Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd
[2015] QSC 196
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- Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd[2015] QSC 196
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Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd[2015] QSC 196
Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd[2015] QSC 196
SUPREME COURT OF QUEENSLAND
CITATION: | Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd & Ors [2015] QSC 196 |
PARTIES: | KESHWAR BABOOLAL (plaintiff) v FAIRFAX DIGITAL AUSTRALIA AND NEW ZEALAND PTY LTD (first defendant) |
FILE NO: | SC No 2564 of 2015 |
DIVISION: | Trial |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland at Brisbane |
DELIVERED ON: | 8 July 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 May 2015 |
JUDGE: | Flanagan J |
ORDERS: |
|
CATCHWORDS: | DEFAMATION – ACTIONS FOR DEFAMATION – PLEADING – QUEENSLAND – where the plaintiff is a specialist physician and was the executive director of a large public hospital – where the first defendant published three separate news articles, one with reader comments, which the plaintiff alleges contained numerous defamatory imputations of and concerning the plaintiff – where the first defendant applied to strike out 33 pleaded imputations pursuant to r 171(2) of the Uniform Civil Procedure Rules 1999 (Qld) – whether the pleaded defamatory imputations are reasonably capable of being conveyed – whether some pleaded defamatory imputations ought to be pleaded in the alternative – whether the first article contains an antidote to the alleged bane constituting the remainder of the first article PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – GENERALLY – where the plaintiff is a specialist physician and was the executive director of a large public hospital – where the first defendant published three separate news articles, one with reader comments, which the plaintiff alleges contained numerous defamatory imputations of and concerning the plaintiff – where the first defendant applied to strike out 33 pleaded imputations pursuant to r 171(2) of the Uniform Civil Procedure Rules 1999 (Qld) – whether the pleaded defamatory imputations are reasonably capable of being conveyed – whether some pleaded defamatory imputations ought to be pleaded in the alternative – whether the first article contains an antidote to the alleged bane constituting the remainder of the first article Uniform Civil Procedure Rules 1999 (Qld), r 171(2) Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; [1998] NSWSC 4, cited Christiansen v Fairfax Media Publications Pty Ltd [2012] NSWSC 1258, applied Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227, considered Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, cited Favell v Queensland Newspapers Pty Ltd [2004] QCA 135, cited Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52; applied Lewis v Daily Telegraph Ltd [1964] AC 234, considered Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n), considered Queensland Newspapers Pty Ltd v Palmer [2012] 2 Qd R 139; [2011] QCA 286, applied Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669, cited |
COUNSEL: | M A Polden for the plaintiff R J Anderson for the defendants |
SOLICITORS: | Hall Payne Lawyers for the plaintiff Bennett & Philp Lawyers for the defendants |
Introduction
- The plaintiff is a specialist physician in general medicine and nephrology and the former Executive Director of the Royal Brisbane and Women’s Hospital.
- The first defendant is the publisher of the Brisbane Times, a website publication. The second and third defendants are journalists in the employ of the first defendant.
- On 19 March 2015 the plaintiff filed an amended statement of claim claiming damages for defamation arising out of the publication of four matters. At the hearing a proposed further amended statement of claim was handed to the Court.[1] The first three publications consist of separate web pages. The fourth publication consists of a web page and appended reader comments. The further amended statement of claim pleads numerous defamatory imputations of and concerning the plaintiff, alleged to be conveyed by the four publications.
- By amended application the first defendant seeks to strike out 35 of the pleaded imputations pursuant to r 171(2) of the Uniform Civil Procedure Rules 1999 (Qld). The plaintiff did not press the imputations pleaded in paragraphs 5(e) and 11(k) of the further amended statement of claim.
Relevant principles
- Whether the pleaded defamatory meanings are reasonably capable of being conveyed by the relevant matter complained of is a question of law to be determined by the Court. The test to be applied on a strike out application alleging that imputations are incapable of arising was recently considered by the Queensland Court of Appeal in Queensland Newspapers Pty Ltd v Palmer.[2] The question is whether the alleged defamatory meaning is reasonably capable of being conveyed to the ordinary reasonable reader. The meaning of the matter complained of may be either the literal meaning of the published matter, or what is inferred from it. However, any strained, forced or utterly unreasonable interpretation must be rejected.
- The reference to the ordinary reasonable reader is to a person of fair, average intelligence, who is neither perverse nor suspicious of mind nor avid of scandal. Such a reader, however, is one who may read between the lines but considers the publication as a whole.
- The Court’s function at the capacity stage is to determine “the outside boundaries of the possible range of meanings”.[3] In Favell v Queensland Newspapers Pty Ltd,[4] the High Court held that “ultimately, the question is what a jury could properly make of it”.[5] In doing so, the plurality approved the following statement of McPherson JA in the Court of Appeal:[6]
“The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out.”
The first publication
- The first publication is an article published on the Brisbane Times website on 21 October 2014. Paragraph 5 of the further amended statement of claim pleads that in its natural and ordinary meaning the first publication conveyed a number of defamatory imputations of and concerning the plaintiff. The subject of the article is the departure of four senior health executives from the Brisbane Health Region. Two of these departures involved the suspension of the Chief Executive Officer of Metro North Health and Hospital Board and the District’s Executive Director of Corporate Services and Performance. The other two departures were the resignation of the head of Metro North’s Human Resources Department and the sudden termination of the plaintiff’s contract as Executive Director of the Metro North Health Region. The article refers to the two suspensions being triggered by an internal examination into the decision by the Chief Executive Officer to appoint his daughter to a company that had contracts with Queensland Health. The article states that these nepotism allegations are being investigated by the Crime and Corruption Commission. The nepotism allegations first arose in September 2014. The article is dated 20 October 2014. The article states that the recent job losses (which should be understood as a reference to the plaintiff and the head of Human Resources) are not connected directly to the initial nepotism allegations aired in September. Later in the article it is stated that the decision to end the plaintiff’s contract was separate to the “cronyism allegations” and that the Board (namely the Metro North Health and Hospital Board) received some documents which it considered and as a result of that the plaintiff is no longer employed.
- The first four imputations pleaded rely on an inferred connection between the plaintiff and the nepotism allegations. The relevant imputations are as follows:
“ 5(a)the Plaintiff was sacked as Executive Director of the Metro North Health Region, because he was involved in condoned nepotism;
5(b)the Plaintiff was sacked as Executive Director of the Metro North Health Region as a result of an internal investigation into nepotism;
5(c)the Plaintiff is a member of a small cabal group of senior Queensland Health bureaucrats, each of whom has been suspended, was sacked or has resigned because they were implicated suspected of participating in the decision by the CEO of the Metro North Health and Hospital Board to appoint his own daughter to a company that contracts to Queensland Health;
5(d)the Plaintiff was sacked as Executive Director of the Metro North Health Region, following an internal health department investigation into allegations of nepotism, which were so serious that they gave rise to a Crime and Corruption Commission investigation;”
- The first defendant submits that the reference to nepotism does not attach to the plaintiff and that he is “entirely unconnected with this issue”.[7] Further, even if such a connection was thought to arise it is dispelled when the readers are informed, “Fairfax Media has been told the recent job losses are not connected directly to the initial nepotism allegations aired in September” and that “a spokesman for Health Minister Lawrence Springborg said the decision to end Professor Baboolal’s contract was separate to the cronyism allegations”.[8] The first defendant also refers to the following passage as reinforcing the submission that the plaintiff is not connected to the nepotism allegation:[9]
“‘The board has received some documents, which it has considered’ he said. ‘And as a result of that, Professor Baboolal is no longer employed.’”
- The first defendant makes a further complaint that the imputations pleaded in paragraphs 5(a), (b) and (c) do not differ in substance. The effect of each is that the plaintiff’s employment was terminated because of allegations of improper involvement by him in nepotism whilst Executive Director of the Metro North Health Region. The first defendant submits that any change in the language between these three meanings around that issue is immaterial. Each imputation would be defended on the same grounds. Paragraph 5(a) rests on an allegation that the plaintiff was sacked because he condoned nepotism. Paragraph 5(c) rests on the proposition that he was sacked because he was implicated in nepotism. Accordingly, there is no real difference between these imputations.[10]
- The plaintiff submits that there is an air of unreality to the first defendant’s submission that the plaintiff is “entirely unconnected” with the suspensions of the Chief Executive Officer and the Executive Director of Corporate Services and Performance. The plaintiff submits that the first defendant focuses its submissions selectively on just three paragraphs of the article.[11]
- As observed by Nicholas J in Christiansen v Fairfax Media Publications Pty Ltd,[12] “the question of meaning turns on what the publication, taken as a whole, conveys to the reasonable reader, and this must always be a matter of impression.”
- Nicholas J also referred to the statement of Lord Devlin in Lewis v Daily Telegraph Ltd,[13] “that it is the broad impression conveyed by the libel that counts and not the meaning of each word under analysis”:[14]
“… A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.”
- Reading the first publication as a whole, I am unable to conclude that the nepotism allegations are incapable of attaching to the plaintiff. The headline refers to “Four senior health executives go from Brisbane health region”. The plaintiff is one of the four senior health executives and the headline therefore immediately brackets him with the other three executives. These four have either resigned or been suspended in “little over a month” from the department’s Metro North region.[15] The article then identifies the plaintiff both by name and position and that such position has “suddenly been ended”.[16] After referring to the resignation of the head of Metro North’s Human Resources Department, the article then identifies that in September the CEO of the Metro North Health and Hospital Board was suspended alongside the Health District’s Executive Director of Corporate Services and Performance.[17] These two suspensions thereafter triggered an internal examination into the decision by the CEO to appoint his daughter to a company that had contracted with Queensland Health. The article then alleges that these nepotism allegations are being investigated by the Crime and Corruption Commission.[18] Immediately after these allegations are stated, the article continues: “Queensland Health on Monday confirmed Professor Baboolal’s contract had been ended”.[19] Paragraph 16 of the first publication reads:
“Fairfax Media has been told the recent job losses are not connected directly to the initial nepotism allegations aired in September.”
- The use of the word “directly” is in itself suggestive that there was some indirect connection with the plaintiff’s contract being suddenly terminated and the initial nepotism allegations. Paragraph 18 of the article again brackets the plaintiff with the other three senior health executives:
“So they’ve stood down two executives, they’ve sacked another one and the head of HR has resigned.”
- In my view, the ordinary and natural meaning of the words is that the plaintiff’s contract being terminated is in some way connected with the nepotism allegations which have been the subject of an internal examination by Queensland Health and a present investigation by the Crime and Corruption Commission. A reasonable reader is not required to speculate so as to gain the impression that there is a connection between the plaintiff’s sacking and the nepotism allegations.
- The first defendant referred to paragraphs 23 to 25 of the first publication as constituting an antidote to the bane contained in the balance of the article (the first 22 paragraphs and the headline). Paragraphs 23 to 25 state:
“A spokesman for Health Minister Lawrence Springborg said the decision to end Professor Baboolal’s contract was separate to the cronyism allegations.
‘The Board has received some documents, which it has considered,’ he said.
‘And as a result of that, Professor Baboolal is no longer employed.’”
- The bane, namely that the plaintiff’s sacking is connected to the nepotism allegations, is not expressly stated. Rather, it arises as a matter of inference by the bracketing of the plaintiff’s sacking with the suspension of the other two senior health executives. Because the bane is not expressly stated the first defendant submits that this is not a true bane and antidote situation.[20]
- The applicability of a bane and antidote objection was recently considered by the New South Wales Court of Appeal in Corby v Allen & Unwin Pty Ltd.[21] McColl JA (with whom Bathurst CJ and Gleeson JA agreed) stated:[22]
“The general view is that the jury is the proper tribunal for determining whether the antidote has overcome the bane: Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 (at 674) per Glass JA; see also Hutley JA (at 670) referring to Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n) (at 419). There, Samuels JA said: ‘… cases (i.e. when a publication which seeks to refute a calumny which it expressly states may be held incapable of conveying any defamatory meaning) must be comparatively rare.’
Thus, it is rare to conclude that the antidote of the matter complained of swamps its bane at the capacity stage: Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679(n).”
- The reference by Samuels JA in Morosi to a calumny being expressly stated should be understood in the full context of what his Honour was considering:[23]
“I do not doubt that there are occasions when a publication which seeks to refute a calumny which it expressly states may be held incapable of conveying any defamatory meaning. Bik v Mirror Newspapers Limited is an example. But such cases must be comparatively rare. The inquiry upon which the Court must embark differs from that involved in the threshold question which more commonly arises. In each case, the question is whether the material is capable of a defamatory meaning, and in each case guidance is provided by the test formulated by Lord Selborne in Capital and Counties Bank Ltd v George Henty & Sons, and its derivatives; for example, the statement of Lord Reid in Lewis v Daily Telegraph Ltd. The difference, however, is this. In the ordinary case, the material to be examined consists of the words of the publication in their natural and ordinary meaning (I leave aside any question of innuendos in the true sense) which may or may not support an imputation of a defamatory kind. But in a case such as this the material already contains a defamatory imputation; and the enquiry is whether that effect is overcome by contextual matter of an emollient kind so as to eradicate the hurt and render the whole publication harmless.” (footnotes omitted)
- This statement of principle does not require a bane to be expressly stated. It is sufficient that upon an ordinary and natural reading of the words of the article a defamatory imputation arises. It will be a question in each case whether the antidote is sufficient to off-set the bane; the mere presence of a denial of a defamatory charge does not necessarily prevent the article being defamatory, for the reader may be left in the position of having to choose between inconsistent assertions. [24]
- Here the antidote contained in the first publication, namely that the termination of the plaintiff’s contract was separate to the cronyism allegations, is alleged to be made by “a spokesman for Health Minister Lawrence Springborg”. Whether that statement is sufficient to off-set the bane is a question for the jury and not appropriate to decide at the capacity stage.
- The first defendant also submits that the allegations of nepotism in relation to the CEO and Executive Director of Corporate Services should be viewed as separate and distinct and as constituting in effect a story within a story.[25] This submission should be rejected primarily because neither the headline nor the first 22 paragraphs of the article seek to expressly disassociate the plaintiff’s sacking with the nepotism allegations. The suggestion that his sacking was “not connected directly to the initial nepotism allegations” raises more questions than it answers. It at least raises in the mind of an ordinary reasonable reader the inference that there is some type of connection, albeit not direct.
- Whilst one may accept that the first publication is capable of suggesting a connection between the sacking of the plaintiff and the nepotism allegations there remains some difficulties with the imputations as presently pleaded. Paragraph 5(a) which alleges that the plaintiff was sacked because he “condoned nepotism” could only arise if the plaintiff was in a position to “condone” the actions of the CEO or the Executive Director of Corporate Services. An ordinary and natural reading of the article does not assist in determining whether the plaintiff was in charge of the CEO and the Executive Director. It follows that accepting there is a connection between the plaintiff’s sacking and the nepotism allegations, there is nothing in the article to suggest that the plaintiff was in a position to “condone” the actions of others. Further, in my view, the imputation pleaded in paragraph 5(a) adds nothing to the imputation pleaded in paragraph 5(c). I would therefore strike out paragraph 5(a) of the further amended statement of claim. As to the imputation pleaded in 5(d), it uses the word “following” rather than the term used in 5(b), namely “as a result of”. Counsel for the plaintiff accepted that paragraph 5(d) should be amended to use the words “as a result of” in substitution for the word “following”.[26]
- In the course of argument it became clear that Counsel for the plaintiff was pleading the imputations in paragraphs 5(c) and (d) as fall back imputations to the imputation pleaded in paragraph 5(b). Paragraph 5(b) alleges that the plaintiff was sacked as a result of an internal investigation of nepotism. The imputations in paragraphs 5(c) and (d) carry a less serious sting. [27] Accordingly the imputations pleaded in paragraphs 5(b), (c) and (d) should be pleaded as alternatives.
Paragraphs 5(f), (g), (h), (i) and (j)
- The strike out in relation to paragraph 5(j) was not pressed.[28] As to paragraph 5(f), the first defendant submits that this imputation is incapable of arising because nowhere in the article does it suggest that the plaintiff was “instantly” dismissed for misconduct worse than the nepotism displayed by the CEO.[29] In the course of the hearing Counsel for the plaintiff agreed to amend paragraph 5(f) so as to remove the word “instantly” and replace it with the word “suddenly”.[30]
- The first defendant submits that the reasonable reader would not reach the conclusion that the reason for the plaintiff’s termination was anything other than one that was likely to have been serious and justified, and would not speculate as to whether it was for reasons comparable to those behind the termination of someone else.[31] The plaintiff submits however, that it is plainly open to the ordinary reasonable reader, who knows that summary dismissal is a more serious sanction than suspension, to infer that the plaintiff was sacked for misconduct worse than the nepotism displayed by the CEO in appointing his own daughter.[32] I accept that a reasonable reader would be able to draw the distinction between someone being sacked as opposed to suspended. Sacking suggests proven misconduct whereas suspension suggests misconduct that is suspected but not yet proven. Whether an ordinary and reasonable reader would, however, make such a comparison is a more difficult issue. I am unable to find that the pleaded imputation is incapable of being conveyed primarily because the first publication deals with the sacking of the plaintiff in the context of the CEO and Executive Director of Corporate Services being suspended in relation to nepotism allegations.
- The imputation pleaded in paragraph 5(g) is that the plaintiff was sacked for incompetence, because the wheels were beginning to fall off the Metro North Region, of which he was Executive Director. Paragraph 15 of the first publication states:[33]
“A source has told Fairfax Media, ‘the wheels are beginning to fall off’ the Metro North Health Region’.
- The imputation is in my view incapable of arising. Reading the article as a whole there is nothing either expressed or implied that would suggest that the plaintiff is responsible for the “wheels beginning to fall off” and for that reason he was sacked. The article in paragraphs 24 and 25 gives some indication of the reason he was sacked which was because of the receipt of some documents which were considered by the Board. The reference to the “wheels beginning to fall off” can only be understood as a reference to the recent departure of the three other senior employees and not to a situation created by the plaintiff’s incompetent management.[34] I would therefore strike out the imputation pleaded in paragraph 5(g).
- The imputations pleaded in paragraphs 5(h) and (i) are very similar:
“ (h)the Plaintiff was sacked as Executive Director of the Metro North Health Region because he concealed damaging information from the Metro North Health and Hospital Board;
(i)as Executor Director of the Metro North Health Region, the Plaintiff concealed damaging information about himself from the Metro North Health and Hospital Board, because he knew it would lead to his sacking;”
- It may readily be accepted that the documents the Board considered which resulted in the plaintiff’s sacking contained damaging information of and concerning the plaintiff. The sting of the imputations however, is that the plaintiff concealed this damaging information from the Board because he knew it would lead to his sacking. The article makes no mention of the nature of these documents nor the information which they contained. Documents may contain damaging information leading to a person’s sacking without that information having previously been concealed. The concealment allegation relies on an overly suspicious reading of the ordinary and natural words of the article. One may only support the imputations of the information being concealed by a strained or forced reading of the article. I would therefore strike out the imputations pleaded in paragraphs 5(h) and (i).
The second publication
- The second publication is an article published on the Brisbane Times website on 22 October 2014.[35] It is headed “Metro North bureaucrat accused of hand picking promotion panel”. The imputations sought to be struck out are those pleaded in paragraphs 7(b), 7(f) and 7(g) of the further amended statement of claim.
- The imputation pleaded in paragraph 7(b) is that the plaintiff was sacked as Executive Director of the State’s largest hospital, because he handpicked the panel which interviewed him for an executive position. This imputation is the same as the imputation pleaded in paragraph 7(a) which is not challenged. The only difference is that the imputation in 7(a) pleads that the plaintiff was “stood down” as opposed to being “sacked”. The plaintiff accepts that the imputation in 7(a) is a fall back imputation to that pleaded in 7(b). These imputations should therefore be pleaded in the alternative. There are, however, words in the article which support the imputation that the plaintiff was “sacked”. Paragraph 5 refers to the “sudden departure” of the plaintiff. Paragraph 6 refers to the Board having “ended” the plaintiff’s employment. Paragraph 10 refers to Fairfax Media being unable to reach the plaintiff despite contacting his “former employer”. Apart from the imputation in 7(b) being pleaded in the alternative, the imputation is capable of arising from an ordinary and natural reading of the second publication.
- Paragraph 7(f) pleads the following imputation:
“the Plaintiff is a member of a small cabal group of four senior Queensland Health bureaucrats, each of whom has resigned or been suspended within a period of four weeks, because they were implicated suspected of participating in a decision by Metro North’s CEO to appoint his own daughter to a company that contracts to Queensland Health;”
- The second publication is different from the first publication. Both the headline and the first 10 paragraphs specifically identify the reason for the plaintiff having been stood down or his employment ended. On an ordinary and natural reading of the second publication that reason has nothing to do with the allegations concerning the CEO outlined in paragraphs 12 to 15 of the second publication. There is not therefore the same bracketing of the plaintiff’s conduct with that of the CEO as occurs in the first publication. The imputation requires such a strained or forced reading of the second publication that it cannot be said that the imputation is capable of arising. Paragraph 7(f) should therefore be struck out.
- For the same reasons, the imputation pleaded in paragraph 7(g) should also be struck out. This imputation is that the plaintiff is a member of a small cabal of four senior Queensland Health bureaucrats, each of whom has resigned or been suspended within a period of four weeks, over allegations which are so serious that they are the subject of an ongoing Crime and Corruption Commission investigation. On any reading of the second publication, that investigation can only be referable to the conduct of the CEO and the Executive Director of Corporate Services.
The third publication
- The third publication is an article published on the Brisbane Times website on 28 October 2014.[36] It is headed “Computerised medicine risks first identified July 2013”. The article concerns problems with Queensland’s MetaVision health software system. The article states that these problems were first reported in May 2013 and were the subject of a departmental brief to the then executive director of the Royal Brisbane and Women’s Hospital in July 2013. The plaintiff held the relevant position at that time. This is, however, not mentioned in the article. The plaintiff is not named. Certain “outstanding risks” were identified on 23 October 2014. What was not revealed according to the article however, was the 18 month timeline of serious errors which constituted a risk to patients being given the wrong medicines or doses and a risk of medicines being given to the wrong patients.
- Paragraph 9 of the further amended statement of claim pleads that in its natural and ordinary meaning, or in the alternative by reason of certain extrinsic facts, the third publication conveyed six meanings. Paragraph 1(b) of the first defendant’s application sought to strike out the words “in its natural and ordinary meaning or in the alternative by” where they appear in paragraphs 9 and 11 of the further amended statement of claim. In the course of the hearing I was informed that it was no longer necessary for me to decide paragraph 1(b) of the application.[37] The first defendant, however, applies to strike out each of the six imputations pleaded in paragraph 9(a) to 9(f).
- The imputations pleaded in paragraphs 9(a), (c) and (d) are to the effect that the plaintiff:
“9(a)as Executive Director of Royal Brisbane and Women’s Hospital, the Plaintiff did nothing for 17 months to address life-threatening risks in the Hospital’s health software system;
…
9(c)as Executive Director of Royal Brisbane and Women’s Hospital, the Plaintiff ignored alarm bells over patient safety;
9(d)by reason of having done nothing for 18 months to address life-threatening risks in the health software system at Royal Brisbane and Women’s Hospital, the Plaintiff exposed patients to the risk of receiving wrong doses of medicines and being given wrong medications, of discontinued medications remaining on nurses’ work lists, and of loss of patient histories.”
- The imputations in paragraphs 9(b), (e) and (f) suggest that the plaintiff actively sought to cover up errors:
“9(b)as Executive Director of Royal Brisbane and Women’s Hospital, the Plaintiff covered up an 18 month time-line of serious errors, involving life-threatening risks in the hospital’s health software system;
…
9(e)as Executive Director of Royal Brisbane and Women’s Hospital, the Plaintiff engaged in a culture of secrecy and cover-up;
9(f)as Executive Director of Royal Brisbane and Women’s Hospital the Plaintiff covered up life-threatening risks, which were only exposed when clinical staff at Queensland Health went to the media in order to protect patients.”
- The first defendant submits that in relation to each of the six imputations there is insufficient connection between the Executive Director’s position and the nature of the problems.[38] The crux of the article is that the concerns raised by the Departmental brief were not made public. This, according to the first defendant, was an issue for the Minister and the Department generally, not for the Executive Director.[39] Reading the article as a whole however, the imputations that nothing was done and that there was a cover-up are quite capable of attaching to the plaintiff. The plaintiff, by reference to his position as Executive Director, is identified in the first paragraph of the article. The article then identifies that the Departmental brief was provided to the plaintiff “17 months ago” in May 2013. The article thereafter identifies an 18 month timeline of serious errors. Those errors are stated in paragraph 32 of the article:[40]
“The report shows the risks in May 2013 were:
-Wrong doses being given to patients;
-Wrong medications for the wrong patient;
-Discontinued prescriptions remaining on nurses’ work lists; and
-Loss of patient history.”
These risks are referred to in the headline to the article, namely “Computerised medicine risks first identified July 2013”. The general tenor of the article is that these risks, having been first identified in July 2013, are not revealed to the public until much later when the risks were leaked to Fairfax Media.[41] The article in paragraph 7 states that “[t]hese issues should never be covered up because they are about patient safety”. Paragraph 9 of the article refers to the fact that “alarm bells” should have been ringing when these concerns were first raised in 2013. The article in paragraph 11 refers to “[t]he minister needs to advise the patients and the hospital staff why nothing happened following the initial report in June 2013.”
- When one considers the article as a whole, but in particular the headline, paragraphs 2, 5, 9, 10, 11, 16, 27, 32, 34, 35, 36, 45 and 46, it may be accepted that the article is capable of giving rise to imputations that the plaintiff either did nothing or sought to cover up the issues identified in the Departmental brief given to him in July 2013.
- The first defendant further submits in relation to paragraphs 9(b), (e) and (f) of the further amended statement of claim, that an allegation that the Executive Director was engaged in a culture of secrecy and cover-up is “an utterly unreasonable position to advance”.[42] The basis for this submission is that any failure to make the Departmental brief public must be that of the Minister or the Department generally and not the Executive Director of the Royal Brisbane Hospital.[43] This submission should be rejected. The article at the very beginning identifies that it was the Executive Director who received the Departmental brief. The article specifies the risks that were identified in the Departmental brief. These risks were ones that could have a direct impact on patient safety. The article is therefore capable of carrying a meaning that the plaintiff should have made these issues public.
- The first defendant also submits that the imputations pleaded in paragraphs 9(a), 9(c) and 9(d) do not differ in substance. The same can be said for paragraphs 9(b), 9(e) and 9(f). Counsel for the plaintiff accepted that the imputations pleaded in paragraphs 9(a) and 9(c) are fall back imputations to that pleaded in paragraph 9(d).[44] Accordingly, the imputations in paragraphs 9(a), (c) and (d) should be pleaded in the alternative as should those pleaded in paragraphs 9(b), (e) and (f).
The fourth publication
- This publication consists of the same article as the third publication with the addition of a number of reader comments appearing below it in comment boxes. My reasoning in relation to paragraphs 9(a) to 9(f) therefore applies to the imputations pleaded in paragraphs 11(a) to 11(f).
- The imputations pleaded in paragraphs 11(g) to (p) are in relation to the comments made regarding the article. The plaintiff does not press the imputation pleaded in paragraph 11(k).
- The imputation pleaded in paragraph 11(g) is that as a senior health bureaucrat, the plaintiff lied about life-threatening risks in the Royal Brisbane and Women’s Hospital health software system, until they were exposed by a whistle blower. For this imputation the plaintiff relies on the whole of the article but in particular paragraph 53 of the comments. The relevant comment reads as follows:[45]
“So basically, the bureaucrats and pollies were honest only after a whistleblower caught them out. Mr Newman was not telling the whole truth, is that what we’re saying here?”
- The comments are of course comments on the article. It may be accepted that the article targets the plaintiff not by name but as the Executive Director of the Royal Brisbane and Women’s Hospital. The comments should therefore be read in that context. None of the comments make express reference to the position of Executive Director. Only the comments in paragraphs 53 and 84 of the fourth publication refer to “the bureaucrats” or “health bureaucrats”. The plaintiff does not plead any imputations of reader comments directed only at the then Premier, or the LNP. The first defendant submits that the reference in paragraph 53 in support of the imputation pleaded in paragraph 11(g) cannot be read as being referable to the plaintiff.[46] Further, that the imputation pleaded, namely that the plaintiff is a liar, is not capable of arising.[47] Even if one accepts that the reference to “bureaucrats” is capable of being understood as including the plaintiff who was described as the Executive Director, I am of the view that the comment in paragraph 53 is not capable of supporting an imputation that the plaintiff lied about life-threatening risks. The comment in essence is that the bureaucrats were honest only after a whistle blower caught them out. This comment does not in itself suggest, nor is it capable of suggesting, that prior to being honest the bureaucrats (including the plaintiff) were telling lies. The act of lying should be distinguished from doing nothing or covering up. The suggestion that the plaintiff lied about life-threatening risks requires a strained interpretation. I would therefore strike out the imputation pleaded in paragraph 11(g).
- The imputation pleaded in paragraph 11(h) is that, as a medical practitioner and health administrator, the plaintiff deserves to be compared to a witch doctor. This imputation relies again on the whole article but in particular paragraph 55 of the comments which reads:[48]
“Obviously, Newman is the guinea pig for a series of Friary Witch Doctor experiments. A range of recipe in search of a solution to LNP abolition …”
- The imputation pleaded requires a comparison of the plaintiff to a witch doctor. The comment at paragraph 55 is incapable of giving rise to this meaning. The plaintiff submits however, that if the first defendant chooses to publish loose, vague or unusual expressions, there is a wide degree of latitude allowed on both form and capacity.[49] Even applying this principle, I am still of the view that the pleaded imputation is incapable of arising. The imputation in paragraph 11(h) should therefore be struck out.
- The imputations pleaded in paragraphs 11(i), (j) and (l) may be dealt with together. These imputations are as follows:
“11(i)as the Executive Director of Royal Brisbane and Women’s Hospital, the Plaintiff covered up a medical software bungle that cost lives;
11(j)as a medical practitioner, the Plaintiff is so lacking in honesty, integrity and ethics that he would cover up patient deaths;
…
11(l)as Executive Director of Royal Brisbane and Women’s Hospital, the Plaintiff ignored a medical software bungle that cost lives.”
- As well as the whole article, the plaintiff relies on paragraphs 60, 61 and 78 of the comments:
“Labor’s [sic] payroll scheme was absolute mismanagement but at least it did not have the potential to kill people which this lying LNP government has known about for 17 months. If Labor [sic] was responsible for the payroll scheme then Newman and the LNP are responsible for this which could have killed people!”
“Could have killed people???? How do we know it hasn’t killed anyone already? Would anyone own up if it had?”
“Payroll software bungle cost billions of dollars.
Medical software bungle cost lives.
Which is worse?”
- Nowhere does the article suggest that lives have actually been lost. The pleaded imputations require a strained interpretation and should be struck out.
- Paragraph 11(m) pleads as an imputation that as Executive Director of the Royal Brisbane and Women’s Hospital, the plaintiff paid no heed to patients at risk, but covered up a medical software bungle so that the Health Minister could pretend he was doing a good job. The plaintiff relies on the whole article and paragraph 80 of the comments which reads:
“It’s fairly obvious why nothing was done until the issue came to the attention of the press: while it was kept quiet (and to hell with the patients at risk) the minister could pretend he was doing a good job.”
- The first defendant submits that the imputation seeks to allege that the plaintiff’s conduct was motivated so as to enable the Health Minister to pretend he was doing a good job. According to the first defendant this motivation does not derive from the article.[50] The plaintiff, however, relies on the comment as giving rise to such a motivation. The comment must be read in light of the article. When one reads the article and the comment together it is not capable of ascribing to the plaintiff such a motive for any alleged cover-up. Paragraph 11(m) should therefore be struck out.
- The imputation pleaded in paragraph 11(n) is that as a health bureaucrat, the plaintiff has utter disregard for patients, who he regards exactly the same as laboratory rats. The imputations pleaded in 11(o) and 11(p) are similar in substance. All three imputations rely on the article as a whole and paragraph 84 of the comments which states:
“It is obvious that the LNP and Health Bureaucrats have no regard for their patients who it would appear, are regarded exactly the same as laboratory Rats. There is long overdue immunity for whistleblowers who reveal this disregard for patients. So why exactly, wasn’t something done about this problem the moment it first became known? Now we have a rapid dive to cover our collected arses since their dereliction of duty has become known. Obviously those recent huge staff cuts came from the wrong quarter. But since those deciding the cuts are still here, along with their indifference, why am I not surprised?”
- It may be accepted that the reference in the comment to “Health bureaucrats” would include the plaintiff. This is because the plaintiff is identified by reference to his position in the second paragraph of the article. The imputation pleaded in paragraph 11(n) reflects the language of the comment made in paragraph 84. The use of the word “utter” arises from the statement that Health bureaucrats have “no regard for their patients” who are regarded “exactly the same as laboratory Rats”. The pleaded imputations are capable of arising from the text of the comment. The imputation pleaded in paragraph 11(p) refers to the plaintiff displaying a “callous disregard for patient safety” This statement is capable of arising because the published comment expressly suggests that health bureaucrats regard patients exactly the same as lab rats.
Disposition
- The following paragraphs of the further amended statement of claim (exhibit 1) should be struck out:
- paragraph 5(a);
- paragraph 5(g);
- paragraph 5(h);
- paragraph 5(i);
- paragraph 7(f);
- paragraph 7(g);
- paragraph 11(g);
- paragraph 11(h);
- paragraph 11(i);
- paragraph 11(j);
- paragraph 11(l); and
- paragraph 11(m);
- The following imputations should be pleaded in the alternative:
- paragraphs 5(b), 5(c) and 5(d);
- paragraphs 7(a) and 7(b);
- paragraphs 9(a), 9(c) and 9(d);
- paragraphs 9(b), 9(e) and 9(f);
- paragraphs 11(a), 11(c) and 11(d); and
- paragraphs 11(b), 11(e) and 11(f).
- I give leave to the plaintiff to amend the further amended statement of claim in accordance with these Reasons. I will hear the parties as to costs and directions.
Footnotes
[1] Exhibit 1.
[2] [2012] 2 Qd R 139, 144 [19]-[21] (Boddice J).
[3] Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227, [133].
[4] (2005) 221 ALR 186.
[5] Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186, 192 [17] (Gleeson CJ, McHugh, Gummow and Heydon JJ).
[6] Favell v Queensland Newspapers Pty Ltd [2004] QCA 135, [2] (McPherson JA), cited with approval: Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186, 189 [6] (Gleeson CJ, McHugh, Gummow and Heydon JJ).
[7] Defendants’ outline of submissions dated 13 May 2015, [8].
[8] Paragraphs [16] and [23] of the first publication (annexure “A” to the further amended statement of claim).
[9] Paragraphs [24] and [25] of the first publication (annexure “A” to the further amended statement of claim).
[10] Defendants’ outline of submissions dated 13 May 2015, [11].
[11] Plaintiff’s outline of submissions dated 14 May 2015, [18]-[19].
[12] [2012] NSWSC 1258, [17].
[13] [1964] AC 234.
[14] Christiansen v Fairfax Media Publications Pty Ltd [2012] NSWSC 1258, [18], quoting Lewis v Daily Telegraph Ltd [1964] AC 234, 285 (Lord Devlin).
[15] Paragraph [2] of the first publication (annexure “A” to the further amended statement of claim).
[16] Paragraph [4] of the first publication (annexure “A” to the further amended statement of claim).
[17] Paragraph [7] of the first publication (annexure “A” to the further amended statement of claim).
[18] Paragraphs [8]-[9] of the first publication (annexure “A” to the further amended statement of claim).
[19] Paragraph [10] of the first publication (annexure “A” to the further amended statement of claim).
[20] Transcript of proceedings, 1-39, lines 37-43.
[21] [2014] NSWCA 227, [142]-[146] (McColl JA with whom Bathurst CJ and Gleeson JA agreed).
[22] Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227, [143]-[144].
[23] Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n), 419 [6].
[24] P Milmo QC and W V H Rogers (eds), Gatley on Libel and Slander (Thomson Reuters, 11th ed, 2008) 131-132 [3.31], citing, for example, Klason v Australian Capital Territory (2003) 177 FLR 216.
[25] Transcript of proceedings, 1-39, lines 31-35.
[26] Transcript of proceedings, 1-41, lines 17-35.
[27] Transcript of proceedings, 1-30-1-31.
[28] Transcript of proceedings, 1-36, lines 1-7.
[29] Defendants’ outline of submissions dated 13 May 2015, [14].
[30] Transcript of proceedings, 1-30, lines 10-17.
[31] Defendants’ outline of submissions dated 13 May 2015, [14].
[32] Plaintiff’s outline of submissions dated 14 May 2015, [34].
[33] Annexure “A” to the further amended statement of claim.
[34] Defendants’ outline of submissions dated 13 May 2015, [15].
[35] Annexure “B” to the further amended statement of claim.
[36] Annexure “C” to the further amended statement of claim.
[37] Transcript of proceedings, 1-51, lines 1-15.
[38] Transcript of proceedings, 1-54, lines 45 to 46.
[39] Defendants’ outline of submissions dated 13 May 2015, [24].
[40] Annexure “C” to the further amended statement of claim, [32].
[41] Annexure “C” to the further amended statement of claim, [38].
[42] Defendants’ outline of submissions dated 13 May 2015, [24].
[43] Defendants’ outline of submissions dated 13 May 2015, [24].
[44] Plaintiff’s outline of submissions dated 14 May 2015, [72].
[45] Annexure “D” to the further amended statement of claim, [53]; exhibit 2, passages relied upon by the plaintiff.
[46] Defendants’ outline of submissions dated 13 May 2015, [28].
[47] Defendants’ outline of submissions dated 13 May 2015, [29].
[48] Annexure “D” to the further amended statement of claim, [55].
[49] Relying on Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, 137 (Gleeson CJ); Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, 165 (Hunt CJ).
[50] Defendants’ outline of submissions dated 13 May 2015, [33].