Mann v The Medical Practitioners Board of Victoria & Anor M45/2001 [2001] HCATrans 656 (14 December 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M45 of 2001

B e t w e e n -

ARNOLD MANN

Applicant

and

THE MEDICAL PRACTITIONERS BOARD OF VICTORIA and JOHN HARTLEY SMITH

Respondents

Application for special leave to appeal

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2001, AT 2.42 PM

Copyright in the High Court of Australia

MR A. MANN appeared in person.

MR J. RUSKIN, QC: If it please the Court, I appear with MR D. MASEL for the respondent. (instructed by Victorian Government Solicitor)

GUMMOW J: Yes, Dr Mann.

MR MANN: Your Honours, in some cases, a person's reputation is in a relevant sense his whole life. The reputation of a clerk for financial honesty and a solicitor for integrity are illustrations of this. The reputation of a doctor is, I think, of this character. In these words, if your Honours will turn to the first of my citations, Justice Mahoney in Crampton v Nugawela, 193A, stressed the importance of reputation in medical practitioners and refused to reduce the quantum of damages for defamation, $300,000 for general damages out of a total of $600,000. His brother judges agreed.

If your Honours will now pull tab 1, you will notice how serious even a reprimand is. Dr Peeke had had coitus with a patient over a number of years and was suspended for six months. He appealed only against the penalty. Justice Marks set aside the Board's decision because it was, in the circumstances of that particular case, too harsh and replaced it with reprimand.

KIRBY J: Yes, but that was in the circumstance of allegations of on-going sexual relationships with patients.

MR MANN: That is right, it went over a number of years.

GUMMOW J: Yes.

MR MANN: Yes. Justice Marks on page 7 remarked that this particular patient did not require protection, a matter to which the opening sections of the Act refer. Applying that principle, the Board must have come to the conclusion that Mr Bailey, a solicitor, needed protection from a medical practitioner in a commercial dispute. In 1996 and for some years before this the Medical Practitioners Board believed that absolute privilege attached to all of its communications. This presumed immunity made possible an extraordinary procedure used in numerous cases to which I referred in my summary. If what occurred to me is typical, then during the process in which the Board engages in around 100 cases per year, the practitioner is not charged, is not given particulars when he asks for them, is not invited to a hearing, is not allowed to cross-examine the complainant, is not allowed to present his defence and is condemned in a letter to the complainant of which the doctor does not even get a copy unless, as is in my case, the complainant condescends to furnish one.

Meanwhile, the complainant has in his hand a damaging letter he has every reason to believe can be freely distributed to all who care to read it, even the news media. On my application, the defence of absolute privilege was - - -

KIRBY J: There was no suggest of republication in this case, was there?

MR MANN: We do not know, do we, your Honour?

KIRBY J: You have not heard of it? I think - - -

MR MANN: It was at least republished to the legal advisers, the counsel that Mr Bailey had and, as you know - - -

KIRBY J: Yes, a very small network that probably would not have existed, except that you commenced your proceedings.

MR MANN: I am sorry, what was that?

KIRBY J: I say that is a very small group of people and even they would not have been involved except that you had commenced these proceedings against the Board.

MR MANN: Well, your Honour, my experience of lawyers and I have had a large experience with them because of my publications, they are the greatest talkers that the world has come across.

KIRBY J: My experience is that it is the doctors. However, we will settle for 50:50.

MR MANN: Well, there you are. We do not know what the "grapevine effect" is, your Honour. That is your words in another matter that I had before the Court. On my application, the defence of absolute privilege was struck out. Despite special application by the respondents, to date there has been no judgment that the communications concerned a matter of public interest upon which the defences of truth and fair comment depend, certainly so far as the New South Wales Defamation Act is concerned. The only defence remaining alive at present is, therefore, I suggest, the disputed decision about qualifying privilege.

GUMMOW J: Now, you complain also, do you not, of the decision of the Court of Appeal in dealing with your ground of appeal dealing with alleged bias? Do you still complain about that here?

MR MANN: Well, I complain that there has been no judgment on the pleadings. What has eventuated is 13 pages of rejection of my criticisms of Judge Hanlon and then a two-line paragraph concerning what the case was about which basically said, "Well, we have read what he said but we are not making any further comment about it".

I take your Honours first to Judge Stott's 16 November 1998 ruling at appeal book 23, line 16, which repeats part of an earlier ruling to which I had drawn his Honour's attention. It begins with the words, "It is apparent" and ends on the next page with the statement:

"The parties could and should have been advised of the Board's decision in a manner consistent with the Act and without reference to those matters. The Board's decision to include those matters was beyond its statutory powers and functions."

Those matters, of course, were the adverse findings made without a hearing. In so many words, Judge Stott distinguished between explaining why a practitioner is - - -

KIRBY J: Can I ask you did you ever take any steps to challenge to have set aside under administrative law the finding of the Board, as distinct from suing them for defamation which raised the questions of qualified privilege? After all, they are only members of the profession who are trying to perform their duties part-time and I doubt if they are being paid much, if anything, for doing so. So that why would not the appropriate legal remedy in this case be to set aside their purported reprimand as being outside their power, as distinct from suing them for defamation?

MR MANN: Your Honour, they had no business to be reprimanding me. But just a moment - - -

KIRBY J: I do understand that point, but is not the remedy for that to set aside their decision as being beyond power, as distinct from suing them for defamation?

MR MANN: I approached the Administrative Appeals Tribunal and the matter was heard and the Tribunal said it had no jurisdiction.

KIRBY J: No, the Supreme Court would be the correct place.

MR MANN: No, but your Honour, there is an enormous expense involved in that.

KIRBY J: That is water under the bridge, so we have to deal with your complaint.

MR MANN: Yes. In so many words, Judge Stott distinguished between explaining why a practitioner is innocent from explaining why he is almost guilty. This is important distinction since if the latter is privileged, the Board can state almost whatever it likes about the conduct of a practitioner. Without the Bailey-Mann correspondence his Honour saw, as did I, that the primary documents were the ones about which I had complained and that once the Board had determined that I was innocent of unprofessional conduct, this was the end of the matter so far as privilege to publish findings fault or indictments of conduct was concerned.

He saw at once what is really quite obvious, namely, that one cannot be guilty and innocent simultaneously about the same alleged offence. His Honour saw that if conduct is not unprofessional, the practitioner is entitled to an untainted reputation.

I just want to refer for a moment to what Judge Kirby has just said. I tried for one year to ask the Board for a simple letter to be sent to the complainant that their letter was explanatory. They did not even change the alleged error from "impudent" to "imprudent". I do not think that I used this as a first resort, I used this trial as a last resort. Judge Stott developed his theme later on page 31 of the application book at line 22 and onto the whole of the next page. This and the paragraph I have just quoted are the crucial parts of his Honour's 16 November ruling. In the light of this Court's judgment in Barwick v The New South Wales Law Society, we are entitled to say that the whole process adopted by the Board from the time it decided to take the matter no further under section 25(1)(a) in my case and then about 1,300 cases since 1988 was outside the provisions of the Medical Practice Act from which it follows by definition that the three documents taken as a whole in my case were extraneous to the duty and its related qualified privilege.

KIRBY J: But there is an important difference, Dr Mann, and that is that the Barwick Case was a case in which there was a challenge to the correctness of the decision of the Tribunal, whereas yours is a case in defamation and you want us to combine very narrowly the field of qualified privilege and, speaking for myself having regard to the types of people who need protection of qualified privilege, I am not at all sure that the law should do that.

I raised this point because I would not want to think that the law provided no remedy to an injustice of a person who has been wrongfully rebuked when they have not had a chance to be heard and to resist it. But the law does provide a remedy which is the administrative law remedy of setting aside the decision if it is an invalid decision of the Tribunal.

MR MANN: But the only decision - I mean, what was I supposed to do, go to the Tribunal and ask to be found fully guilty?

KIRBY J: No, no, no, go to the Supreme Court and have an order made setting aside their decision as invalid and breaching the rules of natural justice in your case. But, instead, you sue the members of the Board for defamation which brings in a whole cartload of problems because the law protects people in positions such as the members of the Board, and for very good reason.

MR MANN: Your Honour, but it is a question of degree. I would like to read from one of the letters that was produced about the 50 cases that I mentioned in my summary at paragraph 11. It says:

At its meeting on Thursday 4 July 1996, the Medical Practitioners Board of Victoria considered your submitted correspondent -

this is another doctor -

alleging that Dr had subjected you to an outrageous and unprovoked outburst of anger -

et cetera, et cetera. The whole of this letter agrees with what the complainants had said. There was no hearing. The doctor was obliged to provide an apology for what looks like a terrible outburst of anger and intimidation and there was no hearing.

KIRBY J: Yes, that is another case. We have enough on our hands dealing with the cases we get besides other cases.

MR MANN: Yes, I know, but the point is, once - - -

KIRBY J: You say you suffered an injustice because you were not given a chance to....before you were rebuked and I understand that and I am very sympathetic to that.

MR MANN: But is it not defamatory?

KIRBY J: The only question is whether defamation is the correct remedy for that complaint, and that is the only remedy you have sought. You see, it is one thing if you are a member - I have sat and perhaps you yourself have sat on many professional and other bodies and mistakes are made and the correct way to set them aside is either to get it done by consent if that can be done or to get it done by a court using administrative law. But to sue people for defamation for basically doing public duties is a different kettle of fish entirely and the law, defensive of free speech and of bodies such as this Board, gives a good, ample protection and nature of qualified privilege so long as they are not acting out of malice.

MR MANN: Well, your Honour, all I can say is that what you are saying is that there is really no proper remedy because it becomes such an extraordinarily costly exercise when a decision of this sort has been made.

KIRBY J: There is a proper remedy, there is a very proper remedy and the costs have been run up anyway. It is better that they be run up in the correct course, rather than a tangential course. You have taken a tangential course of suing in defamation, instead of doing what, it seems to me, was open to you, at least, and that is to strike at the validity of the order for want of procedural fairness to you. I can understand your complaint about that. I would not like to be rebuked, especially by a professional body, without having been heard and without having my side of the case listened to, I can understand that. I would not dream of suing them for defamation.

MR MANN: But the Board was invited to amend their letters time and time again so that what they really intended to convey was conveyed. I mean, why is that not malice?

KIRBY J: They had already done; what was done was done.

MR MANN: I beg your pardon?

KIRBY J: What was done was done, they had completed their function.

MR MANN: Yes.

KIRBY J: Anyway, do not let me interrupt you if you have further points to make. I just give you my reaction to the case.

MR MANN: Your Honour, if the matter of qualified privilege is a closed book, there is no point in my addressing your Honour any further.

KIRBY J: Nothing is a closed book until the Court has reached its decision. You have more time; if you wish to say any more, we will listen.

MR MANN: But this case hangs on the matter of qualified privilege.

KIRBY J: I realise it does.

MR MANN: Yes. Well, I think it is an extraordinary extension of qualified privilege, your Honour, and also one which was used in an extremely biased fashion. For example, if I can take your Honours to tag No 9, you will find there Dr Wooldridge's racist abuse of the Harley-Greens which breached the code of ethics which is tag 10, article 4.2.1. Now that outrageous conduct about which I complained was not considered, something which the Board - - -

KIRBY J: That hardly touches on the question of the legal rights of the parties to this case. It is just peripheral.

MR MANN: Well, it goes to bias and bias goes to malice. I beg your pardon?

KIRBY J: It is peripheral. In your profession, Dr Mann, you have to focus very precisely on the issue before you and I have to tell you it is the same in the legal profession. You have to focus very precisely on the issue. The issue is not whether Dr Wooldridge did wrong things and should have been prosecuted, other people wrote to the Board and should have been prosecuted or whether you had some other remedy. It is whether the law of defamation is as narrow as you suggest and the primary judge and the Court of Appeal said not.

MR MANN: Well, he conducted the trial in a fashion that made it quite impossible for me to put my case. He had not even read the pleadings and yet he repeatedly stopped me from presenting my case because he thought that was irrelevant. How could he know that without having read anything?

GUMMOW J: The Court of Appeal dealt with your complaint about that, did it not? It seemed to have the view that you could look after yourself, so it said.

MR MANN: Well, I obviously could not at the trial. I mean, Judge Hanlon has a reputation for this. If you look at the citation of Kidman v Corstorphan, he behaved exactly towards me in the way he - - -

KIRBY J: The Court of Appeal knew about the earlier case, and it looked at the particular complaint, no doubt, with vigilance in your case - - -

MR MANN: They made no reference to Kidman. They made no reference to any cases. Your Honour, this is the law, and if that is all that is in issue then there is no point my wasting your Honours' time.

KIRBY J: You are not wasting our time; you have a certain amount of time. If you wish to say anything more, you should say it.

MR MANN: It is quite obvious to me, your Honour, that the Court has decided that these outrageous comments by the Board - they are outrageous, because they are completely untrue. My allegations against Mr Bailey were true and correct in every single respect. So we have the situation where the innocent is guilty and the guilty person is innocent. Well, if that is the law, there is nothing I can do about it.

KIRBY J: That is not the law, but when you sue in defamation, you have to comply with the law of defamation. We have to comply with the law of defamation.

MR MANN: But, your Honour, if a statement is made which is so false, so wrong, so incorrect, how can that not be malice? How can that not be reckless? There is absolutely no truth in anything that the Board wrote. My letters were not intemperate; they were completely justified. They were as justified as Judge Hart, who recently said, when he was sentencing Mr Fraser, that he was "disgraceful" and dishonourable. Now, that is intemperate, out of context, but in context, it is temperate and apt in every single respect. The question is were the comments of the Board so erroneous, so impossible to justify, as to constitute malice? Were they so extraneous to them? I must say, I feel as though I am living in Bertolt Brecht's city of Mahagonny, where poverty was the capital offence and murder went unpunished. I have never seen anything as outrageous as what the Board has done in this matter.

KIRBY J: Well, you say that, but people can make mistakes on boards, and they do it all the time - - -

MR MANN: Then why do they not say they are sorry?

KIRBY J: - - - people can make foolish mistakes.

MR MANN: Well, then, why do they not say they are sorry?

KIRBY J: That is a question of their moral judgment.

MR MANN: Everybody makes mistakes. I spent a year arguing with the Board and saying, "Why do you not do this, why do you not do that? Why do you not at least write to the complainant and say that you did not mean "impudent"; you meant "imprudent"? Nothing, nothing.

KIRBY J: Well, it is at that point, if I can say so, with respect, that it would have been helpful for you to have consulted a lawyer, and the lawyer, I think, might have said your correct remedy here is to have the order of the Board set aside as invalid and as contrary to the rules of procedural fairness. I doubt if any lawyer would have told you to sue the Board for defamation.

MR MANN: I consulted one of the most expensive firms in Melbourne. They live in the - I cannot remember their names offhand.

KIRBY J: Do not mention their names. The fact that they are so expensive might harm them.

MR MANN: It just dropped out of my mind. But it is not for want of consultations with lawyers. I found that they are about right in 50 per cent of cases, your Honour. I have nothing further to say.

KIRBY J: Thank you.

GUMMOW J: The applicant complains, amongst other things, of alleged bias on the part of the trial judge in the County Court. The Court of Appeal of Victoria applied established principles in dismissing that complaint and no special leave question arises from that dismissal. The issues of defamation law which the applicant seeks to bring before this Court also were determined by the Court of Appeal by the application of settled principles.

The decision of the Court of Appeal with which this application is concerned arises out of the applicant's dispute with the Medical Practitioners Board of Victoria as to its handling of a complaint made against him. The litigation, it should be emphasised, is not litigation involving matters of administrative law. On this special leave application no issue is properly raised which would have general application to the treatment by the Board of complaints against medical practitioners.

Special leave is refused with costs.

AT 3.04 PM THE MATTER WAS CONCLUDED