Pisano v THRUM
[2005] WASC 35
PISANO -v- THRUM [2005] WASC 35
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 35 | |
| Case No: | CIV:2436/2002 | 2 & 9 FEBRUARY 2005 | |
| Coram: | MASTER SANDERSON | 9/03/05 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Leave to amend refused | ||
| B | |||
| PDF Version |
| Parties: | GIGLIETTO PISANO CAMERON THRUM |
Catchwords: | Practice and procedure Defamation action Application to amend statement of claim Turns on own facts |
Legislation: | Nil |
Case References: | Nil Ansett (Operations) v Australian Federation of Air Pilots (1992) 1 VR 637 Arcadia Holdings Pty Ltd v Brown [2002] WASC 44 Bishops Gate Insurance Australia Ltd (In Liq) v Deloitte Haskins & Sells [1999] 3 VR 863 Duke v Royalstar Pty Ltd [2001] WASCA 273 Grubb v Bristol United Press [1963] 1 GB 309 Hughes v Gales (1995) 14 WAR 434 Inform Formwork Pty Ltd v McInnes Concrete Service Pty Ltd, unreported; FCt SCt of WA; Library No 950661; 15 November 1995 Latrobe Country Credit Co-operative Ltd v Smith & Ors (1999) 1 VR 440 Levi v Stirling Brass Founders Pty Ltd, unreported; FCt SCt of WA; Library No 97029; 9 May 1997 Lewis v Daily Telegraph [1964] AC 234 Loughams v Oldhams Press Ltd [1963] 1 GB 299 Merkur Island Shipping Corporation v Laughton [1983] 2 AC 570 Northern Territory of Australia v Mengal (1995) ALJR 527 The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
CAMERON THRUM
Defendant
Catchwords:
Practice and procedure - Defamation action - Application to amend statement of claim - Turns on own facts
Legislation:
Nil
Result:
Leave to amend refused
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr P G Clifford
Defendant : Mr K J Martin QC
Solicitors:
Plaintiff : Staffa Lawyers
Defendant : Mullins Handcock
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Ansett (Operations) v Australian Federation of Air Pilots (1992) 1 VR 637
Arcadia Holdings Pty Ltd v Brown [2002] WASC 44
Bishops Gate Insurance Australia Ltd (In Liq) v Deloitte Haskins & Sells [1999] 3 VR 863
Duke v Royalstar Pty Ltd [2001] WASCA 273
Grubb v Bristol United Press [1963] 1 GB 309
Hughes v Gales (1995) 14 WAR 434
Inform Formwork Pty Ltd v McInnes Concrete Service Pty Ltd, unreported; FCt SCt of WA; Library No 950661; 15 November 1995
Latrobe Country Credit Co-operative Ltd v Smith & Ors (1999) 1 VR 440
Levi v Stirling Brass Founders Pty Ltd, unreported; FCt SCt of WA; Library No 97029; 9 May 1997
Lewis v Daily Telegraph [1964] AC 234
Loughams v Oldhams Press Ltd [1963] 1 GB 299
Merkur Island Shipping Corporation v Laughton [1983] 2 AC 570
Northern Territory of Australia v Mengal (1995) ALJR 527
The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
(Page 3)
1 MASTER SANDERSON: This is the return of two chamber summonses. The first in time is the defendant's summons which was issued on 22 September 2004. Although it does not emerge from the terms of the summons, essentially the defendant was seeking to strike out the plaintiff's action for want of prosecution. The second chamber summons was issued by the plaintiff on 4 February 2005. It sought leave to file and serve a reamended statement of claim in terms of a draft substituted statement of claim. The defendant's chamber summons first came on for hearing on 2 February 2005. The plaintiff was represented at the hearing by Mr Clifford of counsel who at, or shortly prior to, the hearing produced a minute of reamended statement of claim. Counsel for the defendant objected to any reliance being placed upon the minute. Counsel maintained that it was too late and that his client's application should proceed on the materials then before the Court. I determined that the reamended statement of claim could be relevant to the defendant's application, particularly if it set up a properly formulated claim. On that basis I adjourned the hearing for one week and directed the plaintiff's solicitors to file an application for leave to amend. When the matter came on for hearing on 9 February, it was in relation to both summonses.
2 It is convenient to deal first with the application to strike out for want of prosecution. The place to begin is with a brief chronology. The writ was issued on 21 October 2002. An appearance was entered by the defendant on 8 November 2002 and a statement of claim was filed and served on 9 December 2002. I will deal more fully with the nature of the claim below. For the present it is sufficient if I say that this is a defamation action. The plaintiff alleges that he was libelled by the defendant in correspondence sent to the plaintiff's employer.
3 An amended statement of claim was filed on 30 October 2003. On 3 May 2004 Master Newnes struck out the amended statement of claim and gave the plaintiff leave to file any minute of reamended statement of claim on or before 21 June 2004. The learned Master further ordered that the minute was to stand as the reamended statement of claim unless within seven days of service of the minute the defendant applied to disallow the amendments. In fact, no minute of reamended statement of claim was delivered until on or just before 2 February 2005. It is the delay in lodging the minute that has motivated the defendant to apply to strike out the action; it is the necessity for an extension of time to lodge the reamended statement of claim which has led the plaintiff to make its application.
(Page 4)
4 Both parties have filed affidavits which deal with the delay. So far as the plaintiff is concerned, the picture that emerges can be summarised in this way. Between 1 May 2004 and 23 May 2004 the plaintiff was attending a conference overseas and was uncontactable. By letter dated 4 May 2004 the plaintiff's solicitors informed the defendant's solicitors of possible time extensions being required. On 8 June 2004 the plaintiff briefed senior counsel: plaintiff's affidavit sworn 25 October 2004, par 5. On 11 June 2004 counsel contacted the plaintiff's solicitors and arranged a conference for 2 July 2004. By letter dated 14 June 2004 the plaintiff's solicitors requested a time extension from the defendant's solicitors within which to file and serve the minute of reamended statement of claim. The defendant's solicitors agreed to extend the time until 28 June 2004. The earliest then the plaintiff would have been able to file and serve a minute of reamended statement of claim was on or before 12 July 2004.
5 On 28 July 2004 counsel for the plaintiff suggested joining a third party as a defendant to the proceedings and that the claim be amended to include an action for conspiracy. On 29 July 2004 the plaintiff instructed his solicitors to proceed in accordance with counsel's advice. Subsequently, counsel requested additional information in relation to the plaintiff's employer, Fremantle Hospital, and on other issues. Some of the information was difficult to obtain and took several weeks to locate: see plaintiff's affidavit, par 12.
6 On 19 August 2004 the plaintiff's solicitors filed an application to join a third party as a second defendant to the proceedings and to substitute the writ of summons and statement of claim to plead a claim based on conspiracy. On 30 August 2004 the plaintiff's solicitors faxed to counsel a letter from Registrar C Boyle. The contents of that letter are not at present relevant. The solicitors sought advice from counsel. On 15 September 2004 the plaintiff's solicitors received a telephone call from counsel's office alerting them to the fact that counsel was overseas until 22 September. On 30 September 2004 the plaintiff's solicitors received a telephone call from counsel advising that he was unable to retain the brief due to him receiving and unwittingly reading confidential information. Counsel indicated that fresh counsel would need to be briefed.
7 On 1 October the plaintiff's solicitors unsuccessfully attempted to contact Mr Clifford of counsel. The plaintiff, perhaps not surprisingly, was reluctant to brief fresh counsel but on 14 October 2004 he agreed to do so. Thereafter counsel reconsidered the statement of claim which, in its present form, was provided to the plaintiff's solicitors just prior to Christmas 2004. There was then some interaction between counsel and
(Page 5)
- the solicitors, as a consequence of which the amended pleading, which is titled Draft Substituted Statement of Claim ("the draft"), did not reach the defendant's solicitors until just before 2 February 2005.
8 It has to be said that this summary of the progress of the proceedings does not bespeak an urgency that might be expected in a defamation action. There have been long periods of time when nothing has happened and when no real explanation is offered for the delay. Moreover, the letter of which complaint is made was sent to the defendant's employer on or about 2 July 2002. Proceedings were issued some three and a half months later and two and a half years later there is not an acceptable statement of claim in existence.
9 Nonetheless, I am not satisfied that the delay is inordinate or inexcusable. To an extent, circumstances have conspired against the defendant and his solicitors. The forced retirement of counsel was an act beyond their control and has been a major contributing factor in the delay. Nor am I satisfied that the prejudice suffered by the defendant is so significant as to warrant the action being struck out. Any delay is unfortunate and without more, prejudices the position of a defendant. But this is not a case where there is some particular fact which has occasioned the defendant prejudice - for instance, a principal witness has not died, nor have important documents been lost. While memories dim with the passing of time, making the task of dealing with the dispute all that much more difficult, this is a case which really turns on one particular letter and the evidence of the parties will be of limited utility.
10 On balance then, I am not satisfied that the action ought be struck out for want of prosecution, or on the basis that there has been a default in the pleadings.
11 Turning then to the draft, par 1 pleads that the plaintiff was at all material times a person qualified to practice as a specialist orthopaedic surgeon in the State of Western Australia. The defendant, it is pleaded by par 2, is also a qualified specialist orthopaedic surgeon. By par 3 it is pleaded that the Royal Australasian College of Surgeons ("the College") is a body corporate whose members include specialist orthopaedic surgeons who have been admitted as Fellows of the College.
12 By par 4 it is pleaded that it was a function of the College to approve certain training hospitals in Australia as being eligible institutions for the training of trainee orthopaedic surgeons who are candidates for admission to membership of the College. By par 5 it is pleaded that the defendant
(Page 6)
- was at all material times a member of the College and by par 6 it is pleaded that the plaintiff was not, and never has been, a member of the College. By par 7, it is pleaded that a body known as the Australian Orthopaedic Association (Western Australia) Inc ("AOA") was an organisation whose members comprise orthopaedic surgeons practising in Western Australia and who are members of the College. By par 8 it is pleaded the defendant was a committee member of the AOA. By par 9 it is pleaded that Fremantle Hospital is a well-known medical facility in Western Australia. It is pleaded that at all material times the services of specialist orthopaedic surgeons and trainee orthopaedic surgeons were included among the medical services provided at the hospital.
13 By par 10 it is pleaded that Fremantle Hospital was an eligible hospital approved by the College for the training of trainee orthopaedic surgeons being candidates for admission to membership of the College. By par 11 it is pleaded that Fremantle Hospital employed specialist orthopaedic surgeons, provided facilities for training of trainee orthopaedic surgeons and employed under contracts of employment trainee orthopaedic surgeons, known as Registrars, including trainees who are candidates for admission to the membership of the College.
14 It is worth noting with respect to par 11 that what is pleaded is that Fremantle Hospital employed trainee orthopaedic surgeons, some of whom may have been candidates for admission to the College, some of whom might not have been candidates. In the context of what follows, that plea is of some significance.
15 By par 12 it is pleaded that on or about 10 June 2002 the plaintiff commenced employment with Fremantle Hospital as a specialist orthopaedic surgeon. By par 13 it is pleaded that it was a usual incident of the employment of a specialist orthopaedic surgeon at Fremantle Hospital that the specialist would participate in the training of Registrars - that is, all of the Registrars - at the hospital.
16 None of the above facts are controversial and in fact it would appear that all will be admitted.
17 By par 14 it is pleaded that on or about 2 July 2002 the defendant wrote a letter addressed to the Director, Medical Services at Fremantle Hospital ("the letter"). It is this letter which, it is said, is defamatory of the plaintiff. Because of the importance of this letter, I will quote it in full:
"Mr S Kelly
(Page 7)
- Director, Medical Services
Fremantle Hospital
Alma Street
FREMANTLE WA 6160
Dear Shane
RE: Gig PISANO
Further to our conversation on the (sic) 24/6/02, the AOA wishes to point out that Dr Pisano holds no qualification from the Royal Australasian College of Surgeons and is therefore in breach of the AOA Training Programme requirements in relation to Registrars.
It is a requirement that in a training hospital, teaching staff do have appropriate qualifications.
The AOA is very aware of the difficulties of having adequate trauma cover at the present time which is of course is (sic) a problem affecting all hospitals. It is also recognised that Fremantle Hospital is appointing both a Professor, possibly a Senior Lecturer and a further surgeon in the near future.
The National Training Committee has advised that Registrars may have to be withdrawn if there are breaches in its training protocol and I therefore ask for your comments.
Yours sincerely
CAMERON B THRUM
cc Mr A Skirving
Mr R Genat"
18 This letter is factually incorrect in at least two respects. With respect to the first paragraph, the plaintiff does not quarrel with the fact that it is asserted by the defendant in the letter that he holds no qualifications from the College. In fact, it is pleaded that he does not. But it is not correct to say that he is in breach of the AOA training programme requirements in relation to Registrars. The College requires Registrars, who are candidates to be admitted as Fellows of the College, to be trained by Fellows of the College. If that is not done, then there is a breach of the AOA training programme requirement and it may be that Registrars who
(Page 8)
- are candidates for admission to the College will be rejected on that basis. But it is simply wrong to say that the plaintiff personally was in breach of the AOA training programme requirements. Fremantle Hospital may have been in breach of those requirements or the individual Registrars coming under the control of the plaintiff may have been in breach of those requirements. But there was no breach by the plaintiff personally.
19 The second error is found in the final paragraph of the letter. There was no question of the Registrars being "withdrawn" if there were breaches of the AOA training programme. The Registrars were employed on contract by Fremantle Hospital. That is pleaded in the draft and is not denied. It may well have been open to the College to have advised Registrars who are candidates for admission to the College that as they were from time to time under the control of the plaintiff, there was a breach of the AOA training programme such that they may not be admitted to the College. In other words, the College could have indicated, given the plaintiff's involvement in their training, that they would no longer be considered as candidates. But there was no question of the national training committee the AOA or the College withdrawing the Registrars from the hospital. They simply did not have power to do so.
20 Along with these two clear errors of fact, the second paragraph of the letter is, to an extent, misleading. It may well be the case that in a training hospital, teaching staff need to have appropriate qualifications. There is no suggestion that the plaintiff in this case is not qualified as an orthopaedic surgeon. On one reading of that paragraph the defendant is suggesting that he is not so qualified. It is highly likely that what the defendant was in fact saying was that as the plaintiff was not a member of the College, he was not appropriately qualified to train candidates for admission to the College. But if that is what was meant by the paragraph, it is certainly not precisely what it says.
21 The "sting" in the defamation is pleaded in par 16 of the draft. It has four subparagraphs which are as follows:
"a) The Plaintiff did not have appropriate qualifications to be employed as a specialist orthopaedic surgeon at the Fremantle Hospital;
b) The Plaintiff was an undesirable employee;
c) The Plaintiff was a person whose employment could cause disruption at Fremantle Hospital;
(Page 9)
- d) The Plaintiff was a person whose employment at the Fremantle hospital could cause the withdrawal of Registrars from the hospital."
22 Paragraph 16(a) and (b) are clearly directed at the first paragraph of the letter. In my view it is clearly open to the plaintiff to plead par 16(b). The words of the first paragraph of the letter, given their natural and ordinary meaning, could lead the reader to conclude that the plaintiff was an undesirable employee. Paragraph 16(a) is more problematical. There is no reference to the plaintiff not having appropriate qualifications to be employed as a specialist orthopaedic surgeon at Fremantle Hospital. The reference is to his having no qualifications from the College and is therefore being in breach of the AOA training programme. That is an altogether different thing from saying that he was not qualified to be employed as a specialist orthopaedic surgeon at the hospital. In my view, par 16(a) cannot stand.
23 Paragraphs 16(c) and (d) both appear to relate to the final paragraph of the letter. In my view, both pleas are open to the plaintiff. The paragraph says in as many words that the plaintiff's employment might lead to the "withdrawal" of the Registrars from the hospital. The terms of the paragraph are such as to justify the plea.
24 Paragraphs 20 to 23 of the draft plead what the plaintiff says is a claim in tort for interference with trade or business by the doing of unlawful acts. I would accept that such a plea is open to the plaintiff. However, at present the draft appears to confuse an action in tort with a claim for contravention of s 55B(2) and s 47 of the Trade Practices Act. A claim in tort must, of course, plead damage - damage is an essential element of the cause of action. At present no damage is pleaded. What is pleaded is a claim for breach of the Trade Practices Act. This confusion needs to be addressed and doubtless it can be put to rights relatively easily.
25 I will allow the plaintiff the opportunity to bring in a further minute of statement of claim largely in terms of the draft of 28 January 2004. In preparing that minute, counsel may give further consideration to the plea of the sting in par 16. As I have said, I am not satisfied par 16(a) can stand. But the claim might be differently formulated with respect to the first paragraph of the letter and I would not shut out the plaintiff from the opportunity for that reformulation. As I have indicated, the plea in tort, if it is to remain, must be recast or the claim must be more specifically grounded in the Trade Practices Act.
(Page 10)
26 I will hear the parties as to the form of orders and as to costs.
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