Mann v The Medical Practitioners Board of Victoria & Anor
[2001] VSCA 51
•10 April 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 7368 of 2000
| ARNOLD MANN | Appellant/Plaintiff |
| v. | |
| THE MEDICAL PRACTITIONERS BOARD OF VICTORIA & ANOR. | Respondents/Defendants |
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JUDGES: | BROOKING, BATT and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 April 2001 | |
DATE OF JUDGMENT: | 10 April 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 51 | |
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DEFAMATION - Complaint to Medical Practitioners Board - Board's letters to complainant and medical practitioner - Qualified privilege - Malice not shown.
COURTS AND JUDGES - Bias.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant/ Plaintiff | In Person | |
| For the Respondents/ Defendants | Mr J. Ruskin, QC with Mr D. Masel | James P. Syme, Victorian Government Solicitor |
BROOKING, J.A.:
The appellant, Mr Arnold Mann, a surgeon, sued the respondents and a third person (since deceased) in the County Court for damages for defamation. This litigation has given rise to two appeals, of which the present is the second. On 20 March 1998 and 16 November 1998 the judge in charge of the defamation list in the County Court struck out two paragraphs of the defendants' defence. The March order related to the plea of absolute privilege and the November order to the plea of qualified privilege. On 5 February 1999 this Court dealt with an application by the defendants for an extension of time for applying for leave to appeal from the March order and for leave to appeal from both the March and the November order. The application was successful, and in May 2000 this Court heard the resulting appeal. That appeal was determined on 26 May, the Court dismissing the appeal in relation to the absolute privilege plea but allowing it as regards the plea of qualified privilege.
The action came on for trial on 25 September 2000. The hearing concluded on 4 October 2000, when the judge reserved his decision. Lengthy oral reasons for decision were given on 17 October, when judgment was given for the defendants. It is against that judgment that this appeal is brought.
Mr Mann (as I shall call the appellant) has at all stages appeared in person - on the two applications to strike out made to the judge in charge of the defamation list, on the application for leave to appeal, on the appeal, at the trial of the action and on the present appeal. He has retired from what he describes as "cutting surgery" but still practises by making reports and giving evidence in medical negligence actions.
He had a dispute with a Sydney solicitor, Mr Paul Bailey, about what fee was payable to him as a potential expert witness in an action for damages for medical negligence. After a good deal of correspondence between surgeon and solicitor, the solicitor made a complaint to the Medical Practitioners Board of Victoria ("the Board"). It is the Board's response to that complaint which has given rise to the present litigation against the Board, one of its members (now deceased) and its registrar. After a preliminary investigation into the complaint had been made, the Board determined that it would not proceed further by conducting either a formal or an informal hearing into the complaint. Its decision was minuted and communicated in writing both to Mr Bailey and to Mr Mann. It is those minutes and communications that give rise to the action for defamation. It was the Board's view, communicated both to Mr Bailey and to Mr Mann, that the matters complained of did not constitute unprofessional conduct. The Board went on to criticise the language used by Mr Mann in correspondence with Mr Bailey as intemperate. Mr Mann's complaint is, in essence, that the Board has found him "almost guilty". He says that neither the defence of qualified privilege nor any other defence avails the defendants and that he is entitled to damages of $200,000 on the basis that the Board has put him in the same position as doctors who sexually abuse their patients or defraud the public health system or use or prescribe illicit drugs.
The steps leading up to the publications complained of, including in particular the letters written by Mr Mann and Mr Bailey, and the terms of the minutes of the Board and the two letters from its registrar, both dated 8 October 1996, containing the words complained of, are set out in the judge's lengthy reasons for decision and I see no point in setting them out again here. The dispute and its history are further dealt with in the leading judgment, that of the President, given on 26 May 2000 in what I have called the first appeal. The judgment of the President summarises the provisions of the Medical Practice Act 1994 and discusses the law of qualified privilege against the background of the provisions of that Act and the more notable facts of this case. It would be idle to attempt to improve upon the summary of the Act's provisions given by the President or his summary of the principal contentions of Mr Mann, being contentions which he continued to advance at the trial of the action and on the hearing of the present appeal.
The trial judge upheld the defence of qualified privilege. His Honour found that the words complained of in the minute and in the letter of 8 October 1996 to Mr Mann were not defamatory. As regards the letter of that date to Mr Bailey, the judge considered that the words complained of were not defamatory with the possible exception of the reference to "an impudent act on the doctor's part" in that letter. (The evidence was that "impudent" was a typographical error, "imprudent" being the intended word.) As to this part of the letter, the judge left open the question whether the words were defamatory. His Honour also took the view that a defence of fair comment had been made out by the defendants. The situation was complicated by the fact that the letter of 8 October 1996 to Bailey had been published in New South Wales, a circumstance which led to the making of some submissions about the law of defamation in that State.
The appeal book constitutes six volumes, not to mention some additional material on which Mr Mann has sought to rely. In addition, we have, at his request, listened to tape recorded excerpts from proceedings at the trial.
Mr Mann obviously regards himself as the victim of a serious injustice. He has not only brought the action giving rise to these proceedings but has taken various other steps by way of seeking redress. He formally complained to the Board that its president had been guilty of unprofessional conduct in dealing with the complaint of Mr Bailey which gave rise to the litigation. The following year he formally complained to the Board about the conduct of the Federal Health Minister in using abusive language in a case which he said bore some resemblance to his own. In the course of the litigation he has corresponded frequently with the Board and its solicitor. In letters of 13 June and 11 August 1999 to the Victorian Government Solicitor, he warned him that he might be personally liable for the costs of the appeal brought by leave against the order striking out the plea of absolute privilege on the basis that the appeal was brought for an ulterior motive. He included in the court books at the trial documents dealing with most of these and numerous other matters, many of which were of no relevance to the issues raised by the litigation. The result of the inclusion of, and references made by Mr Mann to, much of this material was to make the task both of the judge and of this Court more difficult. It must be said that a large part of the material put in evidence by Mr Mann at the trial was not relevant to the issues.
The ground of appeal which comes first, both numerically and logically, is the one alleging that the judge should have disqualified himself on the ground of bias. Fourteen particulars are given of this ground. I shall not set them out. They are wide-ranging and show that the allegation is in part one of actual bias. So it is alleged that his Honour "prejudged the case at a very early stage", "showed bias against, belligerence towards, and mocking contempt for, me" and "made embarrassing (almost childish) facial grimaces at me when I was giving evidence about the pain I suffered from the findings and determinations made by the defendants". Repeated interruptions and badgering and intimidation are alleged. Other complaints range from the judge's failure to disqualify himself on the ground that he was a patient of one of the members of the Board, Dr Clarke, to complaints about rulings on evidence. Before us Mr Mann described himself as having been "hammered into the ground by the judge". His outline of argument and oral submission to us make it entirely clear that his real complaint is of actual bias.
I shall not deal in terms with each of the particulars of the first ground of appeal, although I have in fact given consideration to all of the points raised under this ground.
Despite the disparate nature of the allegations made under ground 1, it will be sufficient to consider them as falling under two heads. Under the first head there are the numerous complaints about what the judge said and did (including his manner) during the trial, all of which behaviour is said to show actual or in the alternative at least ostensible bias. The second head relates to the relationship between the judge and Dr Clarke.
It was for the purposes of the first ground of appeal that we were invited by Mr Mann to, and did, listen to certain excerpts from tape recordings of what took place at the trial. These recordings did not in my view advance his case by showing or suggesting that the transcript did not do justice to the atmosphere of the trial and the judge's attitude towards him. The judge's tone of voice was not hectoring, nor did Mr Mann sound like a person unable to cope with the situation. The passages in the excerpts are largely examples of attempts by the judge to explain that it is not helpful to debate with a witness questions which really have to be debated before the judge and to explain why evidence sought to be led by Mr Mann was not admissible.
His Honour was at the outset faced with a complicated defamation action brought by an unrepresented plaintiff, to whom it fell to open his case and then lead evidence. There were a considerable number of documents which were at that initial stage in some sense before the judge. The pleadings and the particulars alone ran to 90 pages. Moreover, the plaintiff's pleadings, particulars and request for particulars of the defendants' pleading had been prepared by Mr Mann himself, which inevitably made the judge's task more difficult. When the plaintiff came to open his case at the outset of the trial he assumed that the judge was familiar with the facts, the allegations and the issues. At the outset, his Honour told Mr Mann that he had not read the documents and that he, Mr Mann, would have to explain what the case was about. The plaintiff then proceeded to outline the facts, making, as he did so, a number of colourful comments, something which continued throughout the hearing. Once the judge succeeded in identifying the three documents containing the words complained of - the minutes and the two letters of 8 October - Mr Mann said that he wished to comment on those three documents in some detail. He was told, perfectly civilly, that it was not yet time for argument and that the judge wanted to know what the issues were, after which he would hear evidence to support the plaintiff's case on the issues.
A little later the judge put it to Mr Mann that his case appeared to be that the Board had misused an occasion of qualified privilege in a way which exposed it to liability in damages for defamation. Mr Mann said that that put the whole thing in a nutshell. The judge then asked what evidence he would be calling in support of his case and suggested to him that he would need to have some material to show how the episode came to the attention of the Board. The judge went on, in an expressed endeavour "to help you formulate your case", to discuss with the plaintiff what his case essentially was, and raised with him the question whether it was necessary for him to prove malice. After further discussion the judge read a number of letters and Mr Mann was then affirmed and gave evidence. He began by referring to a number of provisions of the Medical Practice Act 1994. At an early stage he began to argue that the Board was mistaken in its letters and had misinterpreted the Act. He was politely told by the judge that this was not the time for legal argument. At a slightly later stage he began again to present argument about the scope or effect of the Act and was again politely told that this was not the time for argument and responded, "I'll come back to that at a later time from the Bar table", so making it plain that he was aware of the distinction between his giving evidence and presenting argument.
Immediately after this Mr Mann said that his conduct of his case would be much affected by the view taken by the judge on the admissibility of correspondence passing between Mr Bailey and himself. (This was the correspondence containing the words used by Mr Mann which the Board had described as intemperate.) He submitted that the correspondence was all inadmissible as without prejudice, evidently on the basis that it comprised negotiations for a settlement of a dispute. He referred to a legal text. His Honour then ruled that the correspondence was not inadmissible as without prejudice, since the litigation in which it was sought to be relied on was not litigation for the resolution of the dispute about payment of the plaintiff's fee.
Mr Mann then re-entered the witness box. In the evidence which he then gave, as in the submission which had immediately preceded that evidence, he continued to make colourful comments which the judge could, quite properly, have checked but which he, probably wisely, allowed to pass without remark. The repeated making by Mr Mann of colourful, not to say coloured, comments could easily have been found by a judge to be distracting and irritating, but his Honour, perhaps wisely, gave the plaintiff his head.
Upon the resumption of his evidence Mr Mann took the judge through a number of documents in the court book which ultimately went into evidence. After a further few pages of transcript the judge rightly pointed out to Mr Mann that the point he was seeking to make could be made by mere reference to dates without going into the detail of another case (that of a complaint made to the Board by Mr Mann himself). A little later the judge observed to the plaintiff that there was no need for him to read aloud letters in the court book which the judge would be reading for himself. Some pages further on the judge again observed that he was going to read the letters concerned and that there was no point in the plaintiff's reading them aloud to him. A little later Mr Mann referred to an extract in the court book from a biography of Max Herz, a German surgeon said to have suffered as a result of anti-German sentiment during and after the First World War. Asked by the judge what the relevance of this was, Mr Mann replied by saying that an extract from an annual report - evidently of the Board - showed an extraordinarily disparate proportion of doctors of non-Anglo-Celtic background against whom findings were made. Asked the relevance of this, Mr Mann provided no answer. If the judge had had time to read through the 90 pages of pleadings and particulars he would have found, in the particulars under paragraph 46 of the statement of claim, as particulars of an allegation of entitlement to aggravated or exemplary damages, an allegation that the defendants had pursued a policy consistent with the Board's racist bias against medical practitioners whose country of ultimate origin was not the British Isles. (According to his evidence, Mr Mann came to this country from Europe at the age of eight.) Had the judge read further he would have found, in the further particulars at p.79 of the pleadings and particulars, a reference to the treatment of Herz by the medical profession during and after the First World War. I suppose it may be that, technically speaking, the reference to Max Herz in particulars which were allowed to stand makes his alleged vicissitudes relevant. But it is unnecessary to pursue this question, or to say anything about the attempted use of a biography to prove those vicissitudes. The fact is that, invited by the judge to explain the relevancy of the biography of Herz, the plaintiff failed to do so. He similarly failed to explain the relevancy of the extract from the Board's annual report (something dealt with in the further particulars at p.80). It cannot be said that the judge's ruling on these points showed, or might be thought to support in any way a case of, actual or ostensible bias. From now on I shall simply speak of bias as covering both.
Immediately after these rulings Mr Mann went on to refer the judge to a file note in the court book made by him about what took place when he himself attempted to serve the writ. Counsel for the defendants having objected to this as irrelevant, the judge asked how it was relevant and received the answer in substance that, while the Board had, in the words complained of, told him how to behave, its registrar had himself behaved atrociously at the time of service. The judge ruled that this too was irrelevant, and no complaint can be made about this ruling either as such or as supposed evidence of bias. Mr Mann then in his evidence continued to take the judge to documents which were ultimately to find their way into evidence. The colourful comments continued to flow ("a letter that I sent to the Board concerning Mr Gary Robb, an appropriately named solicitor"). The miscellany of documents which he put forward as evidence included an extract from the Scriptures. This was immediately followed by a cartoon of a surgeon, apparently put forward as showing prejudice against surgeons. Then there were quotations from Dr Johnson, Shelley, Lyndon Johnson and Adam Minchnik. (In cross-examination, Mr Mann was to volunteer the view that his literary style was no worse than that of Dr Johnson or Shelley.) Some quotations were read aloud. The quotations were evidently put forward as examples of derogatory observations in support of a submission that the highly disparaging remarks about Mr Bailey made by the plaintiff in his letters were in no way remarkable. By this stage the judge may have formed the view that Mr Mann was posturing, or at least wasting time to an unacceptable extent, and we find the first suggestion of sharpness - entirely understandable - in the judge's observation:
"I am not here to correct any error of judgment which the Board may have made in reaching its conclusion, so disabuse yourself of the idea that this sort of material is going to advance your case".
Instead of taking this clear hint, Mr Mann responded by referring to the number of four letter words used by Professor Hollows in his autobiography, portions of which occupied six pages in the court book.
Mr Mann continued to tempt fate by reading extracts from, or summarising, letters, including one letter from him to Mr Bailey forming part of the correspondence leading up to the complaint. This caused the judge to say, at least for the third time, that it was unnecessary for the plaintiff to read aloud letters which the judge either had already read or would read. Nevertheless, the plaintiff, before concluding his evidence, chose to read to the judge a passage from another of the letters passing between Bailey and himself.
In these 30-odd pages of transcript the plaintiff is to some extent examined by the judge, that being almost inevitable when a litigant in person gives evidence. I see in this examination nothing other than a fair and patient attempt on the judge's part to deal with a litigant in person.
The plaintiff was then cross-examined for some 30 pages of transcript. Well into the cross-examination the judge intervened once to tell the witness that he should answer the question rather than argue his case and that he was of sufficient education and intelligence to understand that distinction. The observation was justified. It adds nothing to the case of bias. Towards the end of the cross-examination, and at a time when the judge had not intervened in it by asking questions himself, counsel was pressing the plaintiff for an answer to the question where in the letters written by the Board it had made a finding of unprofessional conduct, as the plaintiff asserted it had. The plaintiff said in the end that he would deal with that question when he came to argue the case. His Honour then put a series of questions to the witness beginning with the words, "Tell me now". The fact that the judge put a number of questions on the point was the result of Mr Mann's failure to answer the initial question. The passage is not a protracted one. I do not think it demonstrates, or helps in any way to demonstrate, bias. The judge then gave the plaintiff the opportunity to re-examine himself, which he did, continuing to argue his case while doing so. The judge then reminded the plaintiff of the need to tender the court books to which reference had been made.
Next, Mr Mann said that a character witness he wished to call was not available until the following day. The defendant then went into evidence. In the course of that evidence the judge remarked that he had noticed in the minutes of the Board a reference to Dr Clarke as a member of the Board taking part in the decisions. Having identified the doctor, the judge went on to say that he had been treated by him once in 1976 and once in 1996, that he published that fact for consideration by the parties and that he himself felt no embarrassment about it.
At ten o'clock the following morning the judge said, apropos of Dr Clarke's position, that he had on the previous day assumed, perhaps incorrectly, that Mr Mann was aware of his right to object, but that he would now make it clear that a party could object to a judge's hearing the case because of the existence of bias or of an appearance of bias to a reasonable observer towards or against a person involved in litigation. The following passage then appears:
"MR MANN: Your Honour, I don't object to Your Honour conducting this case on the basis of his acquaintance with Dr Clarke. I must, however, confess that I felt a little traumatised yesterday when I was in the witness box and I feel I should express my concern in that direction.
HIS HONOUR: What do you mean?
MR MANN:Well, that was my feeling. I felt that I - - -
HIS HONOUR: Being in the witness box is rarely a pleasurable occurrence, Mr Mann, you ought to know that.
MR MANN: Your Honour, I can only report my feeling at this stage. I am not seeking your disqualification at the moment, I'm merely reporting my feelings about that event. For example, I got so befuddled in the end that I didn't even give any evidence concerning the hurt that I felt which I had intended to do - - -
HIS HONOUR: Well, I will give you an opportunity to remedy that."
The judge then permitted Mr Mann to call the witness who had not been available the previous day. The judge ruled that evidence the plaintiff desired to elicit from this witness was not admissible. That ruling was in my view correct. In any event, it adds nothing to the allegation of bias. The judge attempted to explain his ruling to the plaintiff. After that witness left the box the judge reminded Mr Mann of his statement, a little earlier that day, that he had omitted to give the evidence he had intended of the hurt he had felt. He said that this evidence could be given at a later stage, as it was, after the close of the defendants' case.
A number of witnesses were called by the defendants. They were cross-examined by Mr Mann. I have considered what took place as regards the whole of the evidence elicited from the defendants' witnesses, but especially what took place in cross-examination, against the background of the allegation of bias. On occasions the judge did intervene and disallow a question in cross-examination. I have considered each of these occasions. Once the judge rebuked Mr Mann - but only very mildly - for talking over him. On a considerable number of occasions Mr Mann attempted to pursue a line of questioning which was plainly not permissible. At times he was simply attempting to make a comment. At one stage he referred a witness to a volume comprising about 120 pages of letters - a volume which the witness had not read - and asked him a general question about the contents of the volume. This drew from the judge the observation that Mr Mann's assertions amounted to no more than comments; he added, "I forbid you to continue". This was entirely proper: the judge was entitled to think that something had to be done to check Mr Mann.
As time went on and Mr Mann continued to conduct his case, his Honour was moved to say, "This is not a lecture hall full of students that you can wave the finger at, Mr Mann". The remark is instructive. His Honour's comments up to that point had been restrained and I can understand how he came at last to be provoked into the remark he made by the way in which the plaintiff was conducting his case and his manner.
When the defendants' case was closed the plaintiff was allowed to give evidence of his feelings.
Senior counsel for the defendants then made his final address, speaking to a written outline of argument. This finished in the course of the morning, whereupon Mr Mann, being invited to address, sought a little bit of time for preparation. Asked how much time he needed, he replied, "Just over the lunch break". He declined the offer of a more extensive adjournment, and the judge thereupon adjourned until 2.30 p.m. When the hearing resumed, Mr Mann asked the judge to disqualify himself:
"MR MANN: Your Honour, I seek your disqualification and I propose to apply for a new trial in this matter, therefore I shall not be making any submissions at all. I seek Your Honour's disqualification on the grounds of apprehension of bias. Throughout the trial I found it impossible to present my case. The witness I brought from Canberra was practically thrown out of the court although he had in my opinion, opinion evidence to give which would have been of some assistance to the court. And just before the adjournment, Your Honour suggested that I would need rather more than 2.30 to prepare - - -
HIS HONOUR: I was trying to accommodate you, Mr Mann.
MR MANN:Well, anyhow, that's my point of view, Your Honour."
I quote further passages:
"MR MANN: Well, Your Honour I just feel extremely uncomfortable about the whole way in which this case has been managed and I just feel distraught. I mean, I have been involved in a number of actions, admittedly I have never represented myself at a trial but I just feel wounded by the whole process.
HIS HONOUR: Well, what are the grounds upon which you would say a reasonable observer would apprehend that I have been biased?
MR MANN:Well, when I was trying to present my evidence there were constant interruptions, 'I have already heard that. I've seen that. Why are you repeating this?'
HIS HONOUR: That's correct.
MR MANN:I am not saying that Your Honour is wrong but a self represented litigant, even one that is perhaps reasonably intelligent like myself, can't cope with that sort of badgering. We just can't.
HIS HONOUR: There's no badgering involved in telling you that I've already read a document and it's absolutely pointless to read it back to me."
And:
"MR MANN: Your Honour, there were whole slabs of evidence which I found extremely difficult to bring forth, for example, the evidence on racism. I mean, there's body language involved in this too. You know, 'What are you talking about, I mean, there's no racism here, everyone is happy.' I have not been able to present my case.
HIS HONOUR: Well, we have a transcript, would you like to show me where I have said something to you about racism which would create any reasonable apprehension of bias?
MR MANN:Your Honour, I'd have to spend a great deal of time to do that.
HIS HONOUR: It's all very well for you to sling accusations around, Mr Mann, but if you want to say I have done something in relation to that issue which would cause an apprehension of bias, I would like you to be particular and show me where it is and what it is.
MR MANN:Well, then, Your Honour, I would have to have the transcript and spend an hour looking at it and come back. Your Honour has the right to disagree with my - - -
HIS HONOUR: If that's what you want to do you can come back in the morning."
Mr Mann then said that he wanted to sit down and end his submission and declined an offer of further time.
The judge then gave a ruling declining to disqualify himself. I shall not set it out or summarise it. It shows convincingly why the application had to be refused. The judge concluded his ruling by saying that he would adjourn until the following morning, in order to hear Mr Mann's final address, if he wished to make one.
The following morning Mr Mann telephoned the judge's associate and said he was not coming to court that day. The associate asked Mr Mann to state his position in writing and the result was a facsimile message to the associate from the plaintiff stating that he was not well and that he wished to be allowed to state his grounds for asking the judge to disqualify himself by letter during the coming week. If the judge did not disqualify himself, the facsimile continued, Mr Mann wished to make a final address in writing. The judge proceeded to discuss the situation with senior counsel for the defendants and said that the disqualification application had already been disposed of and that he proposed to adjourn for a week, by which time the plaintiff's written final address would have to be provided. A copy of the transcript was sent to the plaintiff by direction of the judge and when the hearing resumed on 4 October Mr Mann supplied the judge with a written submission of about 20 pages and addressed orally for a considerable time. The hearing concluded with a brief reply by junior counsel for the defendants.
The material as a whole strongly suggests to my mind that the disqualification application was not made in good faith but was launched simply because the plaintiff had come to believe that the judge was going to find against him. Be that as it may, I have a clear view that the judge was right in declining to disqualify himself, either on grounds concerning his conduct of the trial or on the belatedly raised ground of his relationship with Dr Clarke. I should add that the judge supplemented his ruling on the disqualification application by some additional remarks made on 12 October, immediately before giving his reasons for judgment in the action.
Before turning to the other grounds of appeal, I should summarise the decision on the merits below. His Honour began by adopting a brief summary, given by the President in the first appeal, of how Mr Bailey came to complain to the Board. The judge then turned to the correspondence which passed both before and after the making of Bailey's complaint. His reasons include long extracts from the correspondence. Much earlier in these reasons I said that I did not intend to add to the length of this judgment by summarising the correspondence or setting out substantial passages from it. I shall not even set out or summarise the minutes of the Board or the two letters of 8 October containing the words complained of. His Honour's summary of the facts occupies about the first 27 pages of his reasons for decision. He then turns to consider the decision of this Court in the first appeal, upholding the striking out of the plea of absolute privilege but reinstating the plea of qualified privilege. This part of his Honour's reasons occupies about the next nine pages of them. Once again, I do not summarise what the judge said, on the assumption that those hearing or reading this judgment will be well aware of what was said by the President in the first appeal. I doubt whether any part of what was said by the President in the first appeal was by way of dictum only, but I need not form a view on this question, since, if I may say so, I entirely agree with everything the President said.
Having referred at length to the President's judgment, his Honour went on to find that the Board was, in writing to Bailey and to Mann, endeavouring to explain the reasoning processes which had led to its decision. His Honour continued:
"The practice in the past, so the material indicates to me, of simply announcing what the decision was and going no further, had been the subject of some criticism and, in my view, justifiable criticism. So the Board adopted a view which was at variance with the previous practice and has in more recent times adopted the course of explaining the reason why it reached its decision. [I interpolate that there was evidence that criticisms by the Ombudsman had led the Board to explain its decisions.]
It is my opinion that in doing so the Board is quite clearly exercising the power and authority given to it under the Act and is acting responsibly and in the best interests of the public which it is trying to protect or has the charge of protecting under the Act. It is clearly the duty of the Board to set out the reasons why, in particular, when a complaint has been made and the Board has decided not to take any action about it of disciplinary nature against the medical practitioner concerned, to explain to the complainant and to all those who might have some interest in the subject, why it reached the decision it did.
To my reading of the minute and the letters, they are saying no more in the ultimate than: the language which had been employed by Mr Mann, whilst not amounting to professional misconduct, was language which could have been improved upon; it was intemperate - and the Board's words in his action approaching the client was 'imprudent' but actually printed and sent was 'impudent'.
The Board's conclusion that it did not amount to professional misconduct or unprofessional conduct was a conclusion which was justified, in my view, in the circumstances. But it was also justifiable in the circumstances that the Board should note that the exchange between Bailey and Mann deteriorated as time went by, as is demonstrated more clearly by reading the correspondence, than any words of mine can describe. It is there for all to see and that is why I have set it out at such considerable length.
It was germane, in my view, to the Board's function that its reasoning path should be explained, particularly to the complainant and particularly, in circumstances where the Board expresses itself, to be able to understand why it was that Mr Bailey became 'aggrieved' in the circumstances.
Whilst the Board could understand his aggrievement it was germane, in my view, for them to point out that their authority was to impose disciplinary action for unprofessional conduct and the choice of words, whilst regrettable, are not choice of words that they would have recommended, was that Mr Mann's way of expressing himself. It was a way that they did not commend and did not enhance the reputation of its profession.
This seems to me to be a wholly acceptable line of conduct on the part of the Board and for that reason and in conformity with the test as set out in the judgment of the President in this case, it was in my view, quite clearly an occasion covered by a qualified privilege."
I think the judge was right. In my opinion the defence of qualified privilege availed the defendants under both the law of Victoria and that of New South Wales, unless malice was established by the plaintiff. I reject Mr Mann's contention that the Board was not acting in the exercise of its statutory power.
His Honour then turned to consider malice and found that it had not been established, describing the plaintiff's attempts to prove it as far-fetched. I am tempted to say only that in my opinion it is not possible to present any real argument in support of the view that malice ought to have been found. But I shall say a little more. At the trial, the allegation of malice was based mainly on the suggestion that the medical profession in Australia, and the Board in particular, was prejudiced against practitioners who were not of Anglo-Celtic origin and prejudiced against Jews and that the Board had been actuated by prejudice against him as a Jew of European origin. An attempt to prove malice on the part of Dr Breen by relying on what he said in a radio program could not possibly succeed. Other matters relied upon by the plaintiff to establish malice included the Board's response to his complaint against its president and to his complaint against the Federal Health Minister. I do not propose to discuss these other matters. The judge is not shown to have erred in failing to find malice. Indeed, he could not properly have made the finding.
These conclusions are enough to dispose of the appeal, but, since the judge went further in his reasons, I shall do the same and make some brief further remarks. The judge found that in general the words complained of were not defamatory, and with this finding I would not disagree. The only qualification expressed in the finding is that the judge left open the question whether the use (in fact, by clerical error) of the word "impudent" in a letter to Bailey caused that part of that letter to be defamatory. The judge did not find that this part of the words complained of was in fact defamatory: he merely held that it was capable of being regarded as defamatory and left open the question of fact whether it was defamatory. I propose to go no further than his Honour did in this regard.
As regards publication in Victoria, the judge found that the words complained of were in substance true. His Honour declined to consider the law of New South Wales. I see no reason to differ from the finding of fact about truth. I have not thus far set out any of the words used by the plaintiff in his correspondence with Mr Bailey which might be regarded as intemperate. I now give some examples:
• "brazen audacity";
•"you have only been admitted in 1987, and I shall have to forgive your relative youth";
• "rather than blustering along ...";
•"your inexperience and gullibility";
•the lay client had "fallen into the hands of a conveyancer to run a malpractice case" instead of being "looked after by those who know what they are doing";
• "the violent defamation which you have published";
• your correspondence is "pathetic";
•"does this constitute fraud, in an attempt to save you money personally, ...? And should I now not report you to the Law Society?";
•"please do not tediously claim legal professional privilege. I do have a copy of S. Nichol's work on the subject. She knows more about it than you do";
• "your actions ... Are totally dishonourable";
• "may I ask whether you are under medical care?";
• "your fusillade of invective";
•"I suggest again that you stick to conveyancing and get some legal advice".
I have not said much about the defences other than that of qualified privilege since that defence was plainly established.
These reasons do not by any means refer to all the submissions advanced by Mr Mann, but I have of course considered them all.
I would dismiss this appeal, with the usual consequences as to costs, despite Mr Mann's submission that these consequences should not ensue and that he should be awarded costs even if his appeal fails.
BATT, J.A.:
I agree.
CHERNOV, J.A.:
I also agree.
BROOKING, J.A.:
The appeal is dismissed with costs.
MR RUSKIN:
May I raise one matter. It may have been my mis-hearing, but early in Your Honour's reasons, which Your Honour may look at again, Your Honour referred to the aspect of without prejudice correspondence and in a sentence Your Honour talked of the trial judge ruling that correspondence not admissible; unless I misheard a negative, it might have been not inadmissible.
BROOKING, J.A.:
Yes, I am indebted to you, and I will correct that in revision, if what you say is right, as it very likely is, thank you.
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