The Australian Medical Association (WA) Incorporated v McEvoy
[2012] WASC 50
•17 FEBRUARY 2012
THE AUSTRALIAN MEDICAL ASSOCIATION (WA) INCORPORATED -v- MCEVOY [2012] WASC 50
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 50 | |
| Case No: | CIV:2243/2011 | ON THE PAPERS | |
| Coram: | LE MIERE J | 17/02/12 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application granted in part | ||
| B | |||
| PDF Version |
| Parties: | THE AUSTRALIAN MEDICAL ASSOCIATION (WA) INCORPORATED PAUL CONSTANTINE BOYATZIS ROSANNA CAPOLINGUA BERNARD SYDNEY PEARN-ROWE ROBERT JOHN MCEVOY JENETTE PHLETA HEYDEN RAKABEE PTY LTD |
Catchwords: | Defamation Practice and procedure Pleadings Strike out Statement of claim |
Legislation: | Nil |
Case References: | Berezovsky v Forbes [2001] EWCA Civ 1251 Gillick v Brook Advisory Centres [2001] EWCA Civ 1263 Mapp v News Group Newspapers Ltd [1998] QB 520 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : THE AUSTRALIAN MEDICAL ASSOCIATION (WA) INCORPORATED -v- MCEVOY [2012] WASC 50 CORAM : LE MIERE J HEARD : ON THE PAPERS DELIVERED : 17 FEBRUARY 2012 FILE NO/S : CIV 2243 of 2011 BETWEEN : THE AUSTRALIAN MEDICAL ASSOCIATION (WA) INCORPORATED
- First Plaintiff
PAUL CONSTANTINE BOYATZIS
Second Plaintiff
ROSANNA CAPOLINGUA
Third Plaintiff
BERNARD SYDNEY PEARN-ROWE
Fourth Plaintiff
AND
ROBERT JOHN MCEVOY
First Defendant
JENETTE PHLETA HEYDEN
Second Defendant
RAKABEE PTY LTD
Third Defendant
(Page 2)
Catchwords:
Defamation - Practice and procedure - Pleadings - Strike out - Statement of claim
Legislation:
Nil
Result:
Application granted in part
Category: B
Representation:
Counsel:
First Plaintiff : No appearance
Second Plaintiff : No appearance
Third Plaintiff : No appearance
Fourth Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Solicitors:
First Plaintiff : Bennett & Co
Second Plaintiff : Bennett & Co
Third Plaintiff : Bennett & Co
Fourth Plaintiff : Bennett & Co
First Defendant : Jarman McKenna
Second Defendant : Jarman McKenna
Third Defendant : Jarman McKenna
Case(s) referred to in judgment(s):
Berezovsky v Forbes [2001] EWCA Civ 1251
Gillick v Brook Advisory Centres [2001] EWCA Civ 1263
Mapp v News Group Newspapers Ltd [1998] QB 520
(Page 3)
1 LE MIERE J: The plaintiffs complain that a number of publications by the defendants defame them. The defendants have applied to strike out [17.2] and [23] of the statement of claim on the grounds that the imputations there pleaded are incapable of arising from the words complained of and thereby fail to disclose a reasonable cause of action and will otherwise embarrass and prejudice a fair trial of the action.
The August article
2 Paragraph 17.2 of the statement of claim pleads imputations that the plaintiffs say arise from an article published in the August 2011 edition of the medical magazine entitled 'Medical WA Forum', a monthly periodical published 11 times a year. In [13] of the statement of claim the plaintiffs plead that under the heading 'Beneath the Drapes' the defendants published the following article which was of and concerning the first plaintiff, the Australian Medical Association (WA) Incorporated (AMA):
No election at the AMA again this year. A/Prof David Mountain has been re-appointed AMA (WA) President. GP Dr Richard Choong and Obstetrician/Gynaecologist Dr Michael Gannon are the new vice presidents.
3 At [17.2] of their statement of claim the plaintiffs plead that in its natural and ordinary meaning the August article meant and was understood to mean that the Association:
17.2.1 is an Association that conducts its affairs dishonestly; and
17.2.2 is an Association that engages in nepotism.
4 The defendants submit that there is nothing in the article, including the heading, which can give rise to imputations that the Association conducts its affairs dishonestly or engages in nepotism. They submit that there is nothing in the words published that conveys that to not hold elections, and for the persons to be reappointed or appointed to positions, is wrongful or impermissible under the relevant rules of the Association, so as to be dishonest. Indeed, the defendants submit that the reference to there being no election 'again this year' tends against any such impression. The defendants submit the pleaded imputations require the hypothetical reader to impermissibly draw inferences upon inferences and that the plea appears to depend upon the reader having knowledge of extrinsic matters.
5 The plaintiffs submit that neither imputation is so clearly untenable that it cannot possibly succeed or is manifestly groundless for the following reasons. The article draws to the reader's attention that there
(Page 4)
- was 'no election'. This conveys that despite an electoral process being in place, the Association failed to utilise this democratic process, instead choosing to simply select or appoint A/Professor Mountain as President. The article draws attention that there was no election 'again'. This conveys that the Association not only failed to utilise the appropriate election process this year but that this was a recurring pattern of conduct by the Association which has occurred previously. The article says that A/Professor Mountain was 're-appointed' as opposed to being elected. The ordinary reasonable reader would understand the difference - the former being a selection and the latter being a democratic process. Being selected suggests that there has been a degree of favouritism among those with power on the board of the Association to choose A/Professor Mountain as President again.
Legal principles
6 The judge's function is to delimit the range of meanings of which the words are capable and to rule out any meanings outside that range: the jury's role is to decide what meaning within that permissible range the words actually bear: Gatley on Libel and Slander (11th ed) [32.5] citing Mapp v News Group Newspapers Ltd [1998] QB 520 CA. The real question in this case is how the court ought to go about ascertaining the range of legitimate meanings. This is 'an exercise in generosity not parsimony': Berezovsky v Forbes [2001] EWCA Civ 1251 [16] (Sedley LJ). The authors of the eleventh edition of Gatley on Libel and Slander say that a helpful formulation of the principles was constructed by Eady J in Gillick v Brook Advisory Centres [2001] EWCA Civ 1263 [7] described by Lord Phillips MR on appeal as an impeccable synthesis of the authorities. Eady J said:
The court should give the article the natural and ordinary meaning which it would have conveyed to the ordinary reasonable reader reading the article once. Hypothetical reasonable readers should not be treated as either naive or unduly suspicious. They should be treated as being capable of reading between the lines and engaging in some loose thinking, but not as being avid for scandal. The court should avoid an over-elaborate analysis of the article, because an ordinary reader would not analyse the article as a lawyer or accountant would analyse documents or accounts. Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader. The court should certainly not take a too literal approach to its task.
(Page 5)
'Dishonestly' imputation is untenable
7 Paragraph 17.2 of the statement of claim is incapable of being conveyed by the words complained of. There is nothing in the article which conveys that the Association did not follow its constitutional process for determining its President. There is nothing to suggest that the process was affected by lying, cheating, stealing or other dishonest acts. There is nothing in the article to convey to an ordinary reasonable reader that the Association conducts its affairs dishonestly. That would be a strained, forced or utterly unreasonable interpretation.
'Nepotism' imputation does not arise
8 The imputation that the Association is an association that engages in nepotism is incapable of being conveyed by the words complained of. Nepotism means patronage bestowed in consideration of family relationships and not on merit - Macquarie Dictionary. According to the Oxford English Dictionary an extended meaning is 'unfair preferment of or favouritism shown to friends, protégés, or others within a person's sphere of influence'. The imputation alleges that the Association engaged in nepotism. It is difficult to see how an association, as distinct from members or office holders of the association, can engage in nepotism. An association does not have family relationships, friends, or protégés. In any event, there is nothing in the article to convey to an ordinary reasonable reader that A/Professor Mountain was reappointed as a result of consideration of family relationship or favouritism shown to a friend, protégé, or someone within someone's sphere of influence. The imputation can only result from a strained and utterly unreasonable interpretation of the article.
The April and internet articles
9 Paragraph 8 of the statement of claim pleads that in the April 2011 edition of the magazine the defendants published, or caused to be published, the editorial article entitled 'the Boyatzis-Capolingua partnership' of and concerning the plaintiffs. The April article says that it examines claims of conflict of interest around Mr Boyatzis and his wife Dr Capolingua. The story is said to be about the track record of the couple and how the AMA is run in Western Australia. The article refers to the 'infamous deal in September 2002' when Mr Boyatzis, with much secrecy, used AMA Services to personally establish a new medical practice in Floreat for Dr Capolingua, a practice made viable by an AMA Services training facility sublease and situation close by his ex-wife's pharmacy.
(Page 6)
10 It is said that at the time Dr Capolingua was going through separation and both she and Mr Boyatzis were directors of AMA Services. It is further said that the deal was full of conflicts of interest yet AMA members were not asked to give approval to the concept of Dr Capolingua's 'model practice' and that the lease arrangement for her practice still exists today, with AMA Services also recruiting doctors and staff, as well as stocking it. Then appear the sentences:
No independent audit of the arrangement has been done that we know of. Dr Bernard Pearn-Rowe was AMA President at the time it was set up.
11 A table is set out in the bottom right-hand corner of the page. The table includes the following:
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12 The plaintiffs plead that on 1 April 2011 the defendants published, or caused to be published the April article on a website.
The imputations
13 The plaintiffs plead that in its natural and ordinary meaning the April and the internet articles meant and were understood to mean that Dr Pearn-Rowe:
23.1 in his capacity as a Board Member of the Association, is dishonest;
23.2 in his capacity as a Board Member of the Association, is unethical;
23.3 in his capacity as a Board Member of the Association, permits corrupt activity;
(Page 7)
- 23.4 in his capacity as a Board Member of the Association, permits illegal activity; and
23.5 in his capacity as a Board Member of the Association, permits corrupt activity.
14 The defendants say that there is nothing in the words of the April article or the internet article that could be understood to mean that Dr Pearn-Rowe 'in his capacity as a board member' of the Association is or does any of the matters described in subparagraphs 23.1 to 23.5. Dr Pearn-Rowe is only mentioned as a President of the Association. In response the plaintiffs say that Dr Pearn-Rowe is presently a member of the board of the Association and was a member of the board of the Association and at the time he was President of the Association he was a member of the Board. The plaintiff's response misses the point. The articles do not say that Dr Pearn-Rowe was a member of the board and his membership of the board is not pleaded as an extrinsic fact. The only reference in the article to Dr Pearn-Rowe's position within the Association is that he was President at the time Dr Capolingua's model practice was set up. Insofar as the imputations say that the articles were understood to mean that Dr Pearn-Rowe did the things or had the attributes referred to 'in his capacity as a Board Member of the [Association]', the imputations should be struck out. However, the gravamen of the imputations are the acts or conditions asserted of, or attributed to, the plaintiff or with which he is charged in the imputations. It is necessary to consider each imputation.
15 The first is that Dr Pearn-Rowe is dishonest. It is arguable that a reader would understand the article to convey that in September 2002, Dr Pearn-Rowe, as President of the Association, was aware of the 'infamous deal in September 2002' when Dr Capolingua's 'model practice' was set up. An ordinary reader may reasonably understand the article to convey that in response to member discontent at the 'infamous deal' Dr Pearn-Rowe set up an audit committee to review future AMA commercial transactions but it neither investigates requests from or is accountable directly to members. However, the imputation that Dr Pearn-Rowe 'is dishonest' is untenable and it should be struck out.
16 The second imputation is that Dr Pearn-Rowe is unethical. Except insofar as the imputation refers to Dr Pearn-Rowe in his capacity as a Board Member of the Association, I am not satisfied that that imputation is so manifestly untenable that it should be struck out.
(Page 8)
17 The third imputation is that Dr Pearn-Rowe 'permits corrupt activity'. I am not satisfied that this imputation is capable of arising from the articles. At most, the relevant thrust of the article is that Dr Pearn-Rowe was AMA President and knew of the 'infamous deal' which was full of conflicts of interest but did not ensure that members were asked to give prior approval to the deal or to subsequently review or investigate it. It is a strained and unreasonable interpretation of the article to say that it means that Dr Pearn-Rowe permits corrupt activity.
18 The fourth imputation is that Dr Pearn-Rowe 'permits illegal activity'. The article says that fairness and the highest professional and ethical standards in the AMA are crucial. It says that the 'infamous deal' was full of conflicts of interest. The article does not say, and is not reasonably capable of being interpreted to mean, that the 'infamous deal' involved illegality and hence that Dr Pearn-Rowe permitted illegal activity.
19 The fifth imputation is the same as the third and should be struck out for that reason.
20 In summary, [23] of the statement of claim should be struck out because each of the imputations is not reasonably capable of arising insofar as they say that the articles were understood to mean that Dr Pearn-Rowe did the acts or had the conditions asserted of, or attributed to, him in his capacity as a Board Member of the Association. Furthermore, imputations, 3, 4 and 5 should be struck out because the articles are not capable of giving rise to the meaning that Dr Pearn-Rowe is dishonest or permits corrupt activity or illegal activity.
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