Stuckey v AMA
[2018] VSC 275
•30 May 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2017 02461
S CI 2017 02462
| RONALD PTASZNIK | Plaintiff |
| v | |
| AUSTRALIAN MEDICAL ASSOCIATION (VICTORIA) LIMITED (ACN 064 557 678) | First Defendant |
| FRANCES MIRABELLI | Second Defendant |
| STEPHEN STUCKEY | Plaintiff |
| v | |
| AUSTRALIAN MEDICAL ASSOCIATION (VICTORIA) LIMITED (ACN 064 557 678) | First Defendant |
| FRANCES MIRABELLI | Second Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 May 2018 |
DATE OF JUDGMENT: | 30 May 2018 |
CASE MAY BE CITED AS: | Stuckey v AMA |
MEDIUM NEUTRAL CITATION: | [2018] VSC 275 |
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DEFAMATION – Application by defendants for leave to amend defence to add defence of honest opinion under s 31 of the Defamation Act 2005 (Vic) (‘Act’) – Plaintiffs are senior medical officers and academics at Monash Health and Monash University – Alleged defamation concerned letter sent by defendants to, first, doctors and, later, in identical terms to non-medical staff – Emails sent by a third party to recipients of letter in the month prior to circulation of letter (‘earlier emails’) – Plaintiffs opposed application on basis that the alleged opinion is incapable of arising from the letter the subject of the proceedings, is substantially different from the plaintiffs’ meanings, does not meet the sting of the plaintiffs’ meanings and is not stated or referred to in the alleged defamatory publication – Whether defendants are able to rely upon earlier emails to satisfy the requirement that their opinion be based upon material stated or referred to in the letter or ‘notorious’ to the letter’s recipients – Hanks v Johnston [2015] VSC 570, referred to – Whether alleged facts can be ‘notorious’ in context of a limited audience and outside context of a mass media publication – Pleading not hopeless and issues raised should go to trial – Defendants granted leave to amend defence substantially in the form proposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D P Gilbertson QC | Ball & Partners |
| For the Defendant | Mr A C R Anderson | DLA Piper |
HER HONOUR:
The plaintiffs in these proceedings for defamation are senior medical officers and academics at Monash Health and Monash University (‘Monash Imaging’). The defendants in both proceedings are the Australian Medical Association (‘AMA’), and the Chief Executive Officer of the AMA (‘AMA defendants’).
The alleged defamation is said to arise out of a letter sent by the CEO of the AMA to two different groups of people in February 2017 (‘letter’): the first to doctors at Monash Imaging, and the second in identical terms to non‑medical staff at Monash Imaging. The letter is reproduced below:
Dear Doctor,
As you would be aware, Monash Health is undertaking a review of its radiology unit. This review follows serious concerns regarding clinical performance, bullying and harassment, governance and complaint processes.
In support of our members, AMA Victoria called for this review – a review that is fair, thorough, independent and confidential for all employees involved. Unfortunately, the review being undertaken by Monash is, in AMA Victoria’s opinion, none of these things.
AMA Victoria has informed Monash that we do not support the review’s scope and processes, and we will not be advising our members to participate in all parts of it, as it’s not in their best interests. Our concerns are that:
·The review’s scope does not include allegations of adverse events. This is essential and the terms of reference must be expanded.
·The timeframe for doctors to participate is far too limited (two days).
·It is essential that all investigators are external and independent. We believe that two of the reviewers are not independent and therefore should not be involved.
AMA Victoria is not confident that Monash doctors will feel safe or be protected when participating in this review, as it currently stands. We have made our concerns explicitly clear to Monash’s executive leaders, HR department, and the Victorian Department of Health and Human Services.
Any doctor who has concerns about this review should contact AMA Victoria for information, support and guidance as the review unfolds and we will endeavour to keep you updated. Our IR team members Stuart Millar and Katherine Stewart can be contacted on 9280 8722.
The plaintiffs allege that the letter conveyed the following defamatory imputations:
(a) the plaintiffs engaged in bullying and harassment at Monash Imaging;
(b) the plaintiffs failed to respond to serious concerns about clinical performance, bullying and harassment, governance and complaint processes at Monash Imaging; and
(c) the plaintiffs put the safety of doctors at risk by failing to properly manage clinical performance, bullying and harassment, failing to undertake proper governance and failing to set up proper complaint processes at Monash Imaging.
In their defence, the AMA defendants denied that the letters were published of and concerning the plaintiffs, and denied the imputations alleged by the plaintiffs. The AMA defendants also relied upon the defence of qualified privilege at common law and pursuant to s 30 of the Defamation Act 2005 (Vic) (‘Act’).
By their summons filed 14 May 2018 the AMA defendants applied for, among other things, leave to amend their defences to make some relatively minor amendments (which are not opposed) and to add a defence of honest opinion under s 31 of the Act. Section 31 of the Act provides, relevantly, as follows:
31 Defences of honest opinion
(1)It is a defence to the publication of defamatory matter if the defendant proves that –
(a)the matter was an expression of opinion of the defendant rather than a statement of fact, and
(b)the opinion related to a matter of public interest, and
(c)the opinion is based on proper material.
…
The plaintiffs oppose the application. After an earlier version of the proposed amended defence was provided to the solicitors for the plaintiffs, the plaintiffs’ solicitor responded as follows:
Our clients object to the proposed Amended Defences on the following grounds:
1.The alleged opinion is incapable of arising from the emails the subject of the proceedings;
2.The alleged opinion is substantially different from the plaintiffs’ meanings;
3.The alleged opinion does not meet the sting of the plaintiffs’ meanings on any permissible variant of them; and/or
4.The alleged proper material is not stated or referred to in the emails the subject of the proceedings.
In order to evaluate the opposing arguments concerning leave to amend, the text of the proposed amended pleading needs to be closely analysed. The text of the proposed amendment is set out below:[1]
[1]This version of the proposed amended defence was relied upon in the application in the Stuckey proceeding. This ruling applies to the applications in both proceedings.
8D.If (which is denied) the emails were defamatory of the plaintiff, then they say that:
(a)in their natural and ordinary meaning, the emails carried and were understood to carry the imputation that the plaintiff failed to adequately respond to serious concerns about clinical performance, bullying and harassment, governance and complaint processes at Monash Imaging;
(b)that imputation is a permissible nuance of the imputation in paragraph 8(b) of the amended statement of claim;
(c)the emails were in that imputation an expression of opinion of the defendants rather than a statement of fact;
(d)the opinion related to a matter of public interest;
(e)the opinion was based on proper material, namely material that is substantially true and stated or referred to in the emails, or notorious to the recipients of the emails; and
(f)they are therefore entitled to the defence of honest opinion in section 31(1) of the Act.
PARTICULARS
(i)The first defendant called for Monash Health to conduct an independent review concerning Monash Imaging in a letter from Senior Industrial Relations Adviser Andrew Lewis to Professor Erwin Loh, Chief Medical Officer, Monash Health on 17 November 2016. The letter raised, inter alia, concerns which had been expressed to the first defendant by Monash Imaging radiologists relating to management of adverse outcomes, bullying and harassment, governance and complaint processes at Monash Imaging. A copy of the first defendant’s letter dated 17 November 2017 is available for inspection by appointment at the offices of the defendants’ solicitors.
(ii)The plaintiff endorsed a review of Monash Imaging as set out in an email from Professor Erwin Loh to radiologists and non‑medical staff of Monash Imaging on 31 January 2017 (‘Monash Imaging proposed review’). The email from Karen Lowe to the second defendant of 31 January 2017 at 11.37 am forwarding the email sent by Liz Pearse on behalf of Professor Erwin Loh at 10.34 am on 31 January 2017 and the proposed terms of reference is available for inspection by appointment at the offices of the defendants’ solicitors.
(iii)The recipients of the defendants’ emails of 2 and 3 February 2017 (the subject of the plaintiff’s amended statement of claim) had received a copy of the email from Professor Erwin Loh of 31 January 2017.
(iv)The recipients of the defendants’ emails of 2 and 3 February 2017 had also received an email from Associate Professor Ronald Ptasznik, Deputy Director of Monash Imaging on 16 January 2017 at 3.48 pm attaching a memorandum from Professor Erwin Loh and himself concerning the forthcoming Monash Imaging proposed review. In his 16 January 2017 email Associate Professor Ronald Ptasznik informed Monash Imaging staff that the Monash Imaging executive welcomed the Monash Imaging proposed review and invited all Monash Imaging staff to participate. A copy of the email from Rebecca Hardy to Monash Imaging staff sent on behalf of Associate Professor Ronald Ptasznik of 16 January 2017 at 3.48pm attaching the memorandum from Professor Erwin Loh and himself concerning the Monash Imaging proposed review is available for inspection by appointment at the offices of the defendants’ solicitors.
(v)The plaintiff was known by the recipients of Associate Professor Ronald Ptasznik’s email of 16 January to be part of the Monash Imaging executive.
(vi)On 31 January 2017 at 10.48am Dot Dunn on behalf of the plaintiff forwarded a copy of the email from Professor Erwin Loh of 31 January 2017 widely within Monash Imaging and to recipients of the defendants’ emails of 2 and 3 February 2017.
(vii)The plaintiff was and was known by many recipients of the defendants’ emails of 2 and 3 February 2017 to be:
a.The Director of Monash Imaging;
b.Part of the Monash Imaging executive;
c.One of the persons responsible for governance at Monash Imaging;
d.A person who had endorsed the Monash Imaging proposed review set out in the email from Professor Erwin Loh on 31 January 2017 and invited Monash Imaging staff to participate.
(viii)the Monash Imaging proposed review scope did not include allegations of adverse events.
(ix)The timeframe for doctors to participate in medical staff interviews in the Monash Imaging proposed review was limited to two days (Tuesday 28 February and Wednesday 1 March).
(x)Two of the reviewers nominated as part of the Monash Imaging proposed review (Associate Professor John De Campo and Michael Holman) were not independent.
One thing which is noteworthy about the particulars to the proposed amended defence is that they refer to a number of other documents which were said to have been sent to the recipients of the letter in January 2017 (‘earlier emails’). A key issue in this application is whether the AMA defendants are able to rely upon the earlier emails to satisfy the requirement that their opinion be based upon material that is stated or referred to in the letter, or is notorious to the recipients of the letter.[2]
[2]See Hanks v Johnston [2015] VSC 570, [33] referring to TheHerald & Weekly Times Pty Ltd and anor v Buckley (2009) 21 VR 661.
The plaintiffs’ written and oral submissions elaborated further on the grounds of opposition referred to in paragraph 6 above.
Senior counsel for the plaintiffs submitted that it is established that the ‘proper material’ referred to in s 31 of the Act must be contained in or referred to in the publication complained of, or be notorious. Further, the word ‘notorious’ has been held to apply to matters of ‘contemporary history or general notoriety’.[3] The matters referred to in the particulars to the proposed amended defence were not contained in or referred to in the proposed amended defence, and were not ‘notorious’ in the sense referred to by the authorities.
[3]See Sims v Wran [1984] NSWLR 317, 322 and Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699, 704.
Senior counsel for the plaintiffs submitted that the alleged proper material, being the earlier emails, were not capable of establishing the truth of the imputation pleaded by the AMA defendants. This correspondence was authored by Professor Erwin Loh, the Chief Medical Officer at Monash Health, not either of the plaintiffs, and no reference is made in the earlier emails to the plaintiffs, or either of them, ‘endorsing’ the review or its terms.
Senior counsel for the plaintiffs submitted that the letter does not contain an expression of opinion that the plaintiffs failed to adequately respond to serious concerns about clinical performance, bullying and harassment, governance and complaint processes at Monash Imaging, which in any event, has a substantially different meaning than that pleaded by the plaintiffs, being that the plaintiffs failed to respond to concerns regarding these matters. The AMA defendants’ proposed meaning refers to some positive act on the part of the plaintiffs, as opposed to the plaintiff’s alleged meaning. Further, the proposed amended defence, and the particulars provided, do not meet the sting of the alleged libel, or any permissible variant of it. At best, the particulars to the proposed amended defence amount to a failure to respond to the terms of the proposed review.
Counsel for the AMA defendants submitted, in summary, as follows:
(a) the facts referred to in the earlier emails were known to the recipients of the letter, as they had received the earlier emails, from which the inference could be drawn that the plaintiffs had endorsed the review which was the subject of criticism in the letter, and the terms of the review;
(b) the earlier emails show that Associate Professor Ptasznik was a co-author of a memorandum sent to Monash Imaging staff by Professor Loh concerning the review, and Professor Stuckey circulated a copy of this memorandum amongst Monash Imaging staff; and
(c) the authorities relied upon by the plaintiff concerning the meaning of the word ‘notorious’ were decisions concerning mass media publications. However, the authorities say that the proper material relied upon to support a fair comment or honest opinion defence must be notorious to the readers of the publication complained of (emphasis added). In the current case, the recipients of the letter knew the facts relied upon to support the truth of imputation pleaded in the proposed defence because they were recipients of the earlier emails.
Counsel for the AMA defendants did not accept that the imputation pleaded by the AMA defendants was strained or forced: rather, it is a more likely and logical imputation to arise than the imputation pleaded by the plaintiff, but it is still a permissible variant of the plaintiffs’ meaning.
Finally, counsel for the AMA defendants submitted that the criticism that the proposed defence did not meet the sting of the imputation pleaded by the plaintiffs was misconceived: the AMA defendants had never suggested that the plaintiffs had failed to adequately respond to the terms of the review. Rather, the AMA defendants alleged that the plaintiffs had failed to adequately respond to the concerns raised about Monash Imaging.
In my view, the AMA defendants should be granted leave to amend their defence substantially in the form proposed. The arguments advanced by the plaintiffs are properly matters for trial. In particular, the following questions are matters which are quintessentially matters for trial, save in cases where the pleading is clearly hopeless:
(a) whether ‘failed to adequately respond’ is an imputation carried by the letter, and whether it is a permissible (and not more serious) variant of the imputation pleaded by the plaintiffs;
(b) whether the earlier emails support the inference that the plaintiffs endorsed the review; and
(c) whether the matters alleged in paragraphs (viii), (ix) and (x) of the particulars are capable of supporting the imputation that the plaintiffs failed adequately to the concerns raised by the AMA defendants.
As for the question of whether the alleged facts can be notorious to the recipients of the letter by reason of the earlier emails, while I agree that this might be considered to be a novel contention when pressed outside the context of a mass media publication, I would be hesitant to stifle the potential development of the law in that regard by summary disposition of the matter. In the current case, the earlier emails and the letter had the same, limited audience, and the period between the publication of the first of the earlier emails and the publication of the letter was just over a fortnight. The question about whether the contents of the earlier emails made certain facts notorious to the recipients of the letter is a matter which ought be fully ventilated at trial. Finally, I agree that nowhere was it stated that the AMA defendants asserted that the plaintiffs had failed to adequately respond to the terms of the review: rather, the AMA defendants’ criticisms concerned the scope and processes of the review, and the composition of the review panel.
I did give some consideration as to whether further particulars ought to be provided in order to more expressly identify how it was said that the contents of the earlier emails supported the contention that the plaintiffs had endorsed the review, as was explained in the submissions by counsel for the AMA defendants, but upon reflection, decided that it was not necessary, noting that it is open to the plaintiffs to request that further particulars be provided. However, I do think it is necessary for the AMA defendants to identify which of the matters relied upon in the particulars were either stated in the letter, referred to in the letter, or were notorious to the recipients of the letter.
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