Khoury v Kirwan (No 5)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2020 01434

ELIE KHOURY	Plaintiff
v
DAVID KIRWAN	Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2021
DATE OF RULING:	5 August 2021
CASE MAY BE CITED AS:	Khoury v Kirwan (No 5)
MEDIUM NEUTRAL CITATION:	[2021] VSC 460

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PRACTICE AND PROCEDURE – Subpoena objections – Subpoenas issued to health care providers, doctor and the Medical Council of New South Wales – Whether classes of documents sought are too broad or lack relevance - Volunteer Fire Brigades Victoria v CFA (discovery ruling) [2016] VSC 537 – Rush v Nationwide News Pty Ltd (2018) 359 ALR 473 – Wilson v Bauer Media (Ruling No 4) [2017] VSC 354 – Duma v Fairfax Media Publications Pty Limited [2020] FCA 1792 – Tabe v Amalgamated Television Services Pty Ltd (1987) A Def R 50-025 - Objections on the basis of breadth and relevance are allowed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms G L Schoff QC with Ms H Jager	Litton Legal
For the Defendant	Mr E Batrouney	Kennedys
For a Non-Party	Mr I Chatterjee	Health Care Complaints Commission

TABLE OF CONTENTS

Summary.............................................................................................................................................. 1

Alleged Defamatory Imputations................................................................................................... 1

Defence................................................................................................................................................. 5

General submissions......................................................................................................................... 6

Dr Khoury’s submissions................................................................................................... 6
Not relevant; no forensic purpose....................................................................... 6
Amended Defence.................................................................................................. 9

Dr Kirwan’s submissions................................................................................................. 12
Amended statement of claim.............................................................................. 14

Dr Khoury’s submissions in reply.................................................................................. 15

Applicable Principles...................................................................................................................... 16

AHPRA subpoena............................................................................................................................ 20

Class 1........................................................................................................................................... 20
Dr Khoury’s submissions................................................................................................. 20
Dr Kirwan’s submissions................................................................................................. 21
Analysis............................................................................................................................... 21

Class 2........................................................................................................................................... 22
Dr Khoury’s submissions................................................................................................. 23
Dr Kirwan’s submissions................................................................................................. 23
Analysis............................................................................................................................... 23

Class 3........................................................................................................................................... 23
Dr Khoury’s submissions................................................................................................. 24
Dr Kirwan’s submissions................................................................................................. 24
Analysis............................................................................................................................... 24

Medical Council of New South Wales subpoena...................................................................... 25

Class 1........................................................................................................................................... 25
Class 2........................................................................................................................................... 25
Class 3........................................................................................................................................... 25

Albury Wodonga Health subpoena.............................................................................................. 25

Class 1........................................................................................................................................... 26
Submissions........................................................................................................................ 26
Analysis............................................................................................................................... 26

Ramsay Health Care Australia Pty Ltd subpoena..................................................................... 27

Class 1........................................................................................................................................... 27
Submissions........................................................................................................................ 28
Analysis............................................................................................................................... 28

Class 2........................................................................................................................................... 29
Dr Khoury’s submissions................................................................................................. 30
Dr Kirwan’s submissions................................................................................................. 30
Analysis............................................................................................................................... 30

Class 3........................................................................................................................................... 30
Dr Khoury’s submissions................................................................................................. 30
Dr Kirwan’s submissions................................................................................................. 30
Analysis............................................................................................................................... 31

Class 6........................................................................................................................................... 31
Dr Khoury’s submissions................................................................................................. 31
Dr Kirwan’s submissions................................................................................................. 31
Analysis............................................................................................................................... 31

Class 7........................................................................................................................................... 32
Dr Khoury’s submissions................................................................................................. 32
Dr Kirwan’s submissions................................................................................................. 32
Analysis............................................................................................................................... 32

Class 8........................................................................................................................................... 32
Dr Khoury’s submissions................................................................................................. 33
Dr Kirwan’s submissions................................................................................................. 33
Analysis............................................................................................................................... 33

Class 9........................................................................................................................................... 33
Dr Khoury’s submissions................................................................................................. 33
Dr Kirwan’s submissions................................................................................................. 34
Analysis............................................................................................................................... 34

Class 10......................................................................................................................................... 34
Dr Khoury’s submissions................................................................................................. 34
Dr Kirwan’s submissions................................................................................................. 34
Analysis............................................................................................................................... 34

Class 11......................................................................................................................................... 34
Dr Khoury’s submissions................................................................................................. 34
Dr Kirwan’s submissions................................................................................................. 35
Analysis............................................................................................................................... 35

Dr Omar Khorshid subpoena........................................................................................................ 35

Class 1........................................................................................................................................... 35
Dr Khoury’s submissions................................................................................................. 35
Dr Kirwan’s submissions................................................................................................. 35
Analysis............................................................................................................................... 36

Class 2........................................................................................................................................... 36
Submissions........................................................................................................................ 36
Analysis............................................................................................................................... 36

Class 3........................................................................................................................................... 36
Submissions........................................................................................................................ 36
Analysis............................................................................................................................... 36

Conclusion......................................................................................................................................... 36

HER HONOUR:

This ruling follows an earlier one relating to the same summons and subpoenas: Khoury v Kirwan (No 3).[1] As will be recalled, in this proceeding one orthopaedic surgeon says he has been defamed by another. The defendant surgeon, Dr David Kirwan, caused a flurry of subpoenas to be issued. The plaintiff surgeon, Dr Elie Khoury, lodged objections to five of the subpoenas. This ruling determines the objections made by Dr Khoury on the basis of the breadth or relevance of the subpoenas.
[1][2021] VSC 304 (27 May 2021).

Summary

The question to be determined here in respect of each class of the subpoenas is whether or not Dr Khoury’s objections on the basis of breadth or relevance should be allowed. For the reasons discussed below, I allow Dr Khoury’s objections.

Alleged Defamatory Imputations

By his amended statement of claim filed on 30 June 2020 (‘the ASOC’), Dr Khoury alleges that Dr Kirwan made defamatory statements: two oral and 12 in writing (emails). It is unnecessary here to describe each of the alleged defamatory imputations in detail. A brief description follows. As is evident, the alleged defamatory imputations were made between 22 July 2019 and 30 November 2019.

(a) On or about 22 July 2019 Dr Kirwan said words to Mr Wes Fowler and theatre staff at the Insight Private Hospital, to the following effect: “He’s killed another one”. This is referred to in the ASOC as the First Statement. Dr Khoury alleges it was defamatory in that it meant and was understood to mean, amongst other things, that he was unfit to practice as an orthopaedic surgeon and that he killed patient KT when he performed orthopaedic surgery on him and that he was a dangerous surgeon who had killed more than one of his patients.

(b) In or around early November 2019 in the tea-room at Insight Private Hospital, Dr Kirwan said words to the following effect to three people: “He’s killed another one”. This is referred to in the ASOC as the Second Statement. Dr Khoury alleges that the Second Statement was defamatory in the same way as the First Statement.

(c) On 24 July 2019, Dr Kirwan published an email of and concerning Dr Khoury to Dr Richard Eek. This is referred to in the ASOC as the First Email. Dr Khoury alleges it was defamatory in that it meant and was understood to mean, amongst other things, that he: was a rogue surgeon, was unfit to practice as a surgeon because he had caused the death of three patients, was callously indifferent to the deaths of patients because he had resisted having a peer review meeting afterwards, received illegal secret commissions from the chief executive officer of the Albury Wodonga Private Hospital (‘AWPH’), lacked insight that he caused the deaths of three of his patients, and that he performed bilateral total knee replacement (‘BTKR’) surgery on patient KT [initials] and surgically caused his death.

(d) On 26 July 2019, Dr Kirwan published an email of and concerning Dr Khoury to Dr Eek. This is referred to in the ASOC as the Second Email. Dr Khoury alleges it was defamatory in that it meant and was understood to mean, amongst other things, that he had: engaged in a conflict of interest in that he sat on the Mortality and Morbidity Committee (‘MMC’) of AWPH to review a case where he was the treating surgeon and the patient had died, lied to the Medical Advisory Committee (‘MAC’) at that AWPH when he stated that he had performed an excellent job in performing surgery on a patient GM [initials] and was thereby callously indifferent towards his patient given that he had died after surgery.

(e) On 19 August 2019, Dr Kirwan published an email of and concerning Dr Khoury to Mr Fowler. This is referred to in the ASOC as the Third Email. Dr Khoury alleges it was defamatory in that it meant and was understood to mean, amongst other things, that he was: unfit to practice as a surgeon in that surgery he performed on patient KT caused his death, and complicit in covering up his culpability for the death of a patient who died within hours of him performing BTKR surgery on her.

(f) On 6 November 2019, Dr Kirwan published an email of and concerning Dr Khoury to 23 recipients in Victoria and New South Wales. This is referred to in the ASOC as the Fourth Email. Dr Khoury alleges it was defamatory in that it meant and was understood to mean, amongst other things, that he: had acted in a treacherous manner while acting as a surgeon at the Albury Base Hospital, was about to be charged criminally for his activities as a surgeon at the AWPH, and was about to be kicked out of the AWPH.

(g) Also on 6 November 2019, Dr Kirwan published an email of and concerning Dr Khoury to Dr Jeremy Kolt. This is referred to in the ASOC as the Fifth Email. Dr Khoury alleges it was defamatory in a similar way to the Fourth Email and further that it meant and was understood to mean, amongst other things, that he was of such poor character that he should not be believed.

(h) On 26 November 2019, Dr Kirwan published an email of and concerning Dr Khoury to 23 recipients in Victoria and New South Wales. This is referred to in the ASOC as the Sixth Email. Dr Khoury alleges it was defamatory in that it meant and was understood to mean, amongst other things, that he: was lying and manipulative, was complicit in covering up his true culpability for having undertaken BTKR surgery on patients and then caused their deaths at the AWPH, in the previous six months caused two deaths and three near deaths at the AWPH by performing elective knee surgery and killed two of his patients in the previous six months.

The ASOC then turns back in time to August 2019.

(i) On 4 August 2019, Dr Kirwan published an email of and concerning Dr Khoury to Dr Eek and Dr Kolt. This is referred to in the ASOC as the Seventh Email. Dr Khoury alleges it was defamatory in that it meant and was understood to mean, amongst other things, that he was: a serial killer, and complicit in covering up his true culpability for having undertaken BTKR surgery on three patients and then caused their deaths at the AWPH.

(j) On 27 August 2019, Dr Kirwan published an email of and concerning Dr Khoury to Dr Kolt. This is referred to in the ASOC as the Eighth Email. Dr Khoury alleges it was defamatory in that it meant and was understood to mean, amongst other things, that he was a psychopath and had a narcissistic personality disorder.

(k) On 3 November 2019, Dr Kirwan published an email of and concerning Dr Khoury to Dr Kolt. This is referred to in the ASOC as the Ninth Email. Dr Khoury alleges it was defamatory in that it meant and was understood to mean, amongst other things, that he: was complicit in an abuse of process in relation to a review into the death of patient GM, had engaged in a conflict of interest in that he sat on the MMC of AWPH to review a case where he was the treating surgeon and the patient had died, accepted bribes from Ramsay Health Care and was beholden to them because of that, used legal tactics to prevent review of his practices and patient care and to silence any discussion of the same, did not care for human life, had killed people and lied to their families, and was a sociopath guilty of manslaughter.

(l) On 17 November 2019, Dr Kirwan published an email of and concerning Dr Khoury to Malcolm Passmore and Professor John Horvath. This is referred to in the ASOC as the Tenth Email. Dr Khoury alleges it was defamatory in that it meant and was understood to mean, amongst other things, that he: had tortured patient AD and contributed to his death, committed manslaughter in relation to the death of patient MT, was complicit in covering up his culpability for having being the true cause of the death of patient MT, made money from the suffering of his patients, was too stupid to prevent the death of patient GM, and accepted criminal secret commissions from Ramsay Health Care.

(m) On 19 November 2019, Dr Kirwan published an email of and concerning Dr Khoury to Mr Passmore and Professor Horvath. This is referred to in the ASOC as the Eleventh Email. Dr Khoury alleges it was defamatory in that it meant and was understood to mean, amongst other things, that he had used legal tactics to prevent peer review at AWPH and that he had caused multiple patient deaths.

(n) On 30 November 2019, Dr Kirwan published an email of and concerning Dr Khoury to Professor Horvath. This is referred to in the ASOC as the Twelfth Email. Dr Khoury alleges it was defamatory in that it meant and was understood to mean, amongst other things, that he was: responsible for a cluster of deaths of patients at AWPH, a random serial killer, and unfit to practice as an orthopaedic surgeon.

Dr Khoury seeks damages, aggravated damages and a permanent injunction.

Defence

By his amended defence to the ASOC filed on 16 September 2020, Dr Kirwan denies the alleged defamatory First and Second Statements. As to the emails, he admits sending them all but denies they are defamatory.

Further or alternatively, Dr Kirwan pleads the following defences.

First, the statements were substantially true pursuant to s 25 of the Defamation Act 2005 (Vic) (‘Defamation Act’): paragraph 65(a) of the amended defence. Dr Kirwan pleads that each of the alleged defamatory imputations were substantially true by reason of the matters set out in Schedule A to his defence. This is referred to below as Dr Kirwan’s justification defence.

Second, the matters were published on occasion of qualified privilege at common law and pursuant to s 30 of the Defamation Act: paragraphs 65(b) and (c) of the amended defence. Dr Kirwan pleads, amongst other things, that the matters complained of were published by him to inform recipients who had a proper and legitimate public interest in having the information. He pleads the recipients had a proper and legitimate interest in the subject matter as medical practitioners or officials or managers responsible for patient care, safety and well-being in the public interest, or in the management and licensing of the hospitals in which Dr Khoury performed surgeries. Dr Kirwan pleads that his conduct was reasonable in this regard in the circumstances set out in Schedule B to his defence.

Third, the matters were published as an honest opinion pursuant to s 31(1) of the Defamation Act. Dr Kirwan pleads that his opinions were based on proper material set out in Schedule C.

Further, or alternatively, Dr Kirwan relies on certain matters which he says mitigate any damage suffered by Dr Khoury. These matters pleaded by Dr Kirwan include that Dr Khoury had a ‘bad reputation’ as known to some or all of the recipients based on their knowledge of the facts, matters and circumstances particularised in Schedule A and by reason of the restrictions being placed on Dr Khoury’s accreditation by Ramsay Health Care and the Australian Health Practitioner Regulation Agency (‘AHPRA’), together with his decision to relocate his practice from Albury-Wodonga to Melbourne.

General submissions

Each party provided general submissions regarding the breadth or relevance of the subpoenas and whether they amount to a fishing expedition. Key submissions are outlined below. Specific subpoenas are then discussed.

Dr Khoury’s submissions
Not relevant; no forensic purpose

All documents sought by Dr Kirwan are challenged by Dr Khoury on the basis of breadth or relevance, and that they amount to a fishing expedition. Documents sought by the subpoenas do not serve any legitimate forensic purpose in the proceeding.

The general principles governing subpoenas, legitimate forensic purpose and fishing expeditions are well-established.

The Court of Appeal decision Woolworths Ltd v Svajcer is relevant.[2] So are the two authorities it cites.[3] It is necessary for a party who has issued a subpoena to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought. It can be considered by the Court without the need for it to inspect the documents produced.
[2][2013] VSCA 270, [16] (per Nettle, Ashley and Neave JJA).
[3]Volunteer Fire Brigades Victoria v CFA (discovery ruling) [2016] VSC 573, [57]-[62] (J Forrest J); Commissioner of AFP v Magistrates’ Court of Victoria [2011] VSC 0003 (J Forrest J).

Here, Dr Kirwan must satisfy the Court that it is ‘on the cards’ or there is a reasonable possibility that a document sought will materially assist him in relation to an issue. Dr Kirwan is conducting a fishing expedition without a reasonable forensic purpose. The facts in issue need to be identified to determine relevance.

In Rush v Nationwide News Pty Ltd,[4] an application was made by the defendant to subpoena documents from the Sydney Theatre Company. The documents sought included any complaints of misconduct against Mr Rush. They were sought on the basis that the defendant had a justification defence to the defamation proceeding brought by Mr Rush. The procedural aspects of Rush are different to those here. In Rush, the application to set aside the subpoena was coupled with an application brought by the plaintiff to strike out the justification defence. The strike out application was successful. Wigney J considered the defence and held that the particulars were insufficient to justify the imputations pleaded. With the defence of justification struck out, the subpoena was inevitably set aside. It could serve no particular legitimate forensic purpose.
[4](2018) 359 ALR 473 (‘Rush’).

Dr Kirwan relies upon his defence of justification. When properly analysed, his defence and the matters relied upon are confined in nature. However, the documents sought by subpoena are wide-ranging. They are irrelevant to the way the defence is framed. Therefore they serve no legitimate forensic purpose.

The decision in Rush is relevant here because of the principles regarding pleadings and, specifically, justification. Wigney J stated:

[p]articulars provided in support of a defence of justification must generally satisfy two requirements. First, they must be shown to be capable of proving the truth of the defamatory meaning sought to be justified. Second, they must be sufficiently specific and precise to enable a claimant to know the case they are required to meet…[5]

[5]Rush (2018) 359 ALR 473, 481 [46].

On the first element, the defence of justification is simply a defence that those imputations are true in substance and fact, and turns on the objective truth or falsity of the imputations themselves: s 25 of the Defamation Act.

The onus is on Dr Kirwan to prove the imputations are true. He must plead particulars that are specific and precise to enable Dr Khoury to know the case he is asked to meet. In Rush, Wigney J held ‘[t]he need for caution also arises because the particulars are simply a summary of the relevant facts, and are therefore unlikely to be as fulsome as the evidence that may ultimately be led to prove those facts’.[6] The particulars do not indicate the outer limits of what may be proved. They indicate the topics on which evidence may be led. Dr Kirwan’s particulars indicate the topics on which evidence may be led by him to justify the imputations alleged.
[6]Ibid 482 [49].

On the second element of a justification defence, Wigney J held:

As for the second requirement, the requirement of specificity or precision, the common law rule is said to be that a defendant must specify the particulars of truth relied on with the same precision as in an indictment…[7]

[7]Ibid 483 [52] (citations omitted).

The plaintiff in a defamation action is entitled to be put on notice of the particulars. Here, paragraph 53 of the defence is a general plea and accordingly ineffective. Paragraph 54 does not provide sufficient notice of exactly what is alleged in terms of the justification defence.

In Rush, the efficacy of the particulars relied upon were challenged. Here, they are not. Dr Khoury does however seek to hold Dr Kirwan to the particulars he has pleaded. Those particulars inform Dr Khoury of the justification defence. It is important that Dr Kirwan be held to the case he has particularised in his justification defence. If he is permitted to seek documents on subpoena that are not relevant to the specific defence, then that would subvert the purpose of the particulars and the defence of justification generally.

On the defence of qualified privilege, that defence is found at common law and under s 30 of the Defamation Act. It is a defence that arises if the defendant ultimately fails on the justification defence. If the Court is satisfied that the imputations are conveyed but not satisfied that they are true, then it arises that the Court may find privilege was occasioned which excused the defendant from making the defamatory statements. In a statutory context, one has to look at the defendant’s state of mind. That is, did the defendant believe what was being published was true or false and did he, having regard to all of the circumstances, act reasonably? As discussed in Rush at paragraph 125, the objective truth of the matters published is irrelevant to the statutory defence of qualified privilege because objective truth or falsity of facts is not relevant to the questions that relate to the defendant’s state of mind. The questions relevant to the defendant’s state of mind arise in the circumstances of a qualified privilege defence when the imputations are found to be false.

On aggravated damages, the matters relevant to Dr Kirwan’s state of mind arising on the pleadings do not give rise to the objective truth or falsity of imputations. The Court is referred to paragraphs 130–152 of Rush.

Amended Defence

Dr Kirwan pleas a number of positive defences in his amended defence to the ASOC.

· Justification - that the matters are substantially true by reason of the facts in Schedule A to the amended defence: paragraph 65(a).

· Qualified privilege, including the assertion that Dr Kirwan acted reasonably and in reliance on matters in Schedule B of the amended defence: paragraph 65(b),(c).

· Honest opinion: paragraph 65(d).

Schedule A sets out each imputation category and the particulars of justification. The particulars of justification define the issues in the proceeding (in respect of the justification defence) and Dr Kirwan ought be held to them for determining whether or not the documents are relevant or serve any legitimate forensic purpose.

In Schedule A of the amended defence, Dr Kirwan defines the terms utilised.

‘BTKR’ –bilateral total knee replacement.
‘TKR’ – total knee replacement.
‘Plaintiff’s BTKR Method’ – ‘method of performing BTKR used by the plaintiff, including [four processes].’

Schedule A refers to the first imputation category as ‘The Plaintiff killed KT [patient initials]’. The allegation is that Dr Khoury failed to consider KT’s co-morbidities and undertake certain tests. It is alleged the BTKR method used by Dr Khoury caused KT’s death. This is a bare assertion. It is not asserted or explained how the co‑morbidities or alleged failures of Dr Khoury caused KT’s death.

It might be appropriate for Dr Kirwan to issue subpoenas which are addressed to the hospital or a relevant recipient requiring production of material going to pre-operative consideration of KT’s co-morbidities, but nothing further. This is because there are no other issues raised with respect to KT but a failure to consider his co-morbidities.

It is alleged that the BTKR method is not widely accepted. In each case, the justification defence is confined to an assertion that Dr Khoury knew the BTKR method was not widely accepted by a significant number of practitioners within the field. The matters relevant as to whether the BTKR method was an accepted practice within orthopaedic surgery do not descend into the detail of any particular patient. The documents sought in various subpoenas regarding KT and other patients go far beyond those issues. None are relevant to whether the BTKR method was widely accepted.

Schedule A refers to the second imputation category as ‘The Plaintiff has killed multiple patients’. The particulars of justification reiterate the particulars in respect of KT and contain particulars with respect to four other patients including MT, KS, GM and WW [patient initials]. There is insufficient factual material to support a plea relating to KS and WW. Insufficient particulars have been provided. In respect of WW, there is a bald assertion that TKR surgery (not BTKR) caused his death. There are no specific allegations or particulars about it. There is no reference to TKR complications. In respect of KS, it is alleged that she died of pulmonary embolism 10 days after surgery, caused by TKR, and that it would not have occurred had the surgery not been done. Causation is not particularised. Dr Kirwan has not particularised any proper factual basis capable of supporting the plea.

Schedule A refers to the third imputation category as ‘The Plaintiff committed manslaughter in causing the deaths of [KT] and [MT]’. They reiterate the previous particulars with respect to KT and MT.

Schedule A refers to the fourth imputation category as ‘The Plaintiff was complicit in covering up deaths/ engaged in an abuse of process/ had a conflict of interest’. The particulars contain allegations relating to the investigation of the deaths of MT and GM. The only particulars pleaded to justify the imputations are that the plaintiff sat on the MAC, did not raise certain matters with it, did not seek or consent to peer review and that peer review was not undertaken. The documents sought go much further than those particulars and are accordingly fishing.

Schedule A refers to the fifth imputation category as ‘Treachery’. Dr Khoury makes no submissions on this category.

Schedule A refers to the sixth imputation category as ‘Near deaths and deaths’. The particulars contain allegations relating to additional patients: LS and GK. There is also reference to a patient ‘name to be provided’. In respect of GK it is conceded that, as with KT, the material going to pre-operative consideration of co-morbidities may be relevant, but nothing further. With LS and ‘name to be provided’, there is no factual basis to support a plea. In respect of LS, it is said she required four units of blood, nothing more. It is almost entirely unparticularised and unclear what the case is. In respect of ‘name to be provided’, it is said there was revision TKR surgery and that heart surgeons had to intervene. It is not particularised how Dr Khoury caused a near death.

Dr Kirwan was required to have a proper basis for alleging causation at the time the defence was made. He cannot now seek to deploy subpoenas to make good his causation argument. For the reasons given by Wigney J in Rush, Dr Kirwan should not be allowed to invoke the forensic processes of the Court in the hope of finding something.

Dr Kirwan’s submissions

The applicable principles are well known.[8] There must be a legitimate forensic purpose for the use of the documents in evidence. ‘For evidence’ means a document may potentially be required for evidence, and therefore it must have at least some potential relevance to the issues in dispute.
[8]See, eg, Melbourne City Investments v Myer [2016] VSC 239, [44] and [47] (Derham AsJ).

The subpoenas here are for a legitimate purpose and it is ‘on the cards’ that the documents will be used ‘for evidence’.

The primary submission is that Dr Khoury has adopted an unduly narrow approach to the question of relevance. Properly analysed, they are relevant and are not objectionable.

The defamatory imputations pleaded by Dr Khoury are serious and relate generally to his treatment of a number of identified patients. Dr Khoury seeks aggravated damages arising from Dr Kirwan’s alleged knowledge of the falsity of the imputations. By way of that claim, Dr Khoury has made truth an issue in the proceedings. Consequently, all documents relating to the truth of the matters published are relevant.[9]
[9]See, eg, Tabe v Amalgamated Television Services Pty Ltd (1987) A Def R 50-025 (‘Tabe’) cited in Qureshi v John Fairfax Publications Pty Ltd [2012] NSWSC 1605, [34] (Rein J).

Dr Kirwan raises positive defences, including justification, contextual truth, qualified privilege and honest opinion.

Paragraph 66 of the amended defence pleas mitigation of damages. Paragraph 66(c) refers to Dr Khoury’s ‘bad reputation as known to some or all of the recipients of the matters complained of based on their knowledge of the facts, matters and circumstances particularised in Schedule A...’. Schedule A deals with the defence of truth.

The first imputation category in Schedule A of the amended defence is ‘The Plaintiff killed KT’. One particular in this category alleges that the BTKR caused the death of KT. This is referred to in other places in Schedule A with respect to other patients. Dr Khoury has urged that this particular to be overlooked as a bald assertion. That particular is in the pleading. It is relied upon and no application has been made to strike it out. The documents sought by subpoena are relevant to that particular and should be allowed.

Dr Kirwan intends to use the subpoenaed documents to brief expert witnesses to opine on the plaintiff’s methods and clinical performance.

The subpoenas issued by Dr Kirwan are directed at:

(a) records concerning Dr Khoury’s treatment of the patients identified in the ASOC and the amended defence (paragraph 65 and Schedules A to C of the latter);

(b) the conditions placed on Dr Khoury’s registration as a medical practitioner, including in relation to any conditions concerning his BTKR method; and

(c) complaints and investigations into Dr Khoury’s clinical performance.

The relevance of the subpoenas is confirmed when regard is had to those previously issued by Dr Khoury. On 25 March 2020 and 20 May 2020, he caused subpoenas to be issued to Ramsay Health Care and AWH seeking correspondence and documents relating to his patients, professional standing, and any review of his medical practice.

In reply: Rush is about pleadings. That is not this case. The pleadings are closed. There has been no application to strike out the pleadings or particulars. Questions of relevance and whether there is a legitimate forensic purpose for the documents subpoenaed should be determined based on the pleadings as they stand.

Amended statement of claim

Paragraph 4(d) of the ASOC alleges that Dr Kirwan engaged in a campaign of vilification to injure the plaintiff’s reputation. That allegation is relied upon in each publication in respect of each of the alleged defamatory emails or statements. For instance, there is a reference to Dr Kirwan making a complaint about Dr Khoury’s treatment of patient AD to the Health Care Complaints Commissioner (‘the HCC Commissioner’): paragraph (ix) of the particulars of paragraph 4(d) of the ASOC. There is a reference to Dr Kirwan assisting the widow of patient KT to submit a complaint about Dr Khoury to the HCC Commissioner: paragraph (xii) of the particulars of paragraph 4(d) of the ASOC. The campaign of vilification is denied in paragraph 4 of the defence. Dr Khoury will have to prove the campaign at trial to make good his claim. The matters pleaded in paragraph 4(d) are all in the arena at trial.

Paragraph 7 of the ASOC pleads that there are circumstances which entitle Dr Khoury to an award of aggravated damages. Paragraph 7(a) pleads that ‘the defendant had no genuine belief in the truth of the words at the time they were published’. This raises truth as an issue in Dr Khoury’s own pleadings. It is accepted this is focused on Dr Kirwan’s own belief.

In Tabe,[10] the New South Wales Court of Appeal considered the principles applying to discovery. They apply equally in the context of a subpoena. In that case, as here, the plaintiff claimed aggravated damages. Mahoney JA stated:[11]

The result of what has happened is that there will be relevantly in issue the falsity of the imputations in question. How that falsity may be proved and the effect of what must be done to prove it are matters which, no doubt, will be the subject of contention at the hearing. They are not to be determined upon an interlocutory application such as the present. Whatever be the result of the submissions on those issues, the proof or falsity of the imputations is sufficiently in issue to attract the discretion of the court in relation to discovery.

[10](1987) A Def R 50-025 (per Samuels JA, Mahoney JA and McLelland AJA).

[11]Tabe (1987) A Def R 50-025, 40,123-40,124.

Given the plea of aggravation, there should be the same outcome here. Irrespective of whether there is a plea of truth by Dr Kirwan, the truth or falsity of each imputation is in issue, by way of the aggravated damages claim, and subpoenas directed to that issue ought be allowed.

Dr Khoury’s submissions in reply

In reply: Tabe can be distinguished on two bases. First, it concerned discovery rather than subpoenas. Subpoenas cannot be used as a substitute for discovery. There are different parameters for discovery. Second, the language used was noticeably different. Here, it is pleaded that Dr Kirwan had no genuine belief in the truth of the words published and was recklessly indifferent.

Dr Khoury’s plea of aggravated damages does not make the documents sought by subpoena relevant. The issue of whether or not he is entitled to aggravated damages turns on Dr Kirwan’s belief as to the truth of what has been published, not its objective truth or falsity. That belief turns on material that Dr Kirwan had at the time of publication.

As to Dr Kirwan’s reference to Dr Khoury’s own subpoenas directed to his professional standing, that category is no longer pressed. The issue was resolved between the plaintiff and subpoena addressees. The subpoenas were directed to communications involving the officers of Ramsay Health Care and related hospitals and did not result in production of patient records.

Applicable Principles

The general principles applying to subpoenas are not in dispute. I adopt the summary given by J Forrest J in Volunteer Fire Brigades Victoria v CFA (discovery ruling):

The distinction between a subpoena issued under O 42A and discovery is important and was emphasised by counsel for CFA and the Government Departments. The obligation on the party subject to a subpoena has been considered in a number of decisions in NSW and in this state. The leading decision is that of the NSW Court of Appeal in National Employers’ Mutual General Association Ltd v Waind and Hill:
Upon the first step the person to whom the subpoena is addressed may seek to, and have, the subpoena set aside on the ground that it was improperly issued and an abuse of the power to compel the production of documents in any one of a number of ways. Such a case is where the subpoena is used for the purpose of discovery. The essential feature of discovery in this connection, as appears from Burchard’s case and Small’s case is that the person to whom the subpoena is addressed will have to make a judgment as to which of his documents relate to issues between the parties. It is oppressive to place upon a stranger the obligation to form a judgment as to what is relevant to the issue joined in a proceeding, to which he is not a party. Hence it is an abuse of the use of a subpoena to impose this obligation. It follows that it is an abuse to use any subpoena, i.e. even to a party to obtain discovery. This was the reasoning in Small’s case. Of course, discovery as such is otherwise available to a party. It follows that a subpoena can only properly be used for the production of documents described in particular or general terms which does not involve the making of such a judgment. It does not follow, however, that because the party who issues a subpoena is unaware of the precise description of a particular document, or whether a particular document or documents is in the possession of the witness, or even whether it exists, or is unaware of its contents, that the subpoena, or even a subpoena in general terms, amounts to the use of the subpoena for the purpose of “discovery”.

There is also a point to be noted about subpoenas issued under O 42A, which was made by Kaye J in Newnham v Davies:
Subparagraph (1) of that rule specifically provides that the rule applies where a party seeks to require a person, not a party, to produce any document “for evidence” before the hearing of an interlocutory or other application in the proceeding, or before the trial of the proceeding. Thus, by its express terms the rule only authorises the issue of such a subpoena where the document, the subject of the subpoena, may potentially be admissible as evidence in the proceeding. Obviously, in order to be admissible, the document, of which production is sought, must have at least some potential relevance to the issues defined in the proceedings.

The words ‘may potentially be admissible’ are important. In coming to his conclusion, Kaye J cited Kennedy Taylor (Vic) Pty Ltd v Grocon Pty Ltd, in which Gillard J emphasised this qualification:
On a plain and literal interpretation of r42.10, aided by the definition and the forms, it is inescapable that the procedure under s42.10 is only available where the document is potentially required for evidence at the trial of a proceeding.
That is not to say that the procedure is not available if in the end result the document is not adduced into evidence but it is available to enable a party to inspect a document in order to make a decision whether or not to adduce it in evidence.

The purpose for the rule was also considered by Beach J in Belsart Pty Ltd v Man Po Holdings (Australia) Ltd. His Honour held that the rule was introduced to remove the inconvenience and injustice that could result from possible evidence produced on subpoena only being produced at trial. As the above authorities indicate, the real question is not ‘admissibility’ at large – which is determined at trial - but rather relevance.
It follows then that in determining whether documents are to be produced under subpoena pursuant to O 42A, a court must be satisfied that the documents sought to be produced are potentially relevant (in the sense of s 55 of the Evidence Act 2008 (Vic): ‘the evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’). But this Court on an interlocutory application should go no further.[12]

[12][2016] VSC 573, [57]-[61].

At paragraph 28, J Forrest J referred specifically to s 7 of the Civil Procedure Act 2010 (Vic) (‘the CPA’). It is applicable to all civil proceedings:

Section 7 of the Civil Procedure Act 2010 (Vic) (CPA) demands that a court facilitate ‘the just, efficient, timely and cost effective resolution of the real issues in dispute’.[13]

[13]Ibid [28].

In addition to the general principles above, I will apply the following principles.

First, determination of a subpoena objection does not include determination of whether or not the particulars pleaded in support of a justification defence are adequate unless there is an application made to strike out those particulars. The Court otherwise proceeds to determine a subpoena objection on the basis that the particulars pleaded in support of the justification defence are adequate.

Here, there is no application to strike out Dr Kirwan’s particulars pleaded in support of his justification defence and accordingly, I will determine this application on the presumption they are adequate.[14]
[14]Cf Rush (2018) 359 ALR 473.

Second, the particulars of justification are “a bare outline of the facts that the claimant will seek to prove” at trial.[15]
[15]Rush (2018) 359 ALR 473, [50]. On particulars generally, see Goldsmith v Sandliands (2002) 76 ALJR 1024, [2] cited in Wilson v Bauer Media (Ruling No 4) [2017] VSC 354, [33] (J Dixon J) (‘Wilson No 4’).

Third, evidence which strays too far from the particulars of justification is not relevant.[16] Indeed, the plaintiff is usually only required to give discovery ‘in respect of specific matters particularised’ in a justification defence because it would ‘generally [be] regarded as oppressive and unjust’ otherwise.[17]
[16]Wilson No 4 [2017] VSC 354, [34].
[17]Tabe (1987) A Def R 50-025, 40,124 (McLelland AJA).

Fourth, there must be ‘curial caution’ about determining factual issues at an interlocutory stage that are better determined on evidence given in trial.[18]
[18]Rush (2018) 359 ALR 473, [50].

Fifth, there is an important temporal element to a plea of justification. It is made ‘on the basis of the information which [the defendant] has in its possession when the defence is delivered and [the defendant] is not permitted to undertake a fishing expedition in the hope of finding something in support of its plea’ (underline added).[19] This is not to say that if there is an underlying factual base to support the defence, that information cannot be augmented.[20] However, it ‘cannot properly be bolstered by reference to evidence that renders the assessment of what was known at the time better or more sound.’[21]
[19]Ibid [172].
[20]Ibid [173] and [174] citing Kingfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 and Pahuja v TCN Channel Nine Pty Ltd (No 2) [2016] NSWSC 1074.
[21]Duma v Fairfax Media Publications Pty Limited [2020] FCA 1792, [29] (‘Duma’).

Here, the initial defence was filed on 14 May 2020. Any claim that documents which postdate it are relevant, and have a legitimate forensic purpose based upon Dr Kirwan’s justification defence, is only sustainable if the documents augment the factual base already pleaded.

Sixth, where a qualified privilege defence is pleaded, the objective truth is irrelevant to that defence.[22] The relevant issue is the defendant’s state of mind.[23] Accordingly, documents which seek to establish objective truth on the basis of a qualified privilege defence are not relevant to that defence unless the defendant can clearly demonstrate how and why the proof of truth can or might advance that defence.[24] For example, that a public interest arose from the objective truth of what was published.[25]
[22]Rush (2018) 359 ALR 473, [122] citing Hunt J in Makim v John Fairfax & Sons Ltd (1990) A Def R 50-075.
[23]Ibid [124] citing Hunt J in Makim v John Fairfax & Sons Ltd (1990) A Def R 50-075.
[24]Ibid [161].
[25]Ibid [144].

Seventh, where a defendant relies upon the defence of qualified privilege by reference to the reasonableness of their conduct, there is an important temporal issue. That defence ‘cannot be advanced by reference to material that was not known to them at that time’.[26]
[26]Duma [2020] FCA 1792, [23] (Bromwich J).

Eighth, ‘aggravated damages may be awarded if, in the publication of the matter complained of or in the defence of the proceeding, a defendant engages in conduct that is improper, unjustifiable or not bona fide and such conduct increases the plaintiff’s injury.’[27] The truth or falsity of the imputations may be put in issue by a plaintiff’s claim for aggravated damages. This will occur where that claim particularises the defendant’s knowledge that the imputations were false and the defendant does not accept the falsity.[28] This supports issuing a subpoena seeking production of documents relating to that matter ‘provided it is drafted with sufficient precision so as to satisfy the requirement of having a legitimate forensic purpose, and of it being on the cards that the documents sought will materially assist the respondent in that way.’[29] It enables preparation for cross-examination on the falsity or otherwise of the imputations.[30]
[27]Bauer Media Pty Ltd & Anor v Wilson [No 2] [2018] VSCA 154 at [69], referring to Wilson No 4 [2017] VSC 521 (John Dixon J).
[28]Tabe (1987) A Def R 50-025, 40,122 (Samuels JA) and 40,122-40,123 (Mahoney JA). Appl Balzola v Passas [2018] NSWSC 1724, [7] (McCallum J).
[29]Duma [2020] FCA 1792, [30]; see also Balzola v Passas [2018] NSWSC 1724, [7] (McCallum J).
[30]Balzola v Passas [2018] NSWSC 1724, [15] (McCallum J).

Here, Dr Khoury claims aggravated damages. He says, in respect of each of the alleged imputations, that Dr Kirwan had ‘no genuine belief in the truth of the words at the time they were published’. Alternatively, it is pleaded he was ‘recklessly indifferent as to the truth of the words at the time they were published’. Dr Kirwan denies the allegations. Applying the authorities above, and subject to the subpoena having a legitimate forensic purpose and being drafted with precision, documents regarding the objective truth or falsity of the imputations may be sought to enable preparation for cross-examination.

AHPRA subpoena

The subpoena addressed to AHPRA was filed on 15 September 2020.

Class 1

Class 1 sought:

All documents pertaining to Dr Elie Khoury’s registration (registration number MED0001184745, registered on 09/12/1998), including documents relating to conditions placed on his practice.

Dr Khoury’s submissions

These documents are not relevant to any matters particularised. Even if there was some condition placed on the plaintiff and his use of the BTKR method, there were no such conditions placed on the scope of his registration. There is a publicly available register published by AHPRA. [31] The register shows that condition 2 is imposed upon the plaintiff to undertake BTKR in a public hospital setting only. It does not suggest anything is wrong with the method. There are no conditions placed on the plaintiff undertaking the BTKR method, although it is confined to a public hospital. Condition 3 is just a reporting condition. Other conditions also relate to reporting and providing information. All documents pertaining to Dr Khoury’s registration could not possibly be relevant to the issue in those circumstances. Either the BTKR method is an accepted one or not. That question can be answered by reference to expert evidence.
[31]See exhibit ‘NAB-1’ to the affidavit of Nathan Albert Buck affirmed 16 April 2021 (‘Buck affidavit’).

Dr Kirwan’s submissions

Dr Khoury’s registration and conditions placed on his practice are relevant in this proceeding to truth, the qualified privilege defence and whether this is a matter of public interest, and the honest opinion defence. Dr Khoury’s registration and conditions placed on his practice are also relevant because the truth or falsity of the imputations relied upon by Dr Khoury in issue.

Analysis

The objection is allowed.

Firstly, this class is too broad. It is not date defined. It seeks all documents relating to Dr Khoury’s registration, noting his registration since 1998. The evidence is that Dr Khoury was registered as a medical practitioner from 9 December 1988 and accordingly the reference to 1998 may be a typographical error.[32] At any rate, none of the pleadings relate to the whole of Dr Khoury’s registration period from 1988. The earliest reference to a patient death in Schedule A (particulars of justification) is 2000. The alleged defamatory statements were made in the period 22 July to 30 November 2019. The defence was filed on 14 May 2020. Dr Kirwan has not shown how documents after that date regarding Dr Khoury’s registration are relevant.
[32]Buck affidavit, exhibit ‘NAB-1’.

Secondly, there is no legitimate forensic purpose for the documents sought. There is no reference to Dr Khoury’s registration with AHPRA in the particulars of the defence. By way of mitigation of any potential damage suffered by the plaintiff, Dr Kirwan refers to, amongst other things, knowledge of the conditions placed on Dr Khoury’s AHPRA registration.[33]
[33]Amended defence, [66(c)].

Dr Khoury’s aggravation plea does not provide a legitimate forensic basis for the documents. The conditions placed on Dr Khoury’s practice are not in dispute and are a matter of public knowledge. Dr Kirwan’s solicitor provides evidence of the AHPRA register of practitioners including Dr Khoury’s registration details and the conditions on his registration.

As an additional matter, I observe that Dr Kirwan’s justification defence does not support a claim the class of documents is ‘for evidence’ in respect of the BTKR method, including that it increases the risk of embolisms. In his particulars filed on 27 October 2020, and further to his pleading that Dr Khoury knew his BTKR Method was not widely accepted, Dr Kirwan pleads:

(a)The plaintiff’s knowledge of what was widely accepted by a significant number of respected practitioners in the field of orthopaedic surgery as competent professional practice at any given time is a matter for evidence.
(b)This is a matter for expert opinion evidence. An appropriately qualified expert may opine on what is and is not widely accepted by a significant number of respected practitioners in the field of orthopaedic surgery as competent professional practice.[34]

[34]Further and better particulars of the amended defence filed 27 October 2020, [1(a),(b)].

In the same particulars and further to his pleading that the BTKR method used by Dr Khoury increases the risk of embolisms, Dr Kirwan pleads:

(a) We refer to the following report:
Echogenic emboli upon tourniquet release during total knee arthroplasty: pulmonary hemodynamic changes and embolic composition: Parmet JL, Horrow JC, Singer R, Berman AT, Rosenberg H. Department of Anesthesiology, Hahnemann University, Philadelphia, Pennsylvania 19102-1192 (Anesth Analg. 1994 Nov;79(5):940-5) (enclosed).[35]
[35]Ibid [2(a)].

Class 2

Class 2 sought:

All documents recording correspondence with the Health Care Complaints Commission, Albury Wodonga Private Hospital, Ramsay Health Care Australia Pty Ltd and the Medical Council of New South Wales pertaining to Dr Elie Khoury’s clinical performance.

Dr Khoury’s submissions

The submissions for the previous class are reiterated. The correspondence between the HCC Commission and hospitals could not affect the outcome of whether the BTKR method is an accepted one or not.

Dr Kirwan’s submissions

It is likely there is correspondence between AHPRA and the bodies in class 2 concerning Dr Khoury’s registration and conditions, and complaints made to regulatory bodies about him. Further, Dr Khoury himself has issued a subpoena in relation to his professional standing. Accordingly this category satisfies the relevance test.

Analysis

The objection is allowed.

Firstly, this class is too broad. It is not confined to relevant dates. It is not confined in scope but relates to all correspondence pertaining to Dr Khoury’s clinical performance.

Secondly, there is no legitimate forensic purpose for the documents sought. The same analysis applies as for the previous class. This is a fishing expedition.

As a matter of completeness, Dr Khoury informed the Court that the subpoena he previously caused to be issued regarding his professional standing was withdrawn. Regardless, it is for the Court to determine relevance and legitimate forensic purpose here, not the parties.

Class 3

Class 3 sought:

All documents forming part of complaints or investigations (including reports and submissions) into Dr Elie Khoury’s treatment of the following patients:
(a)[patient name and date of birth] - a patient of Dr Elie Khoury who died on [date of death] 2008 at Albury Base Hospital after being operated on 10 days earlier at Albury Wodonga Private Hospital;
(b)[patient name and date of birth] - a patient of Dr Elie Khoury in or around March 2011 at Albury Wodonga Private Hospital;

(c)[patient name and date of birth] a patient of Dr Elie Khoury in 2012 at Albury Wodonga Private Hospital;
(d)[patient name and date of birth] a patient of Dr Elie Khoury in or around April 2019 at Albury Wodonga Private Hospital;
(e)[patient name and date of birth] a patient of Dr Elie Khoury in or around May 2019 at Albury Wodonga Private Hospital;
(f)[patient name and date of birth] a patient of Dr Elie Khoury on or around 17 July 2019 at Albury Wodonga Private Hospital who died on [date of death] July 2019; and
(g)[patient name and date of birth] a patient of Dr Elie Khoury in around October 2019 at Albury Wodonga Private Hospital.

Dr Khoury’s submissions

There are no particulars regarding these complaints in Dr Kirwan’s pleadings. The only particulars are in relation to internal investigations and complaints relating to Dr Khoury not sitting on AWPH’s MMC that reviewed the death of patient GM, and the allegation that a peer review was not undertaken. Subsequent investigations are not relevant.

Dr Kirwan’s submissions

This relates to complaints or investigations regarding specified patients. Each of the patients is specifically mentioned in the pleadings. Dr Khoury is alleged to have caused the death of the patients. The documents relate to how the patients were treated. They relate to the imputations alleged by Dr Khoury. They go to the heart of the defence. The test of potential relevance is satisfied.

Analysis

The objection is allowed.

The patients named in this class of subpoena are named in the particulars to Dr Kirwan’s defence. However, the particulars do not plead that there was any investigation by AHPRA into the treatment of these patients by Dr Khoury. Nor is it plead that there was a complaint to AHPRA about the treatment of these patients. In paragraph 4(3)(xii) of the ASOC, Dr Khoury refers to Dr Kirwan assisting the widow of patient KT to submit a complaint to the “Healthcare Complaints Commissioner Officer” (not APHRA). Dr Kirwan pleads references to the MMC and the MAC, but not APHRA investigations and complaints.

Neither the justification defence nor the aggravation plea permit a wide-ranging inquiry into treatment of patients by Dr Khoury. As discussed above, classes of documents which are said to be relevant to the objective truth or falsity must be specific. This class is not specific. It seeks all documents forming part of the investigation or complaints into Dr Khoury’s treatment of particular patients. The class of documents sought here strays too far from the pleadings. It is fishing.

Medical Council of New South Wales subpoena

The subpoena to the Council was filed on 23 September 2020 and largely seeks the same class of documents as the subpoena addressed to AHPRA.

Class 1

Class 1 is similar to class 1 of the AHPRA subpoena. The same analysis applies. Further, is not established how any conditions ‘proposed’ to be placed on registration could be relevant. The objection is allowed.

Class 2

Class 2 is the same as class 2 of the AHPRA subpoena above. The same analysis applies. The objection is allowed.

Class 3

Class 3 is the same as class 3 of the AHPRA subpoena above. The same analysis applies. The objection is allowed.

Albury Wodonga Health subpoena

Albury Wodonga Health operates a hospital in Albury formerly known as Base Hospital.[36] In their pleadings, the parties both refer to ‘Albury Base Hospital’. It is common ground that Dr Khoury is the Clinical Director of Orthopaedics at Albury Base Hospital and has held that role since about 2011.[37] It is also common ground that Dr Kirwan practices as an orthopaedic surgeon and left Albury Base Hospital in 2004.[38]
[36]Buck affidavit, [11].
[37]ASOC, [1(b)]; amended defence, [1].
[38]ASOC, [2]; amended defence, [2].

The subpoena to Albury Wodonga Health was filed on 15 September 2020 and sought a class of documents as follows.

Class 1
All medical records including but not limited to, all clinical notes, correspondence, specialist reports, medical certificates, medical reports, lists of prescriptions, all imaging including any radiological films, CT scans, MRI scans etc, and results of tests, investigations and x-rays, including any of the aforementioned which may have been forwarded from any other hospital or health care provider
FOR the following patients:
(a)[patient name and date of birth] – died on [date of death] 2008 at Albury Base Hospital;
(b)[patient name and date of birth];
(c)[patient name and date of birth] a patient at Albury Base Hospital in around October 2019;
(d)[patient name and date of birth] a patient at Albury Base Hospital in or around May 2019; and
(e)[patient name and date of birth].

Submissions

The parties reiterated their submissions above.

Analysis

There is an overlap between the class of documents sought from Albury Base Hospital and class 3 of the AHPRA subpoena. However, the AHPRA subpoena concerns documents forming part of the complaints or investigations into the plaintiff’s treatment of the patients. Here there is no such qualification.

The objection is allowed. The class is too broad and strays beyond the particulars.

Firstly, Albury Base Hospital is only named in connection with two of those patients – GM and AD.

Secondly, even in respect of GM and AD, all of their medical records are sought. The records are not confined by scope nor date.

For completeness, I make the following findings.

The particulars of the defendant’s qualified privilege defence in Schedule B include an allegation that the transfer of Dr Khoury’s patients with perioperative complications diminished or avoided proper scrutiny by AWPH and Dr Khoury’s peers. [39] This generalised particular does not provide a legitimate forensic purpose for the documents sought in this class. That is, the documents are not capable of proving whether or not there was proper scrutiny by AWPH and Dr Khoury’s peers.
[39]Amended defence, Schedule B [10].

The particulars of justification in Schedule A contain a general allegation that Dr Khoury breached policy by admitting public patients under his name at Albury Base Hospital when he was not the surgeon of the day. The class of documents sought does not appear to be directed to that issue. There is no reference to admission records. Moreover, Dr Kirwan’s further and better particulars clarify that the allegation is as follows:

(a)It is not alleged that the plaintiff betrayed the trust of any one patient. It is alleged he betrayed the trust of all privately insured patients.

(b) This is a matter for evidence.

Ramsay Health Care Australia Pty Ltd subpoena

The subpoena addressed to Ramsay Health Care was filed on 15 September 2020. In it, Dr Kirwan sought 12 classes of documents. Since then, he no longer presses classes 4, 5 and 12.

Ramsay Health Care owns and operates AWPH.[40]
[40]Buck affidavit, [9].

Class 1

Class 1 sought:

All medical records including but not limited to, all clinical notes, correspondence, specialist reports, medical certificates, medical reports, lists of prescriptions, all imaging including any radiological films, CT scans, MRI scans etc, and results of tests, investigations, x‑rays, Riskman entries and incident reports including any of the aforementioned which may have been forwarded from any other hospital or health care provider;
FOR EACH OF THE FOLLOWING PATIENTS
(a)[patient name and date of birth] - a patient of Dr Elie Khoury who died on [date of death] 2008 at Albury Base Hospital after being operated on 10 days earlier at Albury Wodonga Private Hospital;
(b)[patient name and date of birth] - a patient of Dr Elie Khoury in or around March 2011 at Albury Wodonga Private Hospital;
(c)[patient name and date of birth] a patient of Dr Elie Khoury in 2012 at Albury Wodonga Private Hospital;
(d)[patient name and date of birth] a patient of Dr Elie Khoury in or around April 2019 at Albury Wodonga Private Hospital;
(e)[patient name and date of birth] a patient of Dr Elie Khoury in or around May 2019 at Albury Wodonga Private Hospital;
(f)[patient name and date of birth] a patient of Dr Elie Khoury on or around 17 July 2019 at Albury Wodonga Private Hospital who died on [date of death] July 2019;
(g)[patient name and date of birth] a patient of Dr Elie Khoury in around October 2019 at Albury Wodonga Private Hospital; and
(h)[patient name and date of birth] a patient of Dr Elie Khoury on around 6 November 2019 at Albury Wodonga Private Hospital.

Submissions

The parties reiterated their submissions above regarding category 3 of the AHPRA subpoena.

Analysis

For the following reasons, and for the purpose of this ruling, I accept the connection between the patients named in this class and AWPH is particularised in the defence. The particulars expressly name patients GM, MT, LS, GK, and AD in connection with AWPH. It may be inferred that patient CB referred to in category (h) of the subpoena is the person referred to in the Schedule A particulars as [name to be provided] given the date of death is the same. There is no reference in the particulars to patients WW and KT in respect of AWPH. However, the Seventh Email refers to the death of KT in AWPH. The Twelfth Email refers to patient WW under the subject ‘multiple deaths at AWPH’. For the purpose of this ruling, I infer the reference to treatment of WW and KT includes reference to treatment at AWPH.

The objection is allowed. The class is too broad and strays beyond the particulars. The records are not confined by scope nor date.

Class 2

Class 2 sought:

All documents recording a root cause analysis, review, analysis, incident report, peer review, audit, investigation, meeting or inquiry (including minutes of meetings of Albury Wodonga Private Hospital’s Medical Advisory Committee, Mortality and Morbidity Committee or any other clinical review committee or craft group) into the mortality or morbidity of each of the patients listed below and all documents requesting any such investigation, analysis, review, audit or inquiry to take place or consideration of whether any such investigation, analysis, review, audit or inquiry should, would or would not occur (including correspondence to and from the CEO of Albury Wodonga Private Hospital from time to time, including but not limited to [names])
FOR EACH OF THE FOLLOWING PATIENTS
(a)[patient name and date of birth] - a patient of Dr Elie Khoury who died on [date of death] 2008 at Albury Base Hospital after being operated on 10 days earlier at Albury Wodonga Private Hospital;
(b)[patient name and date of birth] - a patient of Dr Elie Khoury in or around March 2011 at Albury Wodonga Private Hospital;
(c)[patient name and date of birth] a patient of Dr Elie Khoury in 2012 at Albury Wodonga Private Hospital;
(d)[patient name and date of birth] a patient of Dr Elie Khoury in or around April 2019 at Albury Wodonga Private Hospital;
(e)[patient name and date of birth] a patient of Dr Elie Khoury in or around May 2019 at Albury Wodonga Private Hospital;
(f)[patient name and date of birth] a patient of Dr Elie Khoury on or around 17 July 2019 at Albury Wodonga Private Hospital who died on [date of death] July 2019;
(g)[patient name and date of birth] a patient of Dr Elie Khoury in around October 2019 at Albury Wodonga Private Hospital; and
(h)[patient name and date of birth] a patient of Dr Elie Khoury on around 6 November 2019 at Albury Wodonga Private Hospital.

Dr Khoury’s submissions

This subpoena cannot throw any light on the particulars.

Dr Kirwan’s submissions

The documents sought regarding a root cause analysis (‘RCA’) are relevant. There is reference to the RCA in Schedule A of the particulars. This is especially the case where they are confined to each patient mentioned in the pleadings.

Analysis

The objection is allowed. The class is too broad and strays beyond the particulars. The records are not confined by scope nor date. The class is not, for instance, limited to considerations of morbidity pre-surgery, nor mortality post-surgery. This class seeks, amongst other things, all documents regarding the mortality or morbidity of named patients. “Morbidity” means ‘an illness or an abnormal condition or quality’.[41]
[41]Mosby’s Dictionary of Medicine, Nursing & Health Professions by Harris, P. et al., Third ANZ Edition (2014).

Class 3

Class 3 sought:

All documents recording a root cause analysis, review, analysis, incident report, peer review, audit, investigation, meeting or inquiry (including minutes of meetings of Albury Wodonga Private Hospital’s Medical Advisory Committee, Mortality and Morbidity Committee or any other clinical review committee or craft group) into Dr Elie Khoury’s clinical performance at Albury Wodonga Private Hospital from 1 June 2008 to 31 December 2019, and all documents requesting any such investigation, analysis, review, audit or inquiry to take place or consideration of whether any such investigation, analysis, review, audit or inquiry should, would or would not occur.

Dr Khoury’s submissions

The imputations do not provide support for Dr Kirwan’s submissions nor could they provide a proper basis for opinion.

Dr Kirwan’s submissions

The submissions made above are reiterated.

Analysis

The objection is allowed. The class is too broad. It includes, for instance, any document analysing Dr Khoury’s ‘clinical performance’. It is not confined with reference to the patients named in the Dr Kirwan’s particulars. It constitutes a fishing expedition.

Dr Kirwan does not press for classes 4 and 5.

Class 6

Class 6 sought:

A record of Medicare Benefits Schedule item number 49519, performed at Albury Wodonga Private Hospital, by surgeon and date, from 1 June 2008 to 31 December 2019 (with patient identity redacted) and all Riskman entries and incident reports produced as a result of any of these procedures performed by Dr Elie Khoury.

Dr Khoury’s submissions

This category of documents is not limited to Dr Khoury. It relates to Medicare benefits by surgeon and date. There is no reference in the particulars to the Medicare Benefits Schedule.

Dr Kirwan’s submissions

The Medicare Benefits Schedule item number is the item number for BTKR and that is why that item is sought. It establishes the relevance of that category.

Analysis

The objection is allowed. The class is too broad. It is not, for instance, limited to Dr Khoury. Rather, it would capture records of surgeries performed by other surgeons within the period identified.

Further, as discussed already above, in respect of Dr Khoury’s BTKR method, Dr Kirwan has pleaded it is a matter for expert evidence as to what is and is not widely accepted by a significant number of practitioners. There is no legitimate forensic purpose for this class of documents.

Class 7

Class 7 sought:

All documents directly related to the scope of Dr Khoury’s practice being limited and confirmation of such limitation in 2013 and again in 2020.

Dr Khoury’s submissions

The submissions above are reiterated.

Dr Kirwan’s submissions

This class is relevant to the limitations placed on the plaintiff’s practice in 2020.

Analysis

As will be recalled from the analysis of class 1 of the AHPRA subpoena, in mitigation of damages, Dr Kirwan pleads that Dr Khoury had a bad reputation and that this was known to some of the recipients (of the alleged defamatory publications) by reason of knowledge of the conditions being placed on his medical practitioner registration by AHPRA.[42] Dr Kirwan also pleads that the alleged bad reputation was known by the recipients by reason of, amongst other things, knowledge of restrictions being placed on his accreditation at AWPH by Ramsay Health Care Australia Ltd. However, those restrictions are not particularised.
[42]Amended defence, [66(c)].

The objection is allowed. The class is too broad. It is not confined to the alleged restrictions placed on Dr Khoury’s accreditation by Ramsay. It includes all documents directly related to the scope of Dr Khoury’s practice being ‘limited’. It is not date confined save for documents related to confirmation of the alleged limitations.

Class 8

Class 8 sought:

All documents recording agreements or communication between Dr Khoury or Dr Khoury’s representatives and Ramsay Health Care, or its staff or representatives, including correspondence recording payments made to Dr Khoury, for:
(a)the transfer and/or subdivision of land by Ramsay Health Care to Dr Khoury in or around August 2002 and payment of costs associated with this;
(b)the development of a new operating theatre at Albury Wodonga Private Hospital, proposed by Dr Khoury in 2006 and the subject of a confidentiality agreement entered into on or around 29 January 2007;
(c)payments made by Ramsay Health Care or any related entity, including Albury Wodonga Private Hospital, since 2006, to Dr Khoury for recruitment, professional development, practice support, clinical support staff, or any other reason; and
(d)referral of joint replacement patients to Murray Valley Private Hospital.

Dr Khoury’s submissions

Dr Kirwan says this category is relevant to imputations that are not the subject of the justification defence. However, there is no reference to these matters in the particulars contained in the Schedules of his defence.

Dr Kirwan’s submissions

This class is relevant to the corruption allegations. Truth or falsity is in issue by virtue of the plea of aggravation.

Analysis

The objection is allowed. There is no legitimate forensic purpose for the documents sought in this class. None of the matters referred to in paragraphs (a)-(d) of this class are pleaded. Nor are they particularised. There was initially reference to some of the matters in Dr Kirwan’s justification plea in paragraph 65(a) of the defence. However, these paragraphs were removed in the amended defence.

Class 9

Class 9 sought:

Records evidencing the number of rehabilitation admissions, either by transfer from Albury Wodonga Private Hospital, or discharge from Albury Wodonga Private Hospital and subsequent admission to Murray Valley Private Hospital, following total hip or knee replacement surgery (including bilateral and revision procedures) in each year between 2006 and 2020 inclusive.

Dr Khoury’s submissions

This class is not particularised.

Dr Kirwan’s submissions

The submission for class 8 is reiterated.

Analysis

The objection is allowed. The class is too broad. It is not, for instance, confined to the patients named in the particulars and their treatment by Dr Khoury. Moreover, there is no legitimate forensic purpose for the documents. The analysis in class 8 applies with respect to admissions to Murray Valley Private Hospital.

Class 10

Class 10 sought:

Records evidencing the number of rehabilitation admissions at Murray Valley Private Hospital of post-operative hip fracture patients from Albury Hospital or Albury Wodonga Private Hospital, in each year between 2006 and 2020 inclusive.

Dr Khoury’s submissions

This class is not particularised.

Dr Kirwan’s submissions

The submission for class 8 is reiterated.

Analysis

The objection is allowed. The same analysis applies as for class 9 above.

Class 11

Class 11 sought:

To the extent not already included above, all medical records including but not limited to, all clinical notes, correspondence, specialist reports, medical certificates, medical reports, lists of prescriptions, all imaging including any radiological films, CT scans, MRI scans etc, and results of tests, investigations,-rays, Riskman entries and incident reports including any of the aforementioned which may have been forwarded from any other hospital or health care provider for the 8 patients included in the spreadsheet of cases in the Terms of Reference for the review of the scope of clinical practice for Dr Elie Khoury, dated 24 October 2019 and for the patient identified in RiskMan as RM [number], noted as a “Deteriorating Patient” in December 2018.

Dr Khoury’s submissions

This class is not particularised.

Dr Kirwan’s submissions

The submissions made above are reiterated.

Analysis

The objection is allowed. This class seeks all medical records for eight particular patients. The category is too broad. The same analysis applies as for category 1.

Dr Omar Khorshid subpoena
Class 1

Class 1 sought:

All documents provided to you in respect of the review of the scope of Dr Elie Khoury’s clinical practice at Albury Wodonga Private Hospital (AWPH), including but not limited to, instructions or terms of reference from Ramsay Health Care or AWPH, and all medical records including but not limited to, clinical notes, correspondence, specialist reports, medical certificates, medical reports, lists of prescriptions, all imaging including any radiological films, CT scans, MRI scans etc, and results of tests, investigations, x-rays, Riskman reports and incident reports.

Dr Khoury’s submissions

Dr Khorshid was engaged by Ramsay Health Care to review Dr Khoury’s practice. This cannot be relevant. The review of the scope of Dr Khoury’s practice is not referred to anywhere in the particulars. What Dr Khorshid found or was instructed to do cannot be relevant to the issues in dispute here, namely whether the BTKR method was accepted or whether Dr Khoury failed to take into account the pre-operative comorbidities of certain patients. Even if Dr Khorshid found that was the case, that could not prove the objective truth or falsity of those matters insofar as they are raised by the particulars.

Dr Kirwan’s submissions

Dr Khorshid undertook an investigation into practice. That review led to the restrictions in practice in the AHPRA register. Understood in that context, the documents sought here relating to the review are relevant to the defence and the imputations relied upon by Dr Khoury.

Analysis

The objection is allowed. There is no legitimate forensic purpose for the documents sought in this class. The review referred to in this class is not pleaded. Nor is it particularised. Dr Kirwan did initially plea that there was a 2019 review of Dr Khoury’s practice resulting in his scope of practice at AWPH being limited. This plea was contained in qualified privilege plea in paragraph 65(f)(ii)(G) of Dr Kirwan’s initial defence to the ASOC. However, this paragraph was removed in his amended defence.

Class 2

Class 2 sought:

All documents created or amended by you as part of your review of the scope of Dr Elie Khoury’s clinical practice at AWPH, including but not limited to draft or final reports, correspondence, clinical notes and file notes, including with respect to your attendance at AWPH on 11 December 2019 to observe Dr Khoury’s practice of knee replacement surgery.

Submissions

The parties reiterated their previous submissions.

Analysis

The objection is allowed. The same analysis applies as for class 1.

Class 3

Class 3 sought:

All correspondence with Ramsay Health Care or AWPH in respect of your review of the scope of Dr Elie Khoury’s clinical practice at AWPH.

Submissions

The parties reiterated their previous submissions.

Analysis

The objection is allowed. The same analysis applies as for class 1.

Conclusion

I allow the subpoena objections made by Dr Khoury on the grounds above.

I will give the parties an opportunity to confer as to the appropriate orders consequential to this ruling and Khoury v Kirwan (No 3). If agreement cannot be reached on those orders, the parties will be given an opportunity to provide further submissions.

[2021] VSC 460

5 August 2021