Australian Broadcasting Corporation v McBride

Australian Broadcasting Corporation v McBride - [2001] NSWCA 322 - NSWCA 2001 case summary — Zoe

COUNSEL : T Tobin QC / R Glasson (Appellant) T E F Hughes QC / R A Campbell (Respondent) SOLICITORS : J Walker (Appellant) Maurice May & Co (Respondent) CATCHWORDS : DEFAMATION - Plea of mitigation of damages - whether trial judge erred in ordering that particulars in support of plea be struck out - whether defendant could rely on particulars despite no defence of justification - whether particulars related to relevant sector of plaintiff's reputation - evidence Court could have regard to in determining that issue - whether relevant sector rule affected by Evidence Act ss 55, 56 - whether defendant could rely on particulars relating to matters arising after date of publication. D LEGISLATION CITED : Defamation Act 1974 Evidence Act 1995 Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 Kelly v John Fairfax & Sons Ltd [1982] 2 NSWLR 478 O'Hagan v Nationwide News Pty Ltd [2001] NSWCA 302 Burstein v Times Newspapers Ltd [2001] 1 WLR 579 Scott v Sampson [1882] 8 QBD 491 Hobbs v C T Tinling & Co Ltd [1929] 2 KB 1 Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 Goody v Oldhams Press Ltd [1967] 1 QB 333 Associated Newspapers Ltd & Ors v Dingle [1964] AC 371 Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 Television New Zealand Ltd v Quinn [1996] 3 NZLR 24 Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312 CASES CITED: Plato Films Limited v Speidel (1961) 2 AC 1090 Associated Newspapers Limited v Dingle (1964) AC 371 Speidel v Plato Films Ltd [1961] AC 1090 Jorgensen v NZ Newspapers Limited (1974) 2 NZLR 45 Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749 Television New Zealand v Prebble [1993] 3 NZLR 513 Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1119 McBride v Walton (Unreported, NSWCA, 15 July 1994) Ron Hodgson (Trading) Pty Limited v Belvedere Motors (Hurstville) Pty Limited [1971] 1 NSWLR 472 Dougherty v Nationwide News Pty Ltd (1968) 88 WN (pt 1) NSW 146 A B Parry & Sons Pty Ltd v The K G Murray Publishing Co (Unreported,NSWSC, 10 April 1980) John Fairfax & Sons v Kelly (1987) 8 NSWLR 131 Broome v Cassell [1972] AC 1027 DECISION : (1) Appellant's application to amend the Notice of Appeal refused (2) Appeal dismissed with costs.

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The appeal against the order striking out the reputation particulars 3 The respondent is the plaintiff in a defamation action brought by him against the defendant. By the action the respondent claims damages for defamation arising out of a Four Corners television program telecast on 8 August 1988. 4 The respondent commenced his action on 27 October 1988. There has been a considerable delay in the prosecution of the proceedings. On 6 November 1998 the appellant was unsuccessful in applying to have the respondent's action dismissed for want of prosecution. The respondent filed an amended statement of claim on 22 December 1998 and the appellant filed its defence on 4 February 1999. 5 In 1988, when the Four Corners program was telecast, the respondent was a medical practitioner. In 1993, he was struck off the medical register. 6 The respondent's statement of claim alleged the following defamatory imputations: "(a) The [respondent] deliberately exposed women patients to danger. (b) [T]he [respondent] had so acted as to warrant him being accused of conduct which endangered the lives and health of women patients." 7 In its defence, the appellant pleaded that the respondent's damages should be mitigated because, prior to the telecast of the Four Corners program, and thereafter, the respondent did not have a good reputation "in the practice of his profession". Particulars were given in support of this allegation. I shall refer to these as "the reputation particulars". The reputation particulars largely concerned facts that occurred after 1988, that is, after the publication of the material said to be defamatory . 8 On 27 August 1999, Levine J heard a motion in which the respondent sought orders striking out various particulars alleged in the appellant's defence, including the reputation particulars. On 4 August 2000, Levine J upheld the respondent's contentions and ordered that all the particulars be struck out. On 12 March 2001, leave to appeal was granted in respect only of the order striking out the reputation particulars. 9 During the course of argument on the appeal, Mr Tobin QC, senior counsel for the appellant, applied to amend the reputation particulars. The Court indicated that it would give its decision in regard to the amendments when delivering its judgment on the appeal, and argument proceeded on the merits of the pleading incorporating the proposed amendments. 10 The reputation particulars, as pleaded in the form they were in before Levine J - and with the proposed amendments underlined are set out below:- "The plaintiff prior to the date of publication of the matter complained of and since that time did not have a good reputation in the practice of his profession. The defendant relies on the following facts and matters: (a) The public knowledge from December 1987 that the plaintiff had engaged in scientific fraud in the testing of drugs used or to be used in the treatment of pregnant women. (b) The public findings in November 1998 of the "Committee of Inquiry into Dr McBride" constituted by the Right Honourable Sir Harry Gibbs, a former Chief Justice of the High Court of Australia, and other persons eminent in science and medical research that the plaintiff had engaged in scientific fraud in the testing of drugs used or to be used in the treatment of pregnant women. (c) The public findings of the Medical Tribunal in 1993, upheld on appeal by the Court of Appeal on 15 July 1994, that the plaintiff by reason of his scientific fraud in the testing of drugs used or to be used in the treatment of pregnant women, lacked good character and the Tribunal's order that the plaintiff's name be removed from the Register of Medical Practitioners in New South Wales. (d) The public finding of the Medical Tribunal in 1996 that the plaintiff should not be readmitted as a medical practitioner in New South Wales. (e) From December 1987 there was public knowledge of the plaintiff's misconduct as a medical practitioner in the testing of drugs used or to be used in the treatment of pregnant women ." 11 The grounds on which Levine J held that the reputation particulars should be struck out were: (a) They amounted to assertions of facts that tarnished the respondent's reputation after the date the defamation was published; this, his Honour held, was contrary to principle (see, for example, Rochfort v John Fairfax & Sons Limited [1972] 1 NSWLR 16).

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The "back door " argument relied on by the respondent 14 The remarks of May LJ in Burstein v Times Newspapers Ltd [2001] 1 WLR 579 at 600-601 answer the respondent's "back door" argument. His Lordship said: "In my view, these authorities show that it is not permissible to advance an unsustainable defence of justification and thereby, under the guise of particulars of justification, seek to rely on particulars which Scott v Sampson 8 QBD 491 and Speidel v Plato Films Ltd [1961] AC 1090 would not permit. That, however, does not prevent a defendant from frankly accepting that there is no proper plea of justification, but seeking to rely in reduction of damages on particulars which Scott v Sampson and Speidel v Plato Films Ltd do not exclude. If this were not so, there is a danger that the jury would be required to assess damages in blinkers, in ignorance of background context directly relevant to the damage which the claimant claims has been caused by the defamatory publication. This is consistent with the sense of what Lord Denning said in Speidel v Plato Films Ltd , where his conclusion was that it was permissible to adduce the evidence in question. Thus, in my view, a defendant is not prevented from taking the sensible course of accepting that the publication means what is says and that it is not on the facts justified, and yet putting in evidence directly relevant facts which in other circumstances might have been ingredients of a defence of justification. It would, I think, be illogical and unfair if this were not so. Evidence in support of a plea of justification which fails is admissible in reduction of damages. But the very same evidence would not be admissible to a sensible defendant who acknowledges that it will not support a plea of justification. What is not permissible is to plead a defence of partial justification which in truth is no defence at all. 15 I agree with these observations. In my view, the argument based on the appellant's omission to plead justification should not succeed.

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Salmon LJ at 344 also stressed the need for the convictions to be relevant to the imputation in the material said to be defamatory. 19 Perry J in Jorgensen v NZ Newspapers Limited (1974) 2 NZLR 45, after examining the authorities, concluded at 51 that there was a uniform expression of opinion amongst them that: "[T]here must not, even on a general plea of bad reputation, be an inquisition without limit as to time or as to sector of a man's past." 20 In Jorgensen, the imputations in the defamatory material concerned the plaintiff's reputation for good conduct in prison, and evidence that the plaintiff had been convicted of murder was excluded as being irrelevant to the sector of the plaintiff's reputation that was harmed thereby. 21 In Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749 this Court (Moffitt P, Hope and Reynolds JJA) stated the general rule as follows (at 801): "Under the general law, although only evidence of the plaintiff's general bad reputation can be tendered by a defendant: Scott v Sampson (1882) 8 QBD 491; Hobbs v C T Tinling & Co Limited (1929) 2 KB 1, 'evidence of general bad reputation must be confined to the sector of the plaintiff's character relevant to the libel. If the libel charges the plaintiff with treachery, evidence that he has a reputation for loose morals would be inadmissible in mitigation of damages.' Gatley on Libel and Slander , 7th ed., p 542 par 1318; Plato Films Limited v Speidel (1961) 2 AC 1090". 22 In Television New Zealand v Prebble [1993] 3 NZLR 513 Cooke P, in discussing the rule, said (at 524) that if a politician was generally reputed to be a bully, a reasonable jury should not on that account reduce any damages awarded to him for being falsely called dishonest. The learned judge, in holding that certain allegations in the pleadings should be struck out, explained: "There is an unacceptable risk that, if allowed to give evidence, purportedly in mitigation of damages, that the plaintiff had a reputation for any of these latter qualities, the defendant might be able to divert the course of the trial from the true issues." 23 After the decision of this Court was reserved, judgement in O'Hagan v Nationwide News Pty Ltd [2001] NSWCA 302 was delivered. In that case the appellant/plaintiff alleged that he had been defamed by an imputation that "he arranged with another person, for the price of $10,000, to have a third person murdered". The respondent/defendant pleaded, in mitigation of damages, that the appellant had a reputation as a policeman who had pleaded guilty to charges of misconduct, who had been suspended from duty after being charged with conspiracy to pervert the course of justice, who had fabricated evidence and who was generally dishonest and corrupt. 24 The appellant submitted that the relevant sector was the appellant's reputation for "activities of violence". The Court, however, upheld the respondent's argument that the relevant sector was "conduct as a police officer". Meagher JA referred to the article in which the defamatory material was published and stated, "its effect is the horror that it conveys that a police officer, whom one would normally expect to be busying himself in protecting people's lives, would arrange to have someone else murdered". 25 Meagher JA remarked on the difficulties in determining the relevant sector and the absence in the authorities of reliable guidelines that could assist in the inquiry. He determined the relevant sector, in effect, by considering the overall defamatory impact of the imputation pleaded. The defamation was directed at the very essence of the office of a police officer, hence, the relevant sector was the appellant's reputation as a police officer generally. 26 Stein JA said: "The imputation in this appeal was described by counsel for the appellant as referring to the sector of 'activities of violence', however the gravity of the imputation extended beyond such an artificial construct to his reputation in the sector addressing his conduct as a police officer. Indeed, as noted by Meagher JA, the gravity of the imputation is in part due to the appellant's position as a police officer.

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The "irrelevant sector" argument: applying the principles to the facts 31 As I have mentioned, the defamatory imputations alleged are that the respondent "deliberately exposed women patients to danger" and that he "had so acted as to warrant him being accused of conduct which endangered the lives and health of women patients." 32 Mr Tobin relied on reasoning of the Medical Tribunal in 1993, quoted in the reasons of Powell JA in McBride v Walton (unreported NSWCA 15 July 1994), in submitting that the reputation particulars related to the same sector of the respondent's reputation as was said to be harmed by the imputations. According to the Tribunal: "There is force in the submission of Senior Counsel for the [Tribunal] that whilst the proven misconduct [in respect of scientific fraud] does not relate to the practise of medicine, the relationship is so close that it might well fall into that category. Drugs form an important element in the arsenal of the practice of medicine and the great challenge of medical science is to find drugs which either cure or alleviate illness and which are free from serious side effects. Pharmacology is essential to almost every aspect of the practice of modern medicine and medical practice plays an important role in identifying and notifying the relevant governmental authority, the Australian Drug Evaluation Committee (ADEC) for the purpose of assessing adverse reactions to drugs. ADEC has developed a well-known system for that purpose. Medical practitioners both assess adverse reactions in relation to their own patients and also assist in controlled trials of drugs. The need for careful observation, responsible reporting and meticulously honest response is central to the operation of that system and in this context honesty becomes an absolute essential precept. In his position as the Director of Medical Research at Foundation 41 and as an expert witness called in product liability cases in the United States on behalf of plaintiffs [the respondent] held himself out as an experienced medical practitioner in the field of medical research particularly in the field of testing drugs….that are commonly prescribed for pregnant women." 33 Mr Tobin submitted that this reasoning demonstrates how the allegations of scientific fraud related to the tarnishing of the respondent's reputation as a medical practitioner. Mr Tobin submitted that, as explained by the Medical Tribunal, the scientific fraud alleged in the reputation particulars "touched upon" the respondent's conduct as a medical practitioner generally. He argued that the relevant issue was the respondent's "bad reputation … as a practitioner of medicine". 34 While the imputations have to be recognised as an "artificial construct," significant weight has to be given to them. Underlying the imputation that the respondent "deliberately exposed women patients to danger" are elements of calculated callousness and heartless indifference to the well-being of women patients. The imputation that the respondent "so acted as to warrant him being accused of conduct which endangered the lives and health of women patients" is to the same effect. This is the necessary consequence of the phrase "so acted". In other words, the second imputation is to be read as alleging, "the respondent, in deliberately exposing women patients to danger, acted as to warrant him being accused of conduct which endangered the lives and health of women patients." 35 Thus, the imputations pleaded relate to the respondent's reputation as a medical practitioner only in so far as that reputation concerned his attitude to and dealings with patients, in the sense of the degree of care, concern, and compassion that he displayed towards them, and his dedication to and compliance with the therapeutic ideals of accepted medical practice. 36 The reputation of a medical practitioner, insofar as it relates to his dealings with his patients, is wide in scope, and it would, ordinarily, provide considerable latitude for a defendant who wished to allege material in mitigation of damage. But, in my opinion, such a reputation is far removed from the reputation of a person, who, for example, conducts laboratory tests on animals for the purposes of determining their reaction to experimental drugs. A person who occupies himself at times as a medical practitioner and at times as an experimental scientist, is conducting two separate occupations, although they may not be entirely unrelated to each other. The reputation that such a person would gain for care and compassion to his patients and for his dedication to the therapeutic ideals of the practice of medicine would be entirely independent of his reputation for careful, innovative and honest scientific research. 37 The inquiry conducted by the Medical Tribunal as to whether the scientific fraud perpetrated by the respondent applied to his medical practice is different from the inquiry whether the scientific fraud alleged affects the sector of the respondent's reputation capable of being harmed by the defamatory imputations. A person who falsifies results of experiments on rabbits may not be fit to practise medicine. But I do not think that a reputation for falsifying results of such experiments would impinge on a reputation for being a caring, compassionate doctor who is single-mindedly concerned for the health of his patients. 38 To put the matter in another way, at the trial it would be open to the respondent to lead evidence as to his reputation as a medical practitioner dedicated to the well-being of his patients. Such evidence would be relevant to the defamation alleged by the imputations pleaded: cf O'Hagan v Nationwide News Pty Ltd. But it would not be permissible for the respondent to attempt to prove that he had a reputation for integrity in carrying out scientific experiments. That would be irrelevant to the reputation alleged to have been harmed by the defamatory imputations. This, in my view, points up the distinction between the defamation alleged in this case and that alleged in O'Hagan v Nationwide News Pty Ltd. 39 Hence, I conclude that the relevant sector is the respondent's reputation as a medical practitioner but limited to his attitude to and dealings with patients, in the sense to which I have referred. 40 I turn now to consider whether the reputation particulars are directed to this sector. In carrying out this exercise I would reiterate that what is in issue is a pleading point. The Court is not dealing with an appeal following a trial, as was the case in O'Hagan v Nationwide News Pty Ltd. 41 In support of the allegation that, prior to the date of the publication of the Four Corners program, and thereafter, the respondent "did not have a good reputation in the practice of his profession", the appellant initially alleged, in substance (in reputation particulars (a), (b), (c), and (e)), that the respondent "had engaged in scientific fraud". Reputation particular (d) alleged merely the public finding of the Medical Tribunal in 1996 that the respondent should not be readmitted as a medical practitioner in New South Wales. 42 When looked at in isolation (that is, without reference to the actual nature of the scientific fraud committed by the respondent), the allegation of scientific fraud, simpliciter, and the allegation concerning the finding of the Medical Tribunal, are very broad in their scope. Depending on the specific nature of the fraud and the grounds for the Tribunal's decision, these matters are notionally capable of having affected the respondent's reputation in so far as it concerns his treatment of patients and his attitude to them. On the other hand, the scientific fraud may have related only to matters having no bearing whatever on the respondent's treatment of his patients and his attitude to them. The findings of the Medical Tribunal, too, may have had nothing whatever to do with those aspects of the respondent's reputation. 43 Accordingly, the broad allegations in the reputation particulars are capable of allowing the appellant to lead evidence tending to prove that the scientific fraud, and the conduct which underlay the finding of the Medical Tribunal, involved the testing of drugs used or to be used in the treatment of pregnant women in a way that reflected adversely on the respondent's reputation concerning his treatment of and his attitude to his women patients, in the sense that I have mentioned. 44 But, as I have mentioned, the reputation particulars in their unamended form would also allow the appellant to lead evidence of a different character, bearing on aspects of the respondent's reputation entirely unrelated to the sector that is relevant for the purposes of the respondent's claim for defamation. As Cooke P observed in Television New Zealand v Prebble, this might enable the appellant "to divert the course of the trial from the true issues." 45 For that reason the reputation particulars are embarrassing and unfairly prejudicial to the respondent, and, in my view, were properly struck out: Ron Hodgson (Trading) Pty Limited v Belvedere Motors (Hurstville) Pty Limited [1971] 1 NSWLR 472 at 477. 46 I have so far dealt with the strike out application solely by reference to the allegations pleaded in the body of the statement of claim and in the defence. There is other material, however, to which the Court may have regard, which reinforces the conclusion to which I have come. 47 A transcript of the Four Corners program in question is annexed to the statement of claim. The transcript forms part of the context in which the pleaded imputations are to be understood. It is relevant and admissible for the purposes of demonstrating the force and effect of the imputations pleaded and giving colour to and explaining the significance of them: Dougherty v Nationwide News Pty Ltd (1968) 88 WN (pt 1) NSW 146 at 149; Ron Hodgson (Trading) Pty Limited v Belvedere Motors (Hurstville) Pty Limited at 477; A B Parry & Sons Pty Ltd v The K G Murray Publishing Co (unreported, NSW SC, 10 April 1980, per Hunt J). 48 It appears from the transcript that the Four Corners program was principally concerned with doctors in New Zealand who had deliberately withheld treatment from many women patients who were suffering from cervical cancer "because they [that is, the doctors] wanted to see what would happen". Twenty-seven of the patients died. All of the patients suffered considerably. They were, according to the program, being used as "guinea pigs". One patient said that she "felt like something out of Auschwitz". 49 One of the participants in the program said: "There were striking parallels between what happened in New Zealand and allegations about Dr William McBride in Australia."

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And: "In this case, McBride was accused of scientific fraud, but otherwise the circumstances are the same. Colleagues knew about it. One or two tried to do something but failed because there was no outside control." 50 The material in the transcript points up the sting of the defamatory imputations and supports the finding that the relevant sector of the respondent's reputation was that which I have identified. 51 I turn next to the reasons for judgment of this Court in McBride v Walton. In this judgment, this Court, by a majority (Handley and Powell JJA, with Kirby P dissenting), dismissed the present respondent's appeal from the decision of the Medical Tribunal removing his name from the Medical Register. This judgment is referred to in para (c) of the proposed amendment to the reputation particulars. 52 It appears from the reasons for judgment of the various members of this Court in McBride v Walton that the scientific fraud committed by the respondent related to material published by him designed to show that certain drugs were capable of causing malformation in litters of rabbits. The Tribunal found that the material published by the respondent was intentionally misleading and false insofar as it related to the number of rabbits and malformed litters and to the controls that were put in place to ensure the scientific accuracy of the outcome. The explanation for the respondent's conduct was, as Handley JA explained, "his desire to strengthen the appearance of the experiment as a properly designed experiment in order to enhance the publishability of the Article and hence provide support for his hypothesis that Hyoscine may be a teratogen (ie cause birth defects)." 53 The following observations of Handley JA are of particular relevance in the present context: "[The Tribunal] found that the course of conduct [relating to scientific fraud] commenced in 1980 and was still continuing during the hearing in 1991. It did not involve patients but involved the medical scientific community, junior colleagues, senior colleagues, the press, the public, the Gibbs Inquiry, the Tribunal and the persons invited to act on the report of 4 September 1989." 54 The significance of the fact that the scientific fraud (which led to the decision of the Medical Tribunal in 1993) did not involve the respondent's patients (or any other patients) is self-explanatory when regard is had to the sector of the respondent's reputation that was defamed, namely, that relating to his treatment of patients. 55 The fact that the scientific fraud had no bearing on the well-being of patients is a matter of evidence. Nevertheless, Pt 15 r 26(2) of the Rules of Court provides that the Court may receive evidence on a strike out application. Regard will be had to evidence where it explains allegations made in the pleadings or where it shows that a party's case cannot succeed: Ritchie's Supreme Court Procedure (NSW) at para 15.26.1B. In the present case, the material in the reasons for judgment in McBride v Walton establishes conclusively the nature of the scientific fraud and the basis of the Medical Tribunal's finding sought to be relied on by the appellant and in my view it is entirely appropriate to have regard thereto in the light of the issues raised. 56 Considering, firstly, the reputation particulars in their unamended form, I am satisfied from the transcript of the Four Corners program and the facts recounted in McBride v Walton that the relevant sector of the respondent's reputation is entirely different from that which might be affected by the material in the reputation particulars. The defamatory imputations concern the respondent's reputation in regard to his treatment of patients. The scientific fraud, on the other hand, related to the testing of drugs in a way intended to support his hypothesis that Hyoscine could cause birth defects. It had no bearing on the respondent's treatment of patients. 57 Are the reputation particulars saved by the proposed amendments? By the proposed amendments the general allegation of scientific fraud is qualified. The fraud is said to be "in the testing of drugs used or to be used in the treatment of pregnant women". The proposed amendments make no mention of the testing of drugs in question resulting in women patients being exposed to danger or in their lives or health being exposed to danger. On the facts set out in McBride v Walton no such allegation could properly be made. I infer that the omission is deliberate. 58 Ignoring the transcript of the Four Corners program and the facts set out in McBride v Walton, the proposed amendments to the reputation particulars take the matter no further. The particulars would be embarrassing and unfairly prejudicial in the same way as they are at present. The vice of the particulars would not be cured by the proposed amendments. 59 When regard is had to the other material, it is apparent that the addition of the words relating to the testing of drugs used or to be used in the treatment of pregnant women has no relevance to the sector of the respondent's reputation that he alleges was defamed. In my opinion, for the reasons I have expressed, that part of the reputation of the respondent that would be harmed by the defamatory material is far removed from a reputation for having committed scientific fraud in relation to the testing of drugs used for pregnant women. 60 I would dismiss the application to amend. 61 Finally, in regard to the argument based on the relevant sector of the respondent's reputation, Mr Tobin sought to gain some comfort from s 56 of the Evidence Act 1995. This section provides that, "Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding". As I understood Mr Tobin, he submitted that the material alleged in the reputation particulars was logically relevant to the issues in the proceedings; hence, the particulars should stand. 62 In my view, there is an erroneous assumption in the argument, namely, that the allegations in the reputation particulars are indeed relevant. By the law of defamation, as I have attempted to explain, those allegations are not relevant as they relate to a sector of the respondent's reputation that is not harmed by the defamatory imputations alleged. In my view, nothing in s 56 makes relevant any evidentiary material that was not relevant prior to the coming into force of the Act. Hence, the section does not assist. 63 In my view all the reputation particulars are defective in the respects explained, and Levine J correctly ordered that they be struck out.

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Mitigating material occurring after the date of the defamatory publication 64 In the circumstances, it is not necessary for me to deal with the other issues that are raised. I do however wish to make some brief comments concerning the finding by Levine J that it is contrary to well established principle to allow proof of a bad reputation, in the relevant sector, brought about by matters that occurred after the publication of the alleged defamatory material. 65 There is authority in this Court that supports, squarely, the finding so made: see Rochfort v John Fairfax & Sons Limited [1972] 1 NSWLR 16. This case concerned an application by a defendant in a defamation suit for the postponement of the trial until the conclusion of criminal proceedings relating to the plaintiff. The defendant contended that the trial should be postponed, not in order to prevent prejudice to itself, but so that it could cross-examine the plaintiff concerning his conviction on the criminal trial (should that eventually occur). 66 Sugerman ACJ (with whom Holmes and Mason JJA agreed) said that to allow the trial to be postponed for that reason, "would be an illegitimate advantage and cannot be taken into account". His Honour went on to say that the admissibility of a conviction, should it occur, could not be regarded "as of any account", and remarked at 222-23:- "The case to which we have been referred of Goody v Odhams Press Limited [1967] 1 QB 333 , itself illustrates that the admissibility of convictions for this purpose is limited to convictions which have occurred prior to the publication of the defamatory matter sued for. They are referred to throughout in that case as ' previous convictions' ; and that they were previous convictions in the sense mentioned is the very ground on which their admissibility was claimed by the defendant in that case; see Gatley on Libel and Slander , 6th Ed. P584, par 1337 and cases there cited, noting particularly the observation of Lord Radcliffe in Associated Newspapers Limited v Dingl e [1964] AC 371 at 399: "When one speaks of a plaintiff's 'actual' reputation or 'current' reputation ( to quote my own adjective ) one means his reputation as accumulated from one source or another over the period of time that precedes the occasion of the liable that is in suit'" 67 There are other authorities to the same effect. For example, in Pamplin v Express Newspapers Limited (1988) 1 WLR 116, at 119 Neil LJ said at 119: "The evidence must be evidence of the plaintiff's reputation at the date of the publication of the words complained of. This rule is in accordance with the principle and with the judgment of Cave J in Scott v Sampson (1882) 8 QBD 491, 503 and the judgment of O'Connor LJ in the 1983 appeal in the present case." 68 It must be acknowledged, however, that a powerful argument can be mounted to the contrary. The argument proceeds in this way. 69 In John Fairfax & Sons v Kelly (1987) 8 NSWLR 131 McHugh JA said at 143: "A plaintiff in [a defamation action] sustains loss for each day that the defendant fails to pay the appropriate damages to him… In many cases the award will reflect an amount for continuing injury to feelings and reputation to the date of verdict. Hence the amount awarded may, and usually will, be higher than the amount which would have been awarded as at the date of publication or even as at the date of the writ." 70 The reference to damages increasing "for continuing injury" means that part of a plaintiff's damages for defamation are or may be incurred from the date of publication (as McHugh JA observed at 143F). 71 Damages may be affected by the conduct of a defendant after publication of the defamation. For example, a subsequent repetition of the defamatory material can increase damages and a publication of an apology can reduce them: see the discussion in Broome v Cassell [1972] AC 1027 at 1125-1126 per Lord Diplock. 72 Further, as Cave J observed in Scott v Sampson at 503: "the damage … which [a plaintiff] has sustained must depend almost entirely on the estimation in which he was previously held." His Lordship referred to the statement in Starkie on Evidence that: "To deny this would be to decide that a man of the worst character is entitled to the same measure of damages with one of unsullied and unblemished reputation. A reputed thief would be placed on the same footing with the most honourable merchant, a virtuous woman with the most abandoned prostitute. To enable the jury to estimate the probable quantum of injuries sustained a knowledge of the party's previous character is not only material but seems to be absolutely essential." 73 Accordingly, once it is accepted that damages for defamation continue to be incurred after the publication of the defamatory material, it should follow that evidence referring to a change in the reputation of the plaintiff after the publication date would be relevant. An argument along these lines was upheld by McGechan J in Television New Zealand v Quinn (1996) 3 NZLR 24 at 65-67. Cooke P appears to have been of the same view in as much as, save for one exception not presently relevant, he considered the criticism of the trial judge's summing-up to the jury as being "without real substance" (at 39) and in that summing-up the trial judge allowed the jury to take into account matters subsequent to the publication of defamatory material (see at 65-66). The other members of the Court agreed with McGechan J. 74 In Middendorp Electric Company Pty Limited v Sonneveld [2001] VSC 312 Gillard J, after a full discussion of the relevant authorities, concluded that evidence could be led of two criminal convictions for serious offences which occurred after the publication of the defamatory material. His Honour said: "In my opinion, to exclude evidence of relevant convictions, which affect the reputation of the plaintiff, prior to the assessment of damages, is to deprive the Tribunal of fact of the material matter relevant to the vindication of the plaintiff's reputation. In my view, it is logical to extend what was said in Goody's case to pre-trial convictions, and to do otherwise would fail to take into account one of the objects of damages, which is to restore the plaintiff's reputation in the eyes who know him and the public generally. This happens at the time judgment is delivered, and it seems incongruous to award substantial damages to a plaintiff whose, reputation, by reason of the commission of the relatively serious offence, has been destroyed prior to the judgment being pronounced. The Court is telling the world the plaintiff has a good reputation at the date of judgment, yet the truth is that he has no reputation. Such a result divides logic and common sense, and brings the law into contempt." 75 I would be inclined to follow the reasoning of Gillard J, but in the light of my conclusion that the reputation particulars do not relate to the same sector of the respondent's reputation as the subject of the defamation claim, and in the light of the decision of this Court in Rochfort v John Fairfax & Sons, I think it desirable for a final decision on the point to be left for another day. 76 I would dismiss the appeal with costs. 77 FITZGERALD AJA: On 8 August 1988, the Australian Broadcasting Corporation (the "ABC") telecast a "Four Corners" program in which reference was made to Dr William McBride ("McBride"). In an action brought in the Common Law Division, McBride alleges that he was defamed by what was published on the program and claims damages. According to McBride's Further Amended Statement of Claim dated 27 April 2001, the program contained defamatory imputations that he: "(a) … deliberately exposed women patients to danger (b) … had so acted as to warrant him being accused of conduct which endangered the lives and health of women patients." 78 In its defence, the ABC denies that the program contained either of the imputations alleged by McBride. It does not seek to justify either imputation. However, it claims qualified privilege pursuant to both the common law and s22 of the Defamation Act 1974. 79 It is common ground that, if McBride establishes that either or both of the defamatory imputations he alleges was published and the ABC's plea of qualified privilege fails, McBride is entitled to damages determined in accordance with Part 4 of the Defamation Act. 80 Section 46(2) of the Act provides that the damages recoverable for defamation are "… the damages recoverable in accordance with the common law, but limited to damages for relevant harm." In Carson v John Fairfax & Sons Limited (1993) 178 CLR 44, 55, Mason CJ, Deane, Dawson and Gaudron JJ said: "Under the Act (s46(2)), damages for defamation are limited to damages for 'relevant harm' which, in a case where the person defamed has not died, is defined (s46(1)) as meaning 'harm suffered by the person defamed'. As if to stress that damages for defamation are confined to what can be justified as compensatory for harm actually suffered, the Act goes on to provide (s46(3)) that damages for defamation: '(a) shall not include exemplary damages; and (b) shall not be affected by the malice or other state of mind of the publisher … except so far as that malice or other state of mind affects the relevant harm'." 81 For present purposes, the "relevant harm" which McBride suffered (and is suffering) if the program contained either or both of the imputations which he alleges is harm to his reputation. The ABC accepted that, if it defamed McBride as he alleges, the harm to his reputation will continue until he is vindicated: see, eg, Kelly v John Fairfax & Sons Ltd [1982] 2 NSWLR 478. 82 For his part, McBride accepted that an unsuccessful defendant in a defamation action may, in an appropriate case, rely on matters adversely affecting a successful plaintiff's reputation to "mitigate" that plaintiff's damages. For obvious reasons, only matters affecting the plaintiff's reputation which diminish the harm which he or she was caused by the defamation may be relied on in mitigation. Matters which do not relate to the same "sector" of the plaintiff's activities as a defamatory imputation published by the defendant are not available for this purpose: see, eg, O'Hagan v Nationwide News Pty Ltd [2001] NSWCA 302. 83 By SCR Part 67 r 18(2)(b), "facts matters and circumstances" relied on to mitigate damages must be particularised. This appeal is brought from an order made by Levine J on 4 August 2000 striking out the "particulars appended to paragraph 9 of the ABC's Defence in mitigation of damages …". The striking out of those particulars removed all content from paragraph 9 and effectively deleted the ABC's plea of mitigation. 84 In this Court, the ABC applied to amend particulars (a), (b), (c) and (e) of paragraph 9 of its Defence to respond to defects in its original particulars which emerged in the course of argument. If the amendment is permitted, paragraph 9, as amended, will be in the following terms: "9. In the alternative, the [ABC] intends to make a case in mitigation of damages by reference to the following: PARTICULARS OF MITIGATION OF DAMAGES - SCR PART 67 - RULE 18(2) The plaintiff prior to the date of publication of the matter complained of and since that time did not have a good reputation in the practice of his profession. The defendant relies on the following facts and matters: (a) The public knowledge from December 1987 that the plaintiff had engaged in scientific fraud in the testing of drugs used or to be used in the treatment of pregnant women. (b) The public findings in November 1988 of the "Committee of Inquiry into Dr McBride" constituted by the Right Honourable Sir Harry Gibbs, a former Chief Justice of the High Court of Australia, and other persons eminent in science and medical research that the plaintiff had engaged in scientific fraud in the testing of drugs used or to be used in the treatment of pregnant women. (c) The public findings of the Medical Tribunal in 1993, upheld on appeal by the Court of Appeal on 15 July 1994, that the plaintiff by reason of his scientific fraud in the testing of drugs used or to be used in the treatment of pregnant women , lacked good character and the Tribunal's order that the plaintiff's name be removed from the register of Medical Practitioners in New South Wales. (d) The public finding of the Medical Tribunal in 1996 that the plaintiff should not be readmitted as a medical practitioner in New South Wales. (e) From December 1987 there was public knowledge of the plaintiff's misconduct as a medical practitioner in the testing of drugs used or to be used in the treatment of pregnant women ."

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85 I would permit the amendments if they would affect the outcome of this appeal. The debate in this Court raised substantive legal issues and it would not be in the parties' interests to decide those issues by reference to admittedly deficient particulars, leaving the case which the ABC really wishes to make by reference to its proposed amended particulars to future determination. More than 13 years have passed since the program, and it is obvious from the argument skilfully presented by Mr Hughes QC for McBride that the proposed amendments did not cause him any significant prejudice. 86 McBride argued that the ABC is not entitled to make any allegations concerning his reputation in mitigation of his damages because its Defence does not plead that it was justified in publishing either of the imputations which he alleges. However, there is no inconsistency or other incongruity between the absence of a plea of justification and a plea by the ABC that, although neither of the imputations alleged can be justified, other matters affecting McBride's reputation diminish the damages which he suffered if either or both of those imputations was published: see Burstein v Times Newspapers Ltd [2001] 1 WLR 579, 600-601. 87 McBride also argued that none of the facts, matters and circumstances which the ABC proposes to plead by its amended particulars relate to the same sector of his activities as the imputations which he alleges were published on the program. I will come back to that. 88 No other objection was raised by McBride to the ABC's particulars (a) and (e), which relate to McBride's reputation "from December 1987", that is, from a date prior to the program. Particulars (b), (c) and (d) are based on allegations of "public findings" by a "Committee of Inquiry" (November 1988), the Medical Tribunal (1993), this Court (15 July 1994) and again by the Medical Tribunal (1996). Each of the "public findings" relied on by the ABC is alleged to have been made after the program. 89 Both parties accepted that, while particular instances of a plaintiff's misconduct may not be proved to establish his or her reputation in mitigation of damages, convictions in a material sector of a plaintiff's life may be proved for that purpose: see, eg Scott v Sampson [1882] 8 QBD 491; Hobbs v C T Tinling & Co Ltd [1929] 2 KB 1. The ABC submitted that the official (or quasi-official) "public findings" referred to in its particulars (b), (c) and (d) are analogous to convictions and within the principle which permits their proof. It further submitted that the "public findings" are, in any event, admissible in mitigation (subject to discretionary exclusion under s136 of the Evidence Act 1995) by virtue of s46 of the Defamation Act and/or ss55 and 56 of the Evidence Act. 90 The common law determined both what matters are relevant to a plaintiff's reputation for the purposes of assessing damages for defamation and what evidence is relevant to proof of those matters. The form in which the ABC's particulars (b), (c) and (d) are pleaded coalesces the two issues of relevance, which are not always clearly differentiated in the cases, perhaps because it is sometimes unnecessary to do so. Relevance of evidence must now be determined by reference to s55 of the Evidence Act, and, subject to the discretions to exclude evidence provided for in Part 3.11, the admissibility of relevant evidence must now be decided by reference to s56. However, s55 operates only with respect to facts in issue, ie, properly in issue in accordance with the law of defamation. The "facts matters and circumstances" in relation to the mitigation of McBride's damages which the ABC may put in issue, by its Defence, in the present action must be determined by reference to common law principles as modified by Part 4 of the Defamation Act. This appeal is concerned with the facts, matters and circumstances which the ABC may properly plead in relation to McBride's reputation by its particulars under SCR Part 67 r 18(2)(b), and not, subject to one possible qualification, with the evidence by which those matters may be proved. 91 McBride argued that, even if the ABC's particulars relate to a relevant sector of his activities:

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96 Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 also supports McBride's argument that only relevant prior convictions may be proved in mitigation of damages for defamation. However, more recent authority favours the view that, if otherwise relevant, post-publication convictions may be used for this purpose: see Television New Zealand Ltd v Quinn [1996] 3 NZLR 24; Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312. 97 The issue is one of causation. Continuing harm to reputation between publication and trial is analogous to continuing physical pain and suffering from a personal injury caused by a tort between injury and trial. Events or circumstances which intervene between defamation or physical injury and trial can affect the damages recoverable for the harm caused by the wrong. The consequences of intervening events or circumstances upon the damages recoverable for the harm to reputation or the physical pain and suffering fall to be decided by the same principles. As the ABC pointed out, the "public findings", like a post-publication conviction, were causally related to McBride's own conduct. On the other hand, as McBride submitted, convictions are based on proof beyond reasonable doubt while the "public findings" particularised by the ABC were based only on the balance of probabilities. 98 It is unnecessary to consider the post-publication "public findings" further unless the ABC's particulars concern the same sector of McBride's reputation as the imputations which he alleges. It is desirable to return to that question at this point. 99 According to the ABC's particular (d), if the program published an imputation that McBride had deliberately exposed women patients to danger and/or so acted as to warrant him being accused of endangering the lives of women patients, the harm which he suffered from the program was diminished because he was publicly reputed after the "public finding" of the Medical Tribunal in 1996 to be unfit for readmission as a medical practitioner in New South Wales. That particular is plainly impermissible. Although both particular (d) and the imputations which McBride alleges relate in a general way to McBride's activities as a medical practitioner, a public reputation of unfitness for readmission as a medical practitioner in New South Wales could not rationally diminish the damages to which he will be entitled if the program contained either imputation alleged, ie, that he: "(a) … deliberately exposed women patients to danger

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(b) … had so acted as to warrant him being accused of conduct which endangered the lives and health of women patients." 100 The ABC's appeal against the order striking out its particular (d) should accordingly be rejected. 101 The ABC's argument in relation to particulars (a), (b), (c) and (e) correctly proceeded on the footing that it cannot succeed in relation to McBride's first imputation, ie, deliberately exposing women patients to danger, if it cannot succeed in relation to his second imputation, ie, so acting as to warrant him being accused of conduct which endangered the lives and health of women patients. 102 Taken compendiously in conjunction with McBride's second alleged imputation, the ABC's particulars (a), (b), (c) and (e) allege that, if the program contained the imputation that McBride had so acted as to warrant him being accused of conduct which endangered the lives and health of women patients, the harm which he suffered from the program was diminished because he was publicly reputed to have engaged in scientific fraud and misconduct as a medical practitioner in the testing of drugs used or to be used in the treatment of pregnant women. (Statements made in the course of the ABC's argument caused me to doubt whether it will be in a position to prove that McBride had such a public reputation prior to the publication of the program. The answer to that question might depend upon whether it would be sufficient for the ABC to prove that, although that was not McBride's general reputation, he had that reputation in some sections of the community; for example, among medical practitioners and/or scientists engaged in medical research. McBride did not rely on that point, which does not properly arise for determination in the present appeal.) 103 I will assume, without deciding, that it might be open to a reasonable jury to conclude that the harm suffered by McBride as a result of the publication of an imputation that he had so acted as to warrant him being accused of conduct which endangered the lives and health of women patients was less than it would otherwise have been because of his reputation (if that was established) for scientific fraud and misconduct as a medical practitioner in the testing of drugs used or to be used in the treatment of pregnant women. The amendment sought by the ABC should nonetheless be refused, and its appeal dismissed, if its real case is not accurately and fully disclosed by its proposed particulars and when identified, can be seen to be impermissible. 104 The ABC's argument in this Court frankly acknowledged that McBride's alleged reputation for "scientific fraud" and "misconduct as a medical practitioner" was confined to his activities in relation to the "testing of drugs used or to be used in the treatment of pregnant women" as disclosed in the "public findings" referred to in the particulars. Any adverse public reputation which he had before or after the program was necessarily limited to his reputation related to those activities. 105 Shortly stated, according to the "public findings" McBride's "scientific fraud" and "misconduct as a medical practitioner" related to his falsification of laboratory tests on rabbits to support his theory that a drug was unsafe for use by pregnant women and his persistence in that falsehood for an extended period. Those activities, seemingly motivated by a combination of concern for pregnant women and the babies they would bear and McBride's personal vanity, were the antithesis of the imputations which he alleges were contained in the program. Although his alleged fraud and misconduct and the alleged imputations both generally relate to the medical and scientific sector or sectors of McBride's life, any public reputation which he had for false claims that a drug was unsafe for use by pregnant women could not rationally diminish the harm to his reputation from imputations that he: "(a) … deliberately exposed women patients to danger and/or (b) … had so acted as to warrant him being accused of conduct which endangered the lives and health of women patients." 106 Reference was made in O'Hagan to the imprecision associated with the "same sector" of activities test which is used in this context. At least some of the difficulty evaporates once its understood that the "same sector" test is a negative test to exclude irrelevant matters from proof in mitigation of damages, and that the ultimate test is whether the facts, matters and circumstances affecting a plaintiff's reputation which a defendant seeks to rely on in mitigation could rationally diminish the harm to the plaintiff's reputation from the defamatory imputation.

At a glance

Court

Decision date

Before

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Judgment (44 paragraphs)

Parties

Cases Cited (6)