FEDERAL COURT OF AUSTRALIA
Borody v Vickers [2021] FCA 618
File number: NSD 968 of 2020 Judgment of: THAWLEY J Date of judgment: 28 May 2021 Date of publication of reasons: 7 June 2021 Catchwords: PRACTICE AND PROCEDURE – application for summary judgment – s 31A of the Federal Court Act 1976 (Cth) – whether applicant has no reasonable prospect of successfully prosecuting the proceedings – whether the respondent is immune from suit on the basis of witness immunity – whether the respondent’s conduct was “in trade or commerce” within the meaning of s 18 of the Australian Consumer Law – application allowed Legislation: Competition and Consumer Act 2010 (Cth) ss 6, 131, Sch 2, Australian Consumer Law, s 18
Federal Court of Australia Act 1976 (Cth) s 31A
Federal Court Rules 2011 (Cth) r 26.01
Uniform Civil Procedure Rules 2005 (NSW) rr 31.18, 31.23, 31.36, Sch 7 cll 1, 2, 3
Cases cited: Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1
Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Littlev Law Institute of Victoria (No 3) [1990] VR 257
Meadow v General Medical Council [2007] 1 All ER 1
Ollis v New South Wales Crime Commission (2007) 177 A Crim R 306
Palmer v Durnford Ford [1992] QB 483
Richards v Han [2020] FCA 1886
Scanlon v Director-General, Department of the Arts, Sport and Recreation (2007) 70 NSWLR 1
Spencer v Commonwealth (2010) 241 CLR 118
Stanton v Callaghan [2000] 1 QB 75
Stockland (Constructors) Pty Ltd v Retail Design Group (International) Pty Ltd [2003] NSWCA 84
Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 52 Date of hearing: 28 May 2021 Counsel for the Applicant: F Corsaro SC Solicitor for the Applicant: Proctor Phair Lawyers Counsel for the Respondent: D Mitchell Solicitor for the Respondent: Moray & Agnew ORDERS
NSD 968 of 2020 BETWEEN: THOMAS JULIUS BORODY
Applicant
AND: CHRISTOPHER RUSSELL VICKERS
Respondent
ORDER MADE BY:
THAWLEY J
DATE OF ORDER:
28 MAY 2021
THE COURT ORDERS THAT:
1.The proceedings are summarily dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).
2.The applicant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(revised from transcript)THAWLEY J:
On 27 August 2020, Dr Thomas Borody commenced proceedings in this Court against Dr Christopher Vickers. By an interlocutory application dated 11 December 2020, Dr Vickers seeks summary judgment dismissing the whole of the proceedings, or, in the first alternative, orders striking out the Amended Statement of Claim or, in the second alternative, that the following questions be heard separately from the rest of the proceedings:
(1)Is Dr Vickers immune from, or…
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- AGLC
- Borody v Vickers [2021] FCA 618
- Case
- [2021] FCA 618
- Decision Date
CaseChat Overview and Summary
The case of Borody v Vickers involved a medical negligence claim brought by Dr Borody against Dr Vickers. The dispute centred around a report that Dr Vickers had prepared as an expert witness for Ms X, who was also a party to the proceedings. The Federal Court was tasked with deciding whether Dr Vickers was immune from suit due to his role as a witness, and if Dr Borody's claim under the Australian Consumer Law (ACL) had any reasonable prospect of success. The court also needed to determine if Dr Vickers' conduct fell within the scope of "in trade or commerce" as required by section 18 of the ACL.
The court's reasoning was grounded in the principle of witness immunity, which is an absolute privilege that precludes a disappointed litigant from suing a witness for actions taken in court. This principle extends to preparatory steps taken by the witness. The court found that Dr Vickers was protected by this immunity as he was acting in his capacity as an expert witness. Additionally, the court found that Dr Vickers' conduct did not occur "in trade or commerce" as required by section 18 of the ACL, given that he was an individual and not a corporation. The court also highlighted that the claim lacked sufficient material facts to engage the ACL.
The court concluded that Dr Borody had no reasonable prospect of successfully prosecuting the proceedings. Therefore, the court dismissed the proceedings summarily under section 31A(2) of the Federal Court of Australia Act 1976 (Cth). The final orders of the court included the summary dismissal of the proceedings and an order for Dr Borody to pay Dr Vickers' costs.
The court's reasoning was grounded in the principle of witness immunity, which is an absolute privilege that precludes a disappointed litigant from suing a witness for actions taken in court. This principle extends to preparatory steps taken by the witness. The court found that Dr Vickers was protected by this immunity as he was acting in his capacity as an expert witness. Additionally, the court found that Dr Vickers' conduct did not occur "in trade or commerce" as required by section 18 of the ACL, given that he was an individual and not a corporation. The court also highlighted that the claim lacked sufficient material facts to engage the ACL.
The court concluded that Dr Borody had no reasonable prospect of successfully prosecuting the proceedings. Therefore, the court dismissed the proceedings summarily under section 31A(2) of the Federal Court of Australia Act 1976 (Cth). The final orders of the court included the summary dismissal of the proceedings and an order for Dr Borody to pay Dr Vickers' costs.
Orders
Orders of the court
1. The proceedings are summarily dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).
2. The applicant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
A third issue is that the claim as presently pleaded does not contain sufficient material facts to engage the operation of the ACL given that Dr Vickers is an individual, not a corporation – see: ss 6, 131(1) of the CCA. It is likely that this third issue could have been cured by an amendment and the parties were content to proceed on the basis of the first two issues being resolved on this application.BACKGROUND Dr Borody and Dr Vickers are both gastroenterologists. Dr Borody is the founder and medical director of the Centre for Digestive Diseases in Sydney. Before commencing the District Court proceedings, Ms X’s lawyers wrote to Dr Vickers. The letter included:Dear Dr Vickers,Our client: [Ms X]We act for Ms [X] in a medical negligence claim for a damages arising out of the treatment that she received at The Centre of Digestive Diseases from 20 November 2015 up to the time of her hospital admission to Royal North Shore Hospital on 23 October 2017.Thank you for agreeing to prepare a report in this matter on the issues of breach of duty of care and causation.…InstructionsWe would be grateful if you prepare a report in response to the following questions based on your training, study and experience:…Expert witness code of conductIn your report, kindly include a statement that you have read, agree to be bound by and understand the Expert Witness Code of Conduct. A simple “form of words” to use is: “I have read the Expert Witness Code of Conduct within the said rules and agree to be bound by it”.Should you require a copy of the Expert Witness Code of Conduct kindly let us know.It is vital that you expose the reasons for your opinions and cite the basis for them, including relevant clinical experience and medical literature.… The District Court proceedings were commenced on 25 June 2019. The Vickers Report was filed with the Statement of Claim, as an “Expert Report”. The Vickers Report referred to the letter of instructions, set out the background facts and then continued: For the purposes of background and information for the Court I provide elementary information on the subject in question. The report then provided background information under the following headings: “clostridioida difficile infection”, “constipation dominant irritable bowel syndrome”, “vancomycin”, “colchicine” and “dipentum (olsalazine)”. The report then answered the questions which had been posed in the letter of instruction. The letter was signed by Dr Vickers and, underneath his signature, the following acknowledgement was given:The author acknowledges the rules for Expert Witness statements under the Uniform Procedure Rules. The Vickers Report was filed as an expert report accompanying the Statement of Claim to meet the requirement of r 31.36(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which requires a person commencing a professional negligence claim of the relevant kind to file and serve, with the statement of claim, an expert’s report that includes an opinion supporting breach of duty of care, damage and causation. Rule 31.36 includes:31.36 Service of experts’ reports in professional negligence claims(1)Unless the court orders otherwise, a person commencing a professional negligence claim (other than a claim against a legal practitioner) must file and serve, with the statement of claim commencing the professional negligence claim, an expert’s report that includes an opinion supporting—(a)the breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and(b)the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and(c)the causal relationship alleged between such breach of duty or obligation and the damage alleged.…(3) If a party fails to comply with subrule (1) or (2), the court may by order made on the application of a party or of its own motion dismiss the whole or any part of the proceedings, as may be appropriate.(4) Without limiting subrule (1) or (2), the court may, on the application of any of the parties, give directions as to the expert evidence to be adduced at trial.(5) Directions under subrule (4) may be sought at any directions hearing or case management conference or by notice of motion.(6) Unless the court otherwise orders, no party may adduce any expert evidence at trial unless the evidence—(a) has been filed and served under subrule (1) or (2), or(b) has been served pursuant to directions given under subrule (4).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Rule 26.01(1) of the Federal Court Rules 2011 (Cth) includes:26.01 Summary judgment(1)A party may apply to the Court for an order that judgment be given against another party because:(a)the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or … The principles regarding the scope and operation of s 31A of the FCA Act are well known: see Spencer v Commonwealth (2010) 241 CLR 118 at [17]-[26], [58]-[60]; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [5]-[6]; Richards v Han [2020] FCA 1886 at [46]-[57]. In Spencer, French CJ and Gummow J stated at [25]: Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. … Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success. If it is clear that Dr Borody’s case has no reasonable prospect of success by reason of the application of the principles concerning witness immunity it would follow that the proceedings should be dismissed summarily, as it would if the conclusion were that there was no reasonable prospect of success because any representation was not made in trade or commerce: s 31A(2).WITNESS IMMUNITY The witness immunity principle was explained by Gleeson CJ, Gummow, Hayne and Heydon JJ in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 (a case concerned with advocate’s immunity) at [39] (citations omitted):From as early as the sixteenth century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps. That the immunity must be pleaded as a defence makes it nonetheless an immunity from suit. As the whole Court said in Lange v Australian Broadcasting Corporation [(1997) 189 CLR 520 at 565]:The result [of the defence] is to confer upon defendants, who choose to plead and establish an appropriate defence, an immunity to action brought against them.
Ratio Decidendi
Legal Principle Established
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