Van Zyl v Tarrant - [2020] WADC 137

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   VAN ZYL -v- TARRANT [2020] WADC 137
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   22 OCTOBER 2020
DELIVERED          :   5 NOVEMBER 2020
FILE NO/S:   CIV 501 of 2020
BETWEEN:   LOURENS VAN ZYL
Plaintiff

AND

STEPHANIE TARRANT
Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim - Turns on its own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Insofar as the application relies on O 20 r 19(1)(c) - dismissed

Representation:

Counsel:

Plaintiff	:	Mr C Chenu
Defendant	:	Mr J MacLaurin SC

Solicitors:

Plaintiff	:	Vogt Graham Lawyers
Defendant	:	DLA Piper Australia

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

Nil

DEPUTY REGISTRAR HEWITT:

Background

This action was commenced by a writ of summons filed on 10 February 2020. In it the plaintiff seeks damages for what are allegedly defamatory remarks published by the defendant in regard to the plaintiff. A statement of claim was filed 15 May 2020 and contains allegations that the defendant defamed the plaintiff on five identified occasions. The allegations were said to have been made at two locations at which the plaintiff worked as a consultant ophthalmologist and the defendant was employed as an orthoptist, and relate to comments which were made by the defendant to various patients of the plaintiff which the plaintiff characterises as defamatory.
The first statement of claim was filed on 15 May 2020. It was later amended on 16 June 2020 and the defendant brought a strike-out application in respect to the amended statement of claim on 6 July 2020. The strike-out application is based on the provisions of O 20 r 19(c) of the Rules of the Supreme Court 1971 (WA) namely that the pleading and the aspects identified within the summons may prejudice, embarrass or delay the fair trial of the action.
As originally formulated, the summons attacked the statement of claim on the basis that the words which were said to be defamatory of the plaintiff were not reproduced in the pleading but were in fact described as being 'to the effect of'. The use of such a description meant that instead of quoting the words complained of the plaintiff had instead quoted the imputed meanings of the words which were said to constitute the defamatory statements. That no doubt led to a further amendment of the statement of claim, this time on 30 September 2020 where an allegation as to the actual words spoken was in each instance substituted and the words 'to the effect of' removed.
Notwithstanding the amendment the matter still proceeded to a special appointment at which it was argued that the allegedly defamatory content of the words was expressed in a manner which similarly contravenes O 20 r 19(1)(c).
The matter is perhaps best explained by reference to the actual pleadings themselves, because of the fact that many of the allegations are similar in relation to the imputed meanings. I rely on pars 8, 8A and 9 of the statement of claim to illustrate the general flavour of the pleading. Those paragraphs are as follows:
8.On or about 19 February 2019, at the Craigie Practice:
~~a.the Plaintiff met with Margaret Isaac ('Ms Isaac') and consulted with her about undergoing eye surgery to be performed by the Plaintiff; and subsequently,~~
b.the Defendant ~~met with Ms Isaac~~ spoke to Margaret Isaac ('Ms Isaac') ~~separately and spoke and orally published to her words to the effect of~~ the following words, which were about the Plaintiff:
'You do not need to have this done.
Dr van Zyl is a businessman, he only want to make money.'
('The First Matter Complaint Of').
8A.When the Defendant spoke the First Matter Complained of to Ms Isaac, Ms Isaac knew that;
a.the Defendant was an orthoptist, alternatively was an eye health care professional, who worked at the same practice as the Plaintiff;
b.Ms Issac has been referred to the Plaintiff concerning decreased vision;
c.the Plaintiff had recommended to Ms Isaac that she undergo a surgical procedure, namely cataract extraction with the implantation of an intraocular lens, to be performed by the Plaintiff;
d.shortly before the Defendant spoke the First Matter Complained Of to Ms Isaac, Ms Isaac had attended a consultation with the Plaintiff at the Craigie Practice, during which the Plaintiff had discussed the surgical procedure to be performed by him;
e.the Plaintiff did not at the consultation referred to in sub-paragraph (d) above, nor at any time, inform Ms Isaac that cataract extraction with the implantation of an intraocular lens was an unnecessary surgical procedure for her to undertake.
9.The First Matter Complained Of, in its ordinary and natural meaning, alternatively by reason of the matters pleaded in paragraph 8A, meant and ~~would have been~~ was understood to mean, that the Plaintiff:
a.is an ophthalmologist who performs ~~urges his patients to undergo~~ unnecessary eye surgeries on his patients purely for his own financial gain; ~~further or~~ alternatively,
b.is an ophthalmologist who was intending to perform an unnecessary eye surgery on a patient purely for his own financial gain;
c.is an ophthalmologist who fails to inform his patients that the eye surgery he is to perform on them is unnecessary; alternatively,
d.is an ophthalmologist who failed to inform a patient that the eye surgery he was to perform on her was unnecessary; alternatively,
e.is an ophthalmologist who fails to inform his patients that the eye surgery he is to perform on them is unnecessary, because he is motivated by a desire to make money rather than the well-being of his patients; alternatively,
f.is an ophthalmologist who failed to inform a patient that the eye surgery he was to perform on her was unnecessary, because he was motivated by a desire to make money rather than her well-being; and
g.~~urged Ms Isaac to undergo an unnecessary surgical procedure purely for his own financial gain;~~
d.is an ophthalmologist who only cares about making money and not about the wellbeing of his patients~~; and~~.
e.~~is unethical.~~
Broadly speaking the general thrust of the allegations contained in this part of the statement of claim is that the plaintiff was an ophthalmologist who performed unnecessary operations on his patients for purposes of financial gain and failed to give appropriate advice as to the necessity of such operation in each instance motivated by a desire to make money.
The complaint levelled against these paragraphs are that they are repetitive and contain unnecessary allegations to which the defendant should not be required to respond. Undoubtedly there are considerable areas of overlap in regard to the imputations said to be derived from the defamatory words but they are in essence a succession of alternatives broadening the scope of verdicts which might be brought in in favour of the plaintiff depending on the view the trial judge or jury might take of the evidence. By way of explanation 9A alleges the plaintiff to be an ophthalmologist who performs unnecessary eye surgeries on his patients purely for his own financial gain, B is a similar allegation imputation but narrowed to a single patient. Likewise with C and D, E and F and D is an allegation that the appropriate imputation is that the plaintiff is only interested in making money and not the wellbeing of his patients.
It can be seen by an examination of the portion of the pleading which I have reproduced within these reasons, there is considerable duplication and overlapping in these paragraphs. However, in my opinion it must be recognised that each is subtly different from that which precedes it. It is and has long been the law that a plaintiff is entitled to plead alternatives in an action and to be entitled to enter judgment on which of the alternatives finds favour before the court.
The second of the alleged defamatory remarks is said to imply that the plaintiff was an ophthalmologist who recommended to his patient that she undergo an invasive surgical procedure, despite that surgery being entirely unnecessary and alternatively, that he failed to inform his patient that the surgery he was to perform was entirely unnecessary and finally that he was so incompetent as an ophthalmologist that his patient should consult a different doctor.
Further imputations are said to arise from statements made by the defendant to another of the patients of the plaintiff that the plaintiff was an ophthalmologist who advises his patients to undergo laser treatment regardless of whether they need it or not in order to make money or alternatively was an ophthalmologist who recommended to his patients they undergo a unnecessary eye surgery in order to make money and finally does not care about the wellbeing of his patients.
Once again, although there is an overlap, the alleged imputations are not all the same. They are each capable, if the court were so inclined, to support a judgment and of course to the extent that they are alternatives, only one of the alternatives can in fact form a basis of a judgment.
The fourth alleged defamation is said to impute the plaintiff as an ophthalmologist who failed to properly diagnose and treat a patient's eye condition which would have resulted in her going blind had the defendant not provided her with the correct advice and so incompetent in his profession as an ophthalmologist that the patient should consult another ophthalmologist.
The final allegedly defamatory comment again repeats the imputation of advising the patients to have unnecessary eye surgery, failing to advise the patient that the surgery was unnecessary and finally is an ophthalmologist who recommends all his patients to undergo eye surgery whether or not they require or need it and does not care about the well-being of his patients.
Notwithstanding the fact that all of these successive claims have much in common and a great deal of overlap, in my opinion they are each separate and distinct and given appropriate findings by a court capable of supporting a judgment to the exclusion of the other alternatives.
The general flavour of the allegations is all very similar. They revolve in a large measure about undertaking unnecessary surgery, the reason for doing so being for financial gain, the allegation that proper advice was not given and in some instances the competence or otherwise of the plaintiff.
Since this is an O 20 r 19(c) application, in order to succeed it must persuade me that unless I fail to strike-out these portions of the statement of claim they are likely to prejudice, embarrass or delay the fair trial of the action. I am unable to see that that is the case. The plaintiff is propounding a series of imputations which may, but not necessarily, will be available to a finder of fact upon hearing the evidence which is produced at the trial of the action. Caution dictates that a plaintiff in the position of this plaintiff, pleading an area of law where pleading points can be important, has chosen to present the court with a wide spectrum of findings which the court may consider appropriate on the facts of the case. I see nothing embarrassing about that. I see no reason to suppose that it will embarrass, delay or prejudice the fair trial of the action. The action will be concerned with the evidence as to the words spoken and whether the imputations contended for by the plaintiff can be properly drawn from those words.
I cannot see anything in the paragraphs which remain under attack which satisfy the requirements of O 20 r 19(c) and would justify me in striking those paragraphs out.
It is therefore my decision that to the limited extent that the issues raised by this chamber summons after amendment of the statement of claim should be rejected and the summons dismissed. There are however other matters to consider when considering the issue of costs and those are matters upon which submissions will need to be received and considered.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DH
Court Officer
5 NOVEMBER 2020