Downie and Westmore v Tasmanian Eye Clinic Pty Ltd and Wise

[1999] TASSC 121

[1999] TASSC 121

CITATION:              Downie and Westmore v Tasmanian Eye Clinic Pty Ltd and Wise [1999]      TASSC 121

PARTIES:  DOWNIE, Andrew

WESTMORE, Rodney
v

TASMANIAN EYE CLINIC PTY LTD
  WISE, Gordon Michael

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 34/1998
DELIVERED ON:  10 November 1999
DELIVERED AT:  Hobart
HEARING DATE:  19 August 1999
JUDGMENT OF:  Cox CJ, Wright J, Evans J

CATCHWORDS:

Defamation - Statements amounting to defamation - Particular statements - Injury to reputation in business, profession, trade or calling - Whether publication contained imputations.

Bowes v Fehlberg & Ors 43/1998, followed.
Aust Digest Defamation [8]

REPRESENTATION:

Counsel:
           Appellant:  S Littlemore QC
           Respondent:  S J Holt
Solicitors:
           Appellant:  Archer Bushby
           Respondent:  Murdoch Clarke

Judgment  Number:  [1999] TASSC 121
Number of paragraphs:  15

Serial No 121/1999
File No FCA 34/1998

ANDREW DOWNIE and RODNEY WESTMORE v
TASMANIAN EYE CLINIC PTY LTD and GORDON MICHAEL WISE

REASONS FOR JUDGMENT  FULL COURT

COX CJ
WRIGHT J
EVANS J (Dissenting)
10 November 1999

Orders of the Court

1. That the appeal be allowed.

1. That the order made by Crawford J on 15 April 1999, be set aside.

1. That par3(b) and (c) of the appellants' statement of claim dated 14 January 1999, be struck out.

Serial No 121/1999
File No FCA 34/1998

ANDREW DOWNIE and RODNEY WESTMORE v
TASMANIAN EYE CLINIC PTY LTD and GORDON MICHAEL WISE

REASONS FOR JUDGMENT  FULL COURT

COX CJ
10 November 1999

1. I agree with the Reasons for Judgment prepared by Wright J which I have had the advantage of perusing.  While the extolling of the virtues of one provider of a service or technique without extolling the virtues of another cannot alone amount to the making of a defamatory statement concerning the other, the whole content of the letter must be looked at.  Given that, for the purposes of the present exercise, it must be assumed that the plaintiffs were the only ophthalmologists carrying out Excimer laser treatment in Tasmania, were well known within the medical profession of Tasmania at the time of publication and only recently before the publication had been actively soliciting referrals for such treatment from other ophthalmologists in Tasmania, this was not merely a case of omitting to extol their virtues but could be seen by the persons to whom publication was made as a case of actively contrasting the virtues of those recommended with an absence of such virtues in the plaintiffs.  Included in the letter complained of was the assertion that the defendants had "carefully studied the facilities and practitioners involved in both PRK and Lasik treatments" and recommended either of two clinics in Melbourne depending upon which procedure needed to be performed, the recommendations being based on the fact that the clinics in question had a combination of first class, up-to-date equipment and the most experienced people in these specialities.  The claim to have assessed the facilities and practitioners involved included an assertion that the plaintiffs as the only practitioners in Tasmania using the technique had been included among those assessed.  In my opinion, it would be open to a jury to form the view that the plaintiffs, in contrast with those recommended, lacked the necessary equipment and skills to use the technique properly and should not therefore be used.  The other claimed imputation that the plaintiffs are not reputable practitioners of laser eye surgery, while more borderline, is still capable of being sustained.  The plaintiffs should not be denied summarily the opportunity to persuade the fact finder on trial that either imputation has been made by the defendants.

   File No FCA 34/1998

ANDREW DOWNIE and RODNEY WESTMORE v
TASMANIAN EYE CLINIC PTY LTD and GORDON MICHAEL WISE

REASONS FOR JUDGMENT  FULL COURT

WRIGHT J
10 November 1999

1. I should preface my reasons for judgment by saying that, like Crawford J, I have considerable misgivings about the use of the Rules of Court, O28 as an appropriate vehicle to achieve a final outcome in a case such as this.  One problem is that O28, r2 provides that it shall be obligatory upon a judge, if all parties consent, to dispose of a point of law raised in the pleadings in the manner described.  It would have been much more appropriate, I think, for a special case to be stated under O36 in which circumstance, the Court would have retained more control of the procedure to be adopted.  Furthermore, it may be presumed the facts upon which the Court's determination of the point of law in question depend would normally be more appropriately expressed in a "special case" document than they may be in a pleading.  These comments, however, are by the way and are merely prompted by my perception that the misgivings expressed by Crawford J at 1 of his reasons as to the use of O28, should be endorsed by this Court.

1. I propose to uphold this appeal, but I do so with some reluctance, because the only point upon which I think it succeeds, or is capable of succeeding, although contained broadly in the sole ground of appeal, was not canvassed directly in either the written or oral submissions presented by counsel for the appellants.  In his reasons at 3, Crawford J referred to the particulars of identification pleaded in par2 of the statement of claim.  Paragraph 2(a) alleges that:

"(a)The plaintiffs are and were at all material times the only ophthalmologists carrying out Excimer laser eye treatment in Tasmania;"

1. His Honour then discussed the assumptions which he regarded as being open to him, or obligatory upon him, to make for the purposes of deciding the question of law before the Court.  I am of opinion that his Honour was correct in making most of the assumptions which he did, and in limiting those assumptions in the way which he described.  However, at 4 he said this:

"I will also assume that the reference to 'the facilities and practitioners involved in both PRK and Lasik treatments' was a reference to a class of ophthalmologists, in Tasmania and outside Tasmania, and that the plaintiffs were members of that class.  The number of ophthalmologists in that class is unknown.  It could be considerable, I do not know."

In my opinion, this assumption would have been perfectly justified if the alleged defamatory letter were the sole source of information available to the Court.  However, in my opinion, his Honour had additional material to which he should have referred.  His Honour should have borne in mind par2(a) of the statement of claim and should have proceeded on the assumption that that allegation was true.  Had this assumption been made, that which his Honour made at 4 of his reasons, which I have quoted above, would have required modification.

1. Paragraph 2(e) of the statement of claim should also have been borne in mind.  It alleges that the facts alleged in par2(a) - (d) inclusive:

"… were well known within the medical profession of Tasmania at the time of publication … including those persons to whom the matter complained of was published."

Thus, it seems to me, that it must be assumed that the recipients of the allegedly defamatory letter would have known that the appellants were the only people carrying out the Excimer treatment in this State and that a few months previously they had been actively soliciting referrals for such treatment from other opthalmologists in Tasmania.  In such circumstances, it seems to me that the letter complained of, which may in other circumstances have been seen as an entirely innocuous puff for the appellants' business, could be seen by a properly instructed jury as having libellous connotations in respect of the respondents and their Excimer procedures. 

1. For his Honour to say as he did:

"However, to extol by words the virtues of one and not to extol the virtues of another, cannot alone amount to the making of a defamatory statement concerning the other"

is quite unexceptionable and is a proposition with which I would agree, but the all important word in this proposition is "alone".  In my opinion, read as a whole, the letter complained of in these proceedings is capable of bearing the imputations contained in par3(a) and (d) of the statement of claim.  Those imputations are as follows:

"(a)That they" [the appellants] "are of such inexperience in the provision of laser eye surgery that Tasmanian doctors should not refer their patients to them for treatment;

…

(d)That they" [the appellants] "are not reputable practitioners of laser eye surgery."

1. I think the imputations alleged in respect of par3(b) and (c) of the statement of claim are not capable of being sustained.  In expressing these views, I should not be seen as supporting Mr Littlemore QC's submission that the Court should look to see if any other imputations may be found in the letter whether or not such alternative imputations have been formulated by the appellants or their solicitors.  In the first place, the sole ground of appeal is:

"1   That the learned judge erred in law in holding that the matter complained of was incapable of giving rise to the defamatory meanings pleaded."

1. In the course of his reply, Mr Littlemore suggested that it may be necessary to expand this ground and he foreshadowed a possible amendment, but he did not formally make any application to amend and, in my view, the ground of appeal must stand or fall in its present terms.  In the second place, I adhere to what I said at 4 of my judgment in Bowes v Fehlberg & Ors 43/1998:

"Imputations which are to be relied on must be alleged with specificity and precision (Astaire v Campling [1966] 1 WLR 34; Hadzel v De Waldorf (1970) 16 FLR 174 at 179 and 182-183; Australian Consolidated Press v Rogers [1971] 1 NSWLR 682 and Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 154-155)."

It is for a plaintiff to formulate the imputations upon which he relies.  I should also make it plain that I do not support Mr Littlemore's criticisms of the learned judge's formulation of the appropriate legal test for determining whether or not alleged imputations are capable of being sustained.  However, it is unnecessary to discuss this aspect of the appeal further. 

1. In my opinion, the orders of the Court should be as follows:

1    That the appeal be allowed.

2    That the order made by Crawford J on 15 April 1999, be set aside.

3    That par3(b) and (c) of the appellants' statement of claim dated 14 January 1999, be struck out.

File No FCA 34/1998

ANDREW DOWNIE and RODNEY WESTMORE v
TASMANIAN EYE CLINICS PTY LTD and GORDON MICHAEL WISE

REASONS FOR JUDGMENT  FULL COURT

EVANS J
10 November 1999

1. All matters relevant to this appeal are set out in the decision to which it relates; Downie & Westmore v Tasmanian Eye Clinics Pty Ltd & Wise [1999] TASSC 42. I will not repeat them.

1. The issue before the learned trial judge was whether the publication could bear any of the defamatory meanings particularised in the statement of claim.  As to that issue, his Honour encapsulated the applicable law in the following passage:

   "When a court considers the question of law whether a publication is capable of bearing the defamatory meanings which are alleged, 'the test … is whether under the circumstances in which the writing was published, reasonable men to whom the publication was made would be likely to understand it in a libellous sense'. Capital and Counties Bank v George Henty & Sons (1882) 7 App Cas 741 at 745. The ordinary and natural meaning may include any implication or inference which a reasonable reader would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury to hold that reasonable persons would understand the words complained of in a defamatory sense. Jones v Skelton (1963) 63 SR(NSW) 644 at 650.

   'I must reject any strained, or forced, or utterly unreasonable interpretation: Jones v Skelton (1963) 63 SR(NSW) 644 at 650. I must proceed upon the basis that the ordinary reasonable reader is a person of fair average intelligence: Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7; who is neither perverse: ibid; nor morbid or suspicious of mind: Keogh v Incorporated Dental Hospital of Ireland (1910) 2 Ir R 577 at 586; nor avid for scandal: Lewis v Daily Telegraph Ltd [1963] 1 QB 340 at 374.'

   Farquhar v Bottom [1980] 2 NSWLR 380 at 385, 386. The principles are conveniently summarised in that case and also in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165, 166."

2. His Honour, quite correctly, referred to the assessment of the understanding of a reasonable reader as being an assessment of what that reader's understanding would be.  Focusing on his Honour's use of the word "would", the appellants submit that his Honour has applied the wrong test for determining whether the asserted imputations could be established.  This submission is misconceived.  The test is whether a jury, properly instructed in the law, could have found that the publication was defamatory; Bik v Mirror Newspapers Ltd (1979) 2 NSWLR 663 and Naxakis v Western General Hospital & Anor [1999] HCA 22, McHugh J at par39 and Kirby J at par58. Expressed more fully, the test is whether a jury properly instructed in the law could have found that a reasonable reader would understand the publication to contain any of the particularised imputations.  His Honour correctly dealt with the particularised imputations in a manner consistent with that test.  He did not determine the matter on the basis of what he considered a jury would find.  He addressed what could be found and having satisfied himself that the defamatory imputations alleged could not be established, he dismissed the action.

1. I turn to the defamatory imputations the appellants contend arise from the publication. Whilst no express reference is made to the appellants in the publication, it does relate to them as it deals with Excimer laser eye treatment and the appellants are the only opthamologists in Tasmania who offer that treatment.  The publication refers to confusing publicity and information disseminated in the media and from some colleagues both for and against Excimer laser treatment.  The two main forms of Excimer laser treatment are PRK and Lasik.  The treatment is available throughout Australia and overseas.  The publication extols the treatment as being "extremely successful and very safe when performed by experienced surgeons using the most up-to-date equipment", and recommends treatment by two Melbourne-based clinics.  Relevant extracts from the publication are:

·   "Some of our partners have attended training sessions overseas in the techniques used and we have been actively engaged in referring to reputable mainland practitioners, patients that we thought had a high probability of being successfully treated for their myopia and astigmatism.

…

·   At Tasmanian Eye Clinics, we have carefully studied the facilities and practitioners involved in both PRK and Lasik treatments.  After assessing each patient carefully we recommend the use of one of two Melbourne-based clinics depending on which procedure needs to be performed.  These recommendations are based on the Clinics that have a combination of first class up-to-date equipment and the most experienced people in these specialities."

1. Although the publication makes no direct reference to the appellants, insofar as it recommends two Melbourne providers of Excimer treatment, it could have a negative impact on the business of the appellants as well as the business of any other Australian providers of the treatment who might be utilised by Tasmanians. An objective of an advertisement or promotion on behalf of a provider of goods or services is to increase that provider's business.  An inevitable consequence of such an advertisement is that it may cause the businesses of rival providers to suffer.  The publication of an advertisement does not, without more, defame rival providers.  To defame a rival provider, the advertisement must contain a defamatory imputation concerning the rival.  I am not satisfied that the publication under consideration contains any defamatory imputations concerning those who provide treatment in competition with the Melbourne clinics referred to and this includes the appellants.  The corollary to favourable comments in the publication concerning the recommended providers is not unfavourable comments concerning the appellants.  To say that the recommended providers are reputable, experienced and use up-to-date equipment is not to say that rival providers, specifically the appellants, are disreputable, inexperienced or use obsolete equipment.  I agree with the reasons given by the learned primary judge for concluding that the publication is not capable of bearing the defamatory imputations alleged by the appellants.  I would dismiss the appeal.