McBride v John Fairfax Publications Pty Ltd

[2009] NSWSC 10

CITATION:	McBride v John Fairfax Publications Pty Ltd & Anor [2009] NSWSC 10
HEARING DATE(S):	16.12.08, 17.12.08
JUDGMENT DATE :	2 February 2009
JUDGMENT OF:	Nicholas J
DECISION:	Par 32
CATCHWORDS:	DEFAMATION – Supreme Court Act 1970 s 89 – jury trial – application to dispense with jury – relevant considerations
LEGISLATION CITED:	Defamation Act 1974 Supreme Court Act 1970
CATEGORY:	Principal judgment
CASES CITED:	Dwyer v IPC Magazines Ltd (Unreported, Supreme Court of New South Wales, Levine J, 21 April 1993) IPC Magazines Ltd v Dwyer (Unreported, Supreme Court of New South Wales, Court of Appeal, Clarke JA, Meagher JA, Handley JA, 2 August 1993) Peck v Email Ltd (1987) 8 NSWLR 430
PARTIES:	William Griffith McBride - plaintiff John Fairfax Publications Pty Ltd - first defendant Norman Swan - second defendant
FILE NUMBER(S):	SC 13029/89
COUNSEL:	R Rasmussen – plaintiff T Blackburn SC – defendants
SOLICITORS:	Slater & Gordon – plaintiff Mallesons Stephen Jaques – defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

Nicholas J

2 February 2009

13029/89 McBride v John Fairfax Publications Pty Ltd & Anor

JUDGMENT

1 His Honour: By notice of motion the defendants seek an order under s 89(2)(a) Supreme Court Act 1970 (the Act) that all issues of fact be tried without a jury. The plaintiff opposes the application.

2 The plaintiff claims damages for defamation against the defendants arising out of the publication on 12 August 1989 of an article in the newspaper “The Sydney Morning Herald” under the heading “McBride claimed another’s research as his own”. The proceedings are listed for hearing with a jury commencing 9 March 2009.

3 It is common ground that the provisions of s 88 and s 89 of the Act continue to govern the mode of trial of the action. Section 88 requires that a claim in respect of defamation shall be tried with a jury.

4 Relevantly, s 89 provides:

“89(2) In any proceedings to which section 88 applies, the Court may order, despite that section, that all or any issues of fact be tried without a jury where:
(a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury, or”

5 The plaintiff alleges that the publication conveys the following imputations defamatory of him:

(a) The plaintiff dishonestly represented that the original data upon which his MD Thesis was based was collected by himself and not by the director of the Sterility Clinic at Crown Street, Dr Alan Grant;
(b) The plaintiff dishonestly claimed to have carried out research on the drug Thalidomide which was in fact research carried out by Dr McCredie;
(c) The plaintiff stole other people’s research data to gain widespread fame and recognition for himself;”

6 The plaintiff claims aggravated damages on a number of grounds, including the falsity of the imputations.

7 By their amended defence filed 27 June 2007, the defendants plead New South Wales defences under the Defamation Act 1974, including under s 15 (truth), s 16 (contextual truth), s 22 and at common law (qualified privilege). With respect to publication outside New South Wales, defences of truth, under the “Polly Peck” principles, of qualified privilege, and of qualified protection are pleaded.

8 The contextual imputations alleged to be conveyed by the publication are the following:

(a) The plaintiff had dishonestly failed to acknowledge Dr McCredie’s predominant role in discovering how Thalidomide caused limb abnormalities in children;
(b) The plaintiff was a dishonest researcher;
(c) The plaintiff was a dishonest scientist;
(d) The plaintiff lacked scientific integrity.

9 The parties correctly accepted that in order to enliven the court’s discretion the onus is on the applicant for the trial to proceed without a jury to show that a prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury (Peck v Email Ltd (1987) 8 NSWLR 430; Dwyer v IPC Magazines Ltd (Unreported, Supreme Court of New South Wales, Levine J, 21 April 1993)).

10 In Peck, Clarke J held that the mere fact that an examination of documents may be prolonged or because a scientific investigation may involve competing experts does not necessarily mean that either cannot conveniently be made with a jury. He said (p 433C) that convenience is not limited to physical convenience. His Honour expressed the test thus (p 434F):

“… the applicant for trial without a jury must establish that there are circumstances of unusual difficulty from the point of view of the jury apprehending the matters involved and, to a lesser degree, from the point of view of the judge summing-up.”

11 In Dwyer, Levine J, in terms with which I respectfully agree, explained the applicant’s task as follows:

“ … it is insufficient for a defendant merely by reason of the apparent technicalities disclosed in its particulars of matters to be considered by the jury in resolving the ultimate issues simply to rely upon their apparent complexities as pointing first to prolonged examination of documents or scientific investigation being required and asserting it is therefore "too hard" in effect and cannot conveniently be tried by a jury. The applicant for the relief sought … in a defamation action has to establish that there will be required prolonged examination of documents or scientific investigation and which cannot thereby conveniently be made with a jury. "Convenience" is not limited to "physical" considerations; the length of time (prolonged) involved in examination of documents or scientific investigation does not necessarily mean "cannot conveniently be made with a jury". There must be clearly identified some quality in the evidence the subject of prolonged examination of documents and scientific investigation which in its being presented is such as cannot from a common sense and realistic point of view be apprehended and cannot be made to be apprehended, ie comprehended, by the jury. Complexity disclosed merely in matters particularised is insufficient.”

(Application for leave to appeal was refused: IPC Magazines Ltd v Dwyer (Unreported, Supreme Court of New South Wales, Court of Appeal, Clarke JA, Meagher JA, Handley JA, 2 August 1993)).

12 In support of the motion, the defendants relied upon the affidavit of Justine Melissa Munsie of 12 December 2008, and a number of scientific publications exhibited to it. It was said that it was likely that some or all of the publications would be in evidence, and referred to in detail by witnesses.

13 According to the defendants, the issues which justify this application are those arising under the defences of truth and contextual truth to the plaintiff’s imputations, with particular emphasis given to the issues under the particulars of truth pleaded to imputation 4(b) “… that the plaintiff dishonestly claimed to have carried out research on the drug Thalidomide which was in fact research carried out by Dr McCredie”.

14 These particulars (P 2 to P 20) are to the following effect:

(i) In about early 1972 Dr Janet McCredie, a radiologist, at the request of the plaintiff caused x-rays to be taken of children who had suffered ill effects from prenatal exposure to the drug Thalidomide. Whilst undertaking this work it occurred to her that the limb deformities of these children might arise from the effect of the drug on the embryonic peripheral nervous system (the “neuropathy theory”). In conversations with the plaintiff between February and May 1972 concerning her research she told the plaintiff about this theory.

(ii) In about May 1972, Dr McCredie conducted further research in London which led her to think that if the neuropathy theory was correct the neural crest of the embryo should be the site of affectation in Thalidomide victims (the “neural crest concept”). She continued research into the neuropathy theory and the neural crest concept until September 1972, and drafted an article which expounded the theory and the evidence in support of it.

(iii) On about 15 October 1972 Dr McCredie showed the plaintiff the article. He insisted he be named as a co-author and, after argument, Dr McCredie agreed.

(iv) Between 15 October and 18 October 1972 Dr McCredie retyped the article in question, added the plaintiff’s name as a co-author and altered the first paragraph of the article and the acknowledgements to it. On 18 October 1972 she posted the article to the editors of the journal “Clinical Radiology”. The article was published in about April 1973 as: McCredie and McBride: “Some Congenital Abnormalities: possibly due to embryonic peripheral neuropathy” (the Clinical Radiology article). It propounded the neuropathy theory, including the neural crest concept.

(v) Apart from sending patients to Dr McCredie to be x-rayed, and engaging in discussions from time to time with her, the plaintiff played no part in the writing of, or research for, the Clinical Radiology article. The neuropathy theory, including the neural crest concept, was the result of Dr McCredie’s research, and not the result of any contribution from the plaintiff.

(vi) In about January 1973 the plaintiff and Dr McCredie carried out experiments administering Thalidomide to rabbits in an attempt to test the neuropathy theory.

(vii) In late May or early June 1973, the plaintiff submitted a paper to the Journal of International Research Communications which was published as: McBride: ”Fetal [sic] nerve cell Degeneration produced by Thalidomide in rabbits” (the JIRC paper). Relevantly, the paper expounded the neuropathy theory, including the neural crest concept, and concluded that the 1973 rabbit research supported the conclusion that the congenital anomalies from Thalidomide supported the neuropathy theory. The paper referred to neither the Clinical Radiology article, nor Dr McCredie, nor her research in any way.

(viii) In early September 1973 the plaintiff gave a presentation at the Fourth International Conference on Birth Defects at Vienna. The presentation was entitled “A theory as to the causation of amputation deformities”. It was publicised in advance by a synopsis provided by the plaintiff which he copied verbatim from the Clinical Radiology article, with no acknowledgment of its source or of Dr McCredie, or her research. It propounded the neuropathy theory, including the neural crest concept.

(ix) By publishing the JIRC paper and by giving the presentation at the Vienna conference without proper acknowledgement of Dr McCredie’s development of the neuropathy theory, including the neural crest concept, and knowing that it had arisen wholly from her research, the plaintiff dishonestly claimed to be the author of that research when it was in fact the work of Dr McCredie.

15 Imputation 4(a) is:

The plaintiff dishonestly represented that the original data upon which his MD Thesis was based was collected by himself and not by the director of the Sterility Clinic at Crown Street, Dr Alan Grant;

16 In summary, the pleaded particulars of truth (pars P 1A-P 1C) allege that the plaintiff’s MD thesis was not substantially a record of original research undertaken by him as required by University of Sydney by-laws, but was substantially one of data collected by staff of the Sterility Clinic at Crown Street. It is alleged that the plaintiff dishonestly created the false impression that he had collected and compiled the whole of the information set out in the thesis in that he failed to reveal that the staff collected the data, and by the manner in which he referred to the study at pp 3, 4 and 13 of the thesis.

17 For the truth of imputation 4(c) that:

“The plaintiff stole other people’s research data to gain widespread fame and recognition for himself;”

the particulars referable to both imputation 4(a) and 4(b) (pars P 1A - P 20) are relied upon.

18 For the truth of contextual imputation 9(a) that:

“The plaintiff had dishonestly failed to acknowledge Dr McCredie’s predominant role in discovering how Thalidomide caused limb abnormalities in children;”

the particulars referable to imputation 4(b) (pars P 2 – P 20) are relied upon.

19 In support of the truth of contextual imputations 9(b), 9(c) and 9(d), that the plaintiff was a dishonest researcher, scientist, and lacked scientific integrity respectively, the defendants rely upon the particulars in pars P 1A – P 20 already referred to, in addition to those in pars P 24 and P 25.

20 In par P 24 it is alleged that the plaintiff submitted a paper which was published in the Australian Journal of Biological Sciences 1982 knowing that it contained false statements of fact concerning the number of rabbits the subject of experiment, dosages, and the treatment of foetuses. In par P 25 several admissions by the plaintiff before the Medical Tribunal of New South Wales are specified from the transcript of its proceedings on 9 November 1998.

21 On the present application it was the defendants’ case that the trial of defences of truth would involve a prolonged examination of documents, as well as an investigation of scientific questions of unusual difficulty from the viewpoint of the jury required to apprehend and understand them and, to a certain extent, from the viewpoint of the trial judge required to sum up.

22 In elaboration, the defendants submitted that it was likely that there would be evidence of a documentary and scientific kind concerning research relating to Thalidomide, to the conduct of the plaintiff in relation to the paper published in the Australian Journal of Biological Sciences, and in relation to the plaintiff’s MD Thesis. It was foreshadowed that evidence would concern theories as to the effect of the drug upon unborn children including evidence from the plaintiff and Dr Janet McCredie of their part in the formulation of such theories. It was put that the court would be required to consider, at least, the scientific papers exhibited to Ms Munsie’s affidavit and to hear evidence from the plaintiff and Dr McCredie about them. In particular, it was emphasised that there would be detailed scientific evidence from Dr McCredie in explanation of the development of the neuropathy theory and the neural crest concept, which would be necessary to establish that it was her theory and not the plaintiff’s.

23 It was put that, because the science is very complex, there was a risk that the jury might fail to understand her evidence, and the matters the subject of the several publications on the subject.

24 With reference to the issues as to the truth of imputation 4(a) it was put that close analysis of the plaintiff’s MD thesis entitled “Some aetiological factors of recurrent abortion” would be required. Close analysis would also be required of the plaintiff’s paper published in the Australian Journal of Biological Sciences, and of the plaintiff’s evidence in cross-examination as to its composition, and as to the admissions made before the Medical Tribunal of New South Wales about it.

25 In short, the defendants’ submissions depended upon the contents of the pleaded particulars, and to some extracts from some of the exhibited publications. I note that of these thirteen publications, the plaintiff was the author of eight, Dr McCredie of one, and the plaintiff and Dr McCredie were the co-authors of one. Apart from these publications, the court was referred to no evidence by which the particulars are to be proved. It appears to be common ground that the theories, and the matters contained in the publications, will be explained by the plaintiff and by Dr McCredie for the defendants, being the persons with the relevant knowledge. At this stage, it is not foreshadowed that any other experts are to give evidence at the trial.

26 To succeed on the truth defences, it will be incumbent for the defendants to prove the plaintiff’s guilt of the conduct alleged in the imputations and contextual imputations. Central to these allegations is the plaintiff’s conduct with regard to the use of his, or of someone else’s, scientific material. It is the plaintiff’s conduct which is in issue at the trial rather than the validity of a complex theory about the effect of Thalidomide on unborn children.

27 With regard to the pleadings and to the defendants’ submissions I accept, for the purposes of the present application, that there will be a need for the examination of some or all of the publications, which examination may be prolonged. Nevertheless, it is highly probable that the jury and the trial judge will have the benefit of the evidence of the plaintiff and/or Dr McCredie to assist in understanding their contents to the extent necessary for consideration and resolution of the issues. I was left unpersuaded that any such examination cannot be conveniently made with a jury in the sense explained in the cases, for example, Peck and Dwyer. Accordingly, I find the defendants have not established this ground for relief.

28 As to the ground of scientific investigation, what appears likely is that the plaintiff and Dr McCredie will be called on to describe the effect or result of a stage or piece of research, possibly with reference to documents which include the exhibited publications. As the pleaded particulars show, this is not a case in which the jury will be required to evaluate competing complex scientific evidence in order to resolve an issue, as is commonly required of juries in personal injury claims, and it was not suggested that the evidence to be given by each of these persons would not be given in terms which the judge and jury could reasonably apprehend. I was not persuaded that the jury cannot conveniently undertake such scientific investigation as is likely to be required of it at the trial.

29 The passages from Peck and Dwyer to which I have referred make plain that the applicant for trial without a jury must demonstrate with reference to specific features that the required prolonged examination of documents and/or the scientific investigation cannot conveniently be made with a jury. In other words, an applicant is ordinarily required to identify the material which is likely to be difficult to understand and thereby go beyond assertions based upon the pleadings. This, in my opinion, the defendants have failed to do. In my opinion, the defendants established no more than that some of the matters disclosed in the particulars, such as the neuropathy theory and the neural crest concept, are matters of some complexity. This falls short of what is required to entitle them to the relief sought.

30 In any event the power is retained by the trial judge to act under s 89(2) if he thinks during the course of the proceedings that it is appropriate then to dispense with the jury and to proceed without that jury. (IPC Magazines per Clarke JA.)

31 For these reasons the notice of motion should be dismissed.

Orders

32 I make the following orders:

(1) The notice of motion is dismissed.

(2) The defendants to pay the plaintiff’s costs.

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