Litchfield v Fairfax Digital Australia and New Zealand Pty Ltd

[2017] NSWDC 31

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Litchfield v Fairfax Digital Australia & New Zealand Pty Ltd [2017] NSWDC 31
Hearing dates:	2 February 2017; 17 February 2017 (written submissions)
Date of orders:	02 March 2017
Decision date:	02 March 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Imputation 3D(a) is struck out as not reasonably capable of being conveyed. (2) Plaintiff pay defendant’s costs. (3) Liberty to the parties to bring in Short Minutes of Order for a timetable in these proceedings.
Catchwords:	TORT – defamation – imputations – form and capacity – no issue of principle
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases Cited:	Able Demolitions and Excavations P/L v Barry Kenna & Co [2016] VSCA 312 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Chakravarti v Advertiser Newspapers Ltd (1998) 154 ALR 294 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
Category:	Procedural and other rulings
Parties:	Plaintiff: Bruce Litchfield First Defendant: Fairfax Digital Australia & New Zealand Pty Ltd Second Defendant: Fairfax Media Publications Pty Ltd
Representation:	Counsel: Plaintiff: Mr R Rasmussen Defendant: Ms L Barnett   Solicitors: Plaintiff: Kevin O’Kane Solicitors Defendant: Banki Haddock Fiora
File Number(s):	2016/330270
Publication restriction:	None

Judgment

1. The plaintiff by statement of claim filed on 4 November 2016 brings proceedings for defamation for publication on 1 May 2016 (and continuing thereafter online) of an article in the Brisbane Times headed “Drugs and sex complaints against GPs”, a copy of which is set out in the Annexure to this judgment.

2. The plaintiff pleads the following imputations arise (paragraph 3D of the proposed Amended Statement of Claim):

1. The plaintiff had non-consensual sexual intercourse with four female patients; or

2. The plaintiff had sexual intercourse with four female patients.

3. The sole issue before me is whether imputation 3D(a) is reasonably capable of being conveyed. The argument was unable to be heard on 2 February 2017 due to time constraints. I thank the parties for providing me with written submissions, which were both helpful and concise.

4. The proposed Amended Statement of Claim recites (at paragraphs 3A to 3G) that the plaintiff commenced proceedings in the Supreme Court of New South Wales (proceedings 20465 of 2008) pleading identical imputations arising from publication of what appears to have been the same article, resulting in a settlement the terms of which the plaintiff complains the second defendant has breached (Able Demolitions and Excavations P/L v Barry Kenna & Co [2016] VSCA 312 at [21] – [24]). The only challenged pleading upon which I have been asked to rule is the defendant’s application for a separate trial pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) in relation to the capacity of imputation 3D(a).

The relevant principles

5. In Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135]-[137], the New South Wales Court of Appeal set out the task of a judge determining the issue of capacity under r 28.2 UCPR as follows:

“[135] Accordingly, the capacity determination is “an exercise in generosity not parsimony”; while it involves a “matter of impression … the impression is not of what the words mean but of what a jury could sensibly think they meant”: Berezovsky (at [16]) per Sedley LJ delivering the judgment of the court. Implicit in Sedley LJ’s observation, is that the question of course is “what a jury could sensibly think [the words] meant” to the ordinary reasonable reader.

[136] One reason “great caution” is mandated at the capacity stage, is because the conclusion which necessarily underpins a determination that the matter complained of is not capable of conveying the pleaded imputations is that “no reader could reasonably understand the words to bear any meaning outside the range delimited … by the judge; and that it would be ‘perverse’ for any jury to do so”: Jameel v Wall Street Journal Europe SPRL [2003] EWCA Civ 1694; [2004] EMLR 89 (“Jameel”) (at [9]) per Simon Brown LJ (Mummery and Mance LJJ agreeing).

[137] Thus, the focus should be on the fact that the decision deprives the plaintiff of the opportunity to present his or her case to the jury, the importance of whose constitutional role in this area as representatives of the community is frequently emphasised: see John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 (“Rivkin”) (at [2]) per Gleeson CJ (who also agreed with Callinan J); (at [184]) per Callinan J. The significance of the jury’s role warrants the application of a “high threshold of exclusion”: Jameel (at [14]) per Simon Brown LJ.”

The application of these principles to the matter complained of

6. The passages in the matter complained of relied upon by the plaintiff are set out in Mr Rasmussen’s submissions. These are:

1. The reference in paragraph 3 to “several [doctors] caught having sex with their patients”;

2. The reference in paragraph 4 to “the names of several doctors either struck off the register, reprimanded or who had restrictions placed on their practice”;

3. The reference in paragraph 5 to the range of penalties against 17 doctors, ranging from six who were deregistered down to the fining of two of these practitioners;

4. Paragraphs 8 to 13 which set out the details of the six doctors who were struck off for their conduct, of whom the plaintiff is the last. One was struck off for “sexual advances to a 17-year-old patient”. A second was struck off for “having sex with a patient 36 years his senior”. The matter complained of then identifies doctors who had previously been struck off where their applications for review have been rejected. The first of these, Michael Bar-Mordecai, was struck off for very serious matters set out in paragraph 12 (which included having a sexual relationship with an elderly patient) and the plaintiff, who was “removed from the register in 1997 for having sex with four female patients”;

5. This is followed by paragraph 14, which sets out the kinds of offences for which doctors were only reprimanded or counselled, such as having a consensual relationship with a staff member and having a relationship with a former patient.

7. The key to imputation 3D(a), according to the plaintiff, is that in paragraph 14, which follows on immediately from paragraph 13, refers to two other sexual relationships as being consensual (paragraph 14 is the paragraph which deals with “other matters in which doctors were reprimanded or counselled”, which is a lesser penalty).

8. The inference the plaintiff seeks to draw from these adjoining paragraphs is that the four patients with whom the plaintiff had sexual relations were all non-consensual, as opposed to consensual and that this was why he was struck off instead of merely reprimanded or counselled. Mr Rasmussen considers the reader capable of some loose thinking would also assume that if four women patients are complaining then it is less likely to be consensual sex. In addition, Mr Rasmussen argues, the ordinary reasonable reader would infer that a doctor removed from the register in 1997 and still be struck off ten years later must have had non-consensual sex given the length of the penalty, as the other doctors struck off the register were guilty of much more serious offences. In particular, the more serious findings in relation to Michael Bar-Mordecai had only resulted in his being struck off for seven years.

9. The defendants submit that the ordinary reasonable reader is given a long list of misconduct allegations against 17 doctors (paragraph 5) where the ordinary reasonable reader would not be making comparison of the artificial kind identified by the plaintiff. The defendants submit that the ordinary reasonable reader would be aware, in part because the matter complained of makes it clear, that the plaintiff is one of several doctors who have been “caught having sex with their patients” which is forbidden, as opposed to what could be called shades of grey, namely having sex with a colleague or an employee (the receptionist) or forming a relationship with a person who was a former patient (to cite the two examples in paragraph 4). Two of the reprimanded doctors were facing criminal charges of indecent assault of female patients, which tends to underline the fact that it was the number of patients, rather than the issue of consent, which was the serious issue.

10. The plaintiff’s submission that “four women patients are complaining” the relationship with the plaintiff was “less likely to have been consensual” is, the defendants submit, not an inference that the ordinary reasonable reader is capable of drawing as there is no reference to these four female patients as having complained. However, the reference to “1155 complaints” being assessed by the Board in paragraph 15 could, in my view, give rise to an inference that these women had been some of the complainants. That does not, however, mean that they were complaining of rape or assault.

11. The defendants submit that this is not an imputation capable of arising in the mind of a reader avid for scandal; it is an imputation which is simply never there. The ordinary reasonable reader would not be drawing inferences of this nature from such a wide description of obviously different reasons for doctors being struck off the register. Even at the threshold level, the seriousness of the plaintiff’s penalty is not one from which inferences of this nature could be drawn.

Conclusions concerning the capacity of imputation 3D(a)

12. While the ordinary reasonable reader would indulge in a degree of loose-thinking reading the matter complained of, it is clear from the headline and paragraph 3 that the “doctors behaving badly” include “several caught having sex with their patients”, in terms of varying degrees of seriousness.

13. That headline and the word “snapshot” are the keys to the article. There is no connection drawn between the facts of each of the cases of the kind capable of inferring that the plaintiff did not simply have sexual relationships with his patients but that all four were non-consensual. The degree of loose-thinking required for the ordinary reasonable reader to assume that (although not stated in the matter complained of), the four women patients must all have complained of rape for the plaintiff to have been struck off for ten years is well beyond that which is permissible, even at the threshold stage.

14. While a wide degree of latitude is attributed to the capacity of the ordinary reasonable reader (Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165; Chakravarti v Advertiser Newspapers Ltd (1998) 154 ALR 294 at [134](2); Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 373), not even a person avid for scandal would single out the contents of one or parts of paragraph 14 to compare it to paragraph 13. This is all the more the case where the emphasis of the article comes from the conspicuous headline, opening paragraphs and clearly different “snapshot of complaints” against doctors who are described as having committed a variety of offences which are the subject of a wide range of penalties.

15. In those circumstances, imputation 3D(a) is not reasonably capable of being conveyed. Costs should follow the event.

Orders

1. Imputation 3D(a) is struck out as not reasonably capable of being conveyed.

2. Plaintiff pay defendant’s costs.

3. Liberty to the parties to bring in Short Minutes of Order for a timetable in these proceedings.

Annexure

1. Drugs and sex complaints against GPs

2. Natasha Wallace Health Reporter | December 8, 2007

3. IT WAS a colourful year for Sydney’s doctors behaving badly, with several caught having sex with their patients, as well as using and wrongly prescribing addictive drugs, according to the NSW Medical Board’s annual report.

4. The report published yesterday, provides a snapshot of complaints against practitioners and published the names of several doctors either struck off the register, reprimanded or who had restrictions placed on their practice.

5. The Medical Tribunal heard complaints against 17 doctors, six of whom were later deregistered, 10 had conditions imposed on their registration, nine were reprimanded and two were fined.

6. These included Adrian Cohen, a Sydney GP who treated people on the reality show Survivor and has appeared on Oprah. He was fined $15,000 for procuring drugs and was caught using pharmaceutical-grade cocaine that he had obtained by using patients’ names.

7. The anaesthetist Leonard Ware was reprimanded over a criminal conviction for possessing unlicensed firearms, for which he was jailed for a year.

8. A former Shellharbour GP, Nicholas Kalokerinos, 48, was struck off for three years for prescribing addictive drugs to 15 patients and for sexual advances to a 17-year-old patient during a six-hour drive and at his home.

9. John Gawdat Shashati, who admitted a drug addiction, was struck off for overprescribing to 11 patients and lying at hearings.

10. Steven Goodman was struck off for giving drug-addicted patients at Redfern Street Medical Centre huge doses of highly addictive sedatives in a bizarre treatment program.

11. The western Sydney abortionist Suman Good was struck off for 10 years for an illegal abortion because she failed to ask the necessary questions of her patient beforehand.

12. The tribunal rejected an application for a review by a former Clovelly doctor, Michael Bar-Mordecai, who was struck off for seven years for having sex with a patient 36 years his senior, wrongly obtaining millions of dollars from her and administering 30 milligrams of morphine to her and signing her death certificate.

13. Bruce Litchfield had his application rejected. He was removed from the register in 1997 for having sex with four female patients.

14. Other matters in which doctors were reprimanded or counselled included a GP who had a consensual sexual relationship with his receptionist, an emergency doctor who later formed a relationship with a patient he had treated, an alcoholic psychiatrist who was drunk during a consultation, a doctor who shoplifted while drunk and two doctors, including a rural solo GP, for self-injecting pethidine. Two GPs were facing criminal charges of indecent assault of female patients and one was convicted of rape and assault, but not of patient.

15. Overall, 1155 complaints were assessed by the board and the Health Care Complaints Commission, which declined to deal with 53 per cent of them.

16. About one-third of the 55 investigated matters were referred for prosecution. The most complaints, 48 per cent, related to clinical competence, followed by conduct, which accounted for 26 per cent.

17. Separately from the tribunal, 17 doctors were referred to a professional standards committee and 20 hearings held, resulting in nine doctors having unsatisfactory professional conduct findings against them, relating to such matters as diagnosis, treatment and record keeping.

18. Under the board’s emergency provisions, it investigated 35 inquiries, and 12 doctors had their registration urgently suspended, 19 had conditions imposed and two doctors removed their names from the register.

**********

Amendments

03 March 2017 - Order (2) - corrected