Gorman v Australasian Medical Publishing Company Pty Ltd

[2002] NSWSC 701

CITATION:	Gorman v Australasian Medical Publishing Company Pty Ltd [2002] NSWSC 701
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 11753/02
HEARING DATE(S):	29/07/02
JUDGMENT DATE:	31 July 2002
PARTIES :	Richard Francis GORMAN v Australasian Medical Publishing Company Pty Ltd
JUDGMENT OF:	Barr J at 1

COUNSEL :	Plaintiff: In Person Defendant: Mr J Halley
SOLICITORS:	Plaintiff: In Person Defendant: Blake Dawson Waldron
DECISION:	Order that the amended summons be dismissed and that there be judgment for the defendant. Order the plaintiff to pay the defendant's costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

Wednesday, 31 July 2002

11753/02 – RICHARD FRANCIS GORMAN v AUSTRALASIAN MEDICAL PUBLISHING COMPANY PTY LTD

JUDGMENT

1 BARR J: By his summons the plaintiff claims a declaration against each of eight defendants in the following terms –

that defendants acted unreasonably, and indirectly damaged his reputation and impeded the achievement of his professional goal, by malicious censorship of "the tunnel vision information" from public awareness, when they chose not to publish his "Letter to the Editor" referred to as "Complementary and alternative medicine commonly used by cancer patients" in the letters of refusal to publish, dated 1/3/02 and 9/4/02.

2 By his amended summons, filed by leave on 29 July 2002, the plaintiff has confined his claim to a declaration of the same nature against the only remaining defendant, Australasian Medical Publishing Company Pty Ltd.

3 The defendant is the publisher of the Medical Journal of Australia, the journal of the Australian Medical Association Limited. I shall call it "the Journal". The plaintiff is a legally qualified medical practitioner. The evidence does not plainly say so, but I think that he probably carries on practice as a chiropractor. He undoubtedly has an abiding interest in the practice of spinal manipulation. For years now he has been writing to the editor of the Journal offering papers for publication and the editor has been rejecting them.

4 During the 1970s, as a result of the treatment and observation of patients, the plaintiff formed the belief that for certain persons who suffered both spinal derangement and constricted visual fields spinal manipulation under anaesthetic would remove the visual constriction. The plaintiff thought that this showed that spinal manipulation changed brain function and that this discovery would greatly affect the practice of medicine once its true significance was realised. He used the term "the tunnel vision information" to denote the recovery of vision in appropriate patients after spinal manipulation.

5 Following earlier correspondence the plaintiff and one, Don Bilton DC, wrote to the editor in the following terms:

Please find enclosed our revised 'Letter to the Editor', in relation to the Chapman Smith and Ezard Ernst correspondence: MJA, Vol 175, 17 September 2001, page 343 (398 words).

We hereby transfer copyright of this letter to the Medical Journal of Australia.

We wish to state that we have no financial interest nor do we receive funding from any party, in regard to this letter.

6 On 27 November 2001 the Editorial Administrator of the Journal wrote to the plaintiff acknowledging receipt of what was called a revised contribution "Complementary and alternative medicine commonly used by cancer patients".

7 On 1 March 2002 the Deputy Editor of the journal wrote again in these terms:

Thank you for your Letter to the Editor, which has been carefully considered by the editorial committee. My apologies for the length of time we have taken to reply. We had a great deal of difficulty obtaining reviewers. The letter has now been reviewed by an expert in the discipline, whose comments are enclosed.

In view of the reviewer's comments we regret we are unable to offer to publish your submission.

Nevertheless, we wish to thank you for your ongoing interest in and support of the Journal.

8 The comments of the referee were in the following terms:

One can never say in the field of biology that any particular contention on this case the treatment is wrong until it has been tested (sic) . There is however no plausible mechanisms (sic) by which it is thought that spinal manipulation could be beneficial for the very varied types of visual field defect mentioned in the letter. Moreover all treatments can be tested in randomised clinical trials and unfortunately this is something that the authors have failed to do for spinal manipulation for visual field loss.

It was stated in the letter that a series of 71 patients was presented to the European Society of Ophthalmologists in Istanbul. Such presentations have usually only have (sic) a cursory peer review and cannot be considered to have established any point and nor could they be legitimately used as references, such as references 1 and 2 state in this letter. Inclusion of subjects whose data has been presented in the popular print or television media or mass media offers no scientific support to the hypothesis.

This is not a trivial issue. If spinal massage were to become established for treatment of any visual field disturbance it might be implemented inappropriately on a very large scale indeed. Patients who for example have glaucoma with visual field loss are in imminent danger of developing total irreversible blindness, which can usually be prevented by established treatment. Any diversion away from these proven treatments by an unproven treatment that this letter might be used to support is likely to be detrimental to the general public.

Before spinal manipulation for visual field loss can be mentioned in the literature as if it were a legitimate treatment it needs to be proven by a randomised clinical trial. An unconventional case series such as is presented in the letter is insufficient for this. Until a randomised clinical trial is completed the treatment must be regarded as unproven.

If treatments mentioned in the paper as referred to in the letter were untested then that would be a problem.

9 The plaintiff appealed against the refusal to publish and that resulted in a letter from the Deputy Editor dated 9 April 2002 in the following terms:

Thank you for your letter appealing the editorial decision on your recent Letter to the Editor "Complementary and alternative medicine commonly used by cancer patients” - a decision based on the expert's review report.

The Journal's policy on appeals is to have the matter referred to the Journal's Content Review Committee (CRC). The individuals on the CRC are listed in current issues of the Journal. The committee receives the original letter, the reviewer's comments and the letter of appeal (all blinded to preserve anonymity).

The Committee met on March 28, 2002 and the unanimous advice was to sustain the editorial decision.

We wish to thank you for your ongoing interest in and support of the Journal.

10 It appears from the many affidavits the plaintiff has filed that he believes strongly in the rightness of his contentions. It also appears that there are other opinions, equally strongly held, that the plaintiff's contentions are wrong or have been arrived at without appropriate scientific research.

11 By its notice of motion the defendant seeks the following orders:

1. Pursuant to Part 13 r 5 of the Supreme Court Rules, that the proceedings be dismissed on any one or more of the following grounds:

(a) no reasonable cause of action is disclosed;
(b) the proceedings are frivolous or vexatious; or
(c) the proceedings are an abuse of the process of the Court.


2. Pursuant to Part 15 r 26 of the Supreme Court Rules, that the Summons filed on behalf of the Summons be struck out on any one or more of the following grounds:

(a) it discloses no reasonable cause of action;

(b) it has a tendency to cause prejudice, embarrassment or delay in the proceedings; or

(c) it is otherwise an abuse of the process of the Court.

3. Pursuant to Part 40 r 1 of the Supreme Court Rules, that judgment be entered for the applicant in respect of these proceedings.

4. The plaintiff pay the applicant's costs of this motion and of the proceedings.

5. Such further or other orders as the Court sees fit.

12 The first submission of counsel for the defendant was that there was no statutory or other legal obligation on the part of the defendant to publish the plaintiff's paper. The plaintiff was unable to point to any legal obligation on the part of the defendant but put the matter in moral terms, speaking of a duty to publish in order to educate the profession and almost, I thought, a duty to share the plaintiff's own view. In my opinion no obligation has been shown to exist on the part of the defendant. It follows from that conclusion alone that the summons discloses no reasonable cause of action.

13 It was then submitted that the declaration sought would, if made, have no practical utility. The plaintiff's response was to submit that if the Court made a declaration in the terms sought the defendant would reconsider whether or not to publish the paper and might publish it, and might also consider whether or not to write an editorial comment about the controversy. This, I think, was no answer to the submission. The real reason why the proceedings have been brought, I think, is to obtain a collateral advantage.

14 Late last year proceedings were brought against the plaintiff in the Medical Tribunal of New South Wales. One charge resulted from his appearance on a popular television programme and there and then manipulating a patient's spine. He was found guilty of professional misconduct and a condition was placed on his registration that he might not undertake or perform cervical spine manipulation on patients under anaesthesia.

15 Later on he was found guilty of unsatisfactory professional conduct constituted by his manipulation of the cervical spine of a patient rather than using chemical means in order to relieve intra-ocular pressure. For that conduct he was reprimanded.

16 The plaintiff has appealed to the Court of Appeal against the findings and orders of the Tribunal. He wishes to put before the Court of Appeal this Court's declaration in order to demonstrate in his appeal that because of the defendant's failure to publish his paper those practitioners who gave evidence before the Tribunal were ignorant of the patho-physiological principles involved.

17 think that it may have been for the same reason that on 22 April this year the plaintiff also moved the Court for a declaration to the effect that vision improves in appropriate patients when the spine is manipulated. On 26 April 2002 Dowd J refused to make such a declaration.

18 The plaintiff admits that he has such a purpose in seeking the declaration but submits that he is entitled to maintain the proceedings in order to demonstrate that the defendant's behaviour was unreasonable in that it indirectly damaged his reputation, damaged his earning capacity, frustrated his desire to assist patients suffering from the illness, which is associated with constricted visual field, and frustrated his desire that other practitioners should be aware of the quandary which had been exposed by the recovery of vision, which recovers once the spine is manipulated in patients, so that they too could do no more than assist patients suffering from the illness which is associated with the constricted visual field.

19 I do not think that the purpose contended for is a legitimate one.

20 The refusal to publish cannot be held unreasonable by any standard this Court has to apply because it has not been shown that the defendant was under any legal obligation to publish. I think that no reasonable cause of action has been disclosed and that the proceedings are embarrassing, vexatious and an abuse of the process of the Court.

21 I order that the amended summons be dismissed and that there be judgment for the defendant. I order the plaintiff to pay the defendant's costs.

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Last Modified: 08/15/2002