhibit P1 item 34 pp 94-95. There was no evidence that the first plaintiff received the ‘slides’ from that Webinar said to be included in Exhibit P1 – noting that photocopies of the slides were on pages not tendered.
He also gave evidence that when he joined Primary Health in 2014, a couple of people came over from Sydney to teach him about the MBS, and that he also did online training with Primary Heath (again, he did not say when).[12]
[12] T 82.15-31.
Combination Billing
Although there was limited evidence as to precisely what ‘combination billing’ under the MBS entails, put simply, it involves the legitimate use of more than one MBS item number in combination with others with respect to a single consultation.[13]
[13] T 164.20-25.
Dr Kelly gave evidence that the use of combination billing in practice is common.[14]
[14] T 164.26-32.
The first plaintiff said that he learned of combination billing through his own practice and peers and first used combination billing in 2014/15.
The first plaintiff was asked to explain the difference between ‘item number billing’ and ‘combination billing’. He explained:[15]
A.Okay, so when you read the book you'll find that all these item numbers are there and it's written - it's almost like a ... that is 1,000 page kind of book. But as I've just mentioned about that laceration case, I could have easily charged one particular item number, item - that where I could have made $37 or I could actually use that extra item number and bring it here and then charge that particular item number plus the laceration item number and make a lot more money. So this is the combination, compared with just the time I spent with the patient, I've done both together.
Q.When was the first time you ever heard about combination billing.
A.It's not like a term or something. There's one term that the defendant uses for these things. She - they used to call it pack and stack or stack and - pack and stack kind of thing but, yeah, it's - like you know, this particular term, it's not coined by the defendant. It is like an - I was using these combination item number before I even joined the NVI so it was there, it has always been there.
Q.Before you even did your course.
A.Yeah, before I did my course. So these item numbers we were using even before.
[15] T 39.3-26.
New Venture Institute (NVI)
In about early 2016, the first plaintiff’s wife and sister-in-law both completed an entrepreneurial course operated by the New Venture Institute (NVI) at Flinders University. The first plaintiff said through a contact made by his wife during this course, he spoke with an educational entrepreneur, Sasha Dragovelic (Sasha). Sasha told him that if, in his field, he noticed a problem for which he could offer a solution, he could also become an entrepreneur.
Through Sasha, the first plaintiff met a potential mentor, an accountant, David Dahm. On 17 July 2016, the first plaintiff contacted Mr Dahm by email and advised him of his plans to join the entrepreneur start up program offered by NVI at Flinders University. He told Mr Dahm of an idea he had ‘related to budding GPs and to increase their income’ and enquired if he would be able to guide him during the course.[16] He said that when they met, Mr Dahm talked to the first plaintiff about the fact that many doctors were not well educated about the MBS. Neither Sasha nor Mr Dahm were called to give evidence.
[16] Exhibit P1 item 29 p 84; T 15.15-16.19.
The first plaintiff subsequently enrolled in and completed the Semester 2 program ‘Venture Dorm 2016’, being an entrepreneurial course offered through the NVI at Flinders University between July 2016 and November 2016. The first plaintiff described this course as effectively guiding students through the development of their individual business ideas, to a finale where each student presented their business model in a pitch to a panel, similar to a ‘Shark Tank’ presentation.
By reference to the course program, participants had the opportunity to attend 12 sessions between 28 July 2016 and 27 October 2016, covering such topics as the Business Model Canvass and Customer Development, Customer Relationships, Revenue, Partners, Resources and Costs. Session 12, on either 25 or 27 October 2016, was entitled ‘Pitches and Judging’, at which students, including the first plaintiff, gave a presentation as to their business idea and model, which presentation was video-recorded and judged to determine the course ‘winner’.[17]
[17] Exhibit P1 item 1 pp 1-2.
Shortly prior to that presentation, the first plaintiff sent a copy of a document outlining the ‘Business Model Canvas’ he had developed during the course to Ms Pearce at Flinders University.[18]
[18] Exhibit P1 item 2 p 4; item 31.
The first plaintiff’s proposed business model was described as ‘Coaching services for GPs to improve patient’s (sic) outcome’, to be offered by an entity called ‘Achelios Health Solutions’. The target market was said to be general practitioners, with the product offered being a ‘one day workshop and seminar’. This was to be supported with ‘free care plan templates, ongoing online supports for 3 months, follow up and evaluation in 3 months’. To avoid risk, the first plaintiff proposed involving Medicare auditors. [19]
[19] Exhibit P1 item 2 p 3.
The ‘Key Idea’ of the business model was ‘to provide professional coaching services to GP (sic) to deliver better patient’s (sic) care, while increasing the value to their service’.[20]
[20] Exhibit P1 item 2 p 4.
A USB containing the video-recording of the first plaintiff’s final pitch presentation, delivered on 25 October 2016, was tendered as Exhibit P2.
It is apparent from the presentation, and the material generated by the first plaintiff during the course, that the first plaintiff’s business model/idea was to educate general practitioners, and in particular new general practitioners, as to how to make more money by ‘rightly and smartly’ using the MBS to properly claim for certain items, with a particular emphasis on claiming extra item numbers for ‘Care plan/health assessments etc’.[21]
[21] See Exhibit P1 Item 30 p 86 being notes prepared by the plaintiff as part of his presentation.
In his five-minute presentation, the first plaintiff outlined how by spending more time with each patient, a doctor may then have sufficient information to justify the development of a health care plan for that patient, thus resulting in increased income for the doctor through the use of more and/or more lucrative MBS item numbers and increased patient satisfaction, as the patient would feel their health care was getting the time and attention it demanded.
During the presentation, the first plaintiff stated that he had conducted a survey of general practitioners and ascertained some reluctance on their part to pay to attend such coaching. As such, he said he contacted the largest corporate medical practice in Australia, which had more than 1,000 general practitioners, and had struck a deal with them.
The first plaintiff stated that he had secured a deal whereby that practice would compel their low performing general practitioners to attend his course and if that resulted in an increase in income for the practice, the practice would reimburse those practitioners the cost of the course. The first plaintiff claimed the deal was worth $500,000, based on 250 general practitioner participants. Further, he claimed to have arranged a meeting with an ‘RTO’ (registered training organisation) to ‘grab another deal’ and to be producing software with a view to someone taking over his intellectual property.
The first plaintiff was offered and accepted praise from two of the three judges for his achievement in securing this deal.
In evidence, the first plaintiff acknowledged that he had not, in fact, secured any such deal. Rather, he claimed that he had ‘hopes’ of securing a good deal based on what he claimed he had been told by the State Manager of Primary Health, namely that if he had something like this he could easily make ‘around half a million’.[22] The plaintiffs did not call evidence from the State Manager of Primary Health, or anyone from Primary Health.[23]
[22] T 29.18-20; T 29.36-30.5.
[23] Noting that included in Exhibit P1 at p 155 is a signed statement from Dr Bruce Miller dated 7 May 2019. Dr Miller was not called to give evidence and no explanation was given as to why. In the circumstances, I have disregarded this statement.
The following exchange occurred in cross-examination:[24]
[24] T 88.9-89.32.
Q.In the presentation, you mentioned that you've secured a $500,000 agreement.
A.Yes, so basically it was more like a verbal. So, when I spoke to the state manager and discussed about my ideas, there's several ways I could get paid and in that calculation, it looked like that it would be equal to 500,000 even because they have that many number of GPs.
Q.Who was the verbal agreement with.
A.It's not a verbal agreement, it is more like a discussion.
Q.You just said there was a verbal agreement.
A.It's a verbal discussion. That's why I wanted to go to Primary in December which keep on getting postponed. So my initial contacts were like Dr Miller and Dr… and when I spoke to them they said that, yes, you have got potential of making that much.
Q.Potential but in your workshop you actually presented as if you already had the agreement in place.
OBJECTION: MR SMITH OBJECTS
QUESTION ALLOWED
Q.This is about integrity and about honesty in relation to the presentation, so you lied to the people there, saying that you had secured a $500,000.
A.Yes.
Q.Sorry, yes.
A.No, I didn't lie to the people, it was verbal and not verbal agreement.
DR ARMSTRONG: Could I put the video back on?
Q.Because we can go back to the video where you actually state that you have that.
A.Yes, I said that but when I spoke to my mentor, he said that it should be okay but I haven't had an agreement by that time. He said that there's a potential of 500,000.
Q.So, your presentation said that you had an agreement in place, so you presented it as if you had already had the agreement.
A.Yes, I expected that they should because the state manager agreed I expected it to go.
Q.So, you lied in your presentation.
A.I was expecting that everything would fall in place in the right way.
Q.Could you maybe just answer yes or no, you lied in the presentation. A simple yes or no.
A.Yes, struck was the wrong word.
Q.So, yes, you lied.
A.Struck with the wrong word, I should have said that yes, I'm in verbal agreement or I'm in a -
Q.So just yes or no.
A.Yes.
Q.Yes, you lied.
A.Yes.
Q.Yes, because we're talking about integrity here, honesty, we're talking about your honour and yet you stood up in front of your peers that you have been working on a business plan with and you lied about an agreement.
A.I was under the impression that it would fall into my hand.
Post NVI – Seeking Business Partners (November 2016 to March 2017)
The first plaintiff said that based on advice he received from his mentors during the NVI course he realised he needed to partner with someone who was able to promote and assist in the delivery of his proposed workshops.
On 16 November 2016, the first plaintiff sent an email to Ms Cook, the Chief Executive Officer of GPEx, being a registered training provider for general practitioners, seeking the opportunity to meet with her to discuss his project which he described as ‘coaching GPs about Medicare rebate to deliver better patient outcomes’.[25]
[25] Exhibit P1 item 9 p 14.
The first plaintiff said he met with Ms Cook and another senior doctor on 17 November 2016 and gave them the same presentation he had delivered to the NVI. The first plaintiff said that nothing came from this meeting as they wanted ‘to be involved more with medical education rather than (the) commercial side of this’.[26]
[26] T 24.34-37.
The first plaintiff said he also talked with his lead supervisor at Primary Health, Dr Bruce Miller and the Primary Health Chief Executive Officer, Dr Zakaria Baig, about his business model. In cross-examination, he said that these discussions took the form of a proper doctor’s presentation, whereas the presentation he gave to the NVI was couched in layman’s terms.[27]
[27] T 78.32-34.
He said that tentative arrangements were made for him to meet others at Primary Health in Sydney to discuss his business model, but several planned meetings for late 2016 failed to come to fruition. Instead, the first plaintiff was upset when he later learned that Primary Health were running their own seminars on the MBS, with a session planned for March 2017 on understanding the changes in the MBS from the November 2016 update.
The first plaintiff gave evidence that he felt information he had shared with others at Primary Health had been used as the basis for these presentations and that he felt cheated he had not received any credit for this. He said Dr Baig had come to Adelaide and delivered several presentations on the MBS changes to staff at the five or six Primary Health care centres in Adelaide.[28]
[28] T 23.13-24.23.
Partnership with AOGP
The first plaintiff gave evidence that about a month later he was talking about his business idea with one of his colleagues, Dr Seshu Boda, who was working with another registered training organisation, AOGP. Dr Boda expressed interest in the idea and arranged for the first plaintiff to meet with AOGP representatives to discuss the possibility of working with them.
Until 2015, AOGP was a government funded ‘contractor trainer provider’ servicing the northern half of South Australia and metropolitan Adelaide. Its role was to provide training to doctors preparing for their fellowship exams. After that contract ended in 2015, AOGP remained committed to offering professional development for doctors in general practice and invested in developing and offering continuing professional development courses for general practitioners.
Dr Kelly gave evidence that AOGP had a database of all the training practices in that region, of all previous registrants and international doctors who had worked in rural locations. He confirmed the majority of the database was still South Australian, a lot of which was becoming redundant.[29]
[29] T 175.36-176.9.
Ms Cheah, AOGP’s business manager, estimated that in July 2017 about 70% of the AOGP database comprised South Australian doctors.[30]
[30] T 195.23-30.
On 22 March 2017, the first plaintiff met with Dr Kelly, Ms Cheah and Dr Boda. At that meeting the first plaintiff delivered a similar presentation to that he had delivered to GPEx.
AOGP expressed interest in working with the first plaintiff to deliver Medicare education workshops in partnership.[31]
[31] T 164.36-165.16.
The first plaintiff explained that AOGP wanted him to show them the questions (or cases) he had prepared which would form the basis for his proposed workshop. He said they wanted him to present a free webinar to general practitioners, and to then present a proper seminar.[32]
[32] T 25.35-26.14.
Both Dr Kelly and Ms Cheah said that at the meeting the first plaintiff explained his journey through the health care system in Australia and told them that he had conducted research through a business course at Flinders University whereby he had surveyed general practitioners about their knowledge of the MBS and discovered that there was a gap in such knowledge.[33] He claimed to have identified an opportunity to improve education for general practitioners about the MBS. Dr Kelly said that after some initial deliberation, AOGP decided to proceed in partnership with the first plaintiff to deliver such education.
[33] Any such survey was not in evidence.
On 10 April 2017 AOGP and the second plaintiff executed a Confidentiality Agreement, wherein they agreed, inter alia, to share information, including ideas, concepts and intellectual property on certain terms and conditions for the purpose ‘to develop and deliver education content in regards to optimising earnings through correct and effective use of MBS item numbers’.[34]
[34] Exhibit P1 item 12 p 19-26.
Dr Kelly said he believed the first plaintiff had shared one or two examples of the case scenarios he was working on (the intended content of the workshop) at this first meeting, and that ‘he started sending them through fairly soon after they agreed to go ahead’.[35]
[35] T 166.32-35.
The second plaintiff and AOGP entered into a Collaborative Partner Agreement (the Agreement) in May 2017 ‘to develop and deliver the initial education workshop in regards to optimising earnings through correct and effective used of MBS item numbers’ with the term of that agreement starting upon the agreement being signed, and ending upon ‘completion of workshop evaluation’.[36]
[36] Exhibit P1 item 13 pp 27-28.
The Agreement contained a timeline wherein all cases were to be peer reviewed and finalised by 30 June 2017, the workshop materials were to be finalised by 7 July 2017, the workshop was to be run by 29 July 2017 and the evaluation of the workshop was to be completed by 15 September 2017.
As to financial arrangements, the first plaintiff was asked by AOGP to estimate the number of hours he had invested in preparing the core content of the proposed workshop.
The first plaintiff estimated his initial investment in the project by reference to the two hours per week he attended the NVI course for its duration and the additional hours he had spent devising the questions and answers for his various case scenarios. His estimate was a total of 90 hours at $150/hour ($13,600).
AOGP’s ‘initial investment’ included arranging for a medical educator (Dr Boda) to peer review the cases devised by the first plaintiff, to develop the workshop and online materials and to market, promote and evaluate the workshop. They estimated this at a value of $14,600.
Net profit/loss sharing ‘from workshop’ (ie after deduction of all costs incurred) was to be distributed 60% as to the second plaintiff and 40% as to AOGP.
The Agreement expressly stated:[37]
The success of the initial workshop will be evaluated to decide on how future education sessions can be delivered. If successful, AOGP and IqMed will continue to work together to deliver education in relation to optimising earnings through correct and effective use of MBS item numbers.
[37] Exhibit P1 item 13 p 28.
Dr Kelly gave evidence that he assisted the first plaintiff to draft a blog, entitled ’10 May Work Smart, Not Hard’ promoting the educational program to be delivered in partnership by the second plaintiff and AOGP. The program was called ‘ProMBS’. In the blog, the mission of ProMBS is said to be: [38]
…to increase the efficiency and accuracy of billings, by educating GPs on the MBS. As well as ensuring best compliance with Medicare’s billing requirements, ProMBS can provide a large increase in remuneration per given consult…
[38] Exhibit P1 item 73 p 343.
Although Dr Kelly stated this blog must have been dated 10 May 2017, [39] the blog expressly refers to the initial workshop to be a full day workshop in September. The Collaborative Agreement signed by Ms Ridha Anand in her capacity as a Director of the second plaintiff on 19 May 2017 and by Dr Kelly on behalf of AOGP on 22 May 2017 specifies the first workshop is to be run ‘by 29 July 2017’. As such I am not satisfied the blog, in the form it appears in evidence, was finalised as at 10 May 2017.
[39] T 174.1-12.
Although the Agreement foreshadowed the initial ProMBS workshop would be held on or before 29 July 2017, that workshop was deferred until 2 September 2017 (see further discussion below).
The content of the initial ProMBS workshop is the focus of the Publications. In issue is whether the second defendant’s intellectual property was used in that content. As such, it is pertinent to explore what interactions occurred between the first plaintiff and the defendants prior to 2 September 2017.
First Plaintiff’s Interactions with the Defendants
The first plaintiff gave evidence that he joined the BFD Facebook group in around July 2016, and therefore at or about the time that he commenced the NVI course and at or about the same time that he contacted David Dahm about his idea ‘related to budding GPs and to increase their income’.
There is no dispute that thereafter the first plaintiff became an active and contributing member of the BFD Facebook group. Some of his contributions were in evidence.[40]
[40] Exhibit P1 items 78, 79, 86, 87, 89 and 92.
On 8 November 2016, the first plaintiff followed a line of posts on the BFD Facebook group page discussing the use of health care plans.[41]
[41] Exhibit P1 item 78 p 374.
On 7 July 2017, the first plaintiff posted ‘747 and 739 can be done without the patient’s physical presence’.[42]
[42] Exhibit P1 item 86 p 386.
On 22 July 2017, the first plaintiff posted:[43]
Tax avoidance strategy but I guess lot of people do that. if you could show that your husband is working for you and if overall collectively you are able to save some money at the end of the financial year- then why not do this. By the way, Super is not a dead money. It will be a forced saving.
There are several app which can create invoice or payslip in a touch of button.
Your husband must be having a super account, so it’s not an additional cost to set up a new one.
[43] Exhibit P1 item 87 p 387.
The first plaintiff said in examination-in-chief that in hindsight, the terminology he should have used in this post (the tax post) was ‘minimisation’, and explained that in Hindi the words ‘avoidance’ and ‘saving’ were similar in meaning.[44]
[44] T 70.31-71.5.
On 14 August 2017, the first plaintiff posted a response to the following post made by another BFD Facebook group member about the ‘80/20 Rule’.[45]
[45] Exhibit P1 item 89 p 389.
The post to which the first plaintiff responded read:
Yes. The 80/20 rule relates to ‘services’ not ‘number of patients’. So if you bill a 23 and a 2700 that’s 2 services. So 60 patients can easily push you into the danger zone and you may be flagged for an audit.
And if you see 60 patients a day you may be billing an absolute number of individual item numbers (such as 721) greater than 90th centile than your peers, and this is another reason you may flag for audit.
The first plaintiff’s response (the 80/20 Rule post) was:
Just a thought – why do we have to worry about audit. 60 or 70 services or 80 – as long as you can justify your consult and you are doing it rightly – why should one worry.
To which another BFD Facebook group member responded by posting:
And yhis (sic) is why primary care is suffering in the public popularity polls…you can’t provide a respectful/patient valued experience in this time frame surely! I would hope MC audits this type of practice.
Prompting this response from another member:
You guys should try working in the UK. Easily 100+ patient contacts a day…sometimes 150+.
The following exchange occurred in cross-examination of the first plaintiff with respect to the 80/20 Rule post:[46]
[46] T 146.2-32.
Q.Can we turn to p.389. I'm going to read this post. 'Just a thought, why do we worry about audit, 60 or 70 services or 80 as long as you can justify your consult and you are doing it rightly why should one worry?'
A.What page?
Q.389, this refers to the 80/20 rule.
A.Yeah, so I just put that just thoughts, that why should we be worried if we could justify the consult? It was not to suggest that you should do it or not do it.
Q.Turn to p.295 and read the first paragraph of what we need to know. I'll read it. 'A GP or OMP which stands for other medical practitioner, engages in inappropriate practice if they have rendered or initiated 80 or more professional attendances on each of 20 or more in a day in a 12-month period known as a prescribed pattern of service and this is commonly referred to as a 80/20 rule'. So knowing that, do you think we should worry about billing 80 consultations in a day.
A.Thanks for enlightening. Again, yes, I was made aware about this one so I read about this and, as I said, it was just a thought that why should we worry.
Q.So this is August 14th 2017, when you have already spent 12 months preparing cases.
A.Yeah.
Q.You're not aware of one of the most important rules in general practice.
A.Yeah, I know that it used to - you will be automatically retired if you do more than 80 services for more than 20 days in a year, but it was just a thing raised, that if suppose there is some exceptional circumstances why can't you do that, and you can actually do that.
The first plaintiff agreed with a proposition put to him that a breach of the 80/20 Rule would result in a professional review of a practitioner’s services and that this was a good reason not to breach the rule.[47] In re-examination he explained that there may be extraordinary circumstances justifying a breach of the rule.[48]
[47] T 146.33-147.14.
[48] T 155.11-156.8.
Dr Kelly was asked about the 80/20 Rule in cross-examination and he gave evidence that the rule was in place to pick up over-servicing, that generally doctors who breach the rule are over-servicing and that he knew people applied for exemptions because of special circumstances and that they usually fail.[49]
[49] T 178.1-13.
Dr Kelly was asked to comment with respect to the first plaintiff’s 80/20 Rule post. The following exchange occurred in cross-examination:[50]
A.Well, I think to a point it's reasonable if you can justify what you're doing is a reasonable proposition. I think it doesn't look good if you're asking about doing 80 services, potentially. So yeah, I agree, it doesn't look great if you're asking about doing 80% services, I agree with the intent.
Q.Do you believe that this exhibits a lack of insight into the understanding of the Health Insurance Act.
A.I'm not sure I would pull the bow that long.
[50] T 180.16-24.
On 6 September 2017, the first plaintiff responded to a question on the BFD Facebook page, namely, ‘how often can you bill case conferences per patient’, as follows:[51]
Govt and Medicare Recommends 5 times a year. But ideally, there is no limit if you could justify it.
[51] Exhibit P1 item 92 p 392.
During examination-in-chief, the first plaintiff explained that he had chosen the wrong words, but what he intended was that in certain circumstances and with the right patient, more than five such services per year could be justified.[52]
[52] T 71.21-35.
In cross-examination, the first plaintiff said that he might have asked a question on the BFD Facebook page if he could put items 2713 and 23 together.
In April 2017, the first defendant visited Adelaide. The first plaintiff said that she extended an open invitation on the BFD Facebook page for those who wanted to meet with her, to contact her.
The first plaintiff took up that invitation and met with the first defendant on 7 April 2017. The first plaintiff said that during the meeting there were other doctors there, in the sense that it was not a ‘one on one’ meeting. He said at that time he was interested in setting up a multi-disciplinary practice and was keen to get the first defendant’s opinion on that.
As to whether they had discussed the MBS, the first plaintiff said that was only a ‘very, very brief’ discussion, that he had raised with the first defendant the poor knowledge of the MBS among clinicians, and that although they had not discussed any specific item numbers, she had offered to send him a ‘cheat sheet’ which listed some rarely used item numbers.[53]
[53] T 30.27-31.12.
The first plaintiff said the material the first defendant subsequently sent to him comprised extracts from the MBS, in other words, material that was publicly available either in the book, or on-line.
By reference to Exhibit P1, it is apparent that the first plaintiff sent a message to the first defendant on 9 April 2017, reminding her of her offer to send him the ‘cheat sheets’. In response, she sent him a link to three separate documents, ‘Disability.docx’, ‘Focus Psychology Strategies.docx’ and ‘Cancer conference.docx’, accompanied by a message ‘here is some ones that people often miss/dont (sic) know about’.[54] Those documents are in evidence.[55]
[54] Exhibit P1 item 11 p 18.
[55] Exhibit P1 item 3 pp 5-7 and item 59 p 190.
The Cancer Conference document talks about the proper use of Items 871 and 872 and gives guidance as to when and how frequently these items can be used.
The Focus Psychology Strategies document refers to such strategies, which are to be provided only by credentialed medical practitioners, and explains how and when such services can be utilised.
The Disability document refers to the assessment of patients with an intellectual disability to determine if they require assistance with activities of daily living and the frequency with which such an item may be claimed by an eligible patient.
The first plaintiff said he attended a presentation delivered by the first defendant at a conference on 3 June 2017 (BFD Conference). He said he was under the impression the entire presentation was to be devoted to the MBS but in fact only a 45 minute to one hour presentation dealt with that topic. He said the presentation was video recorded but he said, ‘I never bothered to see because those information (sic) were pretty basic which I was aware of those things anyway’.[56]
[56] T 33.16-18.
The first plaintiff gave evidence that the content of the second defendant’s conference was about how to maximise billings with ten tips and explained how that content differed from that ultimately delivered by him in his workshops. He said:[57]
So her 10 tips was like, you know, one, for example, that 'Your typing speed has to be fast'. This has got nothing to do with my MBS thing. 'The first one minute you should actually devote to the patient', and yes, there was something about the MBS as well but it was not like in - what I was talking about. It was about, like, combination billing, you can do two or three billing and can make this much of money. Mine was totally different. Mine was just 'Yes, you have got these item numbers which you can use it'.
[57] T 47.20-30.
He recalled the BFD Conference as addressing the use of items 721 and 723 in combination.[58]
[58] T 49.26-50.6.
In cross-examination, it was suggested to the first plaintiff that he had attended the ‘pack and stack’ session at that conference, which addressed combination billing and the MBS. Although the first plaintiff never expressly stated that he had attended that session, from his responses with respect to that line of questioning and all of the evidence he gave to the effect that at that time he was very interested in learning more about the MBS, I find that he did so.[59]
[59] T 97.10-32.
The first plaintiff said he had a ‘very vague recollection’ of being provided with the second defendant’s ‘Conference Terms and Conditions’ either at the time of registration for the conference or maybe after the course. At paragraph 8 of those Terms and Conditions is a clause entitled ‘Rights’ which states: [60]
The Company reserves all rights to protect its content, intellectual properties and copyrights under Australian and international law.
[60] Exhibit P1 item 6 pp 9-11.
The first plaintiff gave the following evidence-in-chief:[61]
Q.And then you began preparing your seminar as I understand it.
A.Yeah.
Q.How did you go about that.
A.So because everything started before I even met her.
Q.Met her being.
A.Sorry, met the defendant and I find that this was too basic, this is not what I'm going to talk about at all. So like you know ours was in the pipeline anyway so we did a free webinar as we planned.
[61] T 33.32-34.4.
Initial ProMBS Workshop
Preparation/Content
The initial ProMBS workshop took the form of a presentation, with three presenters, the first plaintiff, Dr Kelly and Dr Boda. The format included the first plaintiff outlining clinical scenarios (or cases) with questions and answers relating to the correct and effective use of the MBS. In addition, Dr Kelly led a discussion about structures, systems and background information, which was followed by sessions conducted in small groups to discuss care plans, health assessments and the like.[62]
[62] T 166.6-13.
The first plaintiff gave evidence that there were about 76 cases (or patient scenarios) discussed in the presentation. These cases were designed to identify typical examples of consultations where special item numbers could be charged in addition to or in combination with standard item numbers for the attendance and/or the consultation could be extended in length or additional services offered. The aim was said to be both to increase the income for the doctor via appropriate and smart use of the MBS and to improve patient outcomes, by giving the patient more time and attention such that they believed their health issues had been properly understood and addressed.
The first plaintiff identified the case scenarios reproduced at pages 191-294 of Exhibit P1 as those he had prepared for the initial ProMBS workshop.[63] He explained that he had prepared these whenever he was sitting at home, after the hours he had worked as a full-time doctor, and he estimated they took about 50 or more hours to prepare.[64] In response to a question from me, the first plaintiff confirmed that the material in Exhibit P1 comprised all of the content he presented, although the content presented by Dr Kelly and Dr Boda was not included in those materials.
[63] T 37.1-38.2.
[64] T 38.3-9.
The first plaintiff gave evidence that none of these 76 or so cases were part of the defendants’ presentation.[65] Although he had not counted, he thought seven, eight or nine scenarios involved using a combination of item numbers.[66]
[65] T 34.36-35.1; T 38.10-16.
[66] T 50.28-36.
By reference to the materials in evidence, some 17 of 63 general case scenarios involved the use of more than one item number with respect to a single consultation. There were in total 70 case scenarios, of which seven related specifically to aged care.
The first plaintiff gave evidence that although his presentation included a case scenario utilising items 721 and 723, as had the defendants’, his scenario did not involve ‘a combination issue’, whereas the defendants’ presentation had used those item numbers in combination.[67] He said he had used these items in combination before he attended the BFD Conference and said that the use of these same item numbers in combination was something taught by others in the public domain.[68]
[67] T 50.1-27.
[68] T 38.17-32.
He denied he had used the defendants’ combination billing techniques in the workshop.[69]
[69] T 94.5.
The following exchange occurred during the first plaintiff’s evidence-in-chief:[70]
Q.And just for clarity, when preparing those examples, from what knowledge did you prepare those.
A.Sorry.
Q.When you prepared all your scenarios, your 76 scenarios
A.Yes.
Q.- how many, if any, were prepared based on anything Dr Armstrong had -
A.None.
[70] T 51.21-29.
In cross-examination, the first plaintiff gave the following evidence as to the preparation of these cases:[71]
[71] T 77.28-78.13.
Q.In relation to your MBS cases that you produced, when did you start writing the cases and what referencing material did you use.
A.MBS Online, the ... starting with MBS Online, then Medicare Benefit Schedule book and Department of Health website.
Q.When did you start writing the cases.
A.I started writing these cases around July 2016.
Q.And that was for the Flinders workshop presentation that you did.
A.So as I mentioned, this presentation is not about the doctors kind of thing so my cases were with me but this was because when I was doing a presentation, they were not a doctor, they were just - they were an expert from the businesses, they were expert from entrepreneur and also the 20 people, they were not a doctor too so they won't be able to understand a particular case. But it was - it was devised around that time when I joined the course.
Q.Okay.
A.So all these questions were prepared - not all these questions but, yeah, I started to prepare the questions around July 2016.
Q.July 2016.
The first plaintiff was asked in cross-examination how and when he came to learn about the rules of billing and in particular, combination billing. He gave the following evidence:[72]
[72] T 85.1-87.3.
Q.And how did you find out the rules of the billing so you could provide the information from the pro-MBS workshops.
A.I have learnt it through my practice. So when you talk to peers you hear about these things that yes, there is a combination billing. So I didn't have to wait till 3 June to attend your MBS seminar before I could do the pro - I could do the combination billing. I was doing it even before I met you and before doing a conference.
Q.When you did you join the Business for Doctors page because there's lots of talk of combination billing on the page, so when did you actually join the Business for Doctors Facebook page.
A.I think I never even applied for somebody else has put my name forward and that's how I was on the BFD. However, I think it was around July-ish.
Q.July 2016.
A.2016, yes.
Q.So, the same time that you started producing combination billing and MBS education information -
A.No.
Q.- you joined a business page that was teaching MBS billing.
A.No, but that's what I'm saying, that even in 2014, 2015, I was doing the combination billing.
Q.So, the combination billing that you were doing apart from 721, 723, 732 and 707 which was chronic disease management, 731 and 729 which is nursing home patients and your 707, can you give me some examples of some combination billing that were you using before you developed the pro-MBS workshop, so 2014 would be a good example.
A.Yes, so I mentioned about the case of someone coming to you with laceration, so can we charge just the 23 should we charge or the amount of time you spend with the patient, or shall we do 30026 or similar kind of item numbers for the laceration or can we do both. So obviously you've learned the course, that no, you can do actually both things.
Q.When did you learn about mental health combinations with normal consultations, when were you first exposed to the combination billings of the higher level, where you bring in not just a procedure and a consult but where you're bringing multiple consultations into one process.
A.I think it's more like a ... I cannot remember 100% for sure but yes -
Q.So, you didn't ask a question on the Facebook page asking if you can put a 2713 and a 23 together.
A.I might have, yes.
In cross-examination, it was put to the first plaintiff that the ‘Shark Tank’ presentation he gave to the NVI in October 2016 had not made any reference to the use of combination billing techniques. The following exchange occurred:[73]
[73] T 95.31-96.23.
Q.So that was the Shark Tank presentation, that $500,000 Primary Health.
A.Yes.
Q.So that was chronic disease and time with patients. That's wasn't combination billing ProMBS stuff. Different type of stuff.
A.It was ... In that you will obviously see that ... but I didn't use the whole thing in that five minutes.
Q.But the workshop outline on p.4, there's nothing mentioned in here about combination billing. It's only about disease management, coaching services, doctor/patient relationship.
A.Yeah.
Q.You talk about guest speakers from Medicare and medical indemnity insurance groups.
A.But I have been doing those combination billings before -
Q.I just want to clarify the business model that you wrote about and that you spoke about.
A.Yeah.
Q.This doesn't contain anything about combination billing.
A.I didn't put that much in detail. This is a very basic for -
Q.You said to the court that the New Venture Institute is where you came up with the idea and concept of running combination billing workshops, yet there's nothing in here about combination billing at all.
A.You're coining at combination billing but these are just a part of not necessarily only chronic disease management. You can do everything.
Exhibit P3 includes a copy of an email sent by the first plaintiff to ‘[email protected]’ on 2 April 2017 wherein he enquired:
I am a GP and I have performed a case conference and a health assessment at the same time, on a nursing home resident. Lasting for a total of 80 min. What item numbers should I claim for this consult?
The first plaintiff received a reply on 12 April 2017, wherein he was advised that it was necessary for all service requirements for the item descriptor and explanatory notes to have been met before any service was claimed with Medicare and that a case conference and health assessment could not be provided as ‘one service’, rather they must be provided one at a time. The response outlined the necessary process for each such service.
The following exchange occurred in cross-examination:[74]
Q.That's my next question to the Ask MBS question that you have here. You've forwarded an Ask MBS question which is the Department of Health now, it used to be Medicare to provide clarification in relation to the use of combining two item numbers. Apart from this single email, did you email them regarding any other material for combination billing, or where were you getting your verification from.
A.My information was, that's what I was saying, that mostly we hear from our seniors and superiors or your colleague or peers or you read about that. So that's how we were learning and which was not the right thing and that's what I mentioned that somebody told me that for obesity, I can do a care plan and somebody told me no, you cannot do it. So, I was not sure who is right, who is wrong.
[74] T 87.11-26.
Dr Rewal gave evidence that the first plaintiff had ‘commandeered’ his home office to prepare the slides he used in the initial ProMBS workshop. He said that he had assisted him with some of the grammar, but that the first plaintiff ‘had made them on his own’.[75]
[75] T 157.33-36.
In cross-examination, Dr Rewal was asked when this occurred, and although he was uncertain of the precise date, he thought it was over a period of about three days ‘a few days before his first course’, and estimated this was around June, July or August 2017.[76]
[76] T 162.23-163.10.
Dr Kelly was asked what preparation was undertaken by the first plaintiff with respect to the initial ProMBS workshop. He gave the following evidence:[77]
[77] T 166.17-167.15.
A.Well, he shared with us the cases that he had basically on file that he'd been working on for some time, I understand, and then we would feed back to him how that one read and how this one read and we put together the presentations. We were sort of doing the development, as it were, because we had the experience and the back office support and IT support. So we'd get back to Dr Anand with 'Does this look okay, is that correct?' and we just worked it up together.
Q.And over what period of time, can you recall, that that process took place.
A.Six or eight weeks, I suppose. Of that order. It was quite a bit of work for us.
Q.And you said that he'd showed you the examples he had already worked on, at what point of time was that.
A.Early on, I think - I mean, there may have even been one or two in the first meeting, I'm not sure, but I think we asked him to share some and he started sending them through fairly soon after we agreed to go ahead.
Q.Do you recall whether any of those - what sort of, can you recall what those examples were.
A.Things like aged care billing item numbers, when can you bill, you know, in different settings, what can you charge for those sort of things? Different item numbers that people - some people aren't aware of, like superficial versus subcutaneous foreign bodies, various procedures. Heap of stuff.
Q.Was there anything about combination, using combinations.
A.Not specifically. I mean, a few of them - there may have been combination billing in a few of the cases but it certainly wasn't the focus. It was more about reinforcing the basic rules of Medicare, which is one of the things that we brought, and using the item numbers people weren't aware of was one of Rajan's focuses, as far as I recall.
Accuracy of Content
The first plaintiff described his knowledge of the MBS as ‘above average’. As to his clinical expertise, he noted that he had done the fellowship, but otherwise described himself as an average GP.[78]
[78] T 114.21-115.5.
Dr Kelly said he expected the clinical scenarios used in the ProMBS workshop to use clinically correct information.[79] Similarly, Ms Cheah gave evidence that she expected the clinical scenarios used in the workshop to be correct in both clinical and MBS content.[80]
[79] T 176.16-20.
[80] T 196.6-10.
In cross-examination, both the first plaintiff and Dr Kelly were questioned at length as to the clinical accuracy of some of the case scenarios used in the initial ProMBS workshop.
Scenario 36 poses a question about the eligibility of a patient for a DMMR, being a medication review by a pharmacist at home. The patient is described, as are his presenting conditions (osteoarthritis and hypertension) and current medications including ‘Atenol 50 mg BD’ and ‘Co-plavix’.[81]
[81] Exhibit P1 item 61 p 255.
The first plaintiff was asked in cross-examination if that was the correct dosing for Atenol. He answered:[82]
This question was created as a hypothetical question. The question was aimed to give you an idea that whether this person is suitable to have the DMMR or not. This pill count shows that there was an issue with compliance. He was on several number of medication so that’s why the question was – it was a created question so this is not a real example which I’ve brought here.
[82] T 118.7-13.
The first plaintiff agreed in cross-examination that the standard dosing regime for Atenol was 50 mg once daily, but maintained that it could also be used twice daily.
In response to a question as to whether CoPlavix should be prescribed for a patient suffering hypertension and osteoarthritis, the first plaintiff explained that ‘this case is a created scenario’ and his intention was to highlight a patient who was on more than five different medications, with more than 12 doses per day. He said ‘this was not about the knowledge, all these questions’.[83]
[83] T 120.7-28.
As to this case scenario, Dr Kelly said that it was ‘the learning point’ that mattered, and that:[84]
If it could be improved, we could improve it. It’s not to say that there aren’t patients out there on these medications.
[84] T 181.28-182.6.
Another case scenario addressing whether or not a DMMR was appropriate, included an example of a 35-year old nurse, post discectomy, who remained in pain. The case scenario listed the patient as taking Gabapentin 200 mg TDS, Lyrica 300 mg BD and Endone 5 mg qid PRN and stated ‘She is requiring medication more often than expected. (There is no risk of dependence or drug seeking)’.[85]
[85] Exhibit P1 item 61 p 208.
The first plaintiff agreed that the three drugs listed were drugs of dependence, but said that again, this was a created scenario and that his intention with this scenario was to highlight the fact the patient was not on more than five different medications.[86] Dr Kelly said the slide was incorrect insofar as it said there was no risk of dependence.[87]
[86] T 121.18-38.
[87] T 183.21-24.
The first plaintiff agreed that scenario 42 may not be medically correct and that this was simply a created scenario, a hypothetical case, used to raise awareness of the difference in item numbers 30216 and 30219.[88]
[88] T 137.19-138.11.
Scenario 3[89] deals with the availability of health assessments and stipulates that a patient with Downs Syndrome is entitled to such an assessment. The first plaintiff agreed that to be eligible for a health assessment a patient must have an intellectual disability, and that not all patients with Down Syndrome have such a disability. He stated that he mentioned this verbally by way of explanation when giving the presentation.[90]
[89] Exhibit P1 item 61 p 209.
[90] T 122.1-25.
In cross-examination, the first plaintiff was asked if scenario 46[91] was an example of combination billing. He responded, ‘In my opinion this is like you are using two different item numbers.’[92]
[91] Exhibit P1 item 61 pp 213-214.
[92] T 122.29-35.
When questioned as to whether scenario 46 was inaccurate in that it purported to illustrate an ability to charge both items 23 (consult) and 14206 (procedure), in circumstances where there was no reference in the slide to a consultation having been undertaken, the first plaintiff said that again, this was an example where he had supplemented what was on the slide with what he told the workshop participants when discussing the scenario.[93] There were several other scenarios wherein the first defendant raised with the first plaintiff the fact that relevant information was omitted from the slide, without which the answer given was potentially inaccurate, and he explained that during the presentation such information was provided verbally in conjunction with what was on the slide.[94]
[93] T 122.36-123.14.
[94] T 126.15-30; T 129.10-28.
Dr Kelly was asked in cross-examination to read scenario 46 and based on what was stated on the slide only, said a consultation should not have been charged (although the slide stated otherwise).[95] He said that the slides required context of speaking, which is what happened in the workshops.[96]
[95] T 183.30-184.2.
[96] T 184.17-18.
Scenario 47 uses an example of a patient presenting for the removal and re-insertion of implanon, and states that three item numbers can be charged for that consult, including item 30062, being ‘Etonogestrel subcutaneous implant, removal of, as an independent procedure’.[97]
[97] Exhibit P1 item 61 pp 214-215.
The first plaintiff said that if the implant was removed from one arm and re-inserted into another, the second procedure would be an independent procedure. He agreed that if the implant was removed and then re-inserted into the same place, that was not an independent procedure, meaning that item 30062 could not be claimed.[98] He gave the following evidence:[99]
Q.Right, so your scenario answer is incorrect here, is that what you say.
A.Actually, this was the very first one, we did change a few scenarios afterward as well, when we had even more clarification.
[98] T 125.1-26.
[99] T 125.27-31.
Scenario 22[100] addresses whether a second consultation can be claimed if a patient presents twice on the same day, with the second attendance being to enquire as to the results of a D-dimer ordered after the first such attendance. The case scenario stated that a second consult could be charged. The first plaintiff agreed with the proposition put to him that the second consultation was a continuation of the first, although he explained it would not be if during that second consultation other things were discussed.[101]
[100] Exhibit P1 item 61 p 253.
[101] T 131.2-132.5.
Dr Kelly was also asked about this case scenario. When asked whether the second consult was actually a continuation of the first he stated:[102]
I would say yes, probably. We asked Medicare that specific question and didn’t get an answer.
[102] T 181.26-27.
The first plaintiff’s presentation at the initial ProMBS workshop included a bonus question concerning an elderly patient for whom a palliative care team were preparing a care plan. The question asked what was the minimum waiting period to undertake items 721 and 723 in combination.[103]
[103] Exhibit P1 item 61 pp 228-229.
The first plaintiff was asked in cross-examination whether he thought that this would meet the ‘exceptional criteria’ for billing in less than three months, considering the patient may die within the three months. He initially answered:[104]
In this case, obviously we were expecting it to make the exceptional criteria.
[104] T 134.18-22.
The answer on the second slide given was ‘three months’, rather than ‘Now’. The first plaintiff explained this by saying that Medicare required him to make a forward plan for three months, that this was a hypothetical case and he could not predict whether or not this patient would still be alive in three months.[105]
[105] T 134.28-135.16.
In cross-examination, the first plaintiff agreed he did not perform any antenatal care, but that the ProMBS workshop used examples relating to item numbers pertaining to such care. He said:[106]
A.Yes, and when I was presenting I was really clear about that: that I don't practice as these item numbers and I’m not an expert with these things at all. I've got no - not much of idea about these item numbers but, yeah, there were two item numbers which I have very briefly mentioned but at that time it always come with that thing that 'Look, I'm not - I don't do that'.
[106] T 137.1-7.
The slide reproduced on page 291 of Exhibit P1 refers to the ‘Multiple Service Rule’. The first plaintiff was asked in cross-examination whether he could explain that rule and he was unable to do so. A question was posed of him whether someone teaching item numbers and who mentions the rule should know what the rule is. The first plaintiff responded:[107]
I should, yes, and I was there but I’ve really lost the touch for last one, one year.
[107] T 139.12-13.
In cross-examination Dr Kelly was asked if this rule should be common knowledge for people who do procedures, and he said, ‘should be’.[108]
[108] T 179.17-19.
Scenario 30 deals with a situation where a patient had a punch biopsy five days earlier and attends for the removal of sutures when the biopsy results are not yet available. The slide stated that this procedure should be charged as a further consult (item 23), rather than no charge being rendered, as would occur if the attendance was part of ‘standard aftercare’.[109]
[109] Exhibit P1 item 61 pp 226-227.
Dr Kelly agreed in cross-examination that he would not normally charge for this type of attendance, without discussing the results of the procedure.[110]
[110] T 182.7-11.
Dr Kelly agreed that the slide for scenario 43[111] provided an incorrect answer, and in fact a longer consult could have been charged. He explained ‘Most of these things we have actually corrected in subsequent workshops’.[112]
[111] Exhibit P1 item 61 p 216.
[112] T 183.8-17.
Dr Kelly also agreed that the answer given in the slide for scenario 32 was incorrect.[113] He was asked whether he agreed the material generally was incorrect from both a clinical and MBS perspective and stated:[114]
There’s areas for improvement and they have been improved I can promise you that.
[113] T 184.19-33.
[114] T 184.34-38.
Dr Kelly reiterated that the slides by themselves ignored the context as explained in the workshops and while he accepted improvements could be made, he did not accept that the material was ‘clinically incorrect’.[115] He considered the material had been written by someone with ‘above average’ knowledge of the MBS, despite some of its inadequacies, noting that people at every level struggled with the MBS.[116]
Outcome
[115] T 185.1-12.
[116] T 185.13-22.
The initial ProMBS workshop was held on 2 September 2017.
In answer to a question in cross-examination as to why the date of the workshop was deferred from July, the first plaintiff said:[117]
Maybe the marketing issues. So we were probably not ready with the marketing, so that was one of the reason.
[117] T 93.13-19.
Dr Kelly gave evidence that he was unsure off the top of his head as to why the workshop was postponed, but that it must have been due to a lack of numbers.[118]
[118] T 176.10-15.
Ms Cheah said she was unsure why the initial workshop was postponed, but she thought that it was because ‘we were still working through the cases’.[119]
[119] T 195.31-196.2.
The first plaintiff said that a free webinar was held about a month or a month and a half before the initial workshop, and that after the webinar he sat down with Dr Kelly and Dr Boda to try to correct some of the grammatical mistakes in his presentation. It was difficult to do in a meeting so instead he just started to forward his cases through ‘to him’ for review and any suggested changes. [120]
[120] T 34.24-31. The first plaintiff did not say whether he was referring to Dr Kelly, Dr Boda or both of them in his reference ‘to him’.
In cross-examination, the first plaintiff was asked how many people attended the free webinar and his response was ‘I’m not sure; 20, 30, 40, I don’t know’.[121]
[121] T 93.20-22.
The first plaintiff said there were 32 registered attendees at the initial ProMBS workshop and described it as ‘extremely successful’, as a result of which AOGP suggested to him that they should do a session once every month throughout all of Australia.[122]
[122] T 40.4-7; T 28.23-26.
Dr Kelly said there was a good turnout for the initial ProMBS workshop, and good reviews.[123]
[123] T 166.1-5.
Ms Cheah gave evidence that the first workshop was attended by around 30 people, that it ran really well and that the feedback was positive.[124] In cross-examination she acknowledged that possibly two or three attendees were funded by AOGP to attend the workshop and that if several doctors from one practice had attended, there may also have been a discount offered.[125]
[124] T 188.25-29.
[125] T 196.19-197.25.
Ms Cheah said that given the success of the initial ProMBS workshop, arrangements were put in place to run another workshop in Melbourne, scheduled for around October or November 2017 and then possibly one in Sydney. She explained that AOGP set up a register of interest for each of those proposed workshops.[126] In evidence are several emails, all dated 8 and 9 September 2017, wherein a number of potential attendees have expressed their interest in attending these proposed interstate workshops.[127]
[126] T 189.5-32.
[127] Exhibit P1 item 56 pp 156-173.
The total revenue generated from the initial ProMBS workshop was $22,471.[128] After expenditure of $7,020, the surplus was $15,451. This sum was distributed to AOGP and the second plaintiff as follows:[129]
Return on Investment by AOGP and IqMed $10,000 (50/50)
Net profit $5,451 (60/40)
[128] Noting such sum is in fact less than the combined estimated initial investment of IqMed and AOGP as set forth in the Agreement ($13,500 + $14,600 = $28,100).
[129] Exhibit P1 item 37.
The second plaintiff was asked to invoice AOGP for $8,270 (plus GST) being the $5,000 initial investment and 60% of $5,451 ($3,270).
Dr Kelly gave evidence that he did not think the first plaintiff (via the second plaintiff) was entitled to an additional speaking fee with respect to the first workshop.[130]
[130] T 165.35-37.
Ms Cheah referred to a speaking fee of $150 per hour, but explained that in terms of payment ‘so all that’s come from the share of profit that we were going to share at the end of the year’.[131]
[131] T 190.23-37.
The Publications
On 9 September 2017, the first defendant published a post on the BFD Facebook group page (the First Post).
The First Post stated: [132]
Raj Anand – would you like to explain why you have taken copyright BFD information and selling it in workshops in Adelaide under the business name iqMed? As A BFD conference attendee you are aware of the copyright and that you cannot profit from selling the information shared from this page, BFD or BFD conference.
(Post left up for one hour for Raj to explain – no reply to he has been removed from the group – there has been a PM which will be forwarded to the BFD solicitors). Please read the copyright below – it is all recited to you before we teach BFD workshops and conferences. You will have legal action taken against you if you breach copyright
[132] Exhibit P1 item 14 p 29.
The forum enabled BFD Facebook group members to ‘like’ or ‘comment’ on the First Post. Numerous comments and ‘likes’ followed.
On the same day, the first defendant published a further post on the BFD Facebook group page (the Second Post) in response to a comment posted by another group member in response to the First Post. The Second Post read as follows: [133]
[Member name] – I am not just gong (sic) to sue him I am going to make sure that everyone on BFD knows he stole the IP. Its (sic) of the lowest unprofessional standards – its (sic) not becoming of a health professional who has been given this to help him with his Billings and work. It is under copyright and he has charged $900 to use information that I have provided to him. AND if its (sic) not true he is welcome to sue me –
[133] Exhibit P1 item 14 p 31.
Ms Cheah was not asked to explain this evidence further.
In the absence of further evidence to support a finding that either plaintiff was entitled to a presentation fee in addition to profit share, I cannot be satisfied of the same on the balance of probabilities.
If I am wrong about that, for reasons already stated, ‘Melbourne 2017’ was replaced with the successful February 2018 Melbourne workshop. Any potential loss of presentation fees from ‘Melbourne 2017’ was recovered from the successful February 2018 Melbourne workshop. There was no evidence to support a finding that there was ever sufficient interest to enable a ProMBS workshop to be successfully held in Sydney.
I am not satisfied that the plaintiffs have established any claim for damages for ‘loss of presenters’ fees for upcoming, cancelled seminars’ whether as a result of any alleged interference by the first defendant in the contractual arrangements between AOGP and the second plaintiff or the defendants’ defamation of the first plaintiff.
Losses from Upcoming Unscheduled Seminars
The plaintiffs claimed a sum of $20,268 for ‘loss of presenters’ fees and profits from upcoming unscheduled seminars’.
The only evidence as to how this sum was calculated came from the first plaintiff, namely:[375]
Q.You also claim loss of presenter fees and profits from upcoming and unscheduled seminars. Are they the ones that were with AOGP.
A.Yes.
Q.How have you calculated that.
A.It was just my average calculation based on how the first one went. And we expected that if out of them, all those conferences or seminar, I would've probably made that much money.
[375] T 74.2-10.
There was no other evidence as to how the sum of $20,268 was calculated. Neither the Plaintiffs’ Closing Submissions, nor the Plaintiffs’ Outline of Argument provide any further assistance in this regard.
I assume this claim relates to the first plaintiff’s inability to earn either profit or presentation fees from unscheduled ProMBS workshops during the period from late February 2018 to 30 June 2018, and from August 2018 to date.
No Presentations late February 2018-30 June 2018 – Dispute with Primary Health
The first plaintiff presented at the successful ProMBS workshop in Melbourne on 17 February 2018, but did not present again until a ProMBS workshop in Adelaide on 21 July 2018. His last ProMBS presentation was in Melbourne on 11 August 2018.
For the reasons that follow, I find that the first plaintiff agreed not to present at any further ProMBS workshops from late February 2018 until after 30 June 2018, so as to resolve an unrelated dispute he had with Primary Health. I am not satisfied therefore that the defamation and/or any alleged interference in the second plaintiff’s contractual relationship with AOGP caused such loss.
To understand the dispute with Primary Health, it is important to consider the contractual arrangements in place between Primary Health and the first plaintiff (and other entities related to the first plaintiff) as at 2017/2018.
In about June 2014, the first plaintiff and two companies associated with him, R & R Southern Medical Practice Pty Ltd (R & R Southern) and RNR Adelaide Pty Ltd (RNR) entered into a Contract with Idameneo (No.123) Pty Ltd (Primary). Pursuant to that contract, R & R Southern agreed to sell to Primary the medical practice owned by it, conducted through the first plaintiff, including the goodwill of that practice as generated by the first plaintiff. In exchange, the first plaintiff and Primary agreed to execute a Performance Guarantee, and Primary and RNR agreed to execute a Practitioner Contract.
It was a term of the contract that RNR conduct its incorporate medical practice and procure the first plaintiff to render medical services, only at new premises at Royal Park (run under the ‘Primary Health Care’ banner) for a period of at least five years from the Commencement Date of that contract (subject to certain defined exceptions).[376]
[376] Exhibit P4, Sale of Practice clause 4.2(a).
The contract required the first plaintiff to effectively work full time at the Primary Health Care Royal Park practice, with a requirement that he work no less than 45 hours per week for 48 calendar weeks per financial year until he attained FRACGP and that thereafter he work no less than 50 hours per week for 48 calendar weeks per financial year, with those conditions subject to other stringent requirements.[377]
[377] Exhibit P4, Sale of Practice clause 4.2(b) and (c).
The contract included a restraint of trade whereby the first plaintiff, R & R Southern and RNR agreed not to ‘render medical services’ at any place within a certain radius of the premises where R & R Southern conducted its old practice at Woodcroft, or the Royal Park practice, for a certain defined period.
The parties were required to give certain warranties including:[378]
(g)none of the Old IMP, the New IMP, or the Doctor is involved in, or aware of, any dispute or current or threatened proceedings or arbitration relating to the practice, any asset of the practice, any past or present employee of the practice, any past or present patient of the practice, or any medical service rendered by the Doctor;
…
(i)there is nothing in relation to any of the Old IMP, the New IMP or the Doctor which would adversely affect the business or reputation of the Purchaser;
[378] Exhibit P4, Sale of Practice clauses 6.1(g) and (i).
The contract required the first plaintiff to be an employee of RNR.
Pursuant to the Practitioner Contract, Primary agreed to provide services and facilities to enable RNR to conduct an incorporated medical practice, through the first plaintiff, at the Royal Park Practice, upon certain terms and conditions. Those services included the necessary space within the premises, plant and equipment, provision of staff and contractors, provision of stationary, electricity and the like. Those services were not to be used for any other purpose.[379]
[379] Exhibit P4, Provision of Services to Incorporated Medical Practitioner clauses 3 and 6.
Pursuant to clause 7.1 of the Practitioner Contract:[380]
As between the Company on the one hand and the IMP and the Doctor on the other, the IMP and the Doctor are jointly liable for, and by this Deed indemnify the Company against, any liability whatever arising from the Doctor rendering medical services as a consequence of the IMP being a party to this Deed or otherwise in connection with this Deed or other acts or failure to act on the part of the Doctor or the IMP, whether of a medical service nature or otherwise.
[380] Exhibit P4, Provision of Services to Incorporated Medical Practitioner clause 7.
On 21 February 2018, Primary Health sent a letter to the first plaintiff (via email) signed by their Head of Legal and Legal Counsel in the following terms:[381]
We act on behalf of the Institute.
The Institute is aware that you have published and sold education material (including an educational workshop on or about 2 September 2017) titled “ProMBS” relating to efficient and accurate MBS billing.
We are instructed that this material appears to be substantially similar to material owned and published by the Institute on its websites, which it makes available to its members (including yourself) to assist them in their billings. We confirm that the Institute holds copyright in this material and that it has at no time waived its copyright in this material, nor has it permitted you to use its material for any commercial purpose.
Publication of material in which the Institute holds copyright is in contravention of Division 2 of the Copyright Act 1986 (Cth).
Accordingly, we are instructed to request that you deliver to the Institute all copies of any material which was published or presented in relation to the “ProMBS” workshop for our review by no later than 7 March 2018 in order to confirm that no such breach has occurred.
The Institute reserves all of its rights, including its right to make an application seeking orders for preliminary discovery.
We look forward to hearing from you.
[381] Exhibit P1 Tab 43 p 120.
The first plaintiff gave evidence that he was told by Simon Cross at Primary Health, that the first defendant had told Primary Health that he had taken copyright material both from her and from Primary Health to use in his ProMBS workshop, being the source of the claims made in this letter.
That evidence is hearsay. There was no admissible evidence to support that claim. Although an email from the first plaintiff to Mr Cross dated 22 February 2018 is in evidence,[382] and in that email the first plaintiff set forth what he ‘understood’ to have occurred and sought confirmation of that, any response to that email from Mr Cross was not in evidence. Mr Cross was not called to give evidence.
[382] Exhibit P1 item 44 p 121.
However, it is apparent from correspondence between the first plaintiff and Mr Cross exchanged in late February and early March 2018 that Primary Health required the first plaintiff to withdraw from the advertised ProMBS workshops and that the first plaintiff then did so, thus resolving the threatened copyright dispute between them. The first plaintiff also undertook not to personally present at the ProMBS workshops until after his engagement with Primary Care had ended or until he had reduced his hours working at the Royal Park practice. [383]
[383] Exhibit P1 item 44 pp 120-128.
The first plaintiff gave evidence that he was very shaken in the first few days after the Publications and when asked why he had stopped presenting the MBS workshops in February 2018, he initially blamed it on his mood, what he described as his depression and just wanting to avoid anything to do the MBS, given what had happened.
However, the first plaintiff eventually gave quite clear evidence that he had ceased presenting the ProMBS workshops because he was required to do so by Primary Health. Primary Health required the first plaintiff to cease presenting the ProMBS workshops and for his name to be removed from all marketing associated with those workshops until his contract with them expired, which by agreement, was a year earlier than had been anticipated, namely on 30 June 2018.
Primary Health were delivering education on the MBS to general practitioners in competition with both the plaintiffs and the defendants.
The Primary Health contracts produced by the plaintiffs do not include any express restraint of trade clause which would operate so as to have prevented the first plaintiff from offering education on the MBS in competition with them.
In a letter written by the first plaintiff to Primary Health dated 6 March 2018,[384] the first plaintiff referred to his understanding that the intellectual property he created vested in him. He referred to a potential option to resolve the dispute, namely that he work reduced hours and ‘be permitted to operate my own business without paying the percentage split to Primary Health’, albeit it was not an option he considered appropriate.
[384] Exhibit P1 item 46 pp 127-128.
I consider it likely that the tendered documents contain only portions of the relevant communications that passed between Primary Health and the first plaintiff pertaining to the dispute. While it is not strictly necessary that I make findings as to the nature of the dispute and what caused it, it is likely that the dispute was multi-faceted, and that while the first plaintiff remained working in a full-time capacity with Primary Health they did not support him working in his own business as well, potentially taking his focus away from his contracted role, and deriving income which was not being shared with them from a business in competition with their own.
As outlined, it was suggested by the first plaintiff that the first defendant had been instrumental in causing the dispute, in that she had informed Primary Health that the first defendant was using Primary Health material in the ProMBS workshops. There was insufficient admissible evidence for me to make such a finding on the balance of probabilities. However, the claim did not include any plea to the effect that the defendants had defamed the first plaintiff by way of publications made to Primary Health, or had interfered in his contractual relationship with Primary Health, in any event.
There was no evidence to support a finding that the dispute with Primary Health was caused by the Publications.
There was some other evidence, albeit imprecise, as to why the first plaintiff temporarily ceased presenting the ProMBS workshops in February 2018.
Ms Cheah said that the first plaintiff was unavailable to present at the Creswick ProMBS workshop in April 2017 and when asked why that was she said he was busy.[385]
[385] T 191.18-19; T 196.14-18.
In the context of a discussion about both the change in the plaintiffs’ contractual arrangements with AOGP and the rebranding of ProMBS to remove the second plaintiff’s name from the AOGP website, Dr Kelly said that the first plaintiff ‘told me he was feeling stressed by it all and that it was better that he, he not be involved up-front’.[386]
[386] T 169.28-29.
However, it is clear and I find that the second plaintiff’s name was removed from the ProMBS promotional material, because of the first plaintiff’s unrelated dispute with Primary Health.
No Presentations since August 2018
The first plaintiff has not presented at a ProMBS workshop since August 2018 and the second plaintiff did not renew the agreement with AOGP beyond 31 December 2018.
The only evidence as to why the first plaintiff had ceased to give any ProMBS presentations since August 2018 came from the first plaintiff, namely:[387]
…My term with Primary finished on 30 June, so after that I was free, so I did this 21 July 2018 in Adelaide. When I went there then I was told that somebody has complained to the AOGP again and AOGP has come to do an audit. So all these things just keeps on making my wound grow, I did it very well, it went very well, people who had been practising for 30 years, they were really surprised at how come there is these type of item number which is available and they never knew about it. So I had ... review and I think on 11 August '18 as well, I did one presentation and I just said that look, I cannot keep on doing it with this much stress, so I decided to just pull out.
[387] T 68.15-28.
However, the first plaintiff made it clear that he intended to resume presenting MBS workshops ‘once this court case gets settled’.[388]
[388] T 72.12-14.
All of the evidence was to the effect that the first plaintiff made a unilateral decision to cease presenting the ProMBS seminars as of August 2018. There was no evidence to support a finding that AOGP were not prepared to continue their involvement with the plaintiffs as a result of the Publications, indeed, the evidence was to the contrary.
I am satisfied that the RACGP conducted a ‘face to face’ audit of the ProMBS workshop conducted in Adelaide in July 2018 and that the first plaintiff presented at that workshop. As previously stated, the results of that audit were mostly positive, with the auditor noting that the ‘the event was professionally run, with knowledgeable presenters’. She also stated ‘Great that there was such a strong focus on the case scenarios’.[389]
[389] Exhibit P1 item 50 pp 134-142, noting this document is undated.
As the ProMBS workshops are accredited, there is always a possibility that they will be audited to ensure they comply with RACGP accreditation criteria. This remains the case and was the case irrespective of the Publications.
I accept that the fact the audit was undertaken in July 2018 was stressful for the first plaintiff and that it is possible it may have contributed to his decision to cease MBS presentations as of August 2018.
However, there is no medical evidence to support a finding that the first plaintiff has been unfit to continue presenting MBS workshops because of any psychological illness or injury. I accept his counsel’s submissions that since July 2018 the first plaintiff has continued to work as a general practitioner, and runs a medical practice at Glenelg.[390] Although there was no evidence led as to the first plaintiff’s responsibilities and workload arising from such employment, it is important to assess the claim in the context of him now having taken on the responsibility of running that clinic.
[390] Plaintiffs’ Outline of Argument at [9].
The first plaintiff did not cease presenting ProMBS workshops immediately after the July 2018 audit. He also presented at a further ProMBS workshop in Melbourne in August 2018 and only ceased presenting thereafter, almost a year after the Publications. There was no evidence to suggest this workshop was also audited.
I also note that the net profit from that workshop was considerably less than that achieved for the earlier February 2018 Melbourne workshop. There can be no doubt that the time demands associated with preparing for and attending such workshops must be significant. The second plaintiff’s profit share from the two workshops in July and August 2018 was only $6,167.93.
I have already outlined the reservations I have as to the first plaintiff’s credibility. I am simply not satisfied that any alleged loss he may have suffered due to his decision to step back from presenting the ProMBS workshops as of August 2018, was caused by the Publications, or any interference by the defendants in the contractual relationship between the second plaintiff and AOGP.
There was no evidence led as to whether and/or on what terms AOGP would be prepared to renegotiate with the second plaintiff to renew their agreement in the future. However, Dr Kelly said that AOGP did not currently have an agreement with the second plaintiff ‘because we’ve been waiting for things to settle down, really, and Rajan said his attention is otherwise diverted.’[391]
[391] T 170.1-3.
Ms Cheah was asked why the agreement with the second plaintiff and AOGP ended as at 31 December 2018 and she said:[392]
I think he wanted to make sure that everything settled before and, I don’t know.
[392] T 191.32-33.
The evidence supports a finding that the first plaintiff intends to return to presenting MBS workshops once these proceedings are finalised. There was no evidence to support a finding that AOGP was unwilling to renegotiate the agreement as from the end of 2018, or would be unwilling to do so in the future.
I am not satisfied that the plaintiffs have established a causal link between the first plaintiff’s unilateral decision to ‘pull back’ from the ProMBS workshops as of late 2018, and any alleged contractual interference by the first defendant and/or the defendant’s defamation of the first plaintiff.
Re-negotiation of the Contract on Less Favourable Terms
The plaintiffs’ claim for loss of profit from unscheduled ProMBS workshops is in part based on an allegation that the defamation and/or the contractual interference caused AOGP to re-negotiate its contract with the second plaintiff on less favourable terms.
As previously outlined, the Collaborative Partner Agreement between AOGP and the second plaintiff (the Agreement) was to develop and deliver the initial education workshop to optimise earnings through correct and effective use of MBS item numbers. It was intended the Agreement would end on the ‘Completion of Workshop Evaluation’.
The Agreement outlined an intention for the parties to continue to ‘work together’ to deliver workshops relating to the correct and effective use of the MBS, if the initial workshop was successful. It expressly stipulated that the success of the initial workshop would be evaluated to decide on how future education sessions can be delivered.
Pursuant to the Agreement, the second plaintiff was to receive 60% of any net profit ‘from the workshop’ and AOGP was to receive 40%. By reference to the Agreement, it is clear that this profit share related only to the net profit derived from the initial workshop, being the subject of the Agreement.
By the express wording of the Agreement, that profit share was determined having regard to the parties’ respective contribution in terms of ‘initial investment’ in the project, which, as I have already stated, included the first plaintiff estimating that input by reference not only to the actual hours he spent creating the content and the number of hours he expended in undertaking the NVI course.
The evidence of the first plaintiff, supported by that of both Dr Kelly and Ms Cheah, was that the initial ProMBS was successful, such that further seminars were planned and scheduled. However, there was no evidence directed specifically to the issue as to when any ‘workshop evaluation’ was completed, being relevant to determine the ‘end date’ of the Agreement.
As the initial workshop was considered to be successful, the parties then continued to work together to deliver ongoing education pertaining to the MBS, as was foreshadowed in the Agreement.
I am satisfied that the Agreement was renegotiated in (about) early 2018, such that each party was to receive 50/50% of the net profit.[393]
[393] T 169.25-70.5; T190.17-37.
The first plaintiff gave evidence that the contract was re-negotiated to increase AOGP’s share of net profit to 50% because AOGP ‘had to work on it a lot more compared to (what) they thought’. He suggested this was because of additional work arising from the Audits.[394]
[394] T 60.31-61.5, noting neither Dr Kelly nor Ms Cheah gave such evidence, and if it was to be suggested that any audits were initiated by the first defendant’s complaints to the RACGP (noting such a finding cannot be made on the admissible evidence), that conduct was not pleaded as that relied upon by the plaintiffs with respect to this tort.
Neither Dr Kelly nor Ms Cheah gave any evidence to support the plaintiffs’ allegation that the Agreement was renegotiated as a result of the first defendant’s direct interference in the contractual relationship, through the sending of either the First or Second Emails or the making of the Phone Call.
Dr Kelly gave the following evidence on this issue:[395]
Q.At some point were the - following these interactions, how did the business arrangements change with Dr Anand.
A.They changed in the next year, in 2018 we renegotiated another arrangement but really Rajan had to pull back from being involved. He was feeling - I can't speak for him, but he told me he was feeling stressed by it all and it was better that he, he not be involved up-front. We - from our perspective, AOGP wanted to avoid association with any legal battles or things like that, so we asked to remove IQMed from branding and things like that in terms of the workshop but Rajan still, we renegotiated the 50/50 profit-sharing arrangement -
[395] T 169.23-34.
As previously stated, the first plaintiff gave evidence that he withdrew from his involvement in the delivery of the ProMBS seminars and his name was removed from the AOGP website following an agreement he reached with Primary Care arising from their claim that he had ‘stolen their idea’ (Primary’s idea) and was presenting it as his own seminar.[396]
[396] T 61.30-63.18.
Ms Cheah confirmed that the contract was re-negotiated but gave no evidence as to why the second plaintiff’s net profit share pursuant to the re-negotiated contract reduced from 60% to 50%.
She gave evidence that both Dr Kelly and Dr Boda ‘did a significant amount of work’ in tidying up the case scenarios prepared by the first plaintiff and giving peer-to-peer review, to ensure the workshop was good value for practitioners.[397]
[397] T 192.20-26.
Dr Kelly gave evidence that ‘it was quite a bit of work for us’ (meaning AOGP) to give the first plaintiff feed-back on the draft case scenarios.
I do not doubt that the fact of the Emails and Phone Call also resulted in additional workload to AOGP. However, the evidence given by Dr Kelly and Ms Cheah as to what role Dr Kelly and Dr Boda played in putting together the ProMBS workshops and the extent of their input is consistent with the first plaintiff’s own evidence, namely that it was more work for AOGP than they had anticipated.
I am not satisfied on the balance of probabilities that the defamation and/or any contractual interference caused the reduction in the second plaintiff’s profit share in the re-negotiated agreement.
Summary
I am not satisfied that the first plaintiff was entitled to any speaking fees from the ProMBS workshops in addition to the profit share arrangements already outlined.
I am not satisfied that the plaintiffs have established on the balance of probabilities that either the defamation and/or any alleged interference in the second plaintiff’s contract with AOGP caused the first plaintiff to temporarily cease presenting ProMBS workshops from February 2018 to July 2018, or from mid-August 2018 to date.
If I am wrong about that, there is insufficient evidence upon which I can reasonably assess what, if any, profit has been lost by the second plaintiff as a result. Although the plaintiffs relied upon the average profit earned from ProMBS workshops during 2018 to calculate the alleged loss, both Dr Kelly and Ms Cheah gave evidence that the ProMBS workshops have continued to be held since August 2018. There was no evidence as to the profitability or otherwise of any such ProMBS workshops, being directly relevant to an assessment of the plaintiffs’ alleged loss.
I am not satisfied on the balance of probabilities that the defamation and/or any contractual interference caused the reduction in the second plaintiff’s profit share in the re-negotiated agreement.
I am not satisfied that the plaintiffs have proved the loss as claimed for ‘loss of presenters’ fees and profits from upcoming unscheduled seminars’.
Loss of Opportunity to Obtain New Clients
The first plaintiff gave evidence, which was not supported by any other evidence, that in September 2017, being after the Publications, he had discussions with another health network about doing a presentation for them, in conjunction with AOGP. He said:[398]
They told me that they have about 400 plus GPs who would be happy to come to a similar seminar if I could do it at a rebateable price. So I went back to AOGP we did some calculation and we were thinking that we could make around $40,000 if I do a presentation for their GPs.
[398] T 73.18-23.
He said this was an expected net profit of $40,000, to be split between the second plaintiff and AOGP.[399]
[399] T 73.24-28.
The plaintiffs did not call evidence from anyone at the ‘other health network’. Neither Dr Kelly nor Ms Cheah gave any evidence to support the plaintiffs’ allegation.
Having regard to my reservations as to the first plaintiff’s credibility, based in part upon the lie he told in his NVI presentation as to having struck a similar deal, in the absence of further supporting evidence, I cannot accept the first plaintiff’s evidence on this issue.
I am not satisfied on the balance of probabilities that the plaintiffs have established any alleged loss of opportunity.
Summary
I assess damages in respect of the defamation in the sum of $50,000 comprising:
General Damages $40,000
Aggravated Damages $10,000
Economic Loss Nil
TOTAL $50,000
I make no award of damages for any alleged interference by the defendants in the contractual relationship between the second plaintiff and AOGP.
Orders
1Judgment in favour of the first plaintiff as against the defendants in the sum of $50,000.
2The second plaintiff’s claim is dismissed.
3I will hear the parties as to interest and costs.
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