Nguyen v Hinsley

[2021] WASC 220

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   NGUYEN -v- HINSLEY [2021] WASC 220

CORAM:   KENNETH MARTIN J

HEARD:   21 MAY 2021

DELIVERED          :   9 JULY 2021

FILE NO/S:   CIV 2085 of 2020

BETWEEN:   ANH TU VU NGUYEN

First Plaintiff

DR ANH PTY LTD

Second Plaintiff

AND

REBECCA HINSLEY

Defendant

Catchwords:

Defamation - Strike out application against pleaded defence - Pleas of substantial truth and contextual truth challenged as not reasonably arguable - Plea of statutory qualified privilege as to reasonable conduct challenged - Counterclaim alleging negligence and breach of implied duty to conduct surgery with reasonable care and skill - Possible engagement of res ipsa loquitur doctrine - Multiple defence and counterclaim paragraphs are struck out with leave to replead

Legislation:

Defamation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Paragraphs of the amended substituted defence and counterclaim struck out with leave to replead

Category:    A

Representation:

Counsel:

First Plaintiff	:	Ms S T Chrysanthou SC & Mr N G Olson
Second Plaintiff	:	Ms S T Chrysanthou SC & Mr N G Olson
Defendant	:	Mr N D C Dillon

Solicitors:

First Plaintiff	:	Law One (WA) Pty Ltd
Second Plaintiff	:	Law One (WA) Pty Ltd
Defendant	:	Tang Law

Case(s) referred to in decision(s):

Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 371 ALR 545

Domican v Pan Macmillan Australia Pty Ltd [2019] FCA 1384

Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329; (2015) 91 NSWLR 341

Findlay v Grimmer [No 3] [2014] WASC 228

Gallagher v Destiny Publications Pty Ltd [No 2] [2015] WASC 475

Green v Fairfax Media Publications Pty Ltd [2020] WASC 250

Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; (2015) 332 ALR 257

Hunt v Times Newspapers [2012] EWHC 110 (QB)

J'Anson v Stuart (1787) 1 TR 748; 99 ER 1357

John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484

Khan v Fairfax Media Publications Pty Ltd [No 3] [2015] WASC 400

Lewis v Daily Telegraph Pty Ltd [1964] AC 234; 282

Maher v Nationwide News Pty Ltd [2013] WASC 254

Makim v John Fairfax & Sons Ltd (Unreported, SC NSW, 15 June 1990)

Mummery v Irvings (1956) 96 CLR 99

Nationwide News Pty Ltd v Rush [2018] FCAFC 70

Rush v Nationwide News Pty Ltd [2018] FCA 357; (2018) 359 ALR 473

Weeks v Nationwide News Pty Ltd [No 2] [2019] WASC 44

Table of Contents

Introduction

The strike out challenges

Overview of the defence

Substantial truth pleas

Contextual truth plea

Nomenclature of the ASDC

Two 'Procedures' to be distinguished

The counterclaim

Further defences

Materials relied upon for the strike out application

Koshy affidavit

Professor Lewandowski's report

The strike out application

The First Matter

The defamation imputations from the First Matter

The defence pleas

Determination - ASDC par 10 – contextual truth

Determination - ASDC par 7 – substantial truth

Determination - ASDC par 6 – substantial truth

Legal principles - justification

Plaintiffs' written submissions

Defendant's written submissions

Resolution

Interim position so far

The Second Matter

The defamatory imputations

Plea of substantial truth under ADSC par 17

Determination - ASDC par 17

Plea of substantial truth under ASDC par 18

Determination - ASDC par 18

Plea of substantial truth under ASDC par 20(b)

The Third Matter

The defamatory imputations

Plea of substantial truth under ASDC pars 28 and 30

Determination - ASDC par 30

Determination - ASDC par 28

The counterclaim and the challenges put against it

Evaluation of counterclaim

The statutory qualified privilege defence and its reasonableness pleas

Conclusion

KENNETH MARTIN J:

Introduction

1. In this defamation action I am dealing with the strike out application advanced under the plaintiffs' communication to the court via letter of 24 February 2021 and directed against the defendant's amended substituted defence and counterclaim of 30 March 2021 (the ASDC).

2. Under the plaintiffs' application most paragraphs within the ASDC were challenged under Rules of the Supreme Court 1917 (WA) (RSC) O 20 r 19(1)(a) and (c). However, the range of paragraphs put under the challenge diminished somewhat following the parties' exchange of written submissions and in the lead-up to the hearing of the application.

3. By way of preliminary background, the plaintiffs' statement of claim dated 18 November 2020 (the SOC) pleads that the first plaintiff is a qualified medical practitioner who is a known plastic surgeon in Perth.  The first plaintiff is also a medical director of the second plaintiff which operates a medispa in Perth.  The dispute underlying this action concerns three (3) publications made by the defendant following a procedure performed by the first plaintiff on the defendant.  The plaintiffs allege that the three publications constitute defamation of the plaintiffs by the imputations contained in each of the publications.

4. Under the SOC, each publication is referred to as a 'Matter'.  It is said each of the three Matters meant, and was understood to carry various imputations arising that are said to be defamatory against either of the first or second plaintiff.  I refer to these three Matters in more depth later on in my reasons.

The strike out challenges

1. By their strike out challenges the plaintiffs essentially contend that a number of the defendant's ASDC pleas in defence to the claims of defamation (including pleas of substantial truth), upon a close scrutiny, are wholly untenable and fail to disclose any reasonably arguable defence (which evaluation must be conducted by reference solely to the state of pleading alone - by reason of RSC O 20 r 19(2)).

2. Alternatively, a further challenge by the plaintiffs is directed against the defendant's substantial truth pleas on the basis, in effect, they lack overall coherency, or are so confusing as to pose a threat against the orderly conducting of a defamation trial (potentially before a civil jury), thereby meeting the legal definition of 'embarrassing' for the purpose of engaging with RSC O 20 r 19(1)(c).

3. The dual challenges put against the defence pleas seeking to establish the substantial truth defences are essentially at the heart of the present application.  They also deliver correlative implications to support further challenges.

4. One of the related challenges concerns the defendant's attempted reliance upon a further statutory defence of contextual truth under s 26 of the Defamation Act 2005 (WA) (Defamation Act) for each of the three matters.

Overview of the defence

1. I turn to the defendant's defence as it reads under the ASDC.  Whilst the ASDC pleads a denial of all defamatory meanings as contended for, the defendant also advances pleas which seeks to raise various further defences on the alternate hypothesis that one or more of the defamatory meanings is eventually shown to be made out by the plaintiffs.

Substantial truth pleas

1. Under what looks to be an attempted invocation of s 25 of the Defamation Act, the ASDC renders, in respect of each of the three Matters complained about, pleas to the effect that each of the defamatory meanings contended for was in substance, true.

2. To that end, see in illustration as regards the First Matter complained of, the general plea of substantial truth as is raised under ASDC par 5, which is then followed by more specifically responsive pleas of truth raised in defences put specifically against each of the plaintiffs' four (4) contended defamatory imputations said to arise out of the First Matter - by ASDC pars 6, 7, 8 and 9, respectively.

3. The same structural defence position is later seen manifested concerning the Second Matter complained about - by the general plea of substantial truth found under ASDC par 16, followed then by the more specific factual pleas made as to the alleged truth of the three contended defamatory imputations - by ASDC pars 17, 18 and 19.

4. In respect of a further alleged defamatory imputation that is exclusively complained about only by the second plaintiff, another plea of substantial truth is also raised in response - as seen under ASDC par 20(b).

5. Concerning the last publication, being the Third Matter complained of and four (4) defamatory imputations complained of as arising therefrom, again the generic defence plea of substantial truth can be found under ASDC par 27, followed then by the more specific factual pleas of truth put against each of those allegedly defamatory imputations seen under ASDC pars 28, 29 and 30.

6. It may be further observed that the ASDC pleas of substantial truth as now identified might also be read as an attempted invocation of the common law defence of justification, rather than merely as invoking the statutory defence of substantial truth under s 25 of the Defamation Act.  However, any distinction for present purposes is wholly immaterial.  It was accepted that nothing turns on that in the present strike out application.

Contextual truth plea

1. As I have now mentioned, the defendant also relies on a further defence of contextual truth against the defamation claims put against her. It is convenient to observe immediately upon s 26 of the Defamation Act.  It, of course, provides the distinct, further statutory defence of contextual truth.  The section provides in the following terms:

   26.Defence of contextual truth

   It is a defence to the publication of defamatory matter if the defendant proves that -

   (a)the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and

   (b)the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

2. As will be seen, the defendant under her ASDC at par 10 (as regards the four (4) First Matter defamatory imputations), by par 21 (as regards the four (4) Second Matter imputations), and by par 31 (as regards the four (4) Third Matter defamatory imputations), raises an attempted defence plea of contextual truth.  All these defence pleas, however, are impugned by the plaintiffs on the present strike out application as being wholly untenable and, therefore, failing to disclose any reasonable or arguable defence.

3. Each of the contextual imputations pleas are uniform - seen across ASDC pars 10(a), 21(a) and 31(a).  The uniform contextual imputation is that:

   the words also carried the imputation that the First Plaintiff had not competently carried out the Procedure. 

4. That uniform contextual imputation as contended for by the defendant is then pleaded to be true in each instance - as regards each of the three Matters (see ASDC pars 10(b), 21(b) and 31(b)).

5. The word 'Procedure' used recurrently in the ASDC is an explicitly defined term under the ASDC at par 6(a).  It thus carries a recurrent significance throughout the balance of the defence pleading.  There are other words used by the ASDC that also carry a designated meaning by this pleading - and so, it is necessary to turn to appreciate how those terms were sought to be used as well.

Nomenclature of the ASDC

1. It is necessary at an early point to appreciate that by the ASDC par 6(a), the word 'Procedure' is defined as:

   …

   a.On or around 7 February 2018, the Defendant engaged the First Plaintiff to perform relevantly:

   i.a bilateral Wise pattern or lollipop/boat anchor type mastopexy; and

   ii.breast augmentation in a dual plain pocket;

   (Procedure)

2. Having exposed par 6(a) and the definition used for the term 'Procedure', it is helpful to also see the following par 6 ASDC pleas.  They also carry a recurrent significance throughout the ASDC pleading.

3. So then, ASDC par 6(b) provides:

   b.During the Procedure on 16 June 2018, the First Plaintiff, without consulting with or obtaining the Defendant's consent, performed a Benelli or peri-areola mastopexy instead of a bilateral Wise pattern or lollipop/boat anchor type mastopexy.

   c.As a result of the Procedure, the Defendant suffered severe complications, including:

   i....;

   ii....;

   iii....;

   iv...,

   (collectively, Complications);

4. At this early stage it is not necessary to elaborate on the specifics of the term 'Complications' – seen defined under ASDC par 6(c).  Presently, I only highlight that the word 'Complications' is another defined and recurrently used term in the ASDC pleading.

5. Then, ASDC par 6(d) and (e) are seen to provide:

   d.As a result of the Complications, the Defendant requires corrective surgery or treatments, including:

   i.capsulectomy to release and remove the tightness around the breast and allow the implant to be placed in a more natural position; and

   ii.mastopexy to reduce the risk of widening nipple-areola complexes and to hold the implants in better position (Corrective Surgery);

   Particulars

   Full particulars of the Corrective Surgery will be provided after the surgery has been completed.

   e.If the First Plaintiff had performed the Procedure competently the Defendant would not have suffered the Complications or all of the Complications and it would not have been necessary for the Defendant to submit to and undertake the Corrective Surgery.

   The term 'Corrective Surgery' is also defined and recurrently used in the ASDC.

Two 'Procedures' to be distinguished

1. As now seen from ASDC par 6 there are two mastopexy procedures to be found there described.  A vital distinction emerges out of par 6(b).  This is so notwithstanding that strictly, the ASDC as defined term 'Procedure' at the end of par 6(a)(ii) - would ostensibly seem to limit the meaning of 'Procedure' to only the bilateral Wise pattern or lollipop/boat anchor type mastopexy.

2. However, arising out of the ASDC par 6(b) which immediately follows, there clearly emerges what is the second and distinct breast lift procedure as is there identified, namely the Benelli or peri-areola mastopexy.

3. It emerges out of ASDC pleas under pars 6(b) and 6(c) read together, that on 16 June 2018 the breast lift procedure actually performed on the defendant was the second procedure, namely the as mentioned Benelli procedure.  Then, from ASDC par 6(c), the observed plea is that as a result of that Benelli procedure actually being carried out by the first plaintiff upon the defendant, that the Complications, as they are complained of, are alleged to have been sustained by the defendant.

4. To avoid the level of unnecessary confusion that already presents out of ASDC par 6(a) by its use of the as defined term 'Procedure', I will, as I did during the arguments by counsel at the hearing, attempt to better distinguish the two distinct breast lift procedures.  That course was, and is necessary in order for there to be greater clarity over what currently presents in the ASDC.  To that end, I refer to the bilateral Wise pattern or lollipop/boat anchor type mastopexy, as Procedure A.  I then refer to the other, Benelli or peri‑areola masatopexy, as Procedure B.

5. I proceed on the basis that it was Procedure B, not Procedure A, that was actually performed upon the defendant, and that following its implementation by the first plaintiff, that there has unfortunately been experienced by the defendant the Complications that require the defendant to undergo Corrective Surgery (as defined).

6. At a relatively early stage it is also necessary to appreciate that another component in the present arguments, under multiple aspects of the present strike out application, proceeds beyond that key distinction as between breast lift Procedure A and breast lift Procedure B being performed on the defendant.  This factor emerges out of the defence plea found under ASDC par 18.  This is the defendant's pleas of substantial truth – raised there in attempting to respond to the Second Matter.

7. ASDC par 18 is made in furtherance of what is the defendant's attempted plea of substantial truth - in response to an alleged defamatory imputation as complained of by the first plaintiff, to the effect 'the First Plaintiff is an incompetent plastic surgeon in that she performed the wrong type of breast lift on the Defendant' (see SOC par 10(b)).  The defendant's par 18 ASDC substantial truth defence plea then is seen to respond:

   18...

   a.The First Plaintiff advised the Defendant to undertake a bilateral Wise pattern or lollipop/boat anchor type mastopexy procedure [ie, Procedure A] and quoted for that procedure.

   b.The First Plaintiff did not undertake a bilateral Wise pattern mastopexy on the Defendant but, rather, a Benelli or peri-areola procedure [ie, Procedure B].

   [Note: I have inserted the Procedure A/Procedure B nomenclature distinction into the par 18 plea cited above as a matter of convenience - in an endeavour to better assist an understanding of the ramifications of the distinction.]

8. Next follows what is the critically important plea, by the ASDC par 18(c):

   c.Says, a competent plastic surgeon would have consulted with and advised the Defendant that the recommended or appropriate procedure to be undertaken was not a bilateral Wise pattern [ie, Procedure A] but a Benelli or peri‑areola mastopexy [ie, Procedure B] and would have obtained the Defendant's consent for such a change of the procedure to be performed.  (my emphasis)

9. Many ensuing arguments on the present application arise out of or around the plea now seen as ASDC 18(c).  Written submissions and extensive oral argument reveal that there is no slip or mistake by the plea as seen there.  In other words, the defendant's pleaded position is that the recommended or appropriate breast lift 'Procedure' to be undertaken for her was not Procedure A.  Rather, it was Procedure B.  And then it is said that in fact, Procedure B was the very breast lift procedure that was actually performed by the first plaintiff on the defendant.

10. If the defendant holds a grievance over the standards of care and skill with which Procedure B was actually carried out by the first plaintiff, so be it.  That would at least be understandable.  But currently that is not what she pleads by the ASDC.

11. The difficulty with the defence pleading appears to be what presents as a complaint by the defendant over being advised to undertake Procedure A, a suggested expectation then that Procedure A would be carried out, but next then to learn that Procedure B was actually carried out – fortuitously it would seem, by reason of Procedure B (as pleaded by the ASDC) being the recommended or appropriate procedure, under the defendant's ASDC par 18(c) pleaded case.  The true issue appears to be over the way the recommended and appropriate Procedure B was actually performed – with the ASDC references to Procedure A (not undertaken) being an irrelevant distraction away from the true grievance over the carrying out of Procedure B.

12. I canvass these matters at an early point in perhaps greater detail than usual, so as to provide some insights to the defendant's eventual medical negligence counterclaim as it is formulated against the first plaintiff, and which presents in the ASDC, spanning pars 41 - 49.

The counterclaim

1. The counterclaim pleas of the defendant against the first plaintiff, raise an alleged tortious breach of a common law duty of care, alternatively, the contractual breach of an implied term in the parties' service contract - to perform surgical procedures to the standard of an ordinary skilled plastic surgeon (see ASDC par 46).

2. The counterclaim essentially seeks damages for a contended breach of the duty of care, alternatively for a breach of the standard of skill and care under the implied term of services contract.  This all arises, it is pleaded, by reason of the carrying out of the 'Procedure' (as defined) on the defendant (but in fact with that procedure being it would seem, Procedure B that was actually performed) and with the consequence that the defendant seeks general common law damages by her counterclaim against the first plaintiff.

1. The counterclaim ASDC breach pleas made in contract and in tort, are also impugned under the plaintiffs' present strike out application as failing to disclose any reasonable or arguable cause of action, alternatively as embarrassing, contrary to RSC O 20 r 19(1)(c).

Further defences

1. I must also add, for orientation purposes, that there are even further defences to defamation pleaded by the ASDC, including defence pleas raising common law qualified privilege - said to protect and cover the publications of each of the Three Matters.

2. The common law qualified privilege pleas of the ASDC are not challenged on the present application at least. But such pleas were immediately followed in the ASDC by a distinct invocation of what is the statutory qualified privilege defence under s 30 of the Defamation Act.

3. Part of the statutory qualified privilege defence pleas raised in respect of each of the Three Matters contends, by ASDC pars 12(c), 23(c) and 33(c), that the 'conduct' of the defendant in publishing each of the three Matters, 'was reasonable'.

4. However, the balance of the pleas on examination only incorporate by reference, what are the earlier ASDC truth fact defence paragraphs as mentioned, in order to specifically sustain the substantial truth pleas (for each Matter). 

5. An independent strike out challenge is thus raised by the plaintiffs, taken against what is, in effect, an attempted engagement by the defendant of the further defence of statutory qualified privilege - under s 30(1)(c) and s 30(3) of the Defamation Act. By the terms of s 30(3), the circumstances of conduct as found enumerated there towards what a court may take into account when evaluating the element of reasonableness, are non‑exhaustive. The strike out challenge of the plaintiffs essentially contends that the substantial truth plea facts (as they are incorporated) are simply irrelevant to the statutory qualified privilege defence - which is a distinctly different defence to the substantial truth plea.

6. In brief terms, the specific challenge that emerges against these truth facts as they are sought to be incorporated and relied upon by the defendant (by reference) – is that they ultimately cannot assist to establish a defence of statutory qualified privilege under s 30(1)(c) and s 30(3). Hence, it is also said that the defendant's statutory reasonableness pleas do not disclose any reasonably arguable defence - in terms of possibly meeting a threshold of showing reasonable conduct in all the circumstances for a purpose of making out (as the defendant must) this required reasonableness element of a statutory defence of qualified privilege.

7. The ASDC also displays even further pleas in respect of each of the three Matters as complained about. They look to be either pleas attempting to invoke the statutory defence of triviality under s 33 of the Defamation Act, or alternatively would present as matters raised towards an attempted mitigation of damages plea, as regards the three Matters:  see pleas under ASDC par 13 (as regards the First Matter), par 24 (as regards the Second Matter) and par 34 (as regards the Third Matter).

8. Albeit the last pleas mentioned look to have been earlier impugned under the scope of the plaintiffs' strike out application challenges, they were not thereafter made a subject of either written or verbal arguments by the plaintiffs.  Consequently, I proceed upon a basis they are ASDC pleas that are ultimately not challenged on the present strike out application of the plaintiffs and I say nothing more about them on that basis.

Materials relied upon for the strike out application

1. On the present application, I held prior to the hearing of oral arguments an outline of written submissions filed on the part of the plaintiffs signed by counsel on 6 May 2021 and followed later, by written outline of submissions in reply of 18 May 2021. 

2. The defendant relied upon her lawyer's written submissions of 13 May 2021. 

Koshy affidavit

1. But in addition, the defendant sought to adduce evidence said to bear upon the present application via an affidavit of one of her lawyers of record, Martin James Koshy sworn 13 May 2021.  Evidence is generally accepted as not being admissible in relation to any aspect of the interlocutory arguments concerning an alleged failure to disclose a reasonable defence, or (as regards the counterclaim) a reasonable cause of action.  However, the defendant nevertheless sought to rely on the affidavit as bearing upon the balance of the strike out application.  In particular, the defendant relied on attachment MJK1 to Mr Koshy's affidavit.  This was a letter to the plaintiffs' former lawyers and attaching a copy of a medico‑legal report of 18 December 2020 obtained by the defendant's lawyers from Associate Professor Richard Lewandowski, a consultant plastic and reconstructive surgeon.  The admissibility of the report was objected to by the plaintiffs.

2. In broad terms, one of the defendant's resistance arguments sought to be put against RSC O 20 r 19(1)(c) is that Professor Lewandowski's expert report for the defendant as it has been provided to the plaintiffs' lawyers, has sufficiently addressed any deficiency to the extent the defendant's pleading is challenged as being deficient in terms of providing requisite particularity. This is said notwithstanding the Lewandowski report is not yet referred to anywhere by the ASDC to date.

3. Nevertheless, the underlying tone of the resistance submissions by the defendant through her counsel was to the effect that modern day principles of case flow management require parties to avoid petty or parsing debates over pleading points, and instead concentrate on the true issues necessary to advance a civil action to a trial outcome as soon as possible.

4. The theme then of the defendant's resistance submission is to the effect that, when Dr Lewandowski's report is factored in to be read with the ASDC, and particularly for her counterclaim contending for the first plaintiff's alleged medical negligence, there is no legitimate basis for criticism of the ASDC.

5. For their part, the plaintiffs, through senior counsel, objected to the relevance and admissibility of Mr Koshy's affidavit and its contents on the present interlocutory application.  Nevertheless, I received the affidavit on the provisional basis – such that I would rule upon its admissibility and relevance in context of determining the strike out application as a whole.  On that basis, the content of Mr Koshy's affidavit, including Professor Lewandowski's report, was provisionally received.

6. There was also some further material attached to Mr Koshy's affidavit concerning the exchanges back and forth between the parties' lawyers following the provision of Professor Lewandowski's report.  These communications span 18 February through to 29 March 2021 and concern so-called conferral issues subsequent to the plaintiffs' strike out application made 24 February 2021. 

7. Under this court's relevant Consolidated Practice Direction (PD) 4.3.2 par 9, the parties' conferral correspondence should not be put before the court without leave.

8. Given the more plenary objection as to irrelevance as raised by the plaintiffs, I likewise permitted the conferral correspondence to be referred to provisionally, in order that it may ultimately be assessed in the context of the interlocutory application as a whole.

Professor Lewandowski's report

1. Since it has been referred to, it may be helpful at this time if I highlight a few passages from out of Professor Lewandowski's report. To be clear, this only bears upon RSC O 20 r 19(1)(c) challenges concerning both the counterclaim and upon aspects of the pleas of substantial truth found in the defence - as challenged on the present application.

2. At page 8 of his report and in answer to a question posed by the defendant's lawyers which is seen set out in bold, Professor Lewandowski provided his written advice.  Below I will set out the question D as posed by the defendant's lawyers, followed by aspects of Professor Lewandowski's answer:

   [Redacted]

The strike out application

1. I now turn to aspects of the plaintiffs' strike out application raised against the ASDC.

2. As to the principles concerning a pleading strike out application generally and to what is an onerous threshold to be surmounted at the interlocutory strike out level by this plaintiff in challenging the ASDC; see generally my reasons in Maher v Nationwide News Pty Ltd [2013] WASC 254 at [17] - [21]. As to defence pleas of justification in a defamation context, see also my observations in Gallagher v Destiny Publications Pty Ltd [No 2] [2015] WASC 475 at [30] - [39]. These well‑established principles were not in dispute.

3. In order to assess the present strike out challenges in their overall proper context, I proceed on a basis, first, of identifying the content of the three Matters complained of, then each of the defamatory imputations as contended for by the plaintiffs, and finally, to see what are the presently impugned pleas within the ASDC.

4. As will be seen, it is primarily to the defendant's pleas of substantial truth as raised by way of attempted defences that most arguments underlying the plaintiffs' challenges emerge. 

5. For the sake of clarity, I should also point out that none of the plaintiffs' pleaded and as contended popular innuendo alleged defamatory imputations – arising across the three Matters complained about - have been a subject of any interlocutory challenge brought to date by the defendant.

The First Matter

1. The first defamation related grievance of the first plaintiff concerns a 12 August 2020 publication of the defendant in a Facebook group entitled 'Tummy Tuck Western Australia' (SOC par 4).  This publication is referred to as the First Matter and is found within Attachment A to the SOC – displaying there screenshots of the relevant Facebook posts.

2. Within Attachment A are found a number of communications by posts made in that Facebook group, passing as between various participating persons who are the members of the group, including some posts expressly labelled as being attributable to the defendant.

3. For present purposes, I mostly cite only the defendant's words from this First Matter publication.  It is only those words, by SOC par 4, that are being complained about as being false and defamatory    - by bearing the alleged defamatory meanings complained about.  Of course, within the publication context, reference for meaning and context can be made to surrounding posts by other persons concerning the defendant's posts.

4. The words of the defendant, as they look to have been communicated by her Facebook posts, are assembled in an attempted chronological order of oldest through to most recent (working off the screenshots as seen in ASDC Annexure A), as follows:

   [Redacted]

The defamation imputations from the First Matter

1. From out of the defendant's posted words, the first plaintiff by SOC par 6 contends she was defamed by four natural and ordinary defamatory meanings said to have been carried by the publication of the First Matter, namely:

   (a)the First Plaintiff is an incompetent plastic surgeon in that she ruined the Defendant's areolas by causing the defendant's right areola to spread 5 times the original size and by causing the left areola to spread 3 times the original size, with both areolas continuing to spread;

   (b)the First Plaintiff is underhanded in her work as a plastic surgeon in that she charged the Defendant for a breast lift that she knowingly did not perform;

   (c)the First Plaintiff is cruel in her dealings as a plastic surgeon in that despite agreeing to fix the defendant's breasts she later refused to do so;

   (d)the First Plaintiff's patients have to learn the hard way that the First Plaintiff does not have a revision clause in her contracts.

2. Under the plaintiff's written outline of submissions of 6 May 2021 and by reference to the oral submissions of Ms Chrysanthou SC on 21 May 2021, it emerged that only the substantial truth pleas raised by the ASDC to be put against the plaintiffs' imputations 6(a) and 6(b), remain as residually challenged on the present strike out application.

The defence pleas

1. I earlier mentioned the ASDC's generic plea of substantial truth, put in relation to the First Matter, in respect of all imputations under ASDC par 5.  I also set out earlier components of ASDC par 6 and par 7.  Nevertheless, I will set out below this time the full content of the defendant's substantial truth pleas by the ASDC, raised specifically towards answering against each defamatory imputation raised by the first plaintiff arising from out of the First Matter.  ASDC par 6 reads:

   6.As to subparagraph 6(a) of the Statement of Claim the Defendant pleads as follows:

   a.On or around 7 February 2018, the Defendant engaged the First Plaintiff to perform relevantly:

   i.a bilateral Wise pattern or lollipop/boat anchor type mastopexy; and

   ii.breast augmentation in a dual plain pocket;

   (Procedure).

   b.During the Procedure on 16 June 2018, the First Plaintiff without consulting with or obtaining the Defendant's consent, performed a Benelli or peri‑areola mastopexy instead of a bilateral Wise pattern or lollipop/boat anchor type mastopexy.

   c.As a result of the Procedure, the Defendant suffered several complications, including:

   i.pain in breasts;

   ii.areolas changed in size and spread in five different directions;

   iii.a 'high riding' breast implant in her right breast affecting the nipple‑areola complex;

   iv.an asymmetric right nipple‑areola complex,

   (Collectively, Complications);

   d.As a result of the Complications, the Defendant requires corrective surgery or treatments, including:

   i.capsulectomy to release and remove the tightness around the breast and allow the implant to be placed in a more natural position; and

   ii.mastopexy to reduce the risk of widening nipple‑areolar complexes and to hold the implants in better position (Corrective Surgery);

   Particulars

   Full particulars of the Corrective Surgery will be provided after the surgery has been completed.

   e.If the First Plaintiff had performed the Procedure competently the Defendant would not have suffered the Complications or all of the Complications and it would not have been necessary for the Defendant to submit to and undertake the Corrective Surgery.

   7.As to subparagraph 6(b) of the Statement of Claim, the Defendant pleads as follows.

   a.The First Plaintiff advised the Defendant to undertake a bilateral Wise pattern or lollipop/boat anchor type mastopexy procedure and quoted for that procedure.

   b.The First Plaintiff did not undertake a bilateral Wise pattern or lollipop/boat anchor type mastopexy on the Defendant but, rather, a Benelli or peri-areola procedure.

   c.Notwithstanding providing the Benelli or peri-areola mastopexy procedure rather than the Wise pattern bilateral mastopexy procedure, the First plaintiff charged the Defendant for bilateral mastopexy.

2. Bearing in mind what is the further attempted contextual truth defence under the ASDC, as is additionally relied upon by the defendant (invoking s 26 of the Defamation Act), it is also convenient now to see out par 10 of the ASDC.

3. This ASDC contextual truth plea is made in the following terms:

   10.Further and in the alternative to the matters pleaded in paragraphs 5 to 9 herein, the Defendant pleads as follows.

   a.If (which is denied) the First Matter carried any of the defamatory imputations pleaded in subparagraphs 6(a) to 6(d) of the Statement of Claim, the words also carried the imputation that the First Plaintiff had not competently carried out the Procedure (Further Imputation - First Matter).

   b.The further Imputation - First Matter pleaded is true and the Defendant repeats the matters pleaded in subparagraphs 6.1 6.a. to 6.5 6.e. herein.

   c.In the premises, the imputations pleaded in sub paragraph 6(a) to 6(d) of the Statement of Claim do not further harm, the First Plaintiff's or Second Plaintiff's reputations given the substantive truth of the Further Imputation - First matter.

4. Two relatively straightforward conclusions are now able to be reached at an early stage concerning the defence pleas as now seen under ASDC par 7 and then, by ASDC par 10, concerning that attempted raising of the statutory defence of contextual truth.

Determination - ASDC par 10 – contextual truth

1. It is convenient to deal with those issues in reverse order.

2. First, as regards the plea of contextual truth defence, I have earlier set out the terms of s 26 of the Defamation Act.

3. As so exposed, ASDC par 10(a), the observed so-called 'Further Imputation' for the First Matter (and replicated identically for the Second and Third Matters, as is found later in the ASDC) is:

   ... the First Plaintiff had not competently carried out the Procedure.

4. I put aside, for present purposes, some unnecessary confusion arising out of a use by the defendant of a definition for 'Procedure' seen deployed under ASDC par 6 – referable there only to what I have labelled as Procedure A, but not to Procedure B (as actually was performed). 

5. The essence of the greater conceptual pleading problem, from a failure to disclose a reasonably arguable defence perspective, is that the further (contextual) imputation manifestly lacks in the level of gravity that is required to be arguably capable of 'overwhelming' any of the plaintiffs' four contended SOC par 6 defamatory imputations.

6. For instance, it will be remembered imputation 6(a) in the SOC is that the first plaintiff is an incompetent plastic surgeon - by reason of the so‑called ruination post operative outcomes she is said to have caused.  Likewise, defamatory imputations of alleged underhandedness and of the first plaintiffs' patients needing to learn 'the hard way' about revision clauses (in SOC par 6(d)), are all serious defamatory 'stings'. Even at the interlocutory level, when weighed up against the suggested contextual imputation by the defendant as is contended for under ASDC par 10(a), in terms of the first plaintiff not competently carrying out (what I must assume is an intended reference to Procedure B), the strength position is underwhelming for the defendant on her suggested contextual imputation.  Nothing presents by way of a contextual imputation that adds anything new in substance to be proven as true - so as to overwhelm the first plaintiff's as pleaded defamatory imputations.

7. Were any further support for that rather obvious conclusion to be required, it may be discerned from out of the overall structure of ASDC par 10(b).  Here the plea displays and merely repeats the very same factual matters as seen earlier under ASDC pars 6(a) to 6(e).  Those same factual matters are relied upon once again, to sustain the suggested contextual truth imputation the defendant alleges is true.

8. A bare attempted incorporation by reference of the same facts as are pleaded under ASDC par 6(a) through to 6(e), is telling. These are the very facts relied upon earlier to sustain pleas of substantial truth (at common law, or under s 25 of the Defamation Act) – as are put in defence against the first plaintiffs' par 6(a) first defamatory imputation of 'incompetent plastic surgeon'.  In other words, because the very same facts relied upon are merely invoked again by reference, there is nothing new in terms of a greater, more serious or different defamatory imputation that, if proven as being true, would then by its gravity once proved, 'sweep away' any defamatory harm caused by the other defamatory imputations the first plaintiff complains of.  That, in effect, provides the proof of the pudding, in terms of the conceptual deficiency of the plea of contextual truth.

9. I have had occasion in the past to discuss the contextual truth defence under s 26 of the Defamation Act.  To that end, I repeat some observations rendered in Findlay v Grimmer [No 3] [2014] WASC 228. At [44] of those reasons, I said:

   A plea of contextual truth proceeds on the basis a defendant may prove that published matter carries, beyond the defamatory imputation, one or more further imputations, that are substantially true.  These further imputations are of such a magnitude that other defamatory imputations, even if established, are effectively subsumed - in terms of their defamatory impacts - by the greater impact of the more serious imputation being proved as true.  Hence, as is sometimes said, there cannot be any further harm done to the reputation of the plaintiff, due to more overwhelming damage caused by reason of the substantial truth of the contextual imputation.  See to that end observations rendered in Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 [57] - [58] and the citation of authority at [58] particularly by Le Miere J in Ives v The State of Western Australia [No 8] [2013] WASC 277 [81] - [89] and the cases there summarised.

1. The plaintiffs' written submissions mention further case authority to the same end, emphasising, correctly, that a contextual imputation must differ in substance (not kind) from a plaintiffs' imputations, referring to Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329; (2015) 91 NSWLR 341 at [70] - [74] (McColl JA, Macfarlane JA & Sackville AJA agreeing). In my view, the defendant's plea here, as seen, does not differ in substance. That is fatal.

2. As to the problematic significance of facts, matters and circumstances being used to prove the truth of the pleaded contextual imputation, but being essentially the very same facts as those relied upon to justify the substantial truth of the plaintiffs' imputations, see Domican v Pan Macmillan Australia Pty Ltd [2019] FCA 1384 at [34] (Wigney J), John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484 at [188] (McColl JA) and Lewis v Daily Telegraph Pty Ltd [1964] AC 234, 282 (Lord Devlin). One way of testing whether a further imputation differs in substance from an earlier imputation is by asking what extra or other facts would need to be proved to justify the further imputation? If the answer is 'none' (as is the case here, on the defendant's own ASDC plea), then that litmus test result only reinforces that there is no difference of substance as between the imputations.

3. Consequently, par 10 in the ASDC fails to disclose a reasonable contextual truth statutory defence.  It must be struck out.

4. Likewise, the further ASDC counterpart contextual truth further pleas concerning the Second Matter display the very same contextual truth imputation, under ASDC par 21.  They must also fall to be struck out.  The plea does not differ in substance from the plea as is seen under ASDC par 10(b) concerning the Second Matter.

5. Likewise, for the Third Matter (ASDC par 31), the attempted ASDC plea of contextual truth manifests in the same misconceived terms.  It must be struck out as well.  It may be seen that there is no substantive difference as between it and the first plaintiff's contended defamantory imputation, under SOC 14(a).  That is the conceptual problem with all of these ASDC contextual truth pleas, which must all be struck out.  There can be leave to replead on the usual terms.

Determination - ASDC par 7 – substantial truth

1. There is a fundamental difficulty as well with the ASDC plea under par 7 (with carryover excision ramifications by reference to the plea being incorporated in part into ASDC par 5).  That arises on a close scrutiny of the three subparagraphs of ASDC par 7 - which deliver at the end, no arguable basis to possibly sustain the substantial truth of the first plaintiff's defamatory imputation at par 6(b) of the SOC ‑ namely that the first plaintiff is underhanded in her work as a plastic surgeon by her charging for 'a breast lift that she knowingly did not perform'.

2. The substantial truth defence plea by ASDC par 7 only pleads, in effect at par 7(a), that the first plaintiff advised the defendant to undertake breast lift Procedure A and had quoted to her for breast lift Procedure A.  That, by itself, is not enough.

3. ASDC par 7(b) then contends the first plaintiff did not undertake breast lift Procedure A but, instead, undertook the breast lift Procedure B. 

4. But culminating at the ASDC par 7(c) plea, it is there said that notwithstanding Procedure B was provided - rather than breast lift Procedure A, the first plaintiff charged for (what I infer) was Procedure A.  However, more than this is required to show the arguable presence of some level of underhandedness in the charging for undertaking a breast lift procedure - whichever was performed.

5. The difficulty with the ASDC par 7 pleas is that absent more further material facts, there is nothing that emerges to arguably support the substantial truth of any contention of underhandedness against the first plaintiff - in terms of her charging for her work done as a plastic surgeon.

6. The defendant underwent the mastopexy procedure that was performed on her by the first plaintiff.  Apparently, it was the Procedure B, not Procedure A.

7. If the first plaintiff did quote for and then charge the defendant for the performing of breast lift Procedure A, not Procedure B, even so, only with some further facts might a contention of 'underhandedness' by charging conduct emerge to the ordinary and reasonable reader.  Such facts, if they existed, could for instance be that Procedure A, as charged for, was more expensive than Procedure B and that the first plaintiff knew that to be the case and had offered no refund after performing Procedure B.  None of that is said.

8. At present, the comparative costs of the two mastopexy Procedures position is just left wholly silent under ASDC par 7.  The result is that there is a need for an impermissible exercise in guesswork - over where the possible degree of underhandedness in terms of charging might emerge.  The need for guesswork by reason of the lacunae in any more supporting facts showing arguable underhandedness in charging, is conceptually unacceptable in such a plea.

9. Until these factual gaps as to comparative costs of the two mastopexy procedures are filled, the ASOC par 7 contention as to the defence of substantial truth, is foundationally inadequate to support its contended objective.

10. Consequently, this plea and its dependent counterparts fails to disclose any reasonable defence and is embarrassing by the need to guess.  The plea under par 7 and its counterparts in the ASDC must be struck out as failing to disclose any reasonable defence.

11. Next, I turn back to what are the more difficult arguments surrounding the fate of other pleas of substantial truth under the ASDC at par 5 and par 6 and to their ASDC counterparts as are later raised for the other two publications complained of.

Determination - ASDC par 6 – substantial truth

1. ASDC pars 6(a) - 6(e), as seen, expose the defendant's attempted defence pleas of substantial truth to answer the plaintiffs' defamatory imputation arising from the plaintiff's SOC par 6(a) (ie, the first plaintiff is an incompetent plastic surgeon in that …').

Legal principles - justification

1. In the parallel arena concerning permissible pleas of justification at common law, there has been considerable case discussion in defamation law, including in recent times.

2. Again, I had occasion to discuss the issue in Finlay v Grimmer [No 3] commencing at [92].  In those reasons I referred to a venerable 1787 decision of Ashurst J in the Court of Common Pleas, J'Anson v Stuart (1787) 1 TR 748; 99 ER 1357, which is still frequently referred to in this context, after being endorsed by Eady J in Hunt v Times Newspapers [2012] EWHC 110 (and see [95] - [96] of my observations in Finlay v Grimmer [No 3]). 

3. I mention as well for this field, my further observations concerning justification pleas from Gallagher v Destiny Publications Pty Ltd [No 2] commencing at [29]. At [38] I refer to Le Miere J's observations in Khan v Fairfax Media Publications Pty Ltd [No 3] [2015] WASC 400 at [14] and following. I mention in passing as well Le Miere J's earlier justification observations from Weeks v Nationwide News Pty Ltd [No 2] [2019] WASC 44 at [26].

4. More recently, in Green v Fairfax Media Publications Pty Ltd [2020] WASC 250 at [68], Le Miere J in this court has revisited this sphere of case authority concerning justification pleas in defamation and observing:

   Particulars of justification must satisfy at least three requirements.  First, they must be relevant to proving the defamatory meaning pleaded by the plaintiff.  Secondly, they must be pleaded with such particularity that the plaintiff knows not merely the general case she has to meet but also the acts, omissions or things attributed to her which are alleged to justify the imputation so that she knows the case against her.  Thirdly, the particulars must be sufficient, that is, capable of proving the truth of the defamatory meaning sought to be justified … [citing Lord Ashcroft KCMG v Foley [2011] EWHC 1710 (QB); Lord Ashcroft KCMG v Foley [2012] EWCA Civ 423; Rush v Nationwide News (2018) 359 ALR 473; Weeks v Nationwide News Pty Ltd[No 2] [2019] WASC 44 [32]].

5. Those observations echo the approach of national Australian defamation case authorities addressing the justification of defamatory imputations, including by Wigney J in Rush v Nationwide News Pty Ltd [2018] FCA 357; (2018) 359 ALR 473 at [52] - [54], as was subsequently approved by the Full Court of the Federal Court of Australia in Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 371 ALR 545 at [132].

6. None of these well established principles applying case law which stipulate the need for precise and responsive pleas of fact in making a justification or substantial truth defence, were seriously put in issue on the present application. 

7. Rather, it is their (mis)application by what is seen under the ASDC pleas of substantial truth that was in contention.

Plaintiffs' written submissions

1. The essence of the plaintiffs' written submissions of 6 May 2021 as regards the present strike out application and supporting the challenge against ASDC par 6(a), is that the mere fact some 'Complications' are experienced by a patient in the aftermath of a surgical operation, does not logically assist towards showing anything capable of sustaining the truth of a defamatory imputation as to incompetence as a plastic surgeon. 

2. The plaintiffs' written submissions say this:

   15.The fact that the defendant experienced 'complications', of course, does not demonstrate in itself that the first plaintiff was incompetent or negligent in performing the procedure.  Certain complications are an inherent risk of surgery and can occur even when the procedure is correctly performed.  There is a fundamental difference between the proposition that the defendant suffered complications 'as a result of the Procedure', which is what the defence alleges, and the proposition that she suffered complications as a result of the first plaintiff's incompetence as a plastic surgeon.  The latter is what would need to be proved in order to establish the truth of the imputation.

   16.The only 'error' by the first plaintiff which is identified in the particulars is that she performed a Benelli or per-areola mastopexy instead of a bilateral Wise pattern or lollipop/boat anchor type mastoplexy, which was the procedure for which she had obtained the defendant's consent:  Defence at [6(a)] - [6(b)].  This, however, is not the sting of the imputation - incompetence is.  A failure to perform the procedure for which the defendant consented is conceptually quite distinct from incompetence in actually performing that procedure.  It is not alleged that the procedure performed by the first plaintiff was medically inappropriate for the defendant.  Quite to the contrary, it is alleged at [18(c)] in the Defence that 'a competent plastic surgeon would have consulted with and advised the Defendant that the recommended or appropriate procedure to be undertaken was not a bilateral Wise pattern [but] a Benelli or peri-areola mastopexy.' - ie, the very procedure which the first plaintiff in fact performed.

   17.The particulars do not identify anything which the first plaintiff did or failed to do in performing the procedure which fell below the standard of skill, care and diligence to be expected of a reasonably competent plastic surgeon in the first plaintiff's position.  For that reason, they are insufficient to prove that it is substantially true either that the first plaintiff was incompetent as a plastic surgeon, or that the first plaintiff's incompetence caused the damage to the defendant's areolas (emphasis in original).

Defendant's written submissions

1. In response to the strike out challenge, the defendant's written submissions of 13 May 2021 (at pars 26 – 32) submit that the defence plea under ASDC par 6 needs to be read as a whole.  That may be accepted. But it does not engage with the plaintiffs' criticism directed at the plea.

2. Next, the defendant's submissions point to the alleged adverse outcome of the mastopexy procedure (Procedure B) performed.  For the purposes of the evaluation of a strike out application, pleaded facts as contended for by the defendant's pleas must be taken at their highest.  Accordingly, those facts must then be accepted as being established at a trial for the purposes of the arguments upon the present strike out application. 

3. The essence of the defendant's attempted substantial truth defence, made as regards the first plaintiff's imputation 6(a), is explained by pars 28 - 29 of the defendant's written submissions.  They say:

   28.Third, the plea is that if the surgery was performed competently then the Defendant would not have suffered the pain, deformities, ongoing or continuing medical issues and would not have to submit to the further surgery.  The plea of competency follows from those outcomes.  It is open to the Plaintiffs to plead that the outcomes were disclosed prior to the procedure being performed by the First Plaintiff or are a as a result of some procedural complications, however, the procedure notes as provided to the Defendant's independent expert witness do not support such a plea.

   29.Fourth, Professor Lewandowski's report details and informs the First Plaintiff of the lack of competency which are [sic] raised against the Plaintiffs ... (my emphasis in bold)

4. Finally, the written submissions assert that the plaintiffs have chosen not to ask for any so‑called 'confining' particulars to be provided by the defendant.

Resolution

1. I accept the logic of the first plaintiff's primary challenge that a mere event of an adverse surgical outcome by reason of a subsequent encountering of Complications (as defined) by a patient and a need for Corrective Surgery (as defined) does not, of itself, go far enough to arguably establish the substantial truth of a defamatory imputation that the first plaintiff is an incompetent plastic surgeon (in the ruination outcome events as alleged). 

2. Nor, on my reading of Professor Lewandowski's report as provided, does his evidence say that.  There are at least two fundamental flaws in the logic underlying the ASDC plea seen under par 6.  In the first place, the first plaintiff's ultimate carrying out of breast lift Procedure B, rather than breast lift Procedure A - is an irrelevant distraction.  It does not go anywhere in terms of establishing the substantial truth of an imputation as regards the first plaintiff being an incompetent plastic surgeon - by reference to an adverse outcome experienced upon the conducting of Procedure B.

3. Whatever might be said over the Procedure A or B distinction (and I have little doubt a lot more is to be said at a trial concerning the carrying out of Procedure B), such distinctions do not assist towards showing the substantial truth of this particular defamatory imputation, as complained about under SOC par 6(a) - as regards the first plaintiff being an 'incompetent plastic surgeon' in the respects as identified.

4. The Procedure A or B distinction emerging under ASDC par 6(b) is illuminated as to its ultimate irrelevance on this point, by the concluding ASDC par 6(e).  As seen, that plea only contends:

   If the First Plaintiff had performed the Procedure [which in context this can only mean Procedure B] competently the Defendant would not have suffered the Complications or all of the Complications and it would not have been necessary for the Defendant to submit to and undertake the Corrective Surgery.

5. From out of ASDC par 6(e), it is demonstrable that what is being contended is that the actual procedure as performed, namely Procedure B, was not carried out competently.  Hence, in a context of the actual defamatory imputation complained of which the defendant is attempting to defend as being substantially true, it is to matters around the performance of Procedure B, rather than Procedure A, that the focus of attention is required.  That is missing.

6. The second fundamental deficiency, once clutter around the two different breast lift procedures is removed, is that as regards assessing the procedure that actually was performed, namely Procedure B, there is nothing much at all identified at ASDC par 6 to support that pejorative label - other than the adverse outcome itself by reference to Complications (as defined) and to a contended need for Corrective Surgery (also as defined).  But that is the extent of the facts currently assembled by the defendant to sustain her attempted proof of the substantial truth of this particular defamatory imputation - to the effect that the first plaintiff is an incompetent plastic surgeon (in the outcome ruination circumstances as described).  This is barely enough to achieve that objective - even if the defamatory pleading threshold is set at the low level of base arguability.

7. At the hearing of the application, during the course of my dialogue with counsel for the defendant, I put to him several times that by reference to the carrying out of Procedure B as an isolated plea, it looked that what was being conveyed, both by the ASDC par 6 pleas of substantial truth and, indeed, under the counterclaim pleas, was merely a common law negligence plea of, in effect, res ipsa loquitur (namely, a thing speaks for itself).  I did not detect any level of disagreement over that hypothesis from counsel.

8. In other words, what the defendant looks to be alleging under ASDC par 6 was that the adverse outcome as experienced by the defendant by her Complications as suffered after Procedure B was performed, with a consequent need for Corrective Surgery - is all that is relied upon factually.  The adverse outcome of the mastopexy procedure, it was argued, spoke sufficiently for itself and without a greater need for any more facts in terms of the surgeon's alleged incompetence.

9. There is, of course, no explicitly pleaded invocation by the defendant of the res ipsa loquitur doctrine to be found anywhere in the defence, or in the counterclaim.  Nevertheless, as I understood from counsel's response, the common law negligence principle was being relied upon (generally see, Mummery v Irvings (1956) 96 CLR 99 as to principle).

10. As I seek to explain, whilst I have reached a view that a plea of common law negligence (ie, breach of the common law duty of care) as made under the counterclaim (with some adjustments) is just capable of being defended as being arguable as a cause of action to sustain the common law medical negligence claim - I do not reach the same view in terms of an attempted use of the res ipsa loquitur doctrine to sustain the substantial truth of the defamatory  imputation that the plaintiff is an incompetent plastic surgeon (in the ruination respects as contended for).  This defamatory sting, I would assess, is a wider competence grievance than being allegedly responsible for an isolated alleged act of common law negligence of a plastic surgeon, arising out of their performing of a surgical procedure upon one particular patient.

11. To prove incompetence more generally, something more factually will be required - beyond simply pointing to an adverse outcome as experienced by one patient following the undergoing of a procedure.  Greater material facts and details are needed for to reach that more generalised object, as regards proving the substantial truth of the imputation.

12. Nor, on my assessment, does anything emerge from Professor Lewandowski's report to assist the defendant in the general competence sphere.  That report, by my assessment, focuses heavily on the adverse outcome of the surgery on this defendant.  There are insufficient potential further particulars therein to sustain the substantial truth of a general imputation of incompetence, even assessed at the arguability level and viewed through the prism of a casual reader not avid of scandal.

13. Consequently, I must accept in the end the plaintiffs' contentions as to a failure to plead sufficient facts which could, if established, sustain this ASDC plea of substantial truth towards the generalised incompetent plastic surgeon imputation.

1. Had I not reached a view which requires me to strike out the entirety of ASDC par 6 (and then its incorporation into ASDC par 5) as failing to disclose any reasonable defence, I would, in any event, have struck out ASDC pars 6(a) and 6(b), on a basis they contribute confusion and distraction into the overall evaluation.  On that basis, they are embarrassing in their own right.

2. My conclusions as to a necessary excision of ASDC par 6 of the defence (although I would grant leave to amend on the usual terms) also carries the necessary 'knock-on' consequences towards wider ASDC pleas.  Paragraph 6 is found incorporated in many later places in the ASDC, intruding into other paragraphs of the overall defence pleading.  Consequentially, required excisions of par 6 at these later places must follow as well.  For example, par 6 features in ASDC par 12(c) (along with pars 7, 8 and 9) in an effort to sustain there a pleaded defence of statutory qualified privilege, by reference to conduct of the defendant by her publishing of the first matter as reasonable.  The par 6 plea falls correlatively at that location as well.

Interim position so far

1. My reasons have so far concluded upon a necessary excision by reason of the defendant's ASDC failings to plead any reasonable defence under ASDC pars 6 and 7.  The residual pleas of truth put against the plaintiffs' defamatory imputations under SOC pars 6(c) and 6(d), as responded to by par 8 and par 9 of the ASDC, are plainly not enough if assessed by themselves, to sustain substantial truth.  The incompetence and underhanded (ie, dishonesty) imputations are demonstrably serious.

2. I reserve some further remarks for the end of the reasons concerning the defendant's plea of reasonableness made as regards invoking the statutory qualified privilege defence generally, in respect of the three publications (matters) by reference to ASDC par 12(c), par 23(c) and par 33(c). 

3. I can turn now to the Second Matter and to the challenges put against the defence pleas of the ASDC to that publication.

The Second Matter

1. As mentioned, the Second Matter complained of by the plaintiffs concerns an online publication made by the defendant to one person only - namely to a Ms Suzy Austen via what is referred to as a Facebook Messenger Application.

2. This is complained of as a defamatory publication concerning both the first and second plaintiffs to that one person.

3. The published words of the defendant are found under Attachment B of the SOC (via par 7), which also contains screenshots of the relevant messages.

4. This alleged defamatory communication under the Second Matter of 12 August 2020 initiated at 9.05 am, reads relevantly (by the messages of the defendant):

   [Redacted]

The defamatory imputations

1. By SOC par 10, the first plaintiff complains of three defamatory imputations arising from out of the Second Matter.  Further, by SOC par 11, the second plaintiff complains of a further defamatory imputation it says arises concerning itself. 

2. The contended defamatory imputations complained of are all said to arise in the natural and ordinary meanings of the words - as communicated to Ms Austen by the defendant. 

3. The three imputations complained of by the first plaintiff by SOC par 10 are:

   (a)the First Plaintiff unlawfully sacked a nurse for advocating and recommending that the First Plaintiff fix a patient who suffered severe wound break-down;

   (b)the First Plaintiff is an incompetent plastic surgeon in that she performed the wrong type of breast lift on the Defendant;

   (c)the First Plaintiff is cruel in her dealings as a plastic surgeon in that despite agreeing to fix the defendant's breasts she later refused to do so.

4. Concerning the second (corporate) plaintiff, a sole defamatory imputation complained of is that the Second Matter, by its natural and ordinary meaning, carried the imputation that:

   ... the Second Plaintiff operates a business that performs botched procedures.

5. It is apparent that the formulation of these allegedly defamatory imputations is ostensibly similar to those as earlier seen in respect of the First Matter.

6. A contrast however, between say, the first plaintiff's imputation 6(a) and imputation 10(b), emerges.  The par 10(b) imputation from out of the Second Matter is somewhat different in the ruination events as described, after the word 'by' in imputation 6(a) concerning the First Matter. 

7. The SOC par 10(c) defamatory imputation concerning the first plaintiff being cruel in her dealings as a plastic surgeon on its face equates fully with the par 6(c) imputation as is complained of in relation to the First Matter.

8. The cruelty imputations, as I refer to them, are no longer a subject of any interlocutory challenge upon the present application - as regards the ASDC plea of substantial truth raised in respect of both. 

9. I foreshadow that in respect of the Third Matter (which I will later discuss) what looks to be an identical cruelty imputation under imputation SOC par 14(b) is also found.  Again the substantial truth defence plea raised against that is not presently challenged at the interlocutory level on the present application.

Plea of substantial truth under ADSC par 17

1. ADSC par 16 renders what is a structurally similar (to ASDC par 5) and generic plea of substantial truth - raised against all Second Matter imputations that are contended to arise by the first plaintiff. 

2. Next follow what are the (presently) partly impugned defence pleas of substantial truth as raised under ASDC par 17 and par 18, which refer back to the specific imputations as raised under par 10 of the SOC. 

3. The first of the ASDC specific substantial truth pleas (as to showing the substantial truth of the defamation imputation as to the unlawful sacking of a nurse by the first plaintiff) reads in terms:

   17.As to subparagraph 10(a) of the Statement of Claim the Defendant pleads as follows.

   a.From a date prior to February 2020, the Second Plaintiff employed as a post operation nurse Ms Nicola Dawber.

   b.In February 2020 Ms Dawber had recommended a wound breakdown treatment for a patient who had suffered that condition.

   c.Ms Dawber's position as a post operation nurse was terminated by the Second Plaintiff on the basis Ms Dawber's position was redundant.

   d.Ms Dawber commenced proceedings for unfair dismissal on the  basis the position was not redundant and her termination related in part to the said recommendation.

   e.Further particulars will be provided following discovery of documents and the answering of subpoenas.

Determination - ASDC par 17

1. As exposed, the substantial truth facts pleaded by the defendant under pars 17(a) to (e), cannot sustain the reasonable arguability of the plea raised against the defamatory imputation. 

2. As seen, the essence of the defamatory imputation is as to conduct of the first plaintiff, namely, by her alleged unlawful termination of a nurse's employment.  This conduct is said to be motivated by the first plaintiff's reaction to advocacy or a recommendation by that nurse (whilst employed) that the first plaintiff 'fix' a patient who had been suffering a severe wound breakdown. 

3. There are a number of issues to address with this as pleaded substantial truth plea.

4. The charge is to an unlawful termination of employment of the (nurse) employee by the first plaintiff.  But a mere commencement of proceedings (somewhere by the former (nurse) employee complaining of unfair dismissal in an unnamed forum, tribunal, commission, or court, is not enough.  Anyone can usually commence a proceeding ‑ declared vexatious litigants aside.  Commencement does not imply underlying merit in an action.  Many commenced actions by would be plaintiffs fail, or fall away.  The proceeding loosely mentioned by the ASDC (see par 17(d)), would look to stand as unresolved. 

5. There is no plea of an issue estoppel (say, as between the nurse and her former employer) arising out of a result, or from a finding in reasons in whatever unnamed forum such dismissal proceedings were ever pending. 

6. Likewise, the observed reference in par 17(d) to the termination (of employment) being 'related in part' is unacceptable.  That language is pregnant with ambiguity and uncertainty as to what is actually being said.  That is wholly unacceptable in a defamation proceeding.

7. There is nothing seen within ASDC par 17 to support what looks to be the implied contention that the nurse's former position was not, in fact, truly redundant.  A lot more would be required to potentially show the substantial truth of an unlawful employment dismissal motivated by a false or fabricated motive of the former employer.

8. To the extent that there are 'hints' possibly to be extracted from out of ASDC par 17 to the effect that a Ms Dawber was sacked on a fabricated pretext of redundancy, by reason of her advocacy or recommendation towards a patient being 'fixed' by the first plaintiff, the position under defamation law is that 'hints' are a wholly insufficient basis to prove the substantial truth of what is a very serious defamatory imputation.

9. Moreover, a suggestion out of ASDC par 17(e) that discovery of documents and the answering of subpoenas would be open as an acceptable basis to possibly later shore up the otherwise deficient plea of justification - is equally unsatisfactory and misconceived.  A plea of substantial truth needs to be established by reference to proving facts subsisting at the time of the defamatory publication.  It is not open to a defendant to subsequently go foraging around after a publication event to look to unearth facts to shore up an attempted justification defence.  That is what par 17(e) would suggest is proposed on its face.  That will not be allowed. 

10. Consequently, the attempted plea as to substantial truth as is now seen under ASDC par 17 must be struck out - as failing to disclose any reasonable defence towards meeting the plaintiffs' contended defamatory imputation in SOC par 10(a).

Plea of substantial truth under ASDC par 18

1. A further substantial truth defence plea seen under ASDC par 18 (put in answer to an incompetent plastic surgeon defamatory imputation), is challenged as failing to disclose any reasonable defence. 

2. These reasons earlier highlighted the unique content of ASDC par 18(c), but I need to expose the entirety of ASDC par 18 for the purposes of undertaking the present evaluation. 

3. The ASDC paragraph reads in the following terms:

   18.As to subparagraph 10(b) of the Statement of Claim, the Defendant pleads as follows.

   a.The First Plaintiff advised the Defendant to undertake a bilateral Wise pattern or lollipop/boat anchor type mastopexy procedure and quoted for that procedure.  [Note:  What I have earlier referred to as Procedure A.]

   b.The First Plaintiff did not undertake a bilateral Wise pattern mastopexy on the Defendant but, rather, a Benelli or peri-areola procedure.  [Note:  What I have earlier referred to as Procedure B.]

   c.Says, a competent plastic surgeon would have consulted with and advised the Defendant that the recommended or appropriate procedure to be undertaken was not a bilateral Wise pattern but a Benelli or peri-areola mastopexy and would have obtained the Defendant's consent for such a change of the procedure to be performed.  (my emphasis in bold)

4. It will be remembered the contended defamatory imputation complained of in SOC par 10(b) as damaging the reputation of the first plaintiff arising from out of the Second Matter, is:

   The First Plaintiff is an incompetent plastic surgeon in that she performed the wrong type of breast lift on the Defendant; (my emphasis in bold)

5. That is the imputation to be justified as substantively true, if the defendant can succeed on this point. 

6. But from the content of ASDC par 18(b) and (c), the contrary position is seen as regards the type of breast lift actually performed.

7. Nothing can be found within ASDC par 18 to arguably go towards proving at the trial the substantial truth of this particular imputation.  Nothing in ASDC par 18 supports a performance of a wrong type of breast lift by the first plaintiff.

Determination - ASDC par 18

1. As now seen, the defence contention explicit under ASDC par 6(b) and, in effect, repeated again in ASDC par 18(b), is that Procedure B was carried out on the defendant. 

2. The explicit terms of par 18(c) say that a competent plastic surgeon would have advised that the recommended or appropriate procedure to be undertaken was, indeed, Procedure B. 

3. The oral submissions of counsel for the defendant made at the hearing sought to emphasise only an alleged failure of the first plaintiff to consult with and to obtain the defendant's consent, in effect, for Procedure B, in lieu of the discussed Procedure A - as is seen alleged under par 18(a). 

4. But whatever might otherwise be said over a change from a breast lift procedure as allegedly discussed (Procedure A) to the breast lift procedure that was actually implemented (Procedure B)  - none of that, even loosely viewed, can arguably sustain the plea of substantial truth concerning a defamatory imputation of surgical incompetence by the performance of the 'wrong type of breast lift'. 

5. On the defendant's own plea made under par 18(c), the appropriate procedure to be undertaken was Procedure B.  Procedure B is pleaded by ASDC par 18(b) to be the breast lift procedure that was actually carried out on the defendant.

6. Consequently, ASDC par 18 goes nowhere towards possibly justifying the substantial truth of this particular defamatory imputation that is complained about.  Consequently, the ASDC plea fails to disclose any reasonable defence. 

7. Therefore, ASDC par 18 will be struck out as an untenable defence plea.

Plea of substantial truth under ASDC par 20(b)

1. The sole defamatory imputation complained of by the second (corporate) plaintiff, arising out of the Second Matter is that it 'operates a business that performs botched procedures'. 

2. Another substantial truth defence plea is raised against this defamatory imputation.  It is challenged on the present application as conceptually untenable and, as embarrassing. 

3. As pleaded, the substantial truth plea reads, under ASDC par 20(b):

   further and in the alternative, the Defendant says if the words of the Second Matter in their natural and ordinary meaning were capable of bearing the meaning pleaded in paragraph 11 of the Statement of Claim, such was in substance true and the Defendant repeats the matters pleaded in:

   i.subparagraphs 6.a. to 6.e herein; and

   ii.subparagraphs 18.a. to 18.c. herein.

4. That is the full extent of the defence plea.  So seen, the plea merely seeks to incorporate, by reference, pleas as to the same facts made previously under the ASDC's earlier pleas at par 6 and par 18 ‑ albeit raised there against different imputations and, for the reasons now canvassed, found to be inadequate to meet such earlier substantial truth establishment objectives.

5. From the analysis as now conducted, it is apparent that ASDC par 18, as it is sought to be incorporated by reference into the ASDC at par 20(b), achieves the very opposite of supporting the substantial truth of a defamatory imputation that the wrong type of breast lift was carried out upon the defendant.  Of course, the present defamatory imputation is different by its referring to botched procedures (plural). 

6. Arguably then, again putting aside distractions around the Procedure A and Procedure B distinction, an adverse outcome result for the defendant arising out of the way Procedure B was conducted - may be relevant in the present context.  But the material facts seen under ASDC par 18 - still do not assist the defendant towards proving any botched procedure at all.  The question is whether any assistance emerges from matters as were identified earlier under ASDC par 6(a) through to par 6(e).

7. For reasons as already now canvassed, ASDC pars 6(a) and 6(b) likewise do not assist to an end of proving any botched procedure.  Residual pleas under pars 6(c), 6(d) and 6(e) display only the as discussed res ipsa loquitur like plea, grounded by reference merely to the contended adverse medical outcome by Complications (as defined) and then, to required Corrective Surgery (as defined). 

8. However, none of that, taken together and viewed generously at a low level mere arguability threshold used on the present strike out application, rises to a level of possibly sustaining the truth of this business reputation defamatory imputation complained about by the (corporate) second plaintiff, in relation to arguably showing its operation of a business that performs botched procedures (plural).  A sole incident that concerns this defendant, even were it established in terms of an adverse outcome, still on my assessment, cannot arguably support as being substantively true the SOC par 11 defamatory imputation put against the second plaintiff's business.  Wider facts to sustain the substantial truth of such a charge put against the business, by showing more than one adverse surgical outcome event sustained by one patient, would be required. 

9. That is problematic for the defendant as regards ASDC par 20(b).

10. Consequently, ASDC par 20(b) does not presently disclose an arguable defence of substantial truth towards this imputation.  It also must be struck out.

The Third Matter

1. It will be remembered the Third Matter complained of is the defendant's publication on 13 August 2020.  This was made by the defendant to another Facebook group - known as the 'Botched Surgery Support Group'. 

2. The first plaintiff's complaint raises three false innuendos, seen under SOC par 14.  The present interlocutory strike out application challenges only two of the three contended defamatory meanings. 

3. Again, the 'is cruel' imputation (par 14(b)), similar to that earlier seen as complained of arising in the prior two publications (pars 6(c) and 10(c)), is no longer challenged upon the present application.

4. It is convenient for overall context to view the third publication complained of.  It is found as Attachment C to the SOC (see par 12).  The defendant's alleged words, seen as Facebook posts under Attachment C, read:

   [Redacted]

5. There looks to be a further comment made by the defendant by reference to a total of five previous replies, but which does not appear to be relevant.  By reference to the defendant's name there next presents a comment from which there looks to be a hypertext link to a law firm, reading:

   https/ [Note: I have proceeded on the basis the intended reference observed in the first line of SOC par 12 (as appears did the parties) is intended to be to the 'defendant', rather than to 'the Plaintiff', as is presently seen.]

The defamatory imputations

1. By SOC par 14 the first plaintiff alleges that on the natural and ordinary meaning of the Third Matter, it means that she:

   (a)is a negligent plastic surgeon who ought to be sued by her patients for compensation;

   (b)...

   (c)performed a medically inappropriate breast lift on the Defendant.

Plea of substantial truth under ASDC pars 28 and 30

1. Again the ASDC, towards the Third Matter, makes the generic plea of substantial truth, raised in respect of all three defamatory imputations:  see ASDC par 27.  Thereafter, follow what are the more specific pleas that seek to incorporate by reference the substantial truth fact plea paragraphs as earlier now seen in the defence under ASDC par 28 (regarding imputation 14(a)) and by ASDC par 30 (regarding imputation 14(c)), respectively.  These defence pleas, say, respectively:

   28.As to subparagraph 14(a) of the Statement of Claim[,] the Defendant:

   a.Repeats the matters pleaded in:

   i.subparagraphs 6.a. to 6.e herein;

   ii.subparagraphs 18.a to 18.c herein; and

   iii.in the Counterclaim pleaded herein.

   ...

   30.As to paragraph 14(c) of the Statement of Claim, the Defendant repeats the matters pleaded in:

   a.subparagraphs 18.a to 18.c; and

   b.subparagraphs 6.a to 6.e;

   c.in the Counterclaim pleaded herein.

1. Challenging those above seen pleas of substantial truth as are put against the defamatory imputations 14(a) and (c) as being wholly untenable, the plaintiffs, by their written submissions at par 35 and par 37, essentially reiterate the same in principle concerns of inadequacy, as have already been canvassed under those earlier contexts where the expressed concerns have now been upheld on this application.

Determination - ASDC par 30

1. The reasons earlier seen concerning the striking out of ASDC par 18 - apply with equal force to ASDC par 30, under its incorporation by reference of par 18. 

2. For the reasons as already now stated, what manifested as the defence plea under par 18(c), concerning what I have referred to as the ultimate carrying out of Procedure B undermines, rather than supports, any suggestion that an inappropriate breast lift was carried out.  The same observation goes towards not arguably being capable of defending as substantially true the 14(c) defamatory imputation of a 'medically inappropriate breast lift'.

3. In any event, the incorporation by reference of ASDC par 18(a) holus‑bolus by par 30(a), at minimum, is embarrassing given a glaring logical inconsistency with the proposition it is ostensibly called upon to support.

4. Likewise, for ASDC par 30(b), for the reasons as already now canvassed towards ASDC par 6, there is a lack of any utility in that plea to support a contention of there being a medically inappropriate breast lift that is founded upon anything found in par 6 of the ASDC. 

5. Therefore, par 30 of the ASDC must as well be struck out as failing to disclose any reasonable defence.

6. I add, however, that I have not overlooked a further incorporation reference seen in par 30(c) to the Counterclaim, which I have not yet fully discussed, but will return to later in these reasons.  However, any engendered expectation that some new material facts to sustain a substantive truth plea might emerge from a factual perspective from the Counterclaim plea will be dashed in due course - as a false hope. 

7. At ASDC par 43, the Counterclaim plea only repeats the same (inadequate) matters by it importing by reference ASDC pars 6(a) to (e) and ASDC pars 18(a) to (c).

8. Consequently, all the conceptual contaminations inherent in the earlier unsuccessful deployment of those truth fact paragraphs are imported across to ASDC par 30 - with the same negative consequences.

Determination - ASDC par 28

1. I can turn back then to ASDC par 28, also with its incorporated materials as regards raising a plea of substantial truth put against the par 14(a) imputation, namely that the first plaintiff is a 'negligent plastic surgeon who ought to be sued by her patients for compensation'.

2. The obvious initial conceptual difficulty that emerges, as I canvassed during the hearing with counsel for the defendant, is that the isolated events around one patient (the defendant) raised under ASDC par 6 and par 18, are demonstrably singular.  They do not, even if established, support a wider negligence defamatory contention as to the first plaintiff's patients, generally.  The defamatory imputation goes well beyond just the defendant, in terms of seeking to prove the substantial truth at trial of defamatory imputation 14(a) as regards (law) suits by (her) patients generally for compensation.

3. And for the reasons as now fully canvassed earlier, no support to that end can be located from out of par 18 of the ASDC, more particularly given the contradictory position seen under pars 18(b) and (c).

4. As regards the incorporation of ASDC par 6 and its subpars (c), (d) and (e), they at best might just sustain a common law negligence contention of res ipsa loquitur, arising out of an adverse outcome being sustained by the defendant, after Procedure B was performed upon her.  However, the difficulty with the proposition is that defamatory imputation in SOC par 14(a) goes wider than simply being referable to an adverse outcome experienced by only the defendant.  Consequently, what is put by pars 6(c), (d) and (e) is not enough to engage with an object of proving the substantial truth of this particular imputation.

5. So then, taken together, all matters as incorporated by reference under ASDC par 28 cannot, even arguably, provide sufficient support for the plea as to a defence of substantial truth put against the wider defamatory imputation that is raised against the defendant by SOC par 14(a).

6. Consequently, ASDC par 28 must also be struck out as failing to disclose any reasonable defence.

The counterclaim and the challenges put against it

1. The plaintiffs' written submissions contend under pars 55 and 56, as regards the defendant's counterclaim (in negligence and for breach of contract), that:

   55.The counterclaim identifies two relevant aspects of the standard of care required of the first plaintiff in the circumstances.  It is alleged that she ought to have:

   55.1Fully informed and explained what surgical procedure she proposed to perform, and obtained the defendant's consent:  Defence at [45(a)];

   55.2Performed any surgical procedure to the standard of an ordinary skilled plastic surgeon practising in that field:  Defence at [45(b)].

   The counterclaim further alleges that each of the duties was an implied term of the contract between the first plaintiff and the defendant:  Defence at [46(b)].

   56.It is alleged that the first plaintiff breached both of these duties and/or implied terms:  Defence at [47] - [48].  As a result of these breaches, it is alleged that the defendant has suffered loss and damage by suffering the 'Complications' and having to submit to 'the Corrective Surgery' (with its associated expenses and costs):  Defence at [49] ...

2. At pars 57 and 58, the plaintiffs articulate the contended pleading deficiencies of the counterclaim, this way:

   57.The counterclaim does not particularise any facts, matters or circumstances at all in support of the proposition that the first plaintiff failed to exercise the standard of care and skill of an ordinary skilled plastic surgeon.  Nor does it particularise any facts, matters or circumstances which could arguably support the proposition that the alleged loss and damage suffered by the defendant was caused by the first plaintiff's alleged failure to obtain informed consent or failure to exercise reasonable care and skill.

   58.The counterclaim suffers from the same deficiency of particularisation as the defence of justification to Imputations 6(a), 10(b), 14(a) and 14(c).  It should be struck out for the same reasons.

Evaluation of counterclaim

1. On my assessment, there is an unacceptable level of confusion in ASDC par 47 of the counterclaim traversing back to the same Procedure A/Procedure B distinction, by the par 45(a) alleged breach of duty of care - by failing to fully inform and explain what surgical procedure was proposed to be undertaken and to obtain the defendant's consent thereto. 

2. I have, of course, earlier struck out ASDC par 6 and par 18

   
   

   - insofar as they are incorporated by reference by par 43 of the counterclaim. 

3. Nevertheless, if the counterclaim plea under par 43(a) is limited only to pars 6(c), (d) and (e), and with the 43(b) plea (referring to ASDC par 18) excised in its entirety, it may then emerge that the negligence grievance as essentially complained about under the defendants' counterclaim, is better clarified.  It would look then to be a bare contention of common law negligence (or breach of an implied duty of skill and care) with the plea limited merely to a contended mere inference of negligence (or breach) as regards the performing of Procedure B on the defendant with the adverse outcome - grounded on the principle of res ipsa loquitur (the thing speaks for itself). 

4. Albeit unique to see such a plea standing alone in a medical negligence action, it just survives the arguability legal threshold for a strike out application against a cause of action. 

5. To that end, ASDC par 45(a) must be wholly struck out.  But par 45(b) as regards the performance of the surgical procedure, may remain. 

6. Likewise, ASDC par 46(a)(i) must be excised, along with par 46(b)(i) also to be excised, as irrelevant to a grievance over the alleged adverse outcome from Procedure B. 

7. ASDC par 47 likewise must be struck out in its entirety.

8. Also struck out will be the word 'further', which commences ASDC par 48.  However, the residual par 48 may remain (subject to the defendant's undertaking to insert as clarifying particulars to par 48, words to the effect that she relies on the principle of res ipsa loquitur). 

9. With such adjustments, par 48 of the counterclaim ought then to manifest enough clarity to sustain an arguable medical negligence cause of action that is not summarily struck out.  A typographical error, as seen under the particular (b) of the particulars of loss and damage in par 49(b), replacing the word 'occurred' [sic] by the word 'incurred', should also be fixed.

10. In summary then, towards the defendant's counterclaim, I must strike out as failing to show any reasonable cause of action, ASDC par 43(b) and, as well, the references to pars 6(a) and 6(b) as are seen in par 43(a), so that par 43 reads:

    ... subparagraphs 6(c) to 6(e) of the Amended Defence.

11. Furthermore, I strike out on the same basis ASDC par 45(a), 46(a)(i), 46(b)(i) and, as well, all of par 47 of the counterclaim. 

12. In addition, I strike out the word 'Further' from ASDC par 48, so the as amended paragraph would read:

    In undertaking the Procedure ...

13. Finally, ASDC par 48 must also carry clarifying particulars along the basis of:

    The Defendant invokes relies upon the principle of res ipsa loquitur ...

14. I would add that, if the defendant, with the benefit of further advice, does not plead an explicit reference to her reliance on the principle of res ipsa loquitur as particulars to the amended former ASDC par 48 of her counterclaim (as is her right), then I would strike out the entirety of the counterclaim as being embarrassing - in terms of its overall lack of clarity and coherence.  I reiterate the only basis on which I can presently discern any reasonably arguable cause of action, albeit unclearly, is upon a basis of this common law principle being called on to assist the defendant.

The statutory qualified privilege defence and its reasonableness pleas

1. As earlier foreshadowed, I must add some concluding observations concerning the defendant's statutory plea of qualified privilege, in regard to the reasonableness pleas as manifest therein, under ASDC par 12(c) as regards the First Matter, by par 23(c) as regards the Second Matter, and by par 33(c) as regards the Third Matter.

2. During the course of the hearing senior counsel for the plaintiffs referred me to some possibly divergent lines of case authority in Australia - over whether facts going to show a contended substantial truth of a defamatory imputation may also be relied upon as matters relevant to a distinct purpose of establishing reasonableness - as an aspect of showing the distinct statutory defence of qualified privilege via Defamation Act s 30(1)(c) and (3). See there, particularly, subpar (3)(j), which refers to 'any other circumstances that the court considers relevant'.

3. In Rush v Nationwide News Pty Ltd [2018] FCA 357 at [137] and [140] - [152] Wigney J, who had favoured the approach of Hunt J in Makim v John Fairfax & Sons Ltd (Unreported, SC NSW, 15 June 1990) within the context of that matter, looked to express doubts concerning the use or relevance of truth in that sphere.  At [140] Wigney J observed that he had:

   ... considerable difficulty seeing how the objective truth of what was published can be relevant to the reasonableness of the defendant's conduct for the purposes of a qualified privilege defence, even having regard to the range of matters in s 30(3).

4. An appeal from that interlocutory ruling was unanimously dismissed:  see Nationwide News Pty Ltd v Rush [2018] FCAFC 70 and with primary reasons delivered by Lee J at [10], then agreed with by both Rares J at [12] and by Allsop CJ at [18].

5. Nevertheless, in an earlier defamation case, White J in Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; (2015) 332 ALR 257 looks not to have followed the Makim approach whilst rendering an evidentiary ruling on an objection to evidence proposed to be led in that trial.

6. Given my earlier conclusions reached to the effect that many pleas within the present defence must be struck out, particularly as regards my now determined conclusions against the defendant's efforts to sustain pleas of substantial truth to the defamatory imputations under SOC pars 6(a), 6(b), 10(a), 10(b), 14(a) and 14(c), it is clear that those excisions and the many necessary following adjustments will necessarily impact against these related ASDC reasonableness pleas towards statutory qualified privilege.  To be explicit, what remains not struck out in the ASDC in relation to the pleas of the defendant of substantial truth are residually insufficient to sustain this aspect of the statutory qualified privilege defence.  So then, like Allsop CJ in Nationwide News Pty Ltd v Rush, I would prefer to reserve my position concerning the Makim debate for an occasion where its resolution is indispensable to a required decision.

Conclusion

1. The plaintiffs' application to strike out the many component paragraphs within the ASDC has largely succeeded - both as against the defence and, as well, against the counterclaim.  Given the magnitude of the paragraphs struck out and their internal relationships within the pleading, the most feasible course is for the entirety of the ASDC to be struck out now.  That will occur upon the general publication of these reasons on the Court's website.  There should also be an order for leave to amend the ASDC on terms.  All other issues are reserved.

2. The leave for the defendant to amend her pleading, if she wishes, to respond to the deficiencies as identified by these reasons, should take place by way of circulation of a minute of proposed amended pleading within 21 days of the publication of these reasons.  If the plaintiffs do not consent to its filing after having had a reasonable period of say, a further 21 days to digest any proposed amendments, then an application by the defendant seeking leave will be listed for hearing administratively.  Orders as per [227] will issue upon the general publication of these reasons

3. As to further orders, prima facie, the defendant as the overwhelmingly unsuccessful party on this application should bear the plaintiffs' taxed costs of the present application to be paid forthwith, once ascertained, if not agreed.  Special costs orders may be applied for if not agreed.

4. I shall publish these reasons and allow the parties a period of fourteen (14) days post publication to confer.  Absent such agreement by that time, each side should provide its rival minutes of further proposed orders to my Associate.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RC

Research Associate to the Honourable Justice Martin

9 JULY 2021