Eppinga v Kalil & Anor

District Court of NSW|2021-10-14

Judgment

Dr Kalil operates a veterinary business (the Beacon Hill Veterinary Hospital). He and a veterinary nurse, Ms Eather, commenced proceedings for defamation for publication by Ms Eppinga and another person of Facebook posts about conditions at the clinic. Ms Eppinga, the first defendant, brought a cross-claim for defamation for a Facebook post published by Mr and Mrs Kalil on 3 February 2019.
Dr Kalil and Ms Eather discontinued their defamation proceedings. In relation to the cross-claim, which is all that remains for determination, Dr and Mrs Kalil filed a defence of qualified privilege at common law (including reply to attack) on 15 March 2021. A Reply particularising malice was filed on behalf of Ms Eppinga on 5 May 2021.
Before the discontinuance occurred, there was a lengthy application to strike out the defence to Mr Kalil and Ms Eather's defamation claim, which took up all of 2019 and much of 2020, and resulted in a personal costs order being made by Wass SC DCJ against the solicitors acting for them: Kalil v Eppinga [2020] NSWDC 407. Leave to appeal was granted (Muriniti v Kalil [2021] NSWCA 81) and judgment on the appeal is currently reserved.
Given the procedural history, to avoid confusion, I have referred to the parties by their names rather than as "plaintiff" or "cross-defendant".
There are three applications before the court: 1. Dr and Mrs Kalil's application to set aside the subpoena to the Veterinary Surgeons Board. 2. Dr and Mrs Kalil's application to strike out paragraph 2(e)(iii)(4) of Ms Eppinga's amended Reply. 3. The parties' objections to certain of the categories of documents sought by each other on discovery.
I heard these applications in the Defamation List on 14 October 2021. These are my reasons for the orders I made.
Before setting out the issues the subject of rulings, I note that the interlocutory history of these proceedings is prolonged, and the correspondence between the parties has been combative. For case management reasons, these proceedings need to be allocated a hearing date without any further delay. Accordingly, while it is not general practice to do so, I have referred the parties to the List Judge for allocation of a hearing date while discovery and interrogatories are still not complete. Any further interlocutory proceedings can be dealt with in the Defamation List prior to the hearing.

The subpoena to the Veterinary Surgeons Board

The subpoena the subject of challenge was issued on 9 December 2019. The documents were produced by the Veterinary Surgeons Board without any objection. The Board was not notified by Mr Goldsmith of this application.
The documents sought were: "A copy of the entirety of all files to Dr Mahmoud Ahmed Mohamed Khalil (hereinafter 'Dr Kalil' - registration nos N2633 and N 2682 and No 348 and the Beacon Hill Veterinary Hospital situated at 197 Warringah Road Beacon Hill NSW 2100 including but not limited to all disciplinary actions taken against Dr Kalil and all determinations in respect of those complaints and any application(s) by Dr Kalil for the Appointment of a Veterinary Hospital Superintendent of Beacon Hill Veterinary Hospital and all reports arising out of any inspection(s) undertaken of the hospital and report pertaining thereto".
At the time of issue of the subpoena, Dr Kalil's defamation action against Ms Eppinga was still on foot. Ms Eppinga and her co-defendant had pleaded a defence of justification which included details of findings resulting in Dr Kalil having his licence revoked for misconduct in New South Wales (Kalil v Bray & Anor [1977] 1 NSWLR 256), as well as there being further proceedings in the United States in California (in 1988, 1992, 2005 and 2007) and in Washington (1995) in relation to applications for reinstatement and prosecutions for practising without a licence.
Since that time, Ms Eppinga's inquiries have led to the discovery that Dr Kalil has been the subject of three further findings in New South Wales in relation to his conduct as a veterinarian. These details are set out in particulars contained in the Court Book (Exhibit A) as an annexure to the affidavit of Mr Muriniti of 8 June 2021 and are as follows: "9 On 26 June 2012, the Veterinary Practitioners Board of New South Wales found the First Cross-Defendant guilty of a failure to administer aggressive intravenous fluid therapy to a cat in renal failure and issued him a caution 10 On 25 July 2017, the Veterinary Practitioners Board of New South Wales found the First Cross-Defendant guilty of unsatisfactory professional conduct by reason of a failure to ensure that all records of any consultation, procedure or treatment were retained for at least three years after they are made (Clause 15 - Veterinary Practitioners Code of Conduct) and issued him a caution. 11 On 15 August 2017, the Veterinary Practitioners Board of New South Wales issue the First Cross-Defendant a reprimand after finding the First Cross-Defendant guilty of professional misconduct…"
An article in the Manly Daily dated 3 February 2006 suggests there were complaints about Dr Kalil's conduct in 2005 in both Australia and California. A complaint by a Mrs Dowling on 13 January 2006 was dismissed in May 2006, although the Board told Dr Kalil that "his records were illegible and required attention" according to the Manly Daily report of 12 May 2006.
As the above history demonstrates, there is a history of four and a half decades of disciplinary action. Ms Eppinga seeks production of the whole of the file relating to Dr Kalil by reason of this pattern of disciplinary proceedings in Australia, from the acts in 1973 the subject of the 1977 appeal onwards to and including the 2017 finding of professional misconduct.
In his latest submissions (11 October 2021), Mr Goldsmith relies on his earlier submissions of 31 May 2021. Those submissions in turn refer to the objections in submissions filed on 19 March and 3 April 2020. The gravamen of those submissions was that production of these documents was pursued by reason of the cross-claimant's defence of justification at the time, which was no longer relevant because no such defence was pleaded, in that Dr Kalil had discontinued his defamation claim and these strikings-off, findings and reprimands no longer went to any issue in the case.
Mr Goldsmith's objections to the subpoena, are set out in his submissions of 31 May 2021, are brief in nature. He submits that the documents sought are too wide in their description (because the whole file is sought), that the subject matter is irrelevant to any matter in issue in the proceedings, and that it is no more than a "fishing expedition".
Uniform Civil Procedure Rules 2005 (NSW)("UCPR") r 33.4 sets out the circumstances in which a court may set aside a subpoena in whole or in part. There are a number of problems facing Dr and Mrs Kalil in this regard: 1. As Mr Newell points out in his submissions, the complaint that the subpoena is too broad suggested that it should be narrowed. If so, that should be spelled out. Mr Goldsmith acknowledged, for example, that he could not be heard to object to the three disciplinary proceedings in NSW in 2012 and 2017, but argued that the 1970s disciplinary proceedings (leading to Dr Kalil being struck off in 1977) were too remote, and that the intervening period between 1977 and 2007, when he was in the United States (and subject to disciplinary proceedings there) would not produce any documents of relevance. However, the Board's knowledge of the US disciplinary proceedings could well be relevant to the reply to attack defence as well as to malice. While Dr Kalil's records are sought over a very long period of time, that is essentially because the matters for which he has been disciplined occurred over what appears to have been more than 45 years. 2. UCPR r 33.4(2) provides that any such application "must be made on notice to the issuing party". That clearly has not happened. The issuing party may have wished to be heard as to the problems of revisiting documents it produced under subpoena in 2019. They may, for example, be in hard copy because of their age. The producing party should not be obliged to be called back to carry out this exercise eighteen months later. 3. The delay in bringing this application should also be noted. Waiting eighteen months after documents have been produced to the court is contrary to the overarching principles of case management. 4. While a subpoena seeking documents about credibility issues could amount to abuse, courts have generally permitted subpoenae to obtain criminal records where these go not merely to the issue of credibility but also to seriously dishonest conduct (Mackintosh v Commissioner of Police (NSW) [2010] NSWSC 1064; Liristis v Gadelrabb [2009] NSWSC 441). In addition, it is an interesting point of law as to whether, in defamation proceedings, the entitlement of a plaintiff to tender the criminal record of a defendant under s 42 of the Defamation Act 2005 (NSW) may extend to disciplinary proceedings, particularly if those proceedings related to some form of criminal prosecution and penalty for carrying on business without a licence, as appears to have been in the case in some of the American judgments. I note, for example, that criminal charges were laid in Modesto, California by the District Attorney on 6 July 2006; these criminal counts were one felony count of animal cruelty, two misdemeanour counts of practising veterinary medicine without a licence and one misdemeanour count of petty theft (Exhibit JJ to the affidavit of Mr Muriniti of 8 June 2021). The Press Release from the DA's office notes that Dr Kalil pleaded no contest to the two misdemeanour counts practising veterinary medicine without a licence and was placed on three years of informal probation, fined $4,000, ordered to perform 100 hours of community service and prohibited from practising veterinary medicine without a licence or seeking to obtain one, or operating a veterinary business. The DA adds that Dr Kalil's previous licence had been revoked by the California Department of Consumer Affairs on 9 March 1988 and had remained revoked ever since, although Dr Kalil had twice petitioned to have his licence reinstated, most recently in January 2005. Each time, his request had been denied. 5. The terms of the subpoena are clear and the party issued with the subpoena has had no difficulty in complying.
An additional issue raised in oral submissions by Mr Goldsmith is that the potential for sensitive or confidential material to be in the files was high. He acknowledged, however, that if access to the documents produced was limited to the parties' legal representatives, that would go a long way to obviating any risks.
In practical terms, there is already extensive material exchanged between the parties in relation to the long history of disciplinary proceedings against Dr Kalil, in the form of judgments of courts in the United States, as well as the judgment of the New South Wales Court of Appeal, which is reported and thus available both in the New South Wales Law Reports and electronically. It would appear, from the material in paragraph 51 of the affidavit of Mr Muriniti of 8 June 2021, that much of the material about Dr Kalil's US disciplinary proceedings was obtained by Ms Eppinga through internet searches.
In those circumstances, Mr Goldsmith's complaint that the terms of the subpoena are "too wide" and "a fishing expedition" are hard to comprehend. In the absence of objection from the party producing the documents, there is no need for Ms Eppinga to parse and analyse the potential categories of documents she requires. In fact, a request to the producer of these documents to revisit the material provided to the court so long ago in order to take out certain documents or to produce new or different or redacted material may itself be oppressive.
Independently of the defence to Dr and Mrs Kalil's now-abandoned defamation claim, Dr Kalil's many disciplinary proceedings in the United States and in Australia relate to a number of issues in these proceedings. These issues range from the defence of qualified privilege, to the plea of malice in the Reply, and to the credit of Dr Kalil. It is in the interests of both parties that the best evidence of what those disciplinary proceedings have consisted of should be put before the court.
Accordingly, I propose to grant leave to the parties to inspect the documents produced by the Board in answer to Ms Eppinga's subpoena of 9 December 2019, although I will restrict that access to the parties' legal representatives until further order of the court.
Mr Goldsmith sought first access to the documents. I refused that application. There is no reason to assume that documents the subject of legal professional privilege have been provided, or that there is any trade secret or confidential record provided. Mr Goldsmith did not identify any such document in any event.

The application to strike out paragraph 2(e)(iii)(4) of the Reply

This paragraph provides as follows: "The Cross-Defendants knew that the First Cross-Defendant had an egregious history of professional conduct against him both in the United States and in New South Wales in the premises of which the Cross-Defendants knew that the complaints by the Cross-Claimant were consistent with the First Cross-Defendant's history of malpractice negligence."
The only defence pleaded to Ms Eppinga's defamation claim is the defence of qualified privilege at common law (at paragraph 14) and, specifically, reply to attack (paragraphs 15 - 22). That defence is based upon a claim of a social and/or moral duty and/or interest to publish the matter complained of to recipients with the requisite interest. Dr and Mrs Kalil particularise the matters from which the duties and/or interests arose as being the attacks upon them, to which they say they are replying. Those attacks were on three platforms: 1. Ms Eppings's Facebook page. 2. www.change.org. 3. The Facebook page of the Sydney Northern Beaches Buy, Swap and Sell Public Group.
Mr Goldsmith acknowledges that the other matters particularised in the Reply are not objectionable (submissions, 11 October 2021). His objection to paragraph 2(e)(iii)(4) is that it is a "non sequitur" in that Dr and Mrs Kalil could not rationally satisfy the court that they knew Dr Kalil's the conduct as set out in his prior history of contraventions was consistent with the allegations of veterinary malpractice raised by Ms Eppinga, and to which they were replying. In addition, the 60-plus particulars of misconduct for which Dr Kalil was investigated and reprimanded went all the way back to 1973, which was too far factually removed from conduct in 2019.
I reject these submissions. Dr and Mrs Kalil would have been well aware of the similarity of the 60-plus prior incidents over which he had been investigated over the previous four or more decades where his conduct was found unsatisfactory when Ms Eppinga published her post and photographs describing animal cruelty and dirtiness at the Beacon Hill Veterinary Clinic. This particular is central to the reply to attack and particularisation of malice in relation to Dr and Mrs Kalil's conduct in publishing.
The application to strike out particular 2(e)(iii)(4) is refused.

Discovery issues

The parties have each raised issues concerning the categories of documents for discovery.
These are as follows: 1. Ms Eppinga served an amended notice of categories of documents on 17 May 2021 containing six categories. On 27 June 2021 Dr and Mrs Kalil's solicitors objected to categories 2, 4 and 6, on the basis that these categories are too wide. In the course of the morning, Mr Goldsmith abandoned his challenge to category 4 but raised another new category for discovery, namely correspondence between Ms Eppinga and Mr Muriniti, her solicitor, resulting in her making internet searches in relation to Dr Kalil, as set out in paragraph 51 of the affidavit of Mr Muriniti of 8 June 2021. 2. Dr and Mrs Kalil served a notice of categories on 31 May 2021 containing nine categories, all of which are challenged by Ms Eppinga. In the course of the morning, however, Mr Newell abandoned opposition to all documents except those in category 2.

The documents sought by Ms Eppinga

The categories are as follows: 1. All documents in connection with any report to the police by or on behalf of the Cross-Defendants or any one of them, including but not limited to any report or communications from the police at any time to the First and/or Second Cross-defendant or person or persons on their behalf or any communications to the police by the Frist and/or Second Cross-Defendant or person or persons on their behalf, touching and concerning the events on the occasion of the work experience attendance by the Cross-claimant at the Cross-Defendants' veterinary hospital on which attendance by the Cross-Claimant to place on 25 January 2019. 2. Telephone records in respect of any telephone services used by or on behalf of the Cross-Defendants or one of them to communicate with the Police concerning the Cross-Claimant (whether initiating or receiving such communication) covering the period 25 January 2019 to 31 January 2019. 3. All documents touching and concerning what occurred on 25 January 2019 in connection with the attendance at the Cross-Defendants' hospital by the Cross-Claimant for work experience including but not limited to any communications (written or electronic form)from third party organisations in connection therewith. 4. All documents in connection with or touching and concerning or recording the history of disciplinary complaints or prosecutions against the First Cross-Defendant in connection with his conduct or purported conduct as a veterinary surgeon both in Australia and overseas. 5. All documents containing communications with third parties whether from or to the First and/or Second Cross-Defendant or parties on their behalf conceding the events of 25 January 2019 in connection with the work experience attendance of the Cross-Claimant. 6. All documents recording or touching and concerning procedures undertaken at the Cross-Defendants' veterinary surgery, including but not limited to clinical notes and other notes (whether in hard form or electronic) recording or touching and concern procedures or treatment undertaken by the Cross-Defendants' veterinary surgery involving the use of the syringes or injection paraphernalia of the kind shown in the photograph referred to in the matter complained of including all billing records or accounts rendered and receipts provided on payment of such accounts in relation to such treatment occurring prior to 8.45am on 25 January 2019.
As to paragraph 2, the relevance of telephone records over this five-day period is the exact time when Dr and/or Mrs Kalil contacted the police and whether this was before or after the post. It is relevant to the defence of reply to attack and to malice. These documents should be produced.
As to category 6, this category relates to whether the eight or nine dirty syringes shown in the photograph had in fact been used in the 45-minute period before the photograph was taken. I agree with Mr Goldsmith that this category should be narrowed and accordingly this category is now restricted to documents and records concerning the syringes used in the 45 minutes period from the time of the opening of the hospital on 25 January 2019.

The documents sought by Dr and Mrs Kalil

These are as follows: 1. All documents in the cross-claimant's possession as at 25 January 2019 relating to or concerning the hospital (as described in the amended statement of cross claim filed on 10 March 2021) or the cross defendants or either of them. 2. All documents evidencing or relating to any registration or application for registration by the cross claimant with TAFE or any other educational institution from the time that the cross claimant finished secondary education up until 25 January 2019. 3. All communications between the cross claimant and the RSPCA concerning or relating to work undertaken by the cross claimant at the hospital on 25 January 2019 including matters arising from such work. 4. All communications between the cross claimant and the Animal Welfare League concerning or relating to work undertaken by the cross claimant at the hospital on 25 January 2019 including matters arising from such work. 5. All communications between the cross claimant and the Veterinary Practice Board concerning or relating to work undertaken by the cross claimant at the hospital on 25 January 2019 including matters arising from such work. 6. All documents including but not limited to posts, comments, statements and other words written by the cross claimant of or concerning the hospital, or the cross defendants, or either of them, from 25 January 2019 to date. 7. All communications between the cross claimant and the New South Wales Police concerning or relating to work undertaken by the cross claimant at the hospital on 25 January 2019 including matters arising from such work. 8. All documents concerning or relating to a petition, including any removal or changes to the petition, posted on www. Change.org of and concerning the hospital or the cross defendants, or either of them. 9. All documents evidencing, concerning or relating to a post, including any posts or comments in response thereto, made by the cross claimant on the Facebook page of Sydney Northern Beaches Buy, Swap and Sell Public Group.
Only Category 2 is now objected to.
In relation to category 2, Mr Goldsmith notes that Dr and Mrs Kalil will adduce evidence the cross-claimant told them that she had registered with or applied to be registered with TAFE. Accordingly, the documents are relevant or potentially relevant to that issue. I agree that these documents are relevant and that they should be produced.

An additional category for discovery

In oral submissions, Mr Goldsmith submitted that there was an additional category, namely the exchange of correspondence (if any) between Mr Muriniti and Ms Eppinga potentially arising from the circumstances described in paragraph 51 of his affidavit of 8 June 2021, which sets out the circumstances in which she went to his office with a bundle of material about disciplinary proceedings in the United States which she said she had found on the internet (that material is attached to the affidavit of Mr Muriniti).
Examination of the material attached readily demonstrates that it was obtained by internet search. There is extensive material produced from the United States which includes charges and court decisions involved. For example, Dr Kalil is recorded as having been charged with 11 counts on negligence and incompetence, 6 counts of fraud and deception, 19 counts of unprofessional conduct, 6 minimum standard violations and 9 hospital inspection violations, which resulted in his licence in California being revoked in 1988 (Affidavit of Mr Muriniti, p 210 of the Court Book). This is set out in detail in the subsequent unsuccessful applications he made to be reinstated as a veterinarian in California. These judgments refer to repeated attempts by Dr Kalil to blame the accusations on disgruntled employees (Affidavit of Mr Muriniti pp. 215 - 219), which may be a pattern of behaviour of some relevance to the factual situation in these proceedings.
As to information publicly available in Australia, the Manly Daily reported on 3 February 2006 that Dr Kalil took defamation action against "another newspaper over two stories critical of his conduct as a veterinarian in Australia and in the US" and that he "had previously told the Daily that he had never been registered in this country prior to opening the Beacon Hill Hospital in 1995" (Affidavit of Mr Muriniti, Exhibit LL). Although he told the Daily that 1995 was the first time he practised in Australia, this was wrong, because he had two suspended licences. He told the Daily that "it is nearly 30 years ago" and that it "slipped my mind, for [sic] the best of my knowledge I have done nothing wrong", according to the Daily. He also said that the US proceedings related to failure to pay registration fees but that "no disciplinary action" was taken against him. He stated that the claims in two Sydney metropolitan news articles that he had been investigated for operating without a licence was "completely false" and "I will be filing for defamation of character", adding that he had filed a similar action against a California newspaper. This article was clearly obtained from internet newspaper searches, as the search summary at the end of the article shows.
How Ms Eppinga's activities in carrying out these searches of public records is connected to any correspondence with Mr Muriniti which ought to be discovered is completely unexplained. Mr Muriniti has, I note, provided and attached to his affidavit copies of correspondence about his GIPA application to the Veterinary Practitioners Board, but there is nothing in this correspondence referring to correspondence between Mr Muriniti and Ms Eppinga.
The result of these searches is a set of particulars of over 60 incidents of animal cruelty, dirtiness and the like, some of which are quite distressing to read. Mr Goldsmith submits that the contents of Mr Muriniti's affidavit mean the correspondence between himself and Ms Eppinga resulting in the obtaining of this material should be a category of discoverable documentation.
Mr Goldsmith acknowledged that if there were any correspondence between Mr Muriniti and Ms Eppinga for the purpose of obtaining such documentation, it would be protected by legal professional privilege. However, since Mr Muriniti had attached the material in question and described how Ms Eppinga had obtained it, privilege had been waived.
I reject the submission that such documents (if any) should be the subject of a category of discovery. First, there is nothing in the affidavit to suggest there was any such correspondence between Mr Muriniti and Ms Eppinga at all. Second, if there were any such correspondence, it would be privileged, and the fact that Ms Eppinga has carried out some searches on the internet is insufficient, without more, to waive that privilege. Mr Muriniti's affidavit has not waived that privilege in any identifiable way by reason of the contents of this paragraph. Third, such documents, if they exist, would not go to any issue in the case.

Conclusions concerning categories of documents

Both sides made sensible compromises on this issue. Ms Eppinga has been successful in two of the three challenged categories, while Dr and Mrs Kalil have been successful in one of the nine cases where they challenged the categories.

Costs and other orders

Ms Eppinga has been wholly successful in two of her applications and largely successful in relation to the third.
Mr Goldsmith submitted that some adjustment should be made in relation to Dr and Mrs Kalil's success in relation to the orders for categories for discovery.
The issue of categories for discovery took up only a few minutes of the hearing, the bulk of which related to the two issues on which Dr and Mrs Kalil were unsuccessful. The only category on which any time of significance was spent was the additional category raised by Mr Goldsmith, in which Dr Kalil was unsuccessful. Ms Eppinga has had the lion's share of success and should be entitled to a costs order in her favour.
The procedural history of this claim for defamation involves delays of an unacceptable kind. I will not venture any opinion as to responsibility for the year-long application to strike out the defence to the now-discontinued claim brought by Dr and Mrs Kalil, as the relevant costs orders are under appeal, but I am anxious to ensure that there are no further delays of any kind.
Despite the parties still being at the discovery stage, these proceedings will accordingly be referred to the List Judge for allocation of a hearing date as a 5 - 7-day non-jury matter. Any further discovery and/or interrogatory issues may be raised in the Defamation List but both parties will have the certainty of a looming hearing date to contend with if they do so, which may encourage a greater degree of speed in the future.

Order: 1. The application by Dr and Mrs Kalil (the defendants in the cross-claim) to set aside the subpoena to the Veterinary Board of NSW is dismissed. 2. The solicitors for both parties are to have access to the documents produced by the Veterinary Board of NSW. 3. Access is not to be given to the parties to the documents under that subpoena without the leave of the Court. 4. Mr Goldsmith's application for first access to these documents is refused. 5. The application by Dr and Mrs Kalil to strike out paragraph 2(e)(iii)(4) of the Reply is dismissed. 6. The parties are to provide Lists of Documents in 21 days giving discovery in accordance with my rulings as to the categories of documents which are discoverable, with inspection to take place within 14 days thereafter. 7. Dr and Mrs Kalil's additional application for further and better discovery in relation to the documents in paragraph 51 of Mr Leonardo Muriniti of 8 June 2021 is dismissed. 8. The parties are to exchange draft notices to answer interrogatories within 28 days after inspection of documents produced on discovery. 9. The parties are to approach the List Judge for a hearing date as a non-jury hearing of 5 days plus in length, to take place not before July 2022. 10. Dr and Mrs Kalil are to pay Ms Eppinga's costs of the application.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 October 2021

At a glance

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Judgment (11 paragraphs)

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