Intergraph Public Safety Pty Ltd v Morris

[1999] VSC 59

SUPREME COURT OF VICTORIA
PRACTICE COURT	Do not Send for Reporting
Not Restricted

No. 6759 of 1997

INTERGRAPH PUBLIC SAFETY PTY. LTD.	Plaintiff
v.
ROD MORRIS AND AUSTRALIAN LIQUOR, HOSPITALITY & MISCELLANEOUS WORKERS UNION	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 FEBRUARY 1999
DATE OF JUDGMENT:	12 MARCH 1999
CASE MAY BE CITED AS:	INTERGRAPH PUBLIC SAFETY PTY. LTD. v. MORRIS & ANOR.
MEDIA NEUTRAL CITATION:	[1999] VSC 59

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CATCHWORDS:           Practice and Procedure - Application to hear two proceedings together - Rule 9.12 of the Supreme Court Rules - Proceedings between same parties raising same cause of action - Injustice to plaintiff - Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. J. Ruskin Q.C. and Mr. D. Gilbertson	Corrs Chambers Westgarth
For the Defendants	Mr. M. Dreyfus	Brian Tee

HIS HONOUR:

1. This is an appeal from the decision of the Listing Master made on 18 December 1998 whereby the Master refused the defendants' application for an order pursuant to Rule 9.12 of the Supreme Court Rules that proceeding No. 5079 of 1997 be tried at the same time as proceeding No. 6759 of 1997.

1. The plaintiff in each proceeding is Intergraph Public Safety Pty. Ltd.  It provides computer aided call taking and despatch services for emergency services organisations of the State of Victoria including the Metropolitan Ambulance Service.

1. The defendants in each proceeding are Rod Morris and Australian Liquor, Hospitality & Miscellaneous Workers Union.  It would appear that the defendant Morris is the general secretary of Ambulance Employees Australia-Victoria, a section of the defendant union.

1. In each proceeding the plaintiff is seeking to recover damages for defamation.

1. In proceeding No. 5079 of 1997, a proceeding which was filed in the Court on 17 April 1997, the plaintiff alleges that in the course of an interview with a journalist from radio station 3LO on 1 April 1997 the defendant Morris in the course of his employment with the union made statements which meant and were understood to mean:

"(a)that the plaintiff acted corruptly in bribing government officials or Ministers to obtain the ambulance communications contract;

(b)that the plaintiff acted corruptly in using dishonest means to obtain the ambulance communications contract;

(c)that the plaintiff dishonestly received payments for the supply of mobile data terminals to which it knew it was not entitled;

(d)that the plaintiff was incompetent in installing and operating a communications system which has resulted in ambulance response times that are four times longer than they were previously;

(e)that the plaintiff was negligent in installing and operating a communications system which has resulted in ambulance response times that are four times longer than they were previously."

1. The plaintiff further alleges that on the same day the defendants published of and concerning the plaintiff a bulletin entitled "Ambulance Communications System Contract Fiasco" which contained statements which meant and were understood to mean the same things.

1. In proceeding No. 6759 of 1997, a proceeding which was filed in the Court on 25 August 1997, the plaintiff alleges that in the course of an interview with Neil Mitchell on radio station 3AW on 10 July 1997 the defendant Morris in the course of his employment with the union made statements which meant and were understood to mean:

"(a)that the plaintiff was responsible for the death of a seven year old girl;

(b)that the plaintiff failed to redirect an available ambulance to attend to a choking, seven year old girl who was two blocks away;

(c)that the plaintiff failed to ascertain if an ambulance two blocks away from a desperately ill child was available to assist;

(d)that the plaintiff negligently breached its own protocols in failing to redirect an available ambulance to a life-threatening emergency nearby;

(e)that the plaintiff negligently breached its own protocols in failing to ascertain if an ambulance was available to attend a life-threatening emergency nearby."

1. In their defences to the plaintiff's statement of claim in proceeding No. 5079 of 1997 the defendants plead that the first words and the second words complained of by the plaintiff in that proceeding meant and were understood to mean:

"(First Words)

(a)The ambulance communications system contract was a real fiasco involving a mixture of corruption, negligence or incompetence or all of them.

(b)Mobile data terminals were being paid for by the Metropolitan Ambulance Service (MAS) for more than a year even though they had not been delivered.

(c)The MAS had paid more than a quarter of a million dollars for equipment which had not been delivered.

(d)The Auditor General would find either corruption, negligence or incompetence in the financial aspects of the ambulance communications system contract.

(e)There were documents which showed that the system was not improving in that response times of ambulances were not getting better.  Those documents showed that response times were getting worse in that they had blown out by more than four minutes.

(f)As a consequence of extra delay in response times some people would die.

(Second Words)

(a)The privatisation of the ambulance communications system through corruption, negligence or incompetence (or a mixture of all three) was a costly blunder.

(b)There were documents which revealed that:

(i)Components of the system which were contracted to be delivered on 1 May 1994, which had been paid for, had not been delivered.

(ii)Ambulance response times were about four minutes longer than before the ambulance communications system was privatised.

(iii)Intergraph had failed to meet contracted quality standards.

(c)The blunders in the ambulance communications system contract process had impacted on people's lives.

and in those meanings the first words and the second words were true in substance and in fact."

1. The defendants plead further that the words complained of were published in the course of discussing government and political matters, were reasonable in the circumstances and were published therefore on occasions of qualified privilege;  that they were published pursuant to a duty owed by the defendant Morris to the persons to whom the words were published which persons had an interest in receiving them, were published pursuant to a common interest between the defendant Morris and the persons to whom the words were published in the subject matter thereof, and were published therefore on occasions of qualified privilege;  and finally that insofar as the words complained of consisted of statements of fact they were true in substance and in fact, and insofar as they consisted of expressions of opinion they were fair comment on a matter of public interest.

1. In their defence to the plaintiff's statement of claim in proceeding No. 6759 of 1997 the defendants plead that the words complained of in that proceeding meant and were understood to mean that:

"(First Words)

(a)If the Werribee ambulance had been redirected by Intergraph there was a much improved chance that the child, Renee Clarke, could have been saved.

(b)The ambulance protocols had been breached by Intergraph in relation to the availability of the Werribee ambulance.

(Second Words)

(a)The Metropolitan Ambulance Service (MAS) ambulance communications system (Intergraph) did not tell the Werribee ambulance that there was a life-threatening situation nearby, and had it done so Renee Clarke may have survived.

(b)Intergraph failed to redeploy the Werribee ambulance in breach of ambulance protocols.

and in these meanings the first and the second words were true in substance and in fact."

1. The defendants then make similar pleas concerning qualified privilege etc. as pleaded in proceeding No. 5079 of 1997.

1. It can be seen immediately that the alleged defamatory matter in each proceeding is quite different and that any overlap between the two proceedings is minimal.

1. In his written submissions senior counsel for the plaintiff has identified nine substantial matters which arise in proceeding No. 5079 of 1997 but which do not arise in proceeding No. 6759 of 1997.  They are:

(1)the contracting out of the ambulance communications system;

(2)the operation of the ambulance communications system in general;

(3)the cost of the ambulance system;

(4)the non-delivery of the communications system on time;

(5)deficiencies in the routing information provided by the communications system;

(6)the inability of the system to adequately schedule non-emergency transport;

(7)the inability of the system to adequately replace the existing Communications Centre;

(8)the mobile data terminals which were to be supplied by the plaintiff were not supplied at the time the statements complained of in proceeding No. 5079 of 1997 were made and at that time were not operational;  and

(9)a number of ambulance communications incidents which have no relevance to proceeding No. 6759 of 1997.

1. In my opinion the issues raised in proceeding No. 5079 of 1997 are far more extensive than the issues raised in proceeding No. 6759 of 1997 and clearly the hearing of proceeding No. 5079 will take significantly longer than the hearing of proceeding No. 6759.

1. Another factor to be taken into account in determining whether it is appropriate to order a joint trial of the proceedings is that there can be no inconsistent findings of fact if the proceedings are heard separately.  The publications relied upon by the plaintiff are quite different in each proceeding.

1. However, if the proceedings are heard together I consider that there is a significant risk of prejudice to the plaintiff.  A jury considering the factual issues in proceeding No. 6759 may well be influenced by the material relied upon by the defendants in proceeding No. 5079 which allegedly supports the defendants' defences to the imputations of corruption and dishonesty.

1. In my opinion it is inappropriate that the two proceedings be heard together and I consider the Listing Master made no error in the matter.

1. The appeal will be dismissed with costs to be taxed and paid by the defendants.

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