Gill v HarperCollins Publishers Australia Pty Ltd
[2022] FCA 1533
•16 December 2022
FEDERAL COURT OF AUSTRALIA
Gill v HarperCollins Publishers Australia Pty Ltd [2022] FCA 1533
File number: NSD 1621 of 2017 Judgment of: BROMWICH J Date of judgment: 16 December 2022 Date of publication of reasons: 19 December 2022 Catchwords: DEFAMATION – applicant sought to have certain particulars in respondents’ amended defence struck out or pleaded with further specificity – whether some impugned pleadings are too vague, imprecise or ambiguous – whether some pleading particulars are improper – where applicant must prove that the pleadings could not be pleaded and attempted to be proven at trial – held: application dismissed, but some objections to the amended defence conceded by the respondents, and a further amended defence to be filed Legislation: Evidence Act 1995 (Cth) s 67
Defamation Act 2005 (NSW) s 10
Cases cited: Australian Broadcasting Corporation v McBride [2001] NSWCA 322; 53 NSWLR 430
Burstein v Times Newspapers Ltd [2001] 1 WLR 579
Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; 400 ALR 56
Herron v HarperCollins Publishers Australia Pty Ltd (No 2) [2022] FCAFC 119
Herron v HarperCollins Publishers Australia Pty Ltd (No 3) [2020] FCA 1687
Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; 359 ALR 564
Turner v News Group Newspapers Ltd [2006] EWCA Civ 540; [2006] 1 WLR 3469
Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 66 Date of hearing: 18 November 2022 Counsel for the Applicant: Ms S Chrysanthou and Mr B Dean Solicitor for the Applicant: Company Giles Counsel for the Respondents: Mr T D Blackburn SC and Mr A D’Arville Solicitor for the Respondents: Banki Haddock Fiora ORDERS
NSD 1621 of 2017 BETWEEN: JOHN GILL
Applicant
AND: HARPERCOLLINS PUBLISHERS AUSTRALIA PTY LTD
First Respondent
STEVE CANNANE
Second Respondent
ORDER MADE BY:
BROMWICH J
DATE OF ORDER:
16 DECEMBER 2022
THE COURT ORDERS THAT:
1.By or before 20 January 2023, or such other date as may be fixed, the parties confer and submit draft agreed or competing procedural orders as to an appropriate date and time for evidence to be given by Ms Marcia Fawdry in Launceston, Tasmania prior to the trial listed to commence on 3 July 2023, with the evidence in chief to be confined to the disputed meeting that she gave evidence of taking place sometime between January 1977 and June 1978 between herself, the applicant (Dr Gill), the late Mr Herron and Ms Mollie Sansom, and cross-examination about that meeting and related cross-examination as to credit.
2.The applicant’s application to disallow, or require amendment to, the “bad reputation” mitigation plea by the respondents beyond the substance of the particulars identified in the letter from the solicitors for the respondents to the solicitors for the applicant dated 9 November 2022 be dismissed, noting that the respondents will amend the amended defence further to reflect those particulars.
3.The applicant’s application to strike out, or have the respondents furnish with further specificity, identified particulars of the respondents’ amended defence otherwise be dismissed, subject only to certain objections to the amended defence as to the use of use of phrases such as “including but not limited to” (and other uses of “including”), “at least”, “not least”, and “for example” (and other uses of examples) which were conceded by the respondents to be appropriate to be addressed by amendment during the course of the hearing on 18 November 2022, and will be addressed by way of the filing of a further amended defence.
4.By 4.00 pm on 20 January 2023, the respondents file and serve a further amended defence in accordance with the orders above, the reasons for judgment to be published and the indications given by counsel for the respondents during the hearing on 18 November 2022, as to the particulars of the bad reputation mitigation identified in order 2 above and use of the phrases identified in order 3 above.
5.Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMWICH J:
These are my reasons for the adjudication of a pleading dispute by way of orders made on 16 December 2022, and one aspect of an evidence dispute, in a defamation proceeding. Other evidentiary disputes have been deferred until a later date, or possibly until the trial, which is a re-trial.
Some background information is necessary to understand properly the disputes now to be adjudicated upon. Following a lengthy trial conducted online by the use of Microsoft Teams over some 37 days in June, July and August 2020, the originating application brought by the applicant, Dr John Gill, was dismissed on 25 November 2020 with costs: Herron v HarperCollins Publishers Australia Pty Ltd (No 3) [2020] FCA 1687 (trial judgment). By the same judgment, the trial judge also dismissed with costs a parallel originating application brought by Mr John Herron (formerly Dr Herron until he was deregistered as a medical practitioner), and funded by Dr Gill.
Dr Gill was partially successful in an appeal by to the Full Court (Rares, Wigney and Lee JJ): Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; 400 ALR 56 (Full Court or FC). The Full Court unanimously found by separate judgments that contested imputations were conveyed contrary to the conclusion reached by the trial judge, resulting in a remittal for re-trial upon the basis of those imputations having been conveyed. The Full Court also found that certain of the defences found to be made out in the alternative by the trial judge were not available, and certain evidence that her Honour admitted was inadmissible. Limited aspects of the Full Court’s conclusion as to one of those defences (of statutory qualified privilege) and as to the admissibility of some of that evidence (derived from a royal commission) is the subject of an application for special leave to appeal to the High Court, which I understand is listed for hearing on 17 February 2023.
Mr Herron’s cause of action was abated by reason of his death by the operation of s 10 of the Defamation Act 2005 (NSW), so no longer exists, noting that s 10 has since been amended. Mr Herron died after he and Dr Gill had filed their appeals, but over six months before the hearing of the appeal. Dr Gill was still entitled to pursue an appeal and judgment in relation to Mr Herron’s case because of his liability for costs arising from the primary judgment: see Rares J, FC [204]-[205]; see also Herron v HarperCollins Publishers Australia Pty Ltd (No 2) [2022] FCAFC 119 (Herron v HarperCollins No 2), Rares J at [23]-[30], with whom Wigney J and Lee J agreed.
The more limited, but still lengthy, re-trial of Mr Gill’s originating application and statement of claim is listed for hearing before me commencing on 3 July 2023, for an estimated four weeks.
To explain the nature of this proceeding for the purposes of this adjudication, it is convenient to reproduce a part of the judgment of Wigney J in the Full Court which succinctly summarises the nature of the proceeding. By way of introduction, the case concerns one chapter of a book about the Church of Scientology, which was directed at the exposure of a kind of psychiatric treatment deployed in New South Wales in the 1960s and 1970s, and which led to a Royal Commission. In simple terms, that treatment involved using high levels of sedation before the treatment was applied, and given a number of different names all with the abbreviation DST, referring to deep sedation treatment, and other similar phrases, commonly also referred to as deep sleep therapy. His Honour said:
[225] In September 2016, HarperCollins Publishers Australia Pty Ltd published a book, authored by Mr Steve Cannane, entitled “Fair Game: The Incredible Untold Story of Scientology in Australia”. As the title suggested, the main focus of the book was the activities of the Church of Scientology in Australia. One of the chapters in the book, chapter 14, titled “Deep Sleep”, concerned the role that some scientologists played in exposing the administration of certain controversial therapies at the Chelmsford Private Hospital in the 1960s and 1970s. It would be fair to say that the book painted a damning picture of those therapies and the activities of the doctors who administered them. Those doctors included Dr John Herron, subsequently deregistered and now deceased, and Dr John Gill.
[226] In September 2017, Mr Herron and Dr Gill commenced defamation proceedings against HarperCollins and Mr Cannane. They alleged that chapter 14 of Fair Game conveyed a number of imputations which injured their reputations and brought them into “public scandal, odium and contempt”. They sought damages, including aggravated damages. HarperCollins and Mr Cannane defended the proceedings. Amongst other things, they denied that the book conveyed some of the alleged imputations, contended that the imputations that were conveyed were substantially true, and maintained that they had, in any event, acted reasonably.
[227] The trial of the action was long, difficult and complex. That was mainly due to the fact that the events and circumstances at the Chelmsford Private Hospital, which were the subject of chapter 14 of Fair Game and the alleged imputations, had occurred so long ago and had become somewhat notorious. The notoriety largely came about as a result of a long-running Royal Commission, but also as a result of legal proceedings involving Mr Herron and Dr Gill. Issues arose at trial because the justification defence mounted by HarperCollins and Mr Cannane relied heavily on material from the Royal Commission which had been compulsorily acquired, including from Mr Herron and Dr Gill. The Royal Commission material also included statements or reports from medical experts who had since died, as well as transcripts of the evidence of various witnesses who had also since died.
[228] The primary judge dismissed Mr Herron and Dr Gill’s claim: Herron v HarperCollins Publishers Australia Pty Ltd (No 3) [2020] FCA 1687 (Judgment). Her Honour held, in emphatic and categorical terms, that: the contested imputations were not conveyed by the book; the alleged imputations (both those found to have been conveyed and those that were not) were substantially true; and both HarperCollins and Mr Cannane had acted reasonably in publishing the alleged defamatory matter. Her Honour made other findings to which it is unnecessary to refer for present purposes.
The statements of claim for Mr Herron and for Dr Gill pleaded the imputations upon which they relied in paragraph 4 of their respective pleadings, with some commonality between subparagraphs (a) to (n) pleaded by Mr Herron and subparagraphs (a) to (g) pleaded by Dr Gill. All of the imputations against Mr Herron alone were admitted to have been conveyed, with that being denied for those alleged by both Dr Gill and Mr Herron. The trial judge listed the pleaded imputations either as separate imputations alleged by Mr Herron alone, or common imputations alleged by both of them, labelling them from Imputation A to Imputation N: see [8]. Those which were pleaded both by Dr Gill and by Mr Herron were Imputations E to H and J to M, with the balance being pleaded by Mr Herron alone. That labelling was also adopted by the Full Court and therefore convenient to use in these reasons.
The imputations pleaded in Dr Gill’s statement of claim (and also pleaded in Mr Herron’s statement of claim with different subparagraph numbers) are as follows, with the trial judge’s (and the Full Court’s) labels added:
(a)The Applicant, a psychiatrist, used deep sleep treatment on his patients, despite trials by other doctors deeming the practice too dangerous. [Imputation E]
(b)The Applicant, a psychiatrist, continued to use deep sleep treatment on his patients despite the number of deaths it caused. [Imputation F]
(c)The Applicant, a psychiatrist, falsified death certificates. [Imputation G]
(d)The Applicant, a psychiatrist, lied to his patients' families about how ill the patients were and denied those families visitation. [Imputation H]
(e)The Applicant's gross negligence as a psychiatrist caused the death of many of his patients. [Imputation J]
(f)The Applicant, a psychiatrist, engaged in sustained medical malpractice and abuse of his patients. [Imputation K]
(g)The Applicant, a psychiatrist, defrauded his patients' health funds. [Imputation L]
(h)The Applicant, a psychiatrist, traumatised many of his patients by giving them deep sleep therapy without their consent. [Imputation M]
A further effect of the Full Court’s decision is that no defence is possible for imputation (g) (Imputation L). A defence of substantial truth remains pleaded for the remaining imputations, but is confined in its operation due to no defence being available for imputation (g) (Imputation L) and therefore no defence of substantial truth being available for the publication as a whole, a point considered in more detail below.
The re-trial is confined to the limited operation of the remaining defence of substantial truth relied upon by the respondents for imputations (a)-(f) and (h) (Imputations E-H, J, K and M), and the pleaded mitigation of damages for those imputations and imputation (g) (Imputation L), addressed in more detail below.
I made procedural orders directed to reducing so far as possible the need to adduce evidence at the re-trial, largely by way of reusing where possible evidence adduced at the first trial. I commend the parties for having apparently exhaustively negotiated in good faith to that end, with a considerable saving of hearing time and thereby costs likely to result, especially from having admitted by consent substantial parts of viva voce witness evidence, recorded by Microsoft Teams recordings (incomplete) and trial transcript (complete). Those negotiations continue.
There remain a number of evidentiary issues in dispute to be addressed, one now as a pre-trial determination, and others probably at the commencement of the trial, if not before. There are also pleading issues to be resolved now, arising from aspects of an amended defence dated 1 September 2022, filed by leave granted on 4 August 2022.
The amended defence:
(a)maintains admissions as to the respondents and as to publication;
(b)admits that, by reason of the Full Court’s decision, Dr Gill is entitled to damages for imputation (g) (Imputation L);
(c)re-pleads (that is, maintains) defences of substantial truth for imputations (a)-(f) and (h) (Imputations E-H, J, K and M), noting again that such a defence only operates as a complete defence if all imputations pleaded are proven to be substantially true, which is not possible because there is no truth defence to imputation (g) (Imputation L), addressed below;
(d)deletes defences of contextual truth, fair report of proceedings of public concern, fair summary of a public document, and statutory qualified privilege (and also deletes particulars of the fair report, fair summary and statutory qualified privilege defences); and
(e)re-pleads mitigation of damages, said to be in the alternative, on “the substantial truth of imputations (a)-(f) and (h)” (that is, the substantial truth of Imputations E-H, J, K and M) and Dr Gill’s “bad reputation”, with the particulars of mitigation pleaded at length in an annexure, which itself is subject to extensive amendments, mostly by way of addition.
The issues for adjudication now concern the evidence of one key witness, Ms Marcia Fawdry, and challenges to the amended defence are confined to the way in which mitigation of damages have now been pleaded. It should be noted that aspects of the impugned pleading, as to the additions to the schedule of particulars to the pleaded case for mitigation, relate to topics that are to be relied upon for the defence of substantial truth on all but one imputation as mitigation of damages. That is of some importance, because in substance the defence of substantial truth in this case may be seen as really being an aspect of mitigation given that truth is only a defence to a publication if it meets all of the imputations, and no defence of contextual truth is maintained: see the discussion by Rares J in Herron v HarperCollins No 2 at [7]-[15]. That use of partial success on a defence of truth is sometimes referred to as a Burstein plea or the application of the Burstein principle, following Burstein v Times Newspapers Ltd [2001] 1 WLR 579: see the observations by Lee J in Herron v HarperCollins No 2 at [34]. In this case, as one of the imputations has been admitted (albeit a forced admission based upon the Full Court’s decision), the pleaded defence of truth going only to the remaining imputations can only go to mitigation. That said, if such partial truth is established to any marked degree, it may have a significant impact on damages. This is separate from the mitigation also pleaded by reference to reputation, addressed below in the context of pleading objections.
MS MARCIA FAWDRY’S EVIDENCE
It is convenient to reproduce the trial judge’s findings about Ms Fawdry, one of four nurse witnesses, followed by the Full Court’s observations. Before doing so it should be noted that the case for both Dr Gill and for Mr Herron before her Honour was that, while Ms Fawdry was generally an honest witness, she had lied about attending a meeting sometime between January 1977 and June 1978 that she said she had with Dr Gill, Mr Herron and a receptionist, Ms Mollie Sansom, all of whom denied that the meeting had taken place. On Ms Fawdry’s account, during the meeting there was a discussion about a relatively recently deceased patient, Mr Barry Hart, and what to do about there not being a written authority or consent to give him electro-convulsive therapy (ECT).
The trial judge said about Ms Fawdry in the trial judgment, noting that Chelmsford Private Hospital, or Chelmsford Hospital, is referred to simply as Chelmsford:
4.2.4 Marcia Fawdry
[99] Ms Fawdry spent most of her working life as a nurse. Commencing her training at the Gladesville Hospital in 1963 Ms Fawdry was registered as a psychiatric nurse in 1968. In about mid-1972 Ms Fawdry began employment at Chelmsford. Prior to taking maternity leave Ms Fawdry worked from Monday to Friday on a 9am to 3pm shift. During that period Ms Fawdry was doing activities and group therapy but was not involved in DST. After returning from a three to four month maternity leave period Ms Fawdry was on night duty as the only registered nurse. Ms Fawdry continued working the night shift for about four years. Following this Ms Fawdry returned to the day shifts but continued as a registered nurse. In 1977 Ms Fawdry was appointed as the Matron at Chelmsford. Ms Fawdry continued in this role until about June 1978.
[100] Ms Fawdry said she only admitted a few patients. After admission the patient was given an injection of sodium amytal to sedate them before being transferred to the DST ward. Patients were constantly assessed but every four hours the patients were starting to lighten up which meant the previous dose of drugs was wearing off. The nurses would take a four hourly set of observations including blood pressure, temperature and pulse and they would change the patients if they were wet, change their position and provide the appropriate nourishment. There was a standard sheet which had to contain a doctor’s signature for the nurses to administer drugs. Dr Bailey and Mr Herron did not adjust the treatment sheets according to the particular physical or medical conditions of the patient. There was a degree of discretion left to the registered nurses as to the amount and timing of drugs given to each patient but she understood both Dr Bailey and Mr Herron liked to keep the patients asleep.
[101] Mr Herron and Dr Gardiner came in to give the patients ECT. When Ms Fawdry was on night duty she assisted Mr Herron in the giving of ECT nearly every night to patients. Ms Fawdry said that when Mr Herron was administering ECT he did not give the patient a muscle relaxant or anaesthetic. She recalls that on some occasions an ECT consent form was not signed yet nevertheless ECT was given. Ms Fawdry stated that Mr Herron conducted such ECTs and remembered nurses raising this with Mr Herron to which he would reply words to the effect of “I will give my authority”.
[102] She saw Dr Gill as the owner of Chelmsford and if she ever had an issue she knew she could speak to Dr Gill.
[103] Ms Fawdry recalled an occasion where she, Dr Gill, Mr Herron and Mollie Sansom (the receptionist) were in the Matron’s office discussing Mr Hart. To the best of her recollection the conversation in the Matron’s office was as follows:
In that conversation [it] was being discussed about how they could disguise the fact that Barry’s ECT wasn’t signed. The ECT authority was on the bottom of the identification sheet – the front page of the notes, and so it was sort of, like, I guess, a half an A4 size, and that wasn’t signed. So I can recall someone suggesting that perhaps we could – they could put a pathology report over the top of it to disguise the fact that that particular form wasn’t signed for.
[104] In explaining why she denied the existence of this conversation to police Ms Fawdry said:
I was very reticent to be part of anything that was going to threaten my registration. I was working as a registered nurse, I was a sole parent with three children, and I didn’t actually lie, but I just didn’t expand on the truth and I dodged around the issue so that I didn’t have to talk about it at all.
[105] She also denied the conversation to Mr Herron when he called her but she did not know she was being taped by Dr Gill at that time. She said the first time she ever told the truth about the conversation was at the Royal Commission because she did not have much to lose by then. Her children had grown up and she was in secure employment. Before that she thought she had done something wrong by being present during the conversation but by the Royal Commission she knew she had not done anything wrong.
[106] Ms Fawdry considered the nursing at Chelmsford to be of a high standard. She agreed that if a patient was to defecate in the bed they would be changed immediately. Chelmsford was a voluntary hospital and the doors were not locked. She said some patients were very restless before the end of four hours from receiving a dose of drugs and would try to get out of bed or remove their Ryles tube. She felt she was working within her capabilities. In her view there was adequate monitoring of patients by the nurses and the equipment in the sedation ward was adequate for the purposes of treating the sedated patients. She agreed that when a patient was admitted a nurse took a history from the patient, took their observations including weight, respiration, cardiovascular, temperature, blood pressure, pulse and urinalysis, and told the patient what was going to happen next including what treatment they were going to have.
[107] She admitted she detested Dr Gill and was “pissed off” with Mr Herron about the taping of the conversation. She denied concocting the story about the conversation relating to Mr Hart’s consent form.
[108] The applicants accepted that Ms Fawdry was a generally honest witness, as do I. This does not mean I accept her evidence that the nurses at Chelmsford were able to provide safe care to the DST patients or that the equipment was adequate for that purpose. Ms Fawdry was not sufficiently qualified to provide these opinions. She did not understand the risks associated with DST, nor that there was no medical justification for it, so that no safe level of care could be provided to patients undergoing it. Despite accepting Ms Fawdry’s general honesty the applicants contend she lied about the meeting concerning Mr Hart’s consent form. I found her explanation for her inconsistent evidence over time about that conversation to be wholly persuasive. I have no doubt she is telling the truth about that conversation. The applicants’ submissions to the contrary simply do not confront the nature of Ms Fawdry’s testimony – she was a frank and honest witness in all respects. She was open about her previous attempts to evade giving evidence about the conversation and her reasons for doing so. The fact that she may prefer to characterise her conduct as involving evasion rather than dishonesty is part and parcel of the ordinary human experience. It does not mean that her evidence in this proceeding is unreliable. I consider that Mr Herron’s and Dr Gill’s repeated denials of the conversation are part of a pattern of untruthfulness on their part in respect of anything they consider adverse to their version of events – namely, that there was no problem with the administration of DST and ECT at Chelmsford.
The trial judge later made the following finding about this contested evidence in the portion of the trial judgment about Mr Hart:
[560] A digression about some evidence of Ms Fawdry is necessary. Contrary to the applicants’ submissions about the form for Mr Hart which had the bottom cut off (where the consent to ECT with a place for a signature appeared cut off and replaced by a copy of another form), I find Ms Fawdry’s evidence to this Court wholly believable. She said that in about 1978 she was involved in a meeting with Dr Gill, Mr Herron and Ms Sansom where it was discussed how the fact that Mr Hart’s ECT form was not signed could be disguised. Someone suggested that they could put a pathology paper over the top of it to disguise the fact that the form was not signed. Ms Fawdry’s evidence that she had not previously been frank in her dealings with police and others about her knowledge of this meeting due to fear for her nursing registration made sense. The applicants’ convoluted attempts to dismiss or explain away Ms Fawdry’s evidence are unconvincing. Having seen and heard Ms Fawdry’s evidence I have no doubt she was telling the truth about the meeting in the Royal Commission and in this proceeding.
The Full Court said the following of an appeal ground that did not succeed insofar as it related to the part of Ms Fawdry’s evidence about the meeting she deposed to taking place between herself, Mr Herron, Dr Gill, and a receptionist, Ms Mollie Sansom, with each of the others said to have been present denying that it took place: see Wigney J at [288]-[290] and Lee J at [596]-[603], [637]:
(a)per Wigney J:
[288] Ground 4(o) challenges four factual findings made by the primary judge which relate to the substantial truth of some of the imputations.
[289] Ground 4(o)(i) challenges the finding that, in 1978, Mr Herron and Dr Gill had a meeting with a nurse, Ms Marcia Fawdry, and a receptionist, Ms Mollie Sansom, during which there was a discussion about disguising the fact that a patient, Mr Barry Hart, had not signed a form denoting his consent to undergo ECT. The primary judge found that this meeting occurred, essentially on the strength of the evidence of Ms Fawdry. Dr Gill contended that this finding was not reasonably open because the circumstances of the meeting were said to be “inherently improbable” and that it was contrary to the evidence of Ms Sansom, who had denied that the meeting occurred.
[290] I agree with Lee J that it is unnecessary to reach a concluded view in respect of this meeting. I would, however, be somewhat disinclined to interfere with the primary judge’s finding given that it was clearly based on Ms Fawdry’s evidence. Having seen and heard Ms Fawdry give her evidence, the primary judge found that she had “no doubt she [Ms Fawdry] was telling the truth” and that her evidence was “wholly believable”: Judgment at [560]. While it is true that Ms Fawdry had given inconsistent accounts, and that Ms Sansom had denied that the meeting as described by Ms Fawdry had taken place, it is nevertheless difficult to see how it could be said that the primary judge’s finding was glaringly improbable in all the circumstances.
(b)per Lee J, after summarising the chronology of events leading up to the trial, including the service of transcripts provided by Ms Fawdry:
[596] Finally, Dr Gill submitted that her Honour erred in making the following findings on the evidence admitted that were not reasonably open to find even accepting the admitted evidence was reliable and probative:
(1) that a meeting occurred between Mr Herron, Dr Gill, Ms Fawdry and Ms Sansom as alleged by Fawdry (and denied by each of Mr Herron and Dr Gill and Ms Sansom) in circumstances where her Honour did not have regard to the evidence of Ms Sansom (adduced by the publishers) and the circumstances of the alleged meeting were inherently improbable;
(2) …
(3) …
[597] I will consider each of these findings in turn.
The Fawdry meeting
[598] In canvassing the evidence of Ms Fawdry (at J [103]–[105]), her Honour noted that “Ms Fawdry recalled an occasion where she, Dr Gill, Mr Herron and Mollie Sansom (the receptionist) were in the Matron’s office discussing Mr Hart”. To the best of her recollection the conversation in the Matron’s office was as follows:
In that conversation [it] was being discussed about how they could disguise the fact that Barry’s ECT wasn’t signed. The ECT authority was on the bottom of the identification sheet - the front page of the notes, and so it was sort of, like, I guess, a half an A4 size, and that wasn’t signed. So I can recall someone suggesting that perhaps we could - they could put a pathology report over the top of it to disguise the fact that that particular form wasn’t signed for.
[599] In explaining why she had earlier denied the existence of this conversation to police, Ms Fawdry said:
I was very reticent to be part of anything that was going to threaten my registration. I was working as a registered nurse, I was a sole parent with three children, and I didn’t actually lie, but I just didn’t expand on the truth and I dodged around the issue so that I didn’t have to talk about it at all.
[600] Ms Fawdry said the first time she ever told the truth about the conversation was at the Royal Commission because she did not have much to lose by then.
[601] In respect of this evidence, her Honour ultimately concluded (at J [560]):
Contrary to the applicants’ submissions about the form for Mr Hart which had the bottom cut off (where the consent to ECT with a place for a signature appeared cut off and replaced by a copy of another form), I find Ms Fawdry’s evidence to this Court wholly believable. She said that in about 1978 she was involved in a meeting with Dr Gill, Mr Herron and Ms Sansom where it was discussed how the fact that Mr Hart’s ECT form was not signed could be disguised. Someone suggested that they could put a pathology paper over the top of it to disguise the fact that the form was not signed. Ms Fawdry’s evidence that she had not previously been frank in her dealings with police and others about her knowledge of this meeting due to fear for her nursing registration made sense. The applicants’ convoluted attempts to dismiss or explain away Ms Fawdry’s evidence are unconvincing. Having seen and heard Ms Fawdry’s evidence I have no doubt she was telling the truth about the meeting in the Royal Commission and in this proceeding.
[602] Dr Gill submitted that this finding is “glaringly improbable” in circumstances where Ms Sansom denied being present at any such meeting, as did he and Mr Herron. It is said that notwithstanding Ms Sansom was called by the publishers, the primary judge failed to have regard to her evidence. It is said that this evidence should have been preferred in circumstances where Ms Fawdry denied being present at or aware of any such meeting to police in 1981 and made subsequent denials to police and to Mr Herron to the same effect over a number of years. Further, it is said that the content of the meeting as it is alleged by Ms Fawdry makes no sense given that the document in question had already been discovered by Mr Hart’s lawyers to not include his signature when they had custody of the medical records before this meeting is said to have occurred.
[603] Dr Gill submitted this finding affected her Honour’s conclusion as to the truth of Imputation D. Although it might be thought this submission has some substance, for reasons I will explain, it is again unnecessary to express a concluded view on this issue.
…
[637] As I have canvassed above, the grounds of appeal which succeed are Grounds 4(d) and 4(o) (except in respect of the Fawdry meeting). …
Unfortunately, while most of Ms Fawdry’s evidence in chief and all of her cross-examination was recorded by Teams and is available, her evidence in chief about the meeting disputed by Dr Gill, and summarised by the primary judge at [103] reproduced at [16] above, has either not been recorded by Teams, or the recording has not been retained, but the evidence given has been transcribed. Dr Gill is content for the incomplete Teams recording and for the transcript of Ms Fawdry’s evidence to be tendered at the re-trial by consent, but as a condition of that consent being maintained (which he asserts is otherwise inadmissible hearsay, a potentially contestable proposition) seeks to have Ms Fawdry recalled to give evidence of that meeting viva voce, and to be cross-examined upon it, including as to credit issues arising out of that evidence in chief and that cross-examination. I was directed in submissions to the days upon which Ms Fawdry gave evidence, and have considered that material to the limited extent necessary for this adjudication, with a primary focus on sound recording and transcript of the evidence in chief and in cross-examination concerning that meeting.
The respondent’s stance is that the incomplete Teams recording, and complete transcript will suffice and are admissible. They point to Ms Fawdry’s advanced age and the fact that she lives in Tasmania. They therefore oppose Ms Fawdry being required to give viva voce evidence even to this very limited extent.
The reason for Dr Gill’s stance of insisting upon Ms Fawdry being called for this relatively small portion of her evidence is that his case, as addressed by the trial judge at [108] and at [560] (reproduced above at [17]), is that Ms Fawdry’s evidence about that meeting is not just false, but is a lie, for which the assessment of her veracity is essential, noting that no issue is taken by him with the balance of her evidence so as to require it to be given again. Ms Chrysanthou SC for Dr Gill estimates that the total time required for this limited evidence in chief and limited cross-examination is in the order of an hour or so, all up, and certainly within half a day.
In the course of argument, I raised the feasibility of this limited evidence being taken in the closest main city or town to where Ms Fawdry lives in Tasmania, sidestepping the question of admissibility in search of a practical and just solution. No suggestion was made that this was impractical, although there were no overt instructions apparently obtained by either side consenting to this course. The respondent expressed as their principal concern with this compromise that Ms Fawdry did not have to travel, but did not abandon their primary stance that her giving oral evidence again was not necessary.
After carefully considering the competing arguments, I have decided that Ms Fawdry giving oral evidence again, confined to this very limited aspect of her evidence at the first trial, is the best and most appropriate course to take, balancing the competing arguments and considerations and doing justice to all concerned. Accordingly, I will make such orders as are appropriate to give effect to that conclusion. I therefore directed the parties to confer and submit agreed or competing procedural orders to that effect as to an appropriate time for this to take place, noting that this may best take place well prior to the scheduled trial, if only to avoid Ms Fawdry needing to travel even locally in a Tasmanian winter, given her advanced age and likely related health conditions.
THE PLEADING OF THE MITIGATION OF DAMAGES
Use of terms such as “including but not limited to”, “at least”, “not least”, and “for example”
Dr Gill furnished a document identifying the objections to the pleaded mitigation of damages, sourced in correspondence between the parties. Aspects of those objections were conceded by the respondents and will be addressed by way of further amendments, so do not require further elaboration or consideration. In my view, they were mainly objections of form, such as otiose use of phrases such as “including but not limited to” (and other uses of “including”), “at least”, “not least”, and “for example” (and other uses of examples), rather than substance. That is because it was freely acknowledged by the respondents that seeking to adduce additional new evidence to give content to such a pleading would require leave at this late stage in the history of the proceeding, although is best corrected at least for better clarity. The respondents have agreed that they do not need these phrases, and that they can be removed. On the other side of the ledger, Dr Gill is aware of the possibility of such further evidence being sought to be relied upon, and will meet that if and when it occurs. Precisely what was agreed to in this regard should be able to be sorted out between the parties, including by reference to the case management transcript if needs be. The remaining objections to the amended defence, the competing arguments, and their resolution follow.
Mitigation of damages by “bad reputation”
As noted above, the amended defence pleads mitigation of damages, based both on assertions of the substantial truth of the imputations the respondents were not forced to concede, and on Dr Gill’s asserted “bad reputation”, with the particulars of mitigation for both purposes pleaded at length in an extensively amended annexure. Thus the mitigation is overtly based partly on substantial truth as to particular imputations (in fact, all but one of them) and partly on that asserted bad reputation.
As to mitigation by reference to reputation, Dr Gill’s objection is to the bare use in the body of the amended defence of the words “bad reputation”, asserting that this is inadequate because it fails to identify the sector of his reputation said to be affected and also by reason of not otherwise being particularised. The respondents in a 9 November 2022 letter provided additional particulars, referring to findings made in the Royal Commission report and to the matters set out as particulars in Annexure A to the amended defence (Annexure A particulars), said to be “directly relevant background context”, citing the use of that phrase by Wigney J in Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; 359 ALR 564 (Rush No 2), at [42] and [45].
As observed by Wigney J in Rush No 2, the phrase “directly relevant background context” is originally sourced in the judgment of May LJ in Burstein at [42]. The 9 November 2022 letter from the respondents contends that the findings and matters identified affected Dr Gill’s reputation as a doctor, thus in substance purporting to identify that as the sector of his reputation relied upon. During the course of argument, that was refined slightly to indicate a willingness to amend so as to refer to “bad reputation as a medical practitioner”. There is no material difference between the identification of a sector of Dr Gill’s reputation by reference to him being a doctor or a medical practitioner: either both will suffice, or neither will. However, Dr Gill asserts that neither of these two options will suffice, asserting they remain inadequate and therefore impermissible, relying upon Australian Broadcasting Corporation v McBride [2001] NSWCA 322; 53 NSWLR 430.
In resolving this dispute, I have had regard to the comprehensive consideration of the Burstein principle and its application by Wigney J in Rush No 2 at [34]-[46], and the authority there cited, quoted and considered. In particular, his Honour at [38]-[45], discussed the Burstein restriction of bad character evidence to “directly relevant background context” and in the course of doing so at [44] quoted from Turner v News Group Newspapers Ltd [2006] EWCA Civ 540; [2006] 1 WLR 3469 per Moses LJ at [87]-[90], including the following towards the end of those passages:
A defendant may seek to reduce the damages by adducing evidence which is directly relevant to a claimant’s conduct or reputation in the particular sector to which the defamatory material relates for the purpose of mitigating damage.
Direct relevance to a particular sector of the claimant’s life should be assessed by starting with a careful identification of the sector of the claimant’s life to which the defamatory material relates; too broad an approach, such as his private life, will defeat the function of the reference to “direct relevance”.
Wigney J said of those and the other passages from Turner quoted by his Honour:
[45] Those passages from Turner support the proposition that the facts which are able to be pleaded and proved in the mitigation of damages pursuant to the Burstein principle must concern specific conduct that is directly relevant to either the subject matter of the alleged defamatory statement, or the claimant’s reputation in the part of his or her life the subject of the defamatory publication. The rationale for permitting evidence of such facts being led is that otherwise damages may be assessed on a false basis. It is equally clear that courts, including this Court, must proceed with caution in applying Burstein, should guard against “extending too creatively” the concept of “directly relevant background”, and should subject the proposal to adduce facts under the Burstein principle to careful scrutiny. Mere resort to the label “directly relevant background context” will not suffice.
It is important to note that the particulars of the plea in mitigation of damages in the Annexure A particulars are directed to a long list of matters, both general or background, and with greater specificity, ultimately directed to the use of DST at Chelmsford and the circumstances in which it occurred. As such, on their face they appear to meet the general description of being, as Wigney J described it Rush No 2 at [45] above, “directly relevant to either the subject matter of the alleged defamatory statement, or the claimant’s reputation in the part of his or her life the subject of the defamatory publication”, albeit those particulars are also the subject of quite different objections addressed later in these reasons. The live question is whether, reading the phrase “bad reputation” in [9] of the amended defence, in the context of the Annexure A particulars, lacks the requisite degree of specificity in identifying the sector of Dr Gill’s reputation to which the defence is directed, and if so, whether the addition of words such as “as a medical practitioner” makes any material difference in advancing that necessary focus.
In McBride, a doctor sued upon imputations defaming him in relation to the treatment of his patients. The ABC pleaded in mitigation that he did not have a good reputation “in the practice of medicine”, but relied on particulars to that pleading upon his conduct by way of engaging in scientific fraud concerning the testing of drugs used or to be used in the treatment of pregnant women. That defence in mitigation was struck out by the trial judge in the New South Wales Supreme Court. That strikeout was upheld by the NSW Court of Appeal, dismissing an appeal by the ABC. The Court of Appeal found that the sector of Dr McBride’s reputation impugned by the publication was not relevantly affected by any reputation for falsifying the results of scientific experiments, because that did not involve treating patients and therefore was not directed to the sector of his reputation sued upon. The plea and the evidence had to be relevant to that part of Dr McBride’s reputation capable of being harmed by the defamatory material: Ipp AJA at [28], with whom Beazley JA agreed. Ipp AJA then further explained:
[29] On the one hand, the exercise of defining a particular “sector” should not result in the widening of the area of the plaintiff’s reputation beyond that which is capable of being harmed by the defamatory material. For example, in determining the sector applicable, the ambit of admissible evidence should not be enlarged artificially by reason of a desire to define the sector merely by reference to easily defined segments of the plaintiff’s occupation. On the other hand, the relevant sector should not be limited “by the artificial construct we now know as an imputation” (per Levine J in Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1119, as applied in O’Hagan v Nationwide News Pty Ltd by Stein JA and Brownie A-JA).
[30] The essential question in determining the relevant sector remains: what is the scope of the plaintiff’s reputation capable of being harmed by the defamatory material?
…
[34] While the imputations have to be recognised as an “artificial construct”, significant weight has to be given to them. Underlying the imputation that the respondent “deliberately exposed women patients to danger” are elements of calculated callousness and heartless indifference to the well-being of women patients. The imputation that the respondent “so acted as to warrant him being accused of conduct which endangered the lives and health of women patients” is to the same effect. This is the necessary consequence of the phrase “so acted”. In other words, the second imputation is to be read as alleging, “the respondent, in deliberately exposing women patients to danger, acted as to warrant him being accused of conduct which endangered the lives and health of women patients”.
[35] Thus, the imputations pleaded relate to the respondent’s reputation as a medical practitioner only in so far as that reputation concerned his attitude to and dealings with patients, in the sense of the degree of care, concern, and compassion that he displayed towards them, and his dedication to and compliance with the therapeutic ideals of accepted medical practice.
[36] The reputation of a medical practitioner, insofar as it relates to his dealings with his patients, is wide in scope, and it would, ordinarily, provide considerable latitude for a defendant who wished to allege material in mitigation of damage. But, in my opinion, such a reputation is far removed from the reputation of a person, who, for example, conducts laboratory tests on animals for the purposes of determining their reaction to experimental drugs. A person who occupies himself at times as a medical practitioner and at times as an experimental scientist, is conducting two separate occupations, although they may not be entirely unrelated to each other. The reputation that such a person would gain for care and compassion to his patients and for his dedication to the therapeutic ideals of the practice of medicine would be entirely independent of his reputation for careful, innovative and honest scientific research.
[37] The inquiry conducted by the Medical Tribunal as to whether the scientific fraud perpetrated by the respondent applied to his medical practice is different from the inquiry whether the scientific fraud alleged affects the sector of the respondent’s reputation capable of being harmed by the defamatory imputations. A person who falsifies results of experiments on rabbits may not be fit to practise medicine. But I do not think that a reputation for falsifying results of such experiments would impinge on a reputation for being a caring, compassionate doctor who is single-mindedly concerned for the health of his patients.
Ipp AJA then put it another way at [38] by observing that Dr McBride at his trial could lead evidence of his reputation as a medical practitioner dedicated to the well-being of his patients, but could not adduce evidence of his reputation for integrity in carrying out scientific experiments as that would be irrelevant. This served to demonstrate the impermissible mitigation sought to be pleaded and proven. The real concern was the evidence that too broad a mitigation pleading would be allow to be adduced.
Ipp AJA was in substance indicating that the breadth of reputation by reference to an occupation that can give rise both to damage and to mitigation of damage is principally determined by the scope of the publication sued upon, guided, but not artificially, by the imputations alleged to have been conveyed by it. If, as in McBride, only a part of that occupational reputation is alleged to be traduced, mitigation must be directed to that part. That is what the “sector” of a person’s reputation in substance means. In that way, both the damage, and the limits to that damage, are reasonably aligned, both as to pleading and as to evidence. It is somewhat akin to the concept of character in the Evidence Act 1995 (Cth), and the loss of the shield against adducing evidence of bad character being confined to the nature of the allegations implicit in a charge alleging a criminal offence.
In McBride, the vice lay not so much in the mitigation pleading itself, although it was somewhat general, but rather in the particulars. The pleaded imputations were that Dr McBride had “deliberately exposed women patients to danger”, and had “so acted as to warrant him being accused of conduct which endangered the lives and health of women patients”. The pleaded mitigation was that Dr McBride did not have a good reputation “in the practice of his profession”, but the particulars, far from narrowing that to his conduct towards his patients so as to align with the pleaded imputations, impermissibly broadened it to plead post-publication facts about findings made of scientific fraud “in the testing of drugs used or to be used in the treatment of pregnant women”. The reference to treatment was only a fig leaf of a bridge between the imputations and the mitigation sought to be relied upon, bearing no real connection to the pleaded basis for damage to reputation.
Ipp AJA observed that while imputations could have related to Dr McBride’s reputation as a medical practitioner in a broader sense (it would seem perhaps going beyond the already broad sense of dealings with patients), creating a wider imputation against which to seek to mitigate, that was not how it had been pleaded. Rather, the imputations pleaded focused more narrowly upon his reputation as a medical practitioner confined, still quite widely, described by his Honour as “his attitude to and dealings with patients, in the sense of the degree of care, concern, and compassion that he displayed towards them, and his dedication to and compliance with the therapeutic ideals of accepted medical practice”. That was, his Honour observed, far removed from testing animals for their reaction to experimental drugs. I note that the pleaded mitigation reference to treatment was not even referred to by his Honour. That way of describing the burden of the imputations is somewhat more detailed and focused than the pleaded mitigation of Dr McBride not having a good reputation in the practice of his profession, but probably would not have been inherently objectionable if the particulars served to narrow the mitigation to align sufficiently with the imputations.
Because the imputations were pleaded more narrowly than could possibly encompass fraud in medical research unrelated to the treatment of patients, the mitigation was similarly confined, so as to exclude that being relied upon. Thus, McBride affords no support for the proposition that an imputation, and thus its mitigation, cannot be directed to a sector of a person’s reputation defined by an occupation, or part of an occupation. It depends on the publication and the pleaded imputations, not some abstract view that a relevant sector of reputation cannot ever be defined by reference to an occupation. Indeed, Ipp AJA even described the reputation of a medical practitioner insofar as it relates to dealings with patients as being wide in scope and giving considerable latitude for allegations in mitigation of damages.
Dr Gill asserts that it is insufficient to confine the bad reputation proposed by the respondents to his reputation as a medical practitioner, because that is said impermissibly to equate or confuse occupation with reputation. However, following the analysis of McBride above, that entails a misreading of what was said by Ipp AJA in the passages reproduced above, and cannot be accepted as any general proposition, divorced from the scope of the publication and in particular the scope of the imputations sought to be mitigated.
Dr Gill pleads the imputations reproduced above that concern damage to his reputation as a medical practitioner more broadly than was the case in McBride. The imputations relied upon plead quite a wide range of aspects of and relating to his reputation as a medical practitioner, extending to ethical conduct and dealings well beyond direct patient care, albeit using the speciality description of “psychiatrist”, including: the use of DST treatment known to be dangerous and causing death, falsifying death certificates, lying to families about how ill patients were and preventing them from visiting, being grossly negligent so as to cause death, engaging in sustained medical malpractice and abuse of patients, defrauding health funds, and traumatising patients by giving them DST treatment without consent. This covers a very wide swathe of his reputation as a medical practitioner, with the qualifier of referring to him being a psychiatrist (which I understand he was not) having no presently material role to play.
The pleaded imputations are not confined to impugning Dr Gill as not being dedicated to the well-being of his patients, or even to questions of compassion, but go to wider reputational issues of competence in the sense of gross negligence, malpractice, ethics, and honesty. It is even possible that mitigation pleading and thus evidence of the type disallowed in McBride might well have been permissible in this case, although nothing of that kind seems to be alleged. Pleading and proof of medical research fraud as a species of serious dishonesty (which is not suggested in this case) might well have permissibly mitigated imputations also involving dishonesty, such as defrauding patient’s health funds (imputation (g); Imputation L), and could conceivably have had a bearing on falsification of death certificates (imputation (c); Imputation G) and the “lied” aspect of imputation (d) (Imputation H). Proof of a bad reputation as a medical practitioner, especially if tied sufficiently to what is proven in some way to have taken place at Chelmsford Hospital, may be properly directed to mitigation of damage of the kind said to have been damaged by the imputations relied upon. These observations are, of course, directed only to questions as to capacity from the perspective of the tribunal of law.
I do not read the impugning of the particular mitigation pleading in McBride as so much concerned with the choice of words, but rather with the substantial concern of the underlying lack of nexus between medical research fraud and being a medical practitioner, in that case, in treating patients. In my view this impugned aspect of the mitigation pleading in this case, as proposed to be supplemented, is nothing like the impermissible dichotomy in McBride. It is not to the point that the mitigation was pleaded in a particular way in that case, which was an unsuccessful device deployed in an effort to bridge the gap between medical practice in the treatment of patients and medical research that might in future in some way adversely affect patients at large.
The present pleading of bad reputation, supplemented by a narrowing reference to Dr Gill’s occupation and read in the context of the Annexure A particulars, does not depart in a material way from the sector of his reputation identified by the imputations he relies upon. In light of the above, and given the detail in the Annexure A particulars, I conclude that in the particular circumstances of this case and the pleaded imputations, the appropriate sector may properly be described in the body of the amended defence for the purposes of mitigation as “bad reputation as a medical practitioner”, or not having a good reputation in the practice of medicine, or substantially similar wording. The substance of Dr Gill’s argument to the contrary must fail.
Objections to aspects of the Annexure A particulars
Dr Gill objects to quite a large number of amended entries in the mitigation pleaded in the Annexure A particulars, which run to 143 pages. It is convenient to set the scene by providing a brief overview of the Annexure A particulars. The particulars are organised into the following 11 headings, which also provide the paragraph numbering for the document:
(1)Background – being the ownership and management structure of Chelmsford Hospital;
(2)DST, by way of general background and history, and how it was used at Chelmsford;
(3)Mr John Herron, as to his qualifications and history, his role at Chelmsford and his medical practice;
(4)Dr John Gill, as to his background, Chelmsford, his tasks and duties and what his role and conduct had been, including as to patient treatment, complaints by nurses, and his knowledge of what was taking place;
(5)John Adams, a patient of Dr Gill and his DST treatment;
(6)Other DST Patients of Dr Gill;
(7)Dr Gill’s treatment of Dr Bailey’s and Mr Herron’s DST Patients;
(8)Other Chelmsford DST Patients, being patients of Mr Herron;
(9)Other patients and their lack of consent to DST and/or ECT;
(10)Dr Gill’s other conduct during and subsequent to the cessation of DST at Chelmsford;
(11)Final Conclusions, cross-referencing the imputations to the particulars.
Dr Gills’ objections, listed in a detailed schedule, were addressed by way of examples within each identifiable category, an approach that the respondents did not cavil with.
The use of “vague and imprecise” language
The first such category objected to, and addressed orally, was in (2) of the Annexure A particulars, by reference to examples at [2.2.3] (DST at Chelmsford and what it generally consisted of) and [2.9.1] and [2.9.2] (Effect of DST on Chelmsford patients, as to side effects). The objection in relation this category of pleading is that it identifies the patients by reference to the nurse who attended to them, rather than being identified by name (with there being no objection when patients are identified by name). Thus, at [2.2.3C(i)] and following, it is pleaded that:
the level of unconsciousness of a DST patient was to a point where they did not react to painful stimuli, as occurred in the case of … the following patients:
(i)patients regularly attended to by Beatrice Goedde (formerly van Dykhuizen), a nurse;
(ii)patients regularly attended to by Brian Dilworth, a nurse;
…
Dr Gill’s argument is that while both sides have extensive patient records, which primarily comprise nursing notes signed by the nurse in question, if the patient was identified by the pleading, he would have been able to question the assertion that there had not been, for example, a reaction to painful stimuli. His overall problem with this form of pleading, having regard to the evidence by which it will be sought to be proved by way of notice under s 67 of the Evidence Act 1995 (Cth) because the nurses are not available, is that questions were put at the Royal Commission in general and conclusive terms to the effect that most or all of their patients did not react to painful stimuli, to which they agreed. While he has access to patient records which set out for each nurse the actual patients that they looked at and those records set out what the patients were doing from time to time, including getting up or going to the toilet or those such things, he contends that it is unfair to put on him the onus of having to answer the particular by, for example, referring to patients to whom this did not apply. The substance of his argument is that the respondents should be required to identify the individual patients, and without that the particulars cannot be responded to and the requirement for precise pleadings is not met.
The respondents counter this by reference to the same example, characterising Dr Gill’s argument as an example of what happens when particulars are looked at in detail in this way, rather than stepping back to look at the larger picture of the case that has been advanced. They submit that the impugned particulars are large in number and detailed, mostly by reference to specific patients, and the objections relate to a relatively small number of cases, which are indeed sought to be proven in the way Dr Gill identifies. The impugned pleading reflects the substance of the evidence to be adduced. The complaint is therefore in substance one about evidence which may or may not be admitted, rather than pleading per se. The evidence is in substance evidence of regular occurrences, with all the strengths and weaknesses that may entail, going both to admissibility and to probative force.
The fundamental problem with Dr Gill’s argument is that it really amounts to a stalking horse for an objection to the evidence that will be sought to be adduced to prove the impugned particulars. The reference to pleading difficulties in response is misplaced, because there is no obligation imposed on Dr Gill to plead in reply to particulars, such as the Annexure A particulars, and even if that was a requirement, it is one that I would readily relieve him of. Any case involving medical treatment in the past, especially in the distant past, is inevitably placing reliance, to a greater or lesser extent, on business records. While such records are often reliable enough evidence, as far as they go, from the point of view of admissibility, their probative force may be limited, unclear or even practically worthless. Such evidence may have a role in building up an overall picture, in the nature of jigsaw pieces. A party who wishes to advance a case in reliance upon such records is entitled to rely upon corresponding pleadings to give notice of the case to be advanced, so long as they fall within the general requirements of such pleadings.
The substance of this class of objections, although clearly not their form, is designed to require the respondents to create a different evidentiary case by going behind the apparently relatively limited documentary evidence upon which they propose to rely for this aspect of their case, and to make it more vulnerable to impeachment, or at least challenge, by producing more granular records, assuming that is capable of being done at all. I am unable to accept that this is a proper requirement of pleadings. While the evidentiary case to be advanced to prove this pleading may or may not be up to the task of doing so, and while it may, in common with business record evidence more generally, pose difficulties for the respondents, I do not accept that the impugned pleadings suffer from the vice of vagueness or imprecision, or even, as advanced orally, ambiguity. This argument must fail.
Other Chelmsford DST Patients, being patients of Mr Herron
When regard is had to the marked up version of the Annexure A particulars, which reveals the changes that have been made, it first appears that the case originally brought against Mr Herron has been sought to be brought now against Dr Gill by inserting as a new introduction [8.1] titled “Responsibility of Dr Gill for Mr Herron’s patients”. That new introduction alleges that Dr Gill, as the manager of Chelmsford, had the ability to stop DST being carried out, and was therefore responsible for the treatment of patients receiving that treatment from Mr Herron, both because of that role, and because of his role in assisting to treat those patients. In the course of argument, a convenient metaphor was used, describing [8.1] as a bridge between Mr Herron’s conduct towards his own patients, and Dr Gill, so as to make Dr Gill responsible for that conduct.
The structure of the balance of the pleading for each patient, which has not substantially changed, is to plead details of each patient and the treatment they received from Mr Herron, to plead the criticisms of that treatment, for some patients including the absence of proper monitoring and resuscitation equipment, and to conclude that in each of those cases that Dr Gill’s refusal as de facto manager of Chelmsford to provide that equipment (which, as pleaded earlier at [2.6], he knew or ought to have known was inadequate) had contributed to the death of each patient. Where that feature as to equipment was not originally pleaded, a cross-reference is added to an earlier part of the pleading as to Dr Gill’s role as a manager of Chelmsford, his tasks and duties, and his ability to prevent DST taking place. Thus, it has always been a part of the respondents’ case that Dr Gill bore responsibility for failings in the treatment of certain of Mr Herron’s patients by reasons of inadequacy of equipment, but not as to the content of the treatment itself. The new [8.1] therefore adds to the basis for alleging responsibility of Dr Gill in a substantial way, as does the addition of the cross-references to Dr Gill’s role.
Dr Gill objects to this attribution of responsibility as a matter of pleading. Of the 16 subparagraphs to part (8), this objection extends to all but [8.9] and [8.16], which are apparently not objected to in the same way because of the specific pleading as to Dr Gill’s involvement in what took place. As to the remainder, they are said to be irrelevant to any fact in issue because the conduct of Mr Herron is irrelevant in that way.
The substance of the objection is that the allegations in relation to Mr Herron’s conduct cannot be put against Dr Gill as pleaded. He contends that while they can assert that he had overall responsibility as a manager (even though that is disputed), specific allegations of medical negligence by Mr Herron in the treatment of patients going beyond the fact they were having DST is argued to be irrelevant. It is, in substance, a remoteness argument as any proper basis to attribute to him by such indirect means responsibility for the day to day treatment of Mr Herron’s own patients, especially given that Dr Gill contends that the allegations in the book sued upon was that he, himself, used DST on his patients, but none of these patients of Mr Herron were his patients. The accepted exception, at the level of pleading, is when it is alleged that he engaged with a given patient.
Dr Gill further argues that these particulars travel well beyond the scope of the book sued upon, enlarging the case as to imputations regarding what he did, to what Mr Herron did in the day to day treatment of patients, for which he is said to be also responsible. To adopt and deploy the metaphor, Dr Gill submits that the only bridge pleaded appears at the end of the details of what Mr Herron did and failed to do, being that he allowed the treatment given to occur and that he did not supply sufficient equipment to the hospital to treat those patients, but this makes him liable for things he was not aware of that are alleged to be separate acts of negligence by Mr Herron.
The response of the respondents is that an indispensable part of this aspect of their case, both as to pleading and as to evidence, is sheeting home to Dr Gill responsibility for the treatment that was given to DST patients at Chelmsford, via the bridge pleaded that attributes responsibility to him. If he was not shown to be responsible for what Mr Herron did, then this aspect of their case must fail. In this way, the impugned pleading sets the task to be met by the evidence to be adduced.
I am troubled by the apparently tenuous nature of the attribution of responsibility to Dr Gill for the pleaded failings of Mr Herron, both legally and in an evidentiary sense. I have a concern that this aspect of the respondents’ case may face grave difficulties in being successful, but it was for Dr Gill to persuade me that this could not be pleaded and attempted to be proven. With some considerable reservations, I fall short of reaching that state of satisfaction. It strikes me as likely to be a weak aspect of the respondents’ case, but not one that is so untenable that it cannot be pleaded and sought to be proved. Nor am I presently persuaded that this pleading falls short of addressing by way of mitigation the case that Dr Gill brings.
The reasoning and conclusion above also applies to similar pleadings in relation to attribution of responsibility in much the same way for the conduct of any other doctor in treating their own patients, such as Dr Gardiner, so that the same conclusion applies to the extent it concerns patients not treated by Dr Gill and for whom there is no allegation of any specific knowledge.
Aspects of the pleading of Dr Gill’s conduct during and subsequent to the cessation of DST at Chelmsford
Paragraph 10 in the Annexure A particulars is divided into 28 subparagraphs (being [10.1.1] to [10.1.28]). No issue is taken with the first 14 subparagraphs because it covers the meeting that Ms Fawdry gives evidence about and is part of the chapter of the book sued upon. Issue is taken with the tail end of [10.1.15] because it alleges illegality in the recording of the conversation that she had with Mr Herron about that meeting, but it seems to me that not much turns on that. Paragraphs 10.1.16 to 10.1.26 concern unsuccessful attempts by NSW Police, long after Chelmsford was closed, to obtain by search warrants patient records that were ultimately produced to the Royal Commission, pleading that this, the prior Fawdry meeting and related events were deliberate attempts to avoid scrutiny. They are objected to as improper particulars.
The respondents assert that the particulars in paragraph 10 that are objected to go to the management of Chelmsford as well as to mitigation. As such, they contend that as in the facts in Burstein itself, there is no need for the matter relied upon to have been referred to in the publication.
While I am again troubled by this aspect of the pleading, I am not presently satisfied that a pleading dealing with the treatment of patient records arguably in a way that is improper in the context of imputations of falsifying death certificates and defrauding health funds, which create a sector pertaining to honesty and honest behaviour, and may have a bearing on other imputations, is untenable, such that this is best left to be developed in trial submissions. It also has a bearing on the case for maladministration of Chelmsford more broadly.
The pleading of the final conclusions in the Annexure A particulars
Dr Gill objects to the cross-referencing of certain particulars to the imputations as being irrelevant in not meeting the sting of each imputation. Parts of those arguments depend on the attribution to Dr Gill of responsibility for the treatment by other doctors of patients at Chelmsford, so fail because of the conclusions reached above. This pertains to paragraphs 7 and 8 of the Annexure A particulars in relation to imputation (a) (Imputation E). In any event, the respondents point out that the plea of truth is not sought to be struck out, so those particulars remain relevant for that purpose. Those conclusions also apply to the objection to the paragraphs of Annexure A particulars relied upon for imputation (h) (Imputation M).
A prior objection in relation to imputation (b) (Imputation F) was not pressed.
As to imputation (c) (Imputation G), being the falsification of death certificates, reliance is placed by the respondents on [8.15] (the last of the paragraph 8 patients for whom it is alleged that there was a false death certificate completed by Dr Bailey after he and Dr Gill had attended upon that patient) and [10.1.1] to [10.1.9] (the Fawdry meeting). Dr Gill objects upon the basis that neither meets the serious allegation of fraud. The respondents seek to tie Dr Gill to this by reason of his managerial role, but also assert that the willingness to participate in the falsification of medical records (per the Fawdry meeting) in combination with the false death certificate prepared by Dr Bailey after he and Dr Gill attended on the patient was, both individually and in combination sufficient. That may or may not be tenable, but I accept the respondents’ submission that it is a trial issue.
As to imputation (d) (Imputation H), being that Dr Gill lied to his patients’ families about how ill they were and denied them visitation, the objection is that none of the particulars relied upon refer to him lying. The respondents did not accept that this was defective, but had already in correspondence proposed an amendment to make this clearer, essentially being an inferential case based on such things as restrictions on visiting and instances of express lies being told to families, and how Dr Gill is alleged to be a party to this sort of conduct taking place, including by the application of policies which required, permitted or encouraged it. With those amendments, this is a trial issue.
As to imputation (e) (Imputation J), being of gross negligence causing death of many of his patients, the death of only one such patient is pleaded. The respondents counter to say that while it is true that there is only a single patient of Dr Gill’s who died, Dr Gill is alleged to have contributed to the deaths of at least five other patients. This does in part rely upon the attribution argument addressed above, that that renders this too a trial issue. Dr Gill ultimately accepted that was so.
As to imputation (f) (Imputation K), being sustained medical malpractice by Dr Gill and abuse of his patients, it is not understood how [10] of the Annexure A particulars is relevant. As numerous other paragraphs are relied upon, the justification for the purposes of mitigation does not fall away. While it is not immediately apparent how either the Fawdry meeting or the search warrant issue can go to this imputation, that can be addressed at trial, if that part is not abandoned before then.
As to the balance, being imputations (g) and (h) (Imputations L and M), there has been correspondence and an understanding reached that the objections raised will be dealt with when amendments already foreshadowed at the hearing and referred to above are made.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich. Associate:
Dated: 19 December 2022
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