Nixon v Slater & Gordon

Case [2000] FCA 531

FEDERAL COURT OF AUSTRALIA

Nixon v Slater & Gordon [2000] FCA 531

DEFAMATION – libel – whether a claim of professional malpractice conveys the imputation that the claim is for reasonable cause or is made on reasonable grounds – whether the publication sufficiently identified the applicants - consideration of principles applicable to estimating general damages for injury to professional reputation

TRADE PRACTICES – misleading and deceptive conduct – whether promotional booklet is “in trade or commerce” - whether damages to reputation is recoverable as loss and damage for misleading and deceptive conduct

Trade Practices Act 1974 (Cth) ss 52 and 82

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 – applied
Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 – applied
Global Sportsman Pty Ltd v Mirror Newspaper Ltd (1984) 55 ALR 25 – applied
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 – applied
Lewis v Daily Telegraph Ltd (1963) 1 QB 340 – considered
Lewis v Daily Telegraph Ltd (1964) AC 234 – applied
Chakravarti v Advertiser Newspapers (1998) CLR 519 – cited
Tolley v J.S. Fry & Sons Ltd [1931] AC 333 – cited
Mapp v News Group Newspapers Ltd [1998] Q.B. 520 – cited
Shah v Standard Chartered Bank [1999] QB 241 – cited
Honey v Australian Airlines (1989) ATPR 40-961 – cited
Morgan v Odhams Press Ltd (1971) 2 All ER 1156 – applied
David Syme & Co v Canavan (1918) 25 CLR 234 - cited
Andrews v John Fairfax & Son Ltd (1980) 2 NSWLR 225 - cited
Steele v Mirror Newspapers Ltd (1974) 2 NSWLR 348 – cited
World Hosts Pty Ltd v Mirror Newspapers Ltd (1978) 1 NSWLR 189 – cited
Raul Amon International Pty Ltd v Telstra Corporation Ltd – [1998] 4 VR 798 - cited
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 – considered
Crampton v Nugawela (1996) 41 NSWLR 176 – considered
Broome v Cassell & Co [1972] AC 1027 – considered
Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 – cited
Brabazon v Western Mail Ltd (1985) 58 ALR 712 – considered
Acohs v RA Bashford (1997) 144 ALR 528 - considered

IAN NIXON AND GREGORY ELLIS v SLATER & GORDON
VG 468 OF 1999

JUDGE:         MERKEL J
DATE:           28 APRIL 2000
PLACE:         MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 468 of 1999

BETWEEN:

IAN NIXON
FIRST APPLICANT

GREGORY ELLIS
SECOND APPLICANT

AND:

SLATER & GORDON
RESPONDENT

JUDGE:

MERKEL J

DATE OF ORDER:

28 APRIL 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.   The respondent pay damages in the sum of $200,000 to the first applicant.

2.   The respondent pay damages in the sum of $100,000 to the second applicant.

3.   The respondent be restrained from publishing or distributing the booklet described in paragraph 4 of the Amended Statement of Claim in any form that uses the photograph of the applicants described in the particulars to that paragraph.

4.…

Continue reading Nixon v Slater & Gordon

Sign in free to access the full text

Details
AGLC
Nixon v Slater & Gordon [2000] FCA 531
Case
[2000] FCA 531
Decision Date

CaseChat Overview and Summary

The case of Nixon v Slater & Gordon involved two applicants, Mr Nixon and Dr Ellis, who brought an action against Slater & Gordon for defamation and contravention of the Trade Practices Act 1974 (TPA). The applicants claimed that Slater & Gordon had falsely represented that they were the subject of medical malpractice claims, and that they had agreed to their professional repute being used to promote litigation of such claims. Slater & Gordon had distributed a booklet to 8,531 medical practitioners in Victoria, with a cover photograph of the applicants in surgical dress, under the caption "Medical malpractice claims...A litigation explosion?". The applicants argued that the publication was defamatory and misleading, and that it breached section 52 of the TPA.

The legal issues before the court were whether Slater & Gordon's publication of the booklet was defamatory, and whether it constituted a contravention of section 52 of the TPA. The applicants argued that the publication implied that they were involved in medical malpractice claims, which was false and damaging to their reputation. They also argued that the publication was misleading, as it gave the impression that they had consented to their photograph being used in the booklet. The court had to determine whether the publication was capable of bearing the defamatory meaning imputed to it by the applicants, and whether it was misleading or likely to mislead.

The court found that the publication was capable of bearing the defamatory meaning imputed to it by the applicants, and that it was misleading. The court held that the cover photograph of the applicants in surgical dress, under the caption "Medical malpractice claims...A litigation explosion?", implied that they were the subject of medical malpractice claims, which was false and defamatory. The court also held that the publication was misleading, as it gave the impression that the applicants had consented to their photograph being used in the booklet. The court found that Slater & Gordon had contravened section 52 of the TPA by publishing misleading or deceptive conduct in trade or commerce.

The court awarded damages to the applicants in the sum of $200,000 to Mr Nixon and $100,000 to Dr Ellis. The court also restrained Slater & Gordon from publishing or distributing the booklet in any form that used the photograph of the applicants, and ordered Slater & Gordon to send a letter of retraction to each of the medical practitioners who had received the booklet. The court held that the applicants were entitled to injunctive relief, as the publication had caused them damage to their reputation and professional repute. The court also ordered Slater & Gordon to pay the applicants' costs of and incidental to the proceeding.

In conclusion, the court found that Slater & Gordon had defamed the applicants and contravened section 52 of the TPA by publishing misleading or deceptive conduct in trade or commerce. The court awarded damages to the applicants and restrained Slater & Gordon from further publication of the booklet. The court also ordered Slater & Gordon to send a letter of retraction to each of the medical practitioners who had received the booklet. The applicants were also entitled to be paid their taxed costs of and incidental to the proceeding.

Orders

Orders of the court

1. The respondent pay damages in the sum of $200,000 to the first applicant.

2. The respondent pay damages in the sum of $100,000 to the second applicant.

3. The respondent be restrained from publishing or distributing the booklet described in paragraph 4 of the Amended Statement of Claim in any form that uses the photograph of the applicants described in the particulars to that paragraph.

4. Within 14 days from the date hereof the respondent, at its own expense, send by ordinary prepaid letter post the letter of retraction annexed as the Schedule to the order to each of the medical practitioners identified in Exhibit “AR 2” to the affidavit of Adam Gerhard Rollnik sworn on 7 April 2000.

5. The respondent pay the applicants’ costs of and incidental to the proceeding.

Background

Background to the litigation

The applicants claim that, in publishing and distributing the booklet, Slater & Gordon imputed or represented that the applicants were the subject of medical malpractice claims or that the applicants had agreed, for reward, to their professional repute being used by Slater & Gordon to promote litigation of such claims. It is common ground that any such imputations or representations were false, as there had not been any malpractice claims against the applicants and the publication of the photograph had not been directly, or indirectly, authorised by them.Background During May and June 1999 Slater & Gordon, which claims to “specialise in representing injured Victorians”, sent a letter by pre-paid post to 8,531 medical practitioners in Victoria. The letter, which enclosed two booklets, was as follows:“Dear Dr………At Slater and Gordon we specialise in representing injured Victorians. We recognise that in doing so we may cause a degree of disruption in your life by requesting medical reports or by asking you to give evidence in court. We are committed to minimising this disruption and thus have prepared a guide to report writing and court appearances. The booklet is designed to provide information about what may be asked of you when a patient is pursuing a claim for compensation arising out of an injury.We also understand the medical profession’s concern about the perceived growth of medical negligence litigation. It is for this reason that we have prepared a second booklet. We hope that the more controversial medical malpractice guide will both clarify some of the issues surrounding medical negligence actions and detail our approach to these claims.We have taken care to make these publications relevant to you and have sought to provide a balanced view. In doing so we have incorporated amendments and comment offered by a senior official of a medical defence organisation If you wish to discuss any of the issues outlined in these booklets or would like more copies I would be pleased if you contacted me on (03) 9602 6888.Yours faithfully,[Signed]Partner” The front covers of the booklets featured colourful and striking photographs of surgeons in full surgical dress. The cover of the first booklet featured a photograph of a surgeon standing in a witness box holding the Bible in his right hand under the caption “What do they want from me now?”. The booklet, which was stated to be published by “Slater & Gordon, Solicitors”, provided “Information for treating doctors on report preparation and court appearances”. The second booklet (“the medical malpractice booklet”) was in the same format, save that the photograph on the cover was of two surgeons conducting cardiothoracic surgery on a patient, with a fully robed barrister at the head of the operating bed scrutinising the surgery. The captions, in respect of the photograph, stated above the photograph, “Medical malpractice claims...” and below the photograph, “…A litigation explosion?”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As the other claims under the TPA and the FTA cannot result in any additional relief it is unnecessary to consider whether they have been established.Conclusion For the foregoing reasons I have concluded that the applicants are entitled to damages in defamation and as a result of contravention of s 52 of the TPA in the sum of $200,000 in respect of Mr Nixon and $100,000 in respect of Dr Ellis. The applicants are also entitled to the injunctive relief sought by them restraining further publication of the medical malpractice booklet and also to an order that a letter of retraction be sent. In arriving at the award of damages I have had regard to the circumstances up to the conclusion of the hearing in ascertaining the amount of damages that are appropriate. In those circumstances it is not appropriate for any award of interest to be made. The applicants are also entitled to be paid their taxed costs of and incidental to the proceeding. It is unfortunate that the development by Slater & Gordon of a code of conduct to reflect the firm’s “commitment to an ethical and highly professional practice in the area of medical negligence” has stumbled at its first hurdle. It has not been suggested that there is anything in the code that is improper or inappropriate. Indeed, I would expect that a number of medical practitioners may derive some comfort from the acknowledgment in the booklet that Slater & Gordon is aware of the effect that a claim can have upon a doctor’s reputation, and that, accordingly, when legal proceedings are commenced the firm endeavours to “avoid publicity which may unfairly reflect upon the doctor”. In the present case, albeit unintentionally, Slater & Gordon’s endeavour to reassure the medical profession of its commitment to avoiding unfair publicity has resulted in unfair publicity concerning two members of that profession. It may be a fact of modern life that the legal, and other, professions have become more entrepreneurial in the conduct of their professional practices. While that can result in benefits and privileges it also carries commensurate responsibilities. One such responsibility is to ensure not only the proclamation of standards of conduct, but also adherence to those standards. The present case may drive home the significance of that responsibility.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.