Gill v Eatts

[1999] NSWSC 1056

Reported Decision: [1999] Aust Torts Reports 81-529

New South Wales

Supreme Court

CITATION:

Gill v Eatts & Anor: Gill v ABC & 2 Ors [1999] NSWSC 1056

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

19472 of 1986; 29126 of 1986

HEARING DATE(S):

4 September 1998

JUDGMENT DATE:

27 October 1999

PARTIES :

JOHN EWAN MacDONALD GILL
(Plaintiff)

v

TONI EATTS
(First Defendant)

NATIONWIDE NEWS PTY LIMITED
(Second Defendant)

JOHN EWAN MacDONALD GILL
(Plaintiff

v

AUSTRALIAN BROADCASTING CORPORATION
(First Defendant)

MARCIA NAST
(Second Defendant)

RODERICK McEWIN
(Third Defendant)

JUDGMENT OF:

Levine J

COUNSEL :

S Littlemore Q.C.
J Gibson
(Plaintiff)

W H Nicholas Q.C.
T Hale
(First & Second Defendant - 19472/86)

M Sexton
(First Defendant - 29126/86)

M Lynch
(Second Defendant - 29126/86)

SOLICITORS:

Foulsham & Geddes
(Plaintiff)

Cropper Parkhill
(First & Second Defendants - 19472/86)

Judith Walker
(First Defendant - 21926/86)

T A Murphy
Legal Aid Commission of NSW
(Second Defendant - 21926/86)

Blake Dawson Waldron
(Third Defendant - 29126/86)

CATCHWORDS:

Applications to dismiss actions for want of prosecution

DECISION:

See paragraphs 76, 77 & 78

DLJ: 1

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

No. 19472 of 1986
No. 29126 of 1986

JUSTICE DAVID LEVINE

WEDNESDAY 27 OCTOBER 1999

JOHN EWAN MacDONALD GILL
(Plaintiff)

v

TONI EATTS
(First Defendant)

NATONWIDE NEWS PTY LIMITED
(Second Defendant)

JOHN EWAN MacDONALD GILL
(Plaintiff)

v

AUSTRALIAN BROADCASTING CORPORATION
(First Defendant)

MARCIA NAST
(Second Defendant)

RODERICK McEWIN
(Third Defendant)

JUDGMENT (Applications to dismiss actions for want of prosecution)

Gill v Eatts & Nationwide News Pty Limited (19472/86)

1    The applicants seek the dismissal of the plaintiff’s action for want of prosecution. The plaintiff’s action for defamation was instituted on 26 September 1986 by the filing on that date of a Statement of Claim. It relates to a publication in The Weekend Australian published on 24-25 May 1986. The evidence upon which the applicants rely is constituted by two affidavits of the applicants’ solicitors, P J Campion, sworn 26 June 1998, 1 September 1998; Exhibit A being an affidavit of Claire Alice Birabello sworn on 23 January 1992; that affidavit was filed on behalf of the plaintiff in an action brought by him in the Administrative Law Division against the Department of Public Prosecutions which ultimately was successful in having stayed certain criminal proceedings sought to be instituted against the plaintiff. The Court of Appeal dismissed the DPP’s appeal from the Orders made by Allen J on 2 October 1992. Exhibit B is constituted by Volumes II and IV of the Report of “Royal Commission into Deep Sleep Therapy”. Exhibit C is a letter from the Registry of this Court dated 22 April 1998 to be solicitors for the plaintiff advising of a callover on 7 May 1998 of “dormant” causes in which this action was listed. 2    Evidence for the plaintiff in opposition to the Motion was constituted by an affidavit of D. A. G. Geddes sworn 6 May 1998 (solicitor for the plaintiff) and an affidavit of the plaintiff sworn 24 June 1998. The plaintiff was cross-examined. 3    The article complained of was concerned with allegations as to the conduct of a number of doctors (including the plaintiff) whilst at Chelmsford Private Hospital. In particular the article stated “an inquest into Podio’s death found a prima facie of criminal negligence against Dr Bailey and Dr Herron and psychiatrist Dr Ian Donald Russell Gardiner who both gave Podio shock treatment and a Director of Chelmsford, General Practitioner, Dr john Ewan MacDonald Gill, who also attended Podio”. 4    The original Statement of Claim pleaded five imputations arising from the whole of the article written by the first defendant (Eatts) and published by the second defendant (News). 5    From the material arising from the affidavits and other documents by way of submissions a chronology can be constructed as follows:

24 May 1986 Publication of article complained of

14 June 1986 Publication by defendants of apology: “ The Weekend Australian of 24 May stated that an inquest into the death of Miriam (sic) Podium (sic) had found a prima facie case of criminal negligence against John Ewan MacDonald Gill. There has never been a finding of a prima facie case of criminal negligence against Dr Gill at any inquest, tribunal, Court (either formal or informal) or of any kind. Any suggestion to the contrary is totally false. The Weekend Australian retracts any such suggestion and sincerely apologises to Dr Gill for the error”.

26 September 1986 Statement of Claim filed together with Notice of Motion for directions.

3 November 1986 Amended Statement of Claim filed.

4 November 1986 Notice of Appearance by News.

14 November 1986 Directions.

11 December 1986 Notice of Motion by News (re capacity).

6 February 1987 Plaintiff given leave to Amend Statement of Claim by Hunt J.

17 February 1987 Further Amended Statement of Claim filed by plaintiff pleading two imputations:

(a) that he had so misconducted himself as to warrant his being put on trial for criminal negligence in respect of the death of Miriam Podio.
(b) that he was a person who had a case to answer in respect of the death of Miriam Podio.


20 February 1987 Directions by Hunt J.

21 April 1987 Notice of Appearance for Eatts.

8 May 1987 Directions by Hunt J.

June 1987 Defence to Further Amended Statement of Claim.

30 September 1987 Second Defendant’s List of Documents.

1 October 1987 First Defendant’s List of Documents.

9 November 1987 Reply to Defence.

10 May 1988 Notice to answer interrogatories.

June 1988 Defendants answers to plaintiff’s interrogatories.

14 September 1988 Appointment of Royal Commission.

22 February 1989 Letter from plaintiff’s solicitors requesting re-relisting of the matter to have it stood out of the List pending the outcome of the Royal Commission.

17 March 1989 Matter stood over generally with liberty to apply.

March 1990 Royal Commission hearings end.

17 October 1990 Plaintiff’s solicitors to defendants solicitors re discovery and dispensing with the formalities thereof in relation to Royal Commission documents.

17 December 1990 Royal Commission report issues.

12 July 1991 Follow-up letter from plaintiff’s solicitors to defendants solicitors.

30 July 1991 Defendants solicitors to plaintiff’s advising, inter alia , of attempts to contact to Eatts in relation to any documents in her possession and advising that News had had no access to her documents in the Royal Commission.

28 August 1991 Defendants solicitors to plaintiff’s solicitors advising that neither Eatts nor News were represented during the course of the Royal Commission though the former had been subpoenaed to produce documents. News did not have access to material produced in the Commission. It is stated that only the plaintiff “ should discover the additional material in his possession and control” .

17 April 1998 Matter listed for call-over on 7 May 1998.

27 April 1998 Notice of change of address for service by plaintiff.

6 May 1998 Affidavit of plaintiff’s solicitor re delay.

7 May 1998 Stood over by Levine J to a date to be fixed.

29 May 1998 Stood over to Defamation List on 26 June 1998 with Directions as to any Notice of Motion for dismissal for want of prosecution.

23 June 1998 Notice of Motion by defendants filed.

4September 1998 Applications heard.

6    At this point several salient matters are to be noted: first, until the Royal Commission was foreshadowed the action in the Defamation List had been proceeding unremarkably. Secondly, upon the Royal Commission being announced the plaintiff made a conscious decision not to prosecute the defamation action and had it stood out of the List. With propriety the defendants and of course the Court were notified. Thirdly, prior to the publication of the Report of the Royal Commission the plaintiff’s solicitors in the letter dated 17 October 1990 indicated their client’s intention to bring the matter on for hearing. Thereafter there was the exchange of correspondence to which I have referred and which is annexed to Mr Geddes affidavit of 6 May 1998. That correspondence indicates “activity” between the solicitors for the parties up until August 1991, that is, some nine months after the issue of the Report of the Royal Commission. On its face what appears to have triggered the “revival” of activity in this action was the listing of the action in the Dormant Causes List on 7 May (see Exhibit C). 7    Thus, there is the gap between 28 August 1991 and 22 April 1998 - 6 years and 8 months. 8    What was the position of the defendants during this period? 9    In his affidavit of 22 June 1998 Mr Campion solicitor for the defendants (he was not cross-examined), deals with the last exchange of correspondence to which I have referred. He deposes to the plaintiff not responding to his letter of 28 August 1991 and his subsequent forming the view that the matter would not proceed. He closed the file and put it into storage and did not pursue the question of discovery. Mr Campion also deposes to having sought to locate the first defendant (Eatts) upon the notification of the re-listing of the matter in May 1998. He has been unable to contact her and does not know her present whereabouts. 10    In paragraph 12 of his affidavit Mr Campion deposes to the effect that during the course of the proceedings of the Royal Commission evidence was revealed which “made available to the defendant defences under sections 15 and 16 of the Defamation Act 1974”. I understand from that paragraph that that “evidence at that time” made available those defences to his clients. He goes on to say that such evidence would have “established the truth of the following imputations:

(1) that the plaintiff, as a medical practitioner, had so conducted himself in relation to the treatment of patients at Chelmsford Hospital that he ought to be suspended or de-registered as a medical practitioner;
(2) the plaintiff was so involved in the death of Miriam Podio that he ought to be suspended or de-registered from medical practice;
(3) that there was sufficient evidence concerning the plaintiff’s role as a medical practitioner in the death of a patient to warrant him being charged with criminal negligence”.

11    Mr Campion deposes to the Royal Commission making findings concerning the plaintiff’s involvement in the death of Miriam Podio and John Adams in 1977. He then goes on to say (paragraph 14):

“Had the plaintiff revived the claim in 1991 it may have been possible for the second defendant to have access to and to preserve that evidence in support of its case at any trial”.

12    This statement is a little curious. As at “1991”, certainly up until 28 August, it cannot be said that the plaintiff had abandoned the action. Arguably it was open to the defendant then, to seek to amend its Defence to plead these contextual imputations. As I understand the defendants’ position in this application it is that by reason of the six year plus delay and the events occurring in excess of 20 years ago, the defendant is prejudiced in terms of its access to documents at the very least. This position of the defendants is reinforced in submissions by reliance upon the affidavit sworn on 23 July 1992, (that is, less than one year after there was still some activity between the parties in the defamation action), of Ms Mirabello in the plaintiff’s stay application against the Department of Public Prosecutions which stay application was successful in the light of evidence contained in paragraphs 112 and 113 of Ms Mirabello’s affidavit as to the actual prejudice suffered by the plaintiff in 1992 in what I consider to be the same areas of the proposed contextual imputations the defendants raised in 1998 as having been available to be proved by evidence in 1991. This paradoxical situation is relevant, in my view, to both fault, if any, on the part of the defendants’ and the discrete question of prejudice itself. 13    In his affidavit of 1 September 1998 Mr Campion deposes to inquiries being made of the Nurses Registration Board of this State as to then current whereabouts of nurses who appear from various records to have attended Ms Podio during the period 28 July 1977 to 12 August 1977. A letter from the Board is annexed to the affidavit which appears to indicate that of the thirteen nominated nurses as at August 1998 six only are recorded as still being registered and in respect of two of whom there is some doubt as to identity. 14    In his first affidavit Mr Campion refers to certain adverse findings recorded by the Royal Commission against the plaintiff and widespread publicity attending such findings during 1990 and 1991. This, as I understand it, is tendered as evidence to found the belief in the defendants’ that after August 1991 the plaintiff no longer wanted to prosecute the claim. It is asserted that as a consequence the defendants’ have lost the opportunity of access to evidence which would enable it to defend a claim or to enable a fair trial. 15    What was the plaintiff’s position during this six year plus gap, by reference to the affidavits? (I shall refer to his oral evidence below). 16    The affidavit seeks to show Dr Gill to have been very busy indeed. The progress of the defamation action has been referred to above. From his affidavit sworn on 24 June 1998 it appears the following events impinged upon Dr Gill’s life. The Royal Commission report was delivered on 24 December 1990. In or about March 1991 the plaintiff was the subject of a complaint to the Medical Tribunal in relation to a Ms Adams. In the same month he received notification from the Office of the Director of Public Prosecutions that he was to face charges and additionally, a further complaint was lodged against him in the Medical Tribunal in April. 17    On 21 June a summons was filed in the Court of Appeal seeking a stay of the Medical Tribunal complaints; a judgment was delivered on 19 November 1991 in the plaintiff’s favour. 18    In or about February 1992 eight or ten civil claims were instituted against Dr Gill. 19    On 16 April 1992 two informations were laid against him by the DPP. Allen J stayed these informations on 2 October 1992, that stay was affirmed by the Court of Appeal in March 1993 and by the High Court in April 1993. 20    The final judgment of the Court of Appeal permanently staying the criminal proceedings was given on Thursday 20 May 1993. 21    In June 1993 the solicitor for the DPP advised the plaintiff that no further action relating to criminal matters was to be taken. Thus by June 1993 both criminal and disciplinary proceedings were at an end. Between March 1991 and June 1993 Dr Gill stated that he was totally preoccupied and involved in defending himself in relation to both the disciplinary and criminal proceedings. His legal advisers advised him not to take any further steps in relation to any “other” proceedings whilst those matters were on foot. 22    In August 1993 approximately 100 civil actions were commenced in this Court in about 60 of which the plaintiff was a defendant. Annexed to the affidavit is a schedule of these proceedings. 23    Dr Gill swore that prior to August 1993 he had sought advice about continuing the defamation proceedings but before any steps could be taken he was as-it-were inundated with the civil litigation. 24    Dr Gill then deposes to various procedural steps taken by him during the course of the progress of this civil litigation in which he was not the sole defendant and in which, as I understand it, conflicts arose as between defendants. From December 1994 steps were taken by Dr Gill as defendant to have the civil proceedings against him disposed of. This appears to have been achieved with a remarkable degree of success to the point that the only outstanding matter at the time of the hearing of this present application was a matter in respect of which there was a Limitation Act application to be heard in the District Court. 25    He deposes to press coverage of the Royal Commission and steps taken after the Royal Commission by the Department of Health seeking to restrict his involvement in other investments which has lead, I gather, to further litigation. 26    He states that at no stage since 1989 has any defendant in the proceedings sought to have the matter re-listed or sought to bring the matter on for hearing or have written to the plaintiff requesting that the matter be resolved or be listed for hearing. Obviously of course at no stage since at least 1991 has the plaintiff taken any such step either. 27    He refers to Mr Campion’s deposing to certain findings of the Royal Commission and in paragraph 51 of his affidavit Dr Gill states that the findings of the Royal Commission and the evidence involved in those proceedings are matters about which the defendant can seek admissions by way of Notice to Admit or by way of interrogatories. He then goes on to say “the only person who could be prejudiced by those proceedings or by the existence of the Royal Commission findings will be any person seeking to disprove those findings”. This is a curious sentence. One construction of it is that the plaintiff, Dr Gill, would be prejudiced by seeking to disprove the adverse findings of the Royal Commission by reason of the very matters of prejudice upon which he relied in 1992, presumably, for example. I frankly do not quite understand what the plaintiff is driving at in this sentence. Whether it can be taken that he would not dispute the findings of Royal Commission is uncertain. 28    Annexed to the plaintiff’s affidavit is a communication with the Archives Authority of New South Wales but no response thereto other than by the plaintiff deposing to receiving information that whilst the Archives Authority holds the documents a “listing cannot be made available … due to the provision of the Privacy Act”. It is stated that nonetheless apparently, during the course of the other civil proceedings Royal Commission documents were the subject of subpoenas. 29    In paragraph 42 of his affidavit Dr Gill explains significantly that the reason for the sending of the letter in February 1989 to have the matter removed from the Defamation List was it the then anticipation that the hearing of the defamation actions would clash with the hearing of the Royal Commission and the prosecutions said to be under way. 30    This in general outline is the position of the parties on the affidavit evidence in this action. I shall refer to the significant oral evidence arising from the cross-examination of Dr Gill in due course.

Gill v Australian Broadcasting Corporation, Nast & McEwin (21926/86)

31    The Further Amended Statement of Claim (amended by consent) filed in June 1987 is structured in this way: the first defendant (ABC) is sued in respect of a series of broadcasts from 26 October 1985 to 31 November 1985. Six imputations are pleaded. 32    The second defendant (Nast) and the third defendant (McEwin) are sued as publishers of the words attributed to them to the ABC and as being responsible for the re-publication by the ABC. The plaintiff allocates to the second and third defendants various of the imputations pleaded globally against the ABC. It is to be noted that in respect of the second defendant there is no material in the schedule in the Second Further Amended Statement of Claim identifying her as to the person to whom particular words were attributed. She may be the former matron to whom reference is made; in her defence she makes no admission as to the publication of the words but the denies intention of further publication by the ABC. This is a technical defect in the plaintiff’s pleading that I merely mention in passing. 33    A chronology appears to be as follows:

October - November 1985 Publication of the matter complained of.

3 December 1986 Statement of Claim together with Notice of Motion for directions.

17 February 1987 Amended Statement of Claim filed.

June 1987 Further Amended Statement of Claim.

August 1987 First defendant’s Defence.

11 September 1987 Directions.

30 September 1987 Third defendant’s Defence.

10 November 1987 Reply’s to filed Defences.

18 December 1987 Plaintiff’s List of Documents.

8 January 1988 Third defendant’s List of Documents.

28 March 1988 Plaintiff’s Amended List of Documents.

9 May 1988 Plaintiff serves interrogatories.

7 September 1988 Second defendant’s List of Documents.

34    Thereafter there follows the course of the history involving the appointment and hearing of the Royal Commission and notice given by the plaintiff to the defendants of his intention to stand the defamation matter out of the List generally. 35    Each of the defendants (separately represented) moves the Court that the proceedings be struck out for want of prosecution. 36    For the ABC an affidavit was sworn on 28 June 1998 by Ms Judith Walker, solicitor. She sets out the chronology referred to above and deposes to having examined copies of hospital notes covering the treatment of Ms Podio at Chelmsford for the period July - August 1977. Dr Bailey is now deceased, he was the treating psychiatrist and the notes also indicated treatment by Doctors Herron, Gardiner and Gill. Nursing staff are identified as having assisted in the treatment of Ms Podio with the second defendant (not presently in Australia) and there is other named persons. Ms Walker has made inquiries of the Nurses Registration Board of the ten nurses of which three only were registered in 1998, three of whom have addresses in 1986, 1987 and 1982. 37    This defendant states that if the action is to proceed it will seek leave to amend the Defence by pleading a series of contextual imputations as follows:

“(i) The plaintiff’s conduct as a medical practitioner at the Chelmsford Private Hospital had been such as to result in the bringing of proceedings against the plaintiff by the NSW Department of Health before an Investigating Committee established under the Medical Practitioners Act , 1938.
(ii) The plaintiff administered deep sleep therapy to patients at Chelmsford Private Hospital in circumstances where the plaintiff knew that this treatment was highly dangerous.
(iii) The plaintiff administered deep sleep therapy to patients at Chelmsford Private Hospital in circumstances where the plaintiff ought too have known that this treatment was highly dangerous.
(iv) The plaintiff allowed the administration of deep sleep therapy to patients at Chelmsford Private Hospital in circumstances where the plaintiff knew that this treatment was highly dangerous.
(v) The plaintiff allowed the administration of deep sleep therapy to patients at Chelmsford Private Hospital in circumstances where the plaintiff ought to have known that this treatment was highly dangerous”.

38    It is said that this gives rise potentially to issues at trial including the administration of deep sleep therapy over the period 1963 to 1979 and the circumstances surrounding the deaths of seventeen people. Presumably this is relied upon as an allegation of prejudice, insofar as it implies that, at such a time distance, the obtaining of evidence to support these further contextual imputations would be an onerous endeavour. It is arguably prejudice. It can be apprehended that the reason why this material is only now being sought to be introduced is the report of the Royal Commission. The position of the ABC is not dissimilar to that of News. If that be the case then the plaintiff can hardly be held to blame for the fact that the ABC finds it difficult to prove events from the late 60s and early 70s. The plaintiff can legitimately ask what further prejudice has been occasioned in the passage of time from 1990 when the report came out. The difference here of course is that there is no evidence to indicate that there was any inter parties activity at or after the time the Royal Commission report was issued, as was the case with News. 39    The ABC has defended the proceedings on the basis of a defence of s 15 in relation to 3 of the imputations and pleaded 4 contextual imputations in respect of which the contextual imputations set out would be sought to be in substitution. The originally pleaded contextual imputations are as follows:

“(a) related to matters of public interest and were published contextually to the following imputations:
The plaintiff’s conduct as a medical practitioner at the Chelmsford Private Hospital had been such as to result in the bringing of proceedings against the plaintiff in October 1985 and February, 1986 by the NSW Department of Health before an Investigating Committee established under the Medical Practitioners Act, 1938 in relation to the treatment of Miriam Podio and John Adams respectively.
(which was a matter of substantial truth and also related to matters of public interest) and by reason of the substantial truth of the said contextual imputation the said imputations in question did not further injure the reputation of the plaintiff;
(b) related to matters of public interest and were published contextually to the following imputation:
The plaintiff’s conduct as a medical practitioner at the Chelmsford Private Hospital had been such as to result in the bringing of proceedings against the plaintiff in October 1985 and February, 1986 by the NSW Department of Health before an Investigating Committee established under the Medical Practitioners Act, 1938 in relation to the treatment of Miriam Podio and John Adams respectively.
(which was a matter of substantial truth and published under qualified privilege) and by reason of the substantial truth of the said contextual imputation; the said imputations in question did not further inure the reputation of the plaintiff;
(c) were published under qualified privilege and contextually to the following imputation:
The plaintiff’s conduct as a medical practitioner at the Chelmsford Private Hospital had been such as to result in the bringing of proceedings against the plaintiff in October 1985 and February, 1986 by the NSW Department of Health before an Investigating Committee established under the Medical Practitioners Act, 1938 in relation to the treatment of Miriam Podio and John Adams respectively.
(which was a matter of substantial truth and related to matters of public interest) and by reason of the substantial truth of the said contextual imputation the said imputations in question did not further injure the reputation of the plaintiff;
(d) were published under qualified privilege and contextually to the following imputation:
The plaintiff’s conduct as a medical practitioner at the Chelmsford Private Hospital had been such as to result in the bringing of proceedings against the plaintiff in October 1985 and February, 1986 by the NSW Department of Health before an Investigating Committee established under the Medical Practitioners Act, 1938 in relation to the treatment of Miriam Podio and John Adams respectively.
(which was a matter of substantial truth and published under qualified privilege) and by reason of the substantial truth of the said contextual imputation the said imputations in question did not further injure the reputation of the plaintiff”.

40    The second defendant (represented by the Legal Aid Commission of New South Wales) is out of the country. An affidavit sworn 28 August 1998 by C N Grey, solicitor sets out a chronology relevant to his client and indicates that the last contact his office had had from the plaintiff’s solicitors was a letter dated 6 February 1991 dealing with discovery. That letter is not annexed. In any event, after the matter was restored to the List on 7 May 1998, a letter was sent to the second defendant’s last known address in Tasmania, no reply was received. A conversation with the second defendant’s daughter-in-law in May 1998 indicated that the second defendant was travelling overseas. A telephone conversation took place between the second defendant who was then in London and the deponent on 24 June 1998 in which he was instructed that she had resigned and had left Australia indefinitely and had obtained employment with a nursing agency in London, that it would cause her financial hardship to have to return to Australia for a hearing and she was not in contact with nor was she aware of the whereabouts of any of her colleagues from Chelmsford Hospital. 41    The third defendant, Dr Roderick McEwin was Chairman of the New South Wales Health Commission in the period 1975 to 1978 according to his affidavit sworn on 28 August 1998 at which time he was 77 years of age. He retired from the NSW Health Commission in 1982. The plaintiff alleges against the third defendant that the words attributed to him in the matter complained of convey the imputation that the plaintiff was “guilty of professional negligence in respect of the prescription of sedative drugs for patients at the Chelmsford Private Hospital”. 42    This imputation is in the Further Amended Statement of Claim filed in June 1987. The pleaded imputation was the subject of a judgment of Hunt J on 3 September 1987 in which his Honour allowed that imputation to go to the jury. By his Defence Dr McEwin justifies pursuant to s 15 and pleads contextual imputations pursuant to s 16 (see Defence of third defendant filed on 9 February 1988). Defences of qualified privilege have also been filed on behalf of this defendant and interrogatories answered especially in relation thereto. Dr McEwin is in the position of having justified prior to the findings of the Royal Commission and it is difficult at this point to see on his evidence what the particular prejudice is save for the passage of time. In his affidavit Dr McEwin refers to what I will simply call memory problems in relation to issues raised in the plaintiff’s Reply particularly in terms of the information he had at the time of the publication complained of and any inquiries he made. The position of the plaintiff in relation to Dr McEwin’s difficulties with memory is of course that on 1 November 1988 Dr McEwin was able to answer the interrogatories delivered by the plaintiff on these subjects. 43    The second defendant as I understand it has pleaded comment only, as a substantive defence. 44    Thus in relation to the three defendants, save as to the reference in the affidavit of the solicitor for the second defendant to some communication in relation to the discovery in 1991, it otherwise appears that these matters were ready to be set down after progressing through the Defamation List until the time came for the plaintiff to take the step to have the matter stood over generally by reason of the Royal Commission. 45    The “gap” of six years plus referred to in the News Limited matter is explained in this action in similar terms by Dr Gill in an affidavit sworn on 24 June 1998. This affidavit appears to be directed to the evidence filed in support of the application by the ABC. Again the plaintiff appears to be relying upon the existence of records of the Royal Commission and the examination of the Miriam Podio case. He again asserts that “the only person who could now be prejudiced by the existence of those findings (adverse to the plaintiff) will be a purpose seeking to disprove them” (paragraph 51). The same proposition is asserted in paragraph 57 with respect to the findings of the Royal Commission generally.

The Plaintiff’s Evidence

46    The plaintiff was cross-examined by Mr Sexton for the ABC and Mr Nicholas Q.C. for News. 47    I was unimpressed by Dr Gill as a witness. I did not and do not consider him to have been a witness of candour or reliability. 48    In relation to the history of the proceedings upon the conclusion of the disciplinary and criminal matters the following evidence was given:

“Q. At that stage in June 1993 with the end of the criminal and the disciplinary proceedings, what was your attitude in relation to this defamation action against the ABC?
A. Well, as set out in the affidavit in early 1989 I, on the advice of a solicitor, he had asked that it be set aside - sorry, not set aside, put on hold indefinitely or until a more opportune time.

Q. What I was asking was when the criminal and disciplinary proceedings came to a conclusion in June 1993 did you look forward to re-starting the action against the ABC?
A. At that stage I had some 60 or 70 or a large number of civil proceedings which were of great concern to me.

Q. Did you raise this matter with your solicitors?
A. I believe so, yes.

Q. As to whether the action against the ABC could be usefully re-started at that time?
A. I raised it, it was discussed as to what should be done about it. I took the advice I was given.

Q. I won't ask you what that advice was at the moment except to say, did you ask your solicitors whether it was possible to re-commence the proceedings against the ABC?
A. It would have been part of the discussion.

Q. When you say part of the discussion did you ask that question?
A. I cannot recall the nature of the discussion but the matter arose and it was decided to take the course I took. I cannot recall whether I asked the question or whether it was put to me or I was told.

Q. There is a period, you would see, from your own affidavit of two months at July/August 1993, between the cessation of the civil and criminal proceedings and, seemingly, the commencement of the civil proceedings, do you accept that?
A. There had been a number of civil proceedings commenced earlier than that. I am not sure if my affidavit made that clear and a number commenced as late as September 1993.

Q. Do I take it though from your affidavit in par 27, that at the end of August 1993 there was a large block of civil proceedings filed?
A. Yes.

Q. 100-odd and 60 of them with yourself named as a defendant?
A. Yes.

Q. What I was asking was whether in that two months of July/August 1993 you considered re-starting the defamation action against the ABC?
A. I think we have some problems in that I worded par 27 inaccurately in the sense that I don't know that the whole of these proceedings were started on or about 29 August but there were proceedings on foot that had commenced as early as 1990 and I apologise for not making that clear in that affidavit.

Q. You said you cannot recall whether you specifically raised the question of re-starting with your solicitors but you said there were some discussions about the subject?
A. The matter was raised on various occasions over various times, yes.

Q. When you say at various times prior to the conclusion of the criminal and disciplinary proceedings?
A. I don't think it was seriously considered prior to that.

Q. But at the end of this it was seriously considered?
A. I don't know that it was seriously considered until the civil proceedings were disposed of”.

49    The last answer is surprising insofar as it reflects either a poor memory or indifference to a very critical consideration. It makes it difficult to come to a view as to whether the plaintiff seriously sought advice during the period governed by this exchange or was given any as the plaintiff would have the Court believe and if so, what its nature was. At the end Dr Gill simply did not know whether the revival of the action against the ABC was seriously considered until the civil proceedings were disposed of - he civil proceedings, the sixty or so of them were disposed of without a hearing on the merits as to liability or damages and on Dr Gill’s own initiative in most cases, as I understand it. At the time of the hearing of the present application there was only outstanding a limitations application in relation Kahn. 50    The basis for at the very least uncertainty if not rejection of the plaintiff’s position in this matter is reinforced by the following:

“Q. My question was, what steps if any did you take in August 1997 to re-start the proceedings against the ABC?
A. I think the matter was raised at some appropriate time and I on advice, or my solicitors did not do anything at that time.

Q. Did you ask them to?
A. The matter was discussed I think and -

Q. I am sorry?
A. The matter was raised and the action we took was the result of the advice or what was decided.

Q. Who was it raised by?
A. I am not sure whether it was my self or my solicitors.

Q. You are saying that you may not have even raised it yourself?
A. Well, if I didn't they did and it was discussed. If you are asking me who initiated it, I cannot recall whether it was them or I.

Q. Did you say "Why can't we re-start this action?"
A. I would have asked about whether we should and why we should not and listen to the answers.

Q. What reason was there as far as you were concerned?
A. There were still these unresolved matters between myself, as I outlined before, and also the Kahn matter.

Q. The Kahn matter still has not been resolved?
A. The Kahn matter was to come to hearing in May and then was to come to hearing in August and has now been set for hearing in October. So, you are asking me what was my view of the Kahn matter in September 1997 and I presumed, I thought it would come to hearing in May 1998.

Q. What I am suggesting is in August 1997 you did not take any steps to re-start the action against the ABC?
A. Other than to take advice on the matter.

Q. You did not evince any enthusiasm for re-starting the action against the ABC, you were not interested in it at that stage?
A. That is quite right.

Q. Did you still plan at that stage to take it up some time later?
A. Yes”.

51    With respect to the matter being called up by the Court in May 1998 Dr Gill said his reaction was that the matter should go ahead and he instructed his solicitor. He said that he did have it in mind even if it had not been called up to restart as soon as the matter Kahn matter had been finished which he said had been put off on a “three month by three month basis”. He asserted a difficulty in resources and time “at what my lawyers advise me to do and what they think is appropriate” in running the residue of the Kahn matter and the ABC matter. The “bottom line” of the advice presumably given at the time the Court called the matter up was to commence these defamation actions with “full force as soon as the Kahn matter had been resolved”. When it was suggested that running both actions at the same time would give rise to some problem, Dr Gill said, “I don’t recall any suggestion of legal hindrance. There is a problem in maintaining many actions simultaneously”. Dr Gill was asked:

“Q. Can I suggest to you again that if the Court had not called this matter up it would never have been re-started?
A. No. As I outlined to you that was written long after. It was my intention when the Kahn matter was finished, it may have been May, it may have been October”.

52    I do not accept this answer. 53    Mr Sexton went on to ask:

“Q. Do I take it from what you have said that you won’t be able to prosecute the defamation action until the Kahn proceedings are completed?
A. If I have to I will.
Q. If you have to why couldn’t you do that in August 1997?
A. As I said it would put particular strains on and on the advice which is to take the course I did.
Q. Because you did not chose to do it in August 1997?
A. Because I chose to take the course I took”.

54    What is clear is that the decision in 1989 to have the matter removed from the List by reason of the then pending Royal Commission was a deliberate choice. I understand as far as I am able from Dr Gill’s evidence that it was his choice to take the course he took in August 1997. As to what that course is, I am not persuaded on the probabilities that it was that ventured by the witness, namely, to prosecute with full vigour after the settlement of the Kahn case or its resolution. At this point I can make it abundantly clear that I am of the view that had the Court not called the matter up as a dormant cause, no step would have been taken by this plaintiff to prosecute his actions against any of the defendants. 55    In cross-examination by Mr Nicholas Q.C. Dr Gill said that until he was given such advice to proceed the conclusion of the Kahn litigation it was not his intention to proceed. 56    This seems to be more available as a finding by reason of the following exchange:

“Q. Just to clear up something that you said in answer to my question, we can take it can’t we, that had your solicitor not contacted you and given you that advice you would have taken no step to revive these defamation action until such time as to the Kahn matters had been concluded? That is correct is it not?
A. That is correct”.

57    Pertinently Dr Gill went on to volunteer that the sixty civil matters were financially overwhelming to him and the “defamation may have raised matters that somehow put me at risk”. This became clear in the concluding exchange between the cross-examiner and this witness:

“Q. What is the nature of the risk?
A. The risk is that I be involved in cross-examination and make statements which no doubt the plaintiff’s solicitors in the other matters would pore over and seek to use to my disadvantage which would be a financially crippling matter.
Q. It would be tactically disadvantageous to you in the conduct of your other litigation to revive the defamation proceedings?
A. It is more than that because the other litigation was extraordinary threatening”.

58    Thus, at this point, I can summarise as follows:

(a) in 1989 there was a conscious decision not to proceed with any of the defamation actions by reason of the pending Royal Commission; this decision was conveyed to the defendants by the application to have the matter removed generally from the Defamation List;

(b) after the Royal Commission the plaintiff in fact did not proceed with the defamation actions and in two instances, namely, News and the second defendant in the ABC matter there was some degree of “life” in the actions on the part of the defendants relating in some way to discovery;

(c) after the disciplinary and criminal proceedings had been disposed of the plaintiff did not proceed

(d) during and toward the end of the sixty-odd civil proceedings the plaintiff did not proceed.

59    All of these failures to proceed, as far as one can gather, appear to have been conscious decisions on the part of the plaintiff.

(e) of critical importance during the course of the civil proceedings it appears that the consciousness of the decisions not to proceed with the defamation actions was based upon tactical risk avoidance measures by the plaintiff as a defendant in those proceedings;

(f) I am satisfied that but for the matters being called up by the Court the plaintiff would not have consciously decided to proceed at all let alone at the end of the Kahn matter. I simply do not believe the plaintiff’s testimony to the contrary.

60    Reviewing the chronology one of course can find periods of unexplained gaps. The most glaring is the delay between the publication by the ABC and the institution of proceedings. That has not been explained nor was the plaintiff cross-examined on it. 61    The principles applicable to an application of this kind have, with respect, been usefully summarised (since the argument of these applications) by Simpson J in Hoser v Hartcher [1999] NSWSC 527, 2 June 1999. The solicitors for the plaintiff reminded me in post-hearing correspondence of this decision. Her Honour articulates the relevant considerations in paragraphs 20-30 (pages 9 to 14). 62 It is important to note that the circumstances of this present application are quite different to those with which her Honour was concerned and, indeed, are different to those with which I was concerned in McBride v Australian Broadcasting Corporation (unreported, 6 November 1998). The interesting and important factor that attends the current litigation is that as at 1989 when the matter was removed from the list, save for I suppose unremarkable lapses of time excepting the delay in the initiating of proceedings in the ABC case, the litigation had progressed to the point where discovery and interrogatories had been effected and delivered and answered. In other words both sides had with a degree of diligence attended to interlocutory steps to enable the matters otherwise to be listed for hearing. This is not a case where a charge can be levelled, for example, against the defendants for not having put on defences. The issue is the failure of the plaintiff to prosecute defamation proceedings which as at 1989 were in reality ready then for hearing but which were not listed by reason of the conscious decision of the plaintiff to have his litigation removed from the Defamation List. 63    As was pointed out in Stollznow v Calvert (1980) 2 NSWLR 749 at 752 an application to strike out proceedings for want of prosecution and an application for an extension of a limitation period involved similar considerations and similar principles. It was submitted for the defendants by Mr Nicholas that at issue in both cases is a recognition of the right of a citizen to a speedy hearing of an action that has been commenced: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552 per McHugh J; Herrron v McGregor (1986) 6 NSWLR 246 at 253. 64 The requirement for the speedy hearing of an action arises from the following considerations: as time goes by relevant evidence is likely to be lost; it is oppressive to have an action being pursued long after the circumstances which gave rise to it have passed; there is a need for litigants to order their affairs and it is in the public interest that disputes be resolved as quickly as possible (Taylor (supra) at 552-553). 65    Where there is a delay the whole “quality” of justice deteriorates (Taylor at 551). The deterioration in quality may be palpable, for example, the loss of documents, the unavailability of witnesses and the dimming of memory (Taylor at 541; Stollznow at 745D). Prejudice may exist without the parties or anyone else realising that it exists. Evidence may disappear without anybody knowing that it “ever existed”. Time will often diminish the significance of a known fact or circumstance because its relationship to the cause of action no longer is apparent as it was when the cause of action arose (Taylor at 551). The general principle to be applied is whether or not on balance justice demands that the action should be dismissed (see, for example, Witten v Lombard Australia Limited (1968) 88 WN(Pt 1) NSW 405 at 412 per Walsh JA as applied in Stollznow at 751; see also Spitfire Nominees Pty Limited v Ducco (1998) 1 VR 242 at 246). 66 A defendant, it is submitted, prima facie would be entitled to have proceedings dismissed where, as it is submitted in this case, there has been a long delay (this cannot be questioned) which has given rise to a substantial risk that it is not possible to have a fair trial of the issues in the actions or is otherwise likely to cause or to have caused serious prejudice to the defendants. It is submitted that such circumstances have arisen in the present litigation and to permit the proceedings to continue is to permit an unacceptable deterioration in the “quality” of justice. This may not necessarily depend upon proving or identifying unavailable witnesses or documents (Masel v Transport Industries Insurance Co Limited (1995) 2 VR 328 at 345; Spitfire Nominees at 246; Burkett v James [1978] AC 297 at 318). In this case the relevant events took place in 1977; the plaintiff in 1986 was able to demonstrate prejudice to him in part by the passage of time and in 1991, was able to demonstrate that he himself had been put to significant disadvantage by reason of the elapse of time (Gill v Walton (1991) 25 NSWLR 190 at 200B). In the News Limited case the whereabouts of the first defendant is unknown. In the ABC case the second defendant is clearly unable to be contacted and would be prejudiced in the communication of any matters of instructions let alone attendance in this State. It is quite clear that the whereabouts of certain of the witnesses, particularly nurses, is not known. 67 I accept these submissions. If looked at in strict isolation the question of prejudice in relation to the defendants would arguably be found not to be as serious as might arise in other cases. There are the absences of witnesses referred. The third defendant in the ABC litigation has not unnaturally, memory difficulties relating to events said to arise from the allegations in the plaintiff’s Reply that precede 1982. Arguably the defendants are no worse off 9 years down the track than they were in 1989 at which time the defences including the defence of justification were in fact on the record. The plaintiff argues that all relevant testimony was recorded by Coronial inquiries and the Royal Commission and are matters of record and are susceptible to submissions and subpoenas. As to the former of course Notices to Admit can be delivered but the plaintiff has given no indication at all as to whether any appropriate admissions would be made. 68 The plaintiff’s statement in his affidavit that the only person likely to be prejudiced by the findings adverse to him of the Royal Commission is anyone seeking to disprove is, as I have remarked, a very curious one. Having sworn to that proposition on oath (he was not cross-examined on it), the defendant must be seen to be in at least a position of a dilemma. Is the plaintiff asserting that the defendants are not prejudiced because the defendants are not going to dispute the findings? Is the plaintiff asserting that he would accommodate the defendants in the quest for the truth of the findings or the admissibility of evidence giving rise to them by making requisite admissions? 69 As was submitted by Mr Lynch of counsel for the second defendant in the ABC matter on the plaintiff’s own evidence the purpose of him not prosecuting the proceedings was to secure an advantage to himself, to gain a strategic benefit by not exposing himself to cross-examination in the defamation proceedings until the civil proceedings were resolved to his satisfaction. That was a conscious and intentional act which he chose to follow and put the defendants in the position of thinking that the proceedings (ready for trial in 1989) were effectively at an end. 70 I agree with the submission that the delay was plainly inordinate. I reject what was plainly offered as an excuse. The purported excuses in the plaintiff’s affidavit and oral evidence cannot be seen to be excuses or explanations at all relevantly acceptable when they are characterised as deliberate choices on his part to secure tactical advantages as a litigant in other causes - criminal, disciplinary, Royal Commission and civil actions. 71 As was submitted by Mr Sexton the plaintiff deliberately chose to avoid a forensic risk by prosecuting these proceedings vis-a-vis the other proceedings in which he was involved. The delay involved a choice by the plaintiff as to the way in which he might be disadvantaged in one set of proceedings notwithstanding the disadvantage caused to the defendants in other proceedings. 72 Submissions along these lines, which I accept, fall with the statements of policy made in the speeches in the House of Lords in Grovit v Doctor & Ors (1997) 1 WLR 640 and I am of the view that the conduct of this litigation and the explanations that the plaintiff sought to give for the inordinate delay could (though I do not so decide), amount to that kind of abuse of process to which their Lordships referred. 73 In this instance the plaintiff as at 1989 had viable defamation actions ready to be listed for hearing; he chose not to pursue that course. Thereafter he elected for tactical reasons not to pursue these defamation actions to the obtain the advantages to which reference has been made in the submissions which I have rehearsed above. He did not give credible oral evidence before me to the extent that I simply do not accept that it was his intention to prosecute these actions and would have done so even if the Supreme Court had not called them up to be dealt with in the Dormant Cases Callover. 74 The prejudice to the defendants exists though not to a very great degree and such that it is, and such that it was in 1989, can only have been aggravated by the lapse of time consequent upon the deliberate choice made by the plaintiff. Even though in the light of the plaintiff’s response to the defendants’ complaint about access to documents and records and its curiously equivocal nature, any prejudice the defendants have suffered is not thereby ameliorated. In my view, it is further aggravated. 75 All these factors sufficiently accord with principle to warrant the success of the defendants’ applications. 76 The formal orders are that in respect of each of the Notices of Motion in both actions filed by the defendants the plaintiff’s action is dismissed for want of prosecution. 77 The plaintiff is to pay the costs of the defendants of the action and of the application. 78 The exhibits are to be returned to the second defendant, News.

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Last Modified: 10/27/1999