Holten v Fehsenfeld (Ruling)
[2021] VCC 404
•15 April 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| DEFAMATION LIST |
Case No. CI-20-03607
| IAN HOLTEN | Plaintiff |
| v | |
| EOIN FEHSENFELD | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2021 | |
DATE OF RULING: | 15 April 2021 | |
CASE MAY BE CITED AS: | Holten v Fehsenfeld (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 404 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Defamation – application by defendant that Amended Statement of Claim be struck out
Legislation Cited: County Court Civil Procedure Rules 2018, r23.02; r13.11(1)
Cases Cited:Dey v Victorian Railways Commissioners (1949) 78 CLR 62; Takemoto v Moody’s Investors Service Pty Ltd [2014] FCA 1081; Trkulja v Google LLC (2018) 263 CLR 149; Dank v Whittaker (No 1) [2013] NSWSC 1062; Webb v Bloch (1928) 41 CLR 331; Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156; Parkes v Prescott (1869) LR 4 Ex 169; Rowson & Anor v Alpass (2017) 53 VR 196; John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; Australian Broadcasting Corporation v Obeid [2006] NSWCA 231
Ruling:Paragraph 6D of Proposed Further Amended Statement of Claim struck out and plaintiff have leave to replead. Plaintiff to provide further particulars.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Anderson | David Thomas Watt Leggatt |
| For the Defendant | Ms H Jager | Keypoint Law Pty Limited |
HER HONOUR:
1The defendant filed a summons for hearing of an application that the Amended Statement of Claim be struck out. However, prior to the hearing of that application, the plaintiff prepared and served a Proposed Further Amended Statement of Claim (“PFASOC”). Some of the defendant’s complaints about the Amended Statement of Claim were addressed in the PFASOC and the defendant consequently amended the orders he sought to the following:
(a) pursuant to r23.02 of the County Court Civil Procedure Rules 2018, paragraphs 3 to 18 of the PFASOC be struck out;
(b) pursuant to r13.11(1) of the County Court Civil Procedure Rules 2018, the plaintiff provide further and better particulars of the conversations contained in paragraphs 29(a), 29(b), 31 and 35;
(c) the plaintiff pay the defendant’s costs of and incidental to the Amended Statement of Claim and the application by summons dated 18 February 2021 on an indemnity basis.
2The plaintiff alleges at paragraph 3 that the defendant made false statements about the plaintiff to a non-party, identified in the PFASOC as ‘Ms P’. Those statements were, in effect, that the plaintiff had had sex with many other patients and that Ms P should complain to the Medical Board because she was ‘just another victim’. The plaintiff identifies these statements as ‘the Other Patient Falsehoods’.
3The plaintiff then alleges at paragraph 6 that he suffered loss and damage by reason of the publication of the Other Patient Falsehoods because they ‘caused’ Ms P to pursue a complaint about the conduct of the plaintiff to the Medical Board.
4The plaintiff alleges at paragraph 7 that Ms P’s complaint to the Medical Board contained falsehoods (“the Ms P complaint falsehoods”). Those falsehoods were:
(a) that Ms P first met the plaintiff when she became his patient;
(b) that Ms P developed a social relationship with the plaintiff when she became his patient;
(c) that the plaintiff began attending the café where Ms P worked after she became his patient;
(d) that the plaintiff initiated text messages with Ms P after medical appointments;
(e) that the plaintiff and Ms P had an 18-month sexual relationship; and
(f) that the plaintiff regularly sent Ms P text messages.
5The plaintiff says that:
(a) he knew Ms P socially before she became his patient;
(b) he had attended the café where she worked for a couple of years before she became his patient;
(c) she initiated text messages to him after medical appointments;
(d) he had sex with her on only one occasion; and
(e) he did not regularly send her text messages but rather she ‘targeted’ him with a series of sexually suggestive text messages.
6The plaintiff alleges at paragraph 11 that Ms P then made a statement to the Medical Board which contained falsehoods (“the Ms P statement falsehoods”). Those falsehoods, in addition to a repetition of the complaint falsehoods, were:
(a) that the plaintiff and Ms P had sex in a car in a car park;
(b) that Ms P lost her husband, children and home because of the plaintiff.
7The plaintiff says:
(a) he did not have sex with Ms P in a car in a car park; and
(b) her relationship with her husband was over well prior to him having ‘once off sex’ with her.
8Ms P’s complaint to the Medical Board was investigated and referred to the Victorian Civil and Administrative Tribunal (“VCAT”) for hearing and determination. The Tribunal found two charges proved:
(a) On or about 11 and 12 January 2013, Dr Holten, a registered medical practitioner, behaved in a way that constitutes professional misconduct by engaging in sexual misconduct, in that he had sexual intercourse with a patient; and
(b) Between about 12 July 2011 and 17 January 2014 inclusive, Dr Holten a registered medical practitioner, behaved in a way that constitutes unprofessional conduct, in that he failed to maintain the professional boundaries that should, and ordinarily do, exist between a medical practitioner and their patient.
9The consequence of the Tribunal’s decision was that the plaintiff was reprimanded, his registration was suspended for three months and he was required to attend upon a consultant psychiatrist, Dr David Tofler, for further assessment and report.
10The plaintiff claims by way of damages for the Other Patient Falsehoods the following:
(a) 12 days away from work at $10,000 per day between March 2016 and February 2017 responding to the Ms P Complaint and the Ms P Statement, being $120,000;
(b) 32 days away from work between February 2017 and November 2018 at $10,000 per day, being $320,000;
(c) 11 days away from work for consultation with a psychiatrist between March 2016 and June 2019, being $110,000;
(d) 60 days away from work during the period of suspension, being $600,000.
(e) Future loss of earnings due to damage to his reputation.
11The plaintiff claims by way of damages for the Ms P complaint falsehoods:
(a) 12 days away from work during February 2016 and February 2017 to respond to the Ms P Complaint Falsehoods, being $120,000;
(b) 10 days away from work responding to an allegation by the Medical Board of Australia that he had abused his position to pursue a sexual relationship with Ms P, an allegation that was eventually dropped, being $100,000;
(c) 11 days away from work responding to the complaint falsehoods at VCAT, being $110,000;
(d) 11 days away from work for consultation with a psychiatrist due to the development of a significant depressive disorder caused by the Ms P Complaint Falsehoods, being $110,000.
12The plaintiff claims by way of damages for the Ms P Statement Falsehoods the same damages as claimed for the Ms P Complaint Falsehoods.
13It is unclear from the pleading whether there is an overlap between the amounts claimed in damage for the Other Complaint Falsehoods and the Ms P Complaint and Ms P Statement Falsehoods.
14Separately from the Ms P claims, the plaintiff makes further allegation of injurious falsehood in relation to a statement the defendant made to the police that the plaintiff had kicked the defendant twice in the head while he was on the ground (“The Police Statement”).
15The plaintiff also alleges that the defendant has defamed him in a number of conversations with various people. The defendant complains about three telephone conversations. Two of these occurred on 13 August 2019, one with Ms Helen Chadwick and one with Ms Monique Stephen in which the defendant is alleged to have said that the plaintiff’s practice will be shut down and he will not be allowed to practice again. The plaintiff alleges a separate telephone conversation with Ms Liz McMahon on 26 August 2019 in which the defendant is alleged to have said that the plaintiff was a terrible man and that another doctor (Dr Callan) should not be supporting him. The plaintiff also alleges that the defendant had a conversation on 17 December 2020 with Ms Frances O’Connor in which he said, amongst other things, ‘that man has ruined my life’, ‘he’s incompetent’, ‘already been suspended for having sex with a patient’, ‘she’s not the only one, been going on for years’, ‘he cut a woman’s face during surgery and she suffered permanent nerve damage’, ‘he’s a drug addict’, and ‘he’s unethical’.
Should the Ms P Claims be struck out?
16The defendant says the Other Patients Falsehoods, the Ms P Complaint Falsehoods and the Ms P Statement Falsehoods (collectively “the Ms P claims”) should be struck out as they are vexatious and an abuse of process. The plaintiff is attempting to ‘excise himself from the reality of his punishment by VCAT and recover all loss and damage he suffered as a result of that decision’. To permit the Ms P claims to continue would be productive of serious and unjustified trouble and harassment and would bring the administration of justice into disrepute.
17The defendant says the plaintiff is requiring the Court to:
(a) consider each of alleged falsehoods, none of which relate to the fact that the plaintiff had sex with Ms P;
(b) attempt to identify if or how each of those alleged falsehoods contributed to the Tribunal’s decision;
(c) attempt to determine if or how the falsehoods, as opposed to the allegations that were made out, caused the plaintiff loss and damage.
18The gravamen of the Tribunal’s decision was the fact of sexual intercourse with a patient and it is impossible to dissect the Tribunal’s reasoning beyond that evidenced by the decision itself.
19The plaintiff submits that he does not take issue with the decision of VCAT and accepts those findings and the consequential sanctions imposed upon him. He says what is claimed as damages arising from the Ms P claims, is the loss and damage he incurred as a consequence of responding to the specific falsehoods, not the true statements. He argues the falsehoods created a perception that he was engaged in predatory conduct which resulted in a protracted investigation by the Board. He says the timing of the development of his social relationship with Ms P was not ‘dropped’ by the Board until after Ms P gave evidence before the Tribunal, and he is entitled to his losses incurred as a result of those false statements.
20The plaintiff says the loss he claims from the defendant as a result of his suspension from practice, a suspension that was imposed in response to the allegations that were accepted by the Board, as opposed to the false statements, is ‘arguable’ and ‘a question for trial’.
21The use of the Court’s power to shut out a litigant from pursuing a claim on the basis that there is an abuse of process should be reserved for only the most exceptional cases. The Court should act with extreme caution before taking such a step, where matters should rightfully be litigated at trial.
22A pleading must contain all the material facts on which the party relies, but not the evidence by which those facts are to be proved. A pleading is liable to be struck out if it does not disclose a cause of action, is scandalous, frivolous or vexatious, may prejudice, embarrass or delay the fair trial of the proceeding, or is otherwise an abuse of the process of the Court.
23The defendant says, if the plaintiff’s pleading stands, the Court will be required to undertake an impossible enquiry into the investigation undertaken by the Board, and try to disentangle what part of the investigation involved the claimed false statements and what part involved the true complaints which were upheld. However, the plaintiff says he has been careful to claim, in his pleading, only those losses associated with the false statements, not the true complaints. In my view, it is not impossible that the plaintiff could prove his claim by presenting evidence that sufficiently disentangles the losses he suffered by reason of the false complaints from those losses arising by reason of the true complaints. I accept the Court should be slow to strike out a claim for abuse of process and should exercise extreme caution in shutting out a litigant where matters should be agitated at trial.[1]
[1]Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J
24However, I note here that the plaintiff also claims damages for financial loss he sustained during the period of his suspension. He says that claim is ‘at least arguable’ and is a ‘matter for trial’. It appears on the face of the pleading that this is inconsistent with the plaintiff’s submission that he does not seek to resile from the penalty imposed by the Board and only claims those losses occasioned by the false statements. This loss arises from his suspension, not from what he describes as the ‘protracted investigation’ that was a result of the false statements. There is nothing in the particulars provided to distinguish this claimed loss from the loss he incurred as a result of his penalty. Seeking to offset the financial consequences of a penalty imposed on him by reason of his own admitted conduct, would, in my view, be an abuse of process and be likely to bring the administration of justice into disrepute. I would strike paragraph 6(d) from the pleading and give the plaintiff leave to replead it, if he is able, to recast the loss claimed in such a way as to distinguish it from the financial consequences of the penalty imposed by the Tribunal.
25There is also a lack of clarity as to whether any of the loss claimed at paragraph 6 overlaps with any of the loss claimed at paragraph 10. Further particulars are required to clarify this issue.
Is the Plaintiff required to plead further particulars of publication?
26The defendant further objects to the pleading of publication of each of the Ms P claims. He says the plaintiff has failed to provide proper particulars of publication and this invites an inference that he cannot do so.[2]
[2]Takemoto v Moody’s Investors Service Pty Ltd [2014] FCA 1081 at paragraphs [87]-[88]
27In circumstances where the plaintiff seeks to make the defendant responsible for publication of precise and specific falsehoods, more is required of the plaintiff than a bare assertion that he ‘caused’ the publication.
28The plaintiff says it is sufficient for him to assert that the defendant caused the publication of the Ms P Complaint Falsehoods and the Ms P Statement Falsehoods, without providing further particulars. It is open to the defendant to deny publication and it is then a matter for trial, not a matter to be dealt with on the pleadings.
29The plaintiff relies on decisions in Trkulja v Google LLC,[3] Dank v Whittaker (No 1),[4] Webb v Bloch[5] and Thiess v TCN Channel Nine Pty Ltd (No 5)[6] for the proposition that publication ought to be construed broadly. Encouraging and assisting in the publication of the false statements is sufficient for the defendant to be found liable for their publication.
[3](2018) 263 CLR 149 at paragraph [40]
[4] [2013] NSWSC 1062
[5](1928) 41 CLR 331
[6][1994] 1 Qd R 156
30The authorities take a broad view of what can constitute publication. Inciting, encouraging or otherwise conducing the publication may be sufficient for a party to be liable for the publication.[7]
[7]Parkes v Prescott (1869) LR 4 Ex 169 at 173; Webb v Bloch (supra) at 364
31The allegation that the Other Patients Falsehoods caused Ms P to make a complaint and to include in that complaint her own falsehoods may be enough, on its face, to survive an application to strike it out. However that allegation is made only as a particular of a pleading that the plaintiff has suffered loss and damage by reason of the Other Patient Falsehoods. He then pleads that the defendant published the Ms P complaints and the Ms P statements to the Medical Board. It is unclear if he is alleging that the Other Patient Falsehoods caused Ms P to make a complaint, thereby causing the publication to the Medical Board of the Ms P Complaint falsehoods and Ms P Statement Falsehoods or if he alleges publication by the defendant of the Ms P Complaint and Ms P Statement falsehoods in some other way. He needs to plead that publication of the Other Patient Falsehoods caused the other publications, if that is what he alleges, rather than making this allegation only as a particular.
32Further, and in light of the obligations on the parties in modern litigation to ensure the efficient and cost effective disposal of the real issues in dispute, I do not think the pleading as it presently stands in relation to the allegation of publication is sufficient to allow the defendant to know and prepare for the case he is required to meet. The defendant is entitled to further particulars of how it is said that the Other Patient Falsehoods caused Ms P to make the ‘Ms P Statement Falsehoods’ and ‘Ms P Complaint Falsehoods’ and thereby answer the claim against him that he is liable for their publication. It is not satisfactory for the plaintiff to say that the defendant can deny publication. He is entitled to know how it is said that he caused the publication so that he can properly plead thereto. The plaintiff is required to provide further particulars of publication.
Does the Police Statement disclose a cause of action?
33In relation to the Police Statement at paragraph 15, the defendant submits that it does not disclose a cause of action in injurious falsehood, in that it does not relate to the plaintiff’s business, profession or trade, and that the content of the alleged publication, the representation alleged to be conveyed and the particulars of falsity are not pleaded.
34The plaintiff points to decisions that expand the categories of cases in which a claim for injurious falsehood can be brought to potentially include claims where the statements are not related to business or goods.[8] The balance of the law is in favour of the plaintiff being able to obtain damages, even where the false statements do not relate to his business or his goods.[9]
[8]Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 404, paragraph [52]
[9]Palmer Bruyn & Parker Pty Ltd v Parsons (ibid). See Kirby J at paragraph [114], Hayne J at paragraph [154] and Callinan J at paragraph [192]
35Injurious falsehood is generally considered a cause of action available only where the falsehoods concern a person’s goods or business. However, I am persuaded that whether the plaintiff can make out his claim for injurious falsehood in relation to the police statements is a matter for trial. It may be arguable that the statements were, at least tangentially, about the plaintiff’s business, or at least impacted his business, given that he is a surgeon, and an allegation that he assaulted someone may well ’concern his business’. Even if the statements could not be determined to concern the plaintiff’s goods or business, where the pleading raises a debatable point of law, or where the boundaries of the law are still developing, the Court would be reluctant to strike it out.[10]
[10]Rowson & Anor v Alpass (2017) 53 VR 196 at paragraph [31]
Is the Plaintiff required to provide further particulars of the slander claims?
36The defendant says the plaintiff has failed to identify with precision the entirety of the words said to form the basis of each claim, to enable the respondent to properly respond. The defendant says the precise words, in their entirety, are material and must be pleaded pursuant to rule 13.03. The defendant relies on the decision of John Fairfax Publications Pty Ltd v Rivkin[11] and the general principle that a publication that is said to be defamatory must be considered as a whole. A failure to provide the entirety of the conversation denies the defendant the opportunity to provide proper instructions and would delay and prejudice a fair trial.
[11](2003) 201 ALR 77 at 83
37The plaintiff submits the entirety of the words said to form the basis of each claim are set out and that he does not rely on any other words spoken, or contend that other words were spoken which materially alters or qualifies the complexion of the imputation complained of. The plaintiff says the defendant can seek to ‘strike in’ such other alleged words.
38Rule 13.03 provides that the effect of any document or the purport of any conversation, if material, shall be pleaded as briefly as possible, and the precise words of the document or conversation shall not be pleaded unless those words are themselves material. In a claim for defamation it is trite law to say that the words themselves are material. Making out the defamation will depend on how the ordinary listener would understand the material relied upon by the plaintiff.[12] An ordinary listener could be expected to take into account the context provided by the publication of which that material is part.
[12]Australian Broadcasting Corporation v Obeid [2006] NSWCA 231
39It is not clear from the pleading whether what is pleaded is the entirety of the conversations, save perhaps for greetings and farewells, or whether the words were part of longer conversations.
40I accept that it is not for the plaintiff to decide that nothing else said ‘materially alters or qualifies’ the imputation complained of.
41The entirety of the conversations alleged at paragraphs 29, 31 and 35, even if not the precise words, should be pleaded.
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