McBRIDE v JOHN FAIRFAX & ANOR

v PARTIES : JOHN FAIRFAX GROUP PTY LTD (First defendant)

NORMAN SWAN (Second defendant) FILE NUMBER(S) : SC 13029 OF 1989 R A Campbell (Plaintiff) COUNSEL : K Smark (Defendants) Maurice May & Co (Plaintiff) SOLICITORS : Mallesons Stephen Jacques (Defendants)

[2004] NSWSC 181 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

JOHN FAIRFAX GROUP PTY LTD (First defendant)

JUDGMENT (On application to dismiss for want of prosecution) 1 On 19 December 2002 the plaintiff filed a Notice of Motion seeking an order that the proceedings be restored to the active list and that directions be given pursuant to SCR Pt 26. Together with that Notice of Motion an affidavit of the plaintiff sworn 19 December 2002 was filed. 2 On 21 March 2003 the defendants filed a Notice of Motion seeking an order that the plaintiff's statement of claim and amended statement of claim be struck out for want of prosecution. On that date an affidavit of Graham Bates in support of the defendant's motion was also filed. 3 The Court file in this action discloses that an amended statement of claim was filed pursuant to leave granted by Hunt J (as he then was) on 25 August 1989. Further, the file discloses that on 12 July 2002 a Notice of Change of Solicitor was filed by Maurice May & Co, indicating the employment of Maurice May as the plaintiff's solicitor in the place of Patrick Thomas George of Messrs Minter Ellison. It is further to be noted that in action 15135 of 1988 brought by the plaintiff against the Australian Broadcasting Corporation, on 6 November 1998, I declined the defendant's application to dismiss for want of prosecution. That litigation came to an end in mid-2002 by the filing of a notice of discontinuance following settlement. 4 The two motions in the present action were heard together and Dr McBride and Mr Bates gave oral evidence. 5 The chronology prepared for the defendants/applicants is of some utility in understanding the history both of this matter and, to the extent that it is relevant, the history of the Australian Broadcasting Corporation matter; that chronology is appended hereto. 6 It is to be noted that the defendants did not seek to assert or rely upon any delay by the plaintiff since December 2002 by reason of Dr McBride's ill health during 2003. 7 In his affidavit Dr McBride deposes to the publication on 12 August 1989 and the filing of a statement of claim 5 days later. Hunt J gave directions on 25 August 1989, granting leave for an amended statement of claim to be filed. The defendants were to request further and better particulars and were later to file their defence. The defendants have not filed a defence. 8 Between March 1989 and June 2002 the plaintiff said that he had been involved in various proceedings seeking to defend both his reputation and his livelihood. 9 The first proceedings (Walton v McBride) were what I will describe as the Medical Tribunal matters. They related to research done by the plaintiff in or about 1982 and the announcement in January 1989 that Ms Walton of the then Medical Complaints Unit had stated that an inquiry would be held. The proceedings before the Tribunal commenced on 6 November 1989, and lasted a total of 198 days requiring the plaintiff's presence throughout. He was cross-examined for 41 days. On 29 July 1993 his name was removed from the Medical Register. Thereafter he underwent some coronary graft surgery. He then began the appellate process in relation to the Tribunal decision to the New South Wales Court of Appeal (appeal disallowed in July 1994), application for leave to appeal to the High Court refused in February 1995. 10 The plaintiff suffered financial setbacks resulting in the sale, voluntarily or compulsorily, of the properties owned by him and his wife. It was not until about March of 1998 that he was successful in having his name restored to the Medical Register. 11 The second proceedings were those instituted against the Australian Broadcasting Corporation consequent upon a "Four Corners" program on 8 August 1988. Proceedings were commenced on 27 October 1988 and the history is dealt with in my judgment of 6 November 1998. Consequent upon my allowing the plaintiff to proceed against the ABC, certain interlocutory matters were dealt with by myself on 4 August 2000 ([2000] NSWSC 747) and by the Court of Appeal on 1 November 2001 ([2001] NSWCA 322). The matter was in due course settled and a notice of discontinuance was filed on or about 6 June 2003. 12 The plaintiff, in his mid-70s, does not enjoy good health and is anxious to proceed with this litigation and bring it to a conclusion. As far as he is aware, at the time of swearing his affidavit the defendants had not been disadvantaged by any delay nor had the defendants sought to progress the matter. 13 In the course of cross-examination Dr McBride conceded that throughout the Medical Tribunal matter he was totally preoccupied with it. It also became clear that he took the Fairfax publication far more seriously than he did that of the Australian Broadcasting Corporation. He could do nothing about either action once they had been commenced however, by reason of the devotion of his resources to the Medical Tribunal matter. It was, nonetheless, as I understand it, the publication by these defendants during the course of the Medical Tribunal hearing that particularly disturbed the plaintiff and he then retained Messrs Minter Ellison to initiate proceedings. The person he dealt with there initially, he said, was Mr Patrick George. 14 Thereafter the plaintiff's memory does become a little confused. It was "in the early 1990s" that Dr McBride said that he first told Mr May that the proceedings against Fairfax were in existence. In 1998, after he had been readmitted to practice, it was true of the Fairfax action, as it was of the ABC action, that he wanted to bring the proceedings to a conclusion. He agreed that he did not take any step to warn the defendants but said that he had talked to Mr May. There then was introduced into Dr McBride's evidence a matter of him endeavouring to recover some money from a person who owed him a great deal. It was also Dr McBride's position, in the end, as I finally understood, that it was really up to Fairfax, against whom a writ had been taken out, to follow it up. He agreed that as at the middle of 2002 the defendants would have had no communication from the plaintiff in relation to the proceedings for something in the order of 12 years. The plaintiff expected the defendants to "keep their records and act upon them". There was again introduced a notion of uncertainty as to when Dr McBride consulted Mr May with a view to bringing the Fairfax proceedings back to life; he used to see Mr May regularly on a medicolegal matter. It might have been before the ABC proceedings had settled, he really would be guessing, and indeed may have spoken to a solicitor employed in the office of Mr May. Then again, Dr McBride appeared not to grasp the notion of "reactivation" of proceedings. Ultimately it was Dr McBride's position that at some time the case would come on for hearing. He agreed that he had said nothing about this in his affidavit in support of his present motion. Again, ultimately, Dr McBride appears to agree with the proposition put to him in cross-examination that what really happened was that the ABC proceedings settled and he then took steps to re-list these proceedings. He could not agree with the notion of "relisting" but he did agree that he took steps to get them "active". In terms of having proceedings in the front of his mind Dr McBride said that the Fairfax proceedings were more in the front of his mind by reason of his being a reader of the "Sydney Morning Herald" every day. 15 It can be seen that the period with which the cross-examiner was concerned is the period 1998 to 2002, roughly 4 years, during which active steps were taken to revitalise the ABC proceedings and settle them, but none appears to have been taken vis-à-vis the present defendants. 16 Out of all of this the defendants assert that there is really no explanation offered for Dr McBride's inactivity for the period 1998 to 2002. The explanations sought to be offered are "incredible". I was invited not to make any adverse finding as to Dr McBride's credit. The first such explanation was his view that in some fashion the proceedings would just come to be listed and that there was no need for him to do anything. It is contended that that simply cannot be accepted in the light of the history of the litigation including the ABC proceedings. It is contended that Dr McBride knew steps had to be taken 12 years down the track to get the case "back on track", that he knew that in relation to the ABC proceedings and he knew that in relation to the present action. 17 The second explanation sought to be tendered was either that his present solicitor, Mr May, or some junior solicitor in his employ, at some indeterminate time prior to 2002, was spoken to about it although he does not really assert that there were prior instructions not complied with. To these matters I shall return. 18 The important point that the defendant made was that the plaintiff chose to "revive" the ABC action in 1998 but not the Fairfax action (which was in the forefront of his mind) and proffered no explanation even founded in want of means. 19 In his affidavit of 21 March 2003 Mr Bates, the solicitor for the defendants, itemises matters of non-contentious history and annexes to his affidavit correspondence in relation to further and better particulars of the statement of claim and the proposed defence (which included a defence of justification) which was never filed. 20 Mr Bates refers to events said to have occurred in August, September and October 1989, principally reports in the media of the findings of the Committee chaired by the former Chief Justice of the High Court Sir Harry Gibbs to the effect that the plaintiff "was guilty of scientific fraud". Those events were the subject of discussions between Mr Bates and Mr Adrian Deamer who was the defendants' legal manager. Upon Mr Bates forming the view that the plaintiff "had been overtaken by events", the defendants, having received Mr Bates' advice, elected to take no steps which might revive the plaintiff's interest. Mr Bates was instructed to defer filing the proposed defence. Nothing further was heard until the Notice of change of solicitor was filed on 12 July 2002 and the Notice of Motion filed on 19 December 2002. 21 There then was read, over objection, paragraphs of Mr Bates' affidavit relating to the issue of "prejudice" and, indeed, "actual prejudice", which was dealt with in cross-examination, to which I will come. Amongst the matters raised is the fact that 2 witnesses of a corroborative nature were now deceased and that the matters referred to in imputations (a) and (b) in the amended statement of claim in the case of the former took place 40 years ago, if not more now, and the latter, 30 years ago. These imputations are: (a) The plaintiff dishonestly represented that the original data upon which his MD thesis was based was collected by himself and not by the Director of the Sterility Clinic at Crown Street, Dr Alan Grant. (b) The plaintiff dishonestly claimed to have carried out research on the drug Thalidomide which was in fact research carried out by Dr McCredie.

22 In cross-examination it became quite clear that the 2 corroborative witnesses were not essential to any case the defendants might pursue in relation to Dr Grant (imputation (a)) or the second imputation, that Dr McCredie was the critical person. In the end, I am not persuaded on the evidence for the defendants that actual prejudice has been established. 23 Obviously, in relation to both sides, there will be the presumed prejudice from the diminution of memory. 24 I add that Mr Bates also conceded that the first defendant as the publisher of the newspaper would have known of the outcome of the revival of the ABC proceedings if not the revival itself. 25 To turn to the position of the plaintiff and whether or not he has explained the four-plus years delay, given that I was not invited to make an adverse finding as to Dr McBride's credit it is very difficult to come to a conclusion that he has given no explanation. In the two respects to which Mr Smark referred expressly in his oral submissions, the view that the case would, as it were, run itself, and secondly, that there had been some vague reference to either raising the matter with Mr May or some other solicitor, the explanations are odd to say the least but they are still there. They follow on from the time of the conclusion of the Medical Tribunal matter resulting in Dr McBride's being readmitted to practice. They are inserted between that period and the period in respect of which the defendants make no complaint, namely the recent illness of the plaintiff. There are, however, other aspects factually that I feel that I can take into account: first, the progress of the ABC matter itself upon revival was no small scale affair resulting as it did in an application for leave to appeal to the High Court. Secondly, in his affidavit (irrespective of whether it is recycled evidence from the ABC case - if it had been different evidence no doubt the plaintiff would have been in trouble for that) the plaintiff's position has been one of lack of material resources by reason of the immense endeavours required in the Medical Tribunal. I wish to make it clear that I do not draw an inference that Dr McBride proceeded only against the ABC and not the more seriously damaging publisher, Fairfax, because he could not afford to pursue both. All that I know is that at the same time some other proceedings were being pursued by him for the recovery of money which were successful in all respects except the fruits of his verdict. In the end the position is that the plaintiff did not expressly say that he could not afford to run both and the defendant did not put to him that he was not as impoverished as he had sworn. 26 The plaintiff I accept is now anxious to finalise this long outstanding matter. 27 As to the defendants, their position is not the same as that of the ABC, as Mr Smark pointed out. In the ABC matter the ABC had done absolutely nothing. Here the defendants had carried out investigations and prepared a defence but chose expressly not to file it in the face of directions of the Court to do so. What Mr Smark then argued is correct, in my view, namely that its failure to file its defence did not prejudice the plaintiff in terms of the conduct of the defamation litigation against Fairfax because the plaintiff was so inexorably tied up with the Medical Tribunal, that step, had it been taken by the defendants, would have made no difference. However, the defendants have not satisfied me that they have suffered any prejudice greater than that will affect human memory whenever this case gets on to hearing. 28 The law in relation to dismissal for want of prosecution is now the more tolerably clear as a result of the decision of the Court of Appeal in Micallef v ICI Australia Operations Pty Ltd [2001] ACL Rep 325 NSW 308; [2001] NSWCA 274. From what was said by Heydon JA at para [51] and following it is clear that the decision of the House of Lords in Birkett v James (1978) AC 297 is no longer the law in New South Wales. The general principles enunciated by Moffitt P in Stollznow v Calvert [1980] 2 NSWLR 749 point to the considerations relevant to the exercise of the judge's discretion. 29 In this case the matters in one sense are extraordinarily focused. The plaintiff's position is as I have outlined it and the defendant's position is as I have outlined it, but it has not changed since its decision not to file a defence and to let the plaintiff continue to fight his other battle with the Medical Tribunal. I have not been persuaded that the defendants have suffered any actual prejudice by reason of that decision or the lapse of time between that decision and the time the plaintiff chose to revive these current proceedings. 30 Mr Smark in his submissions suggested that the resolution of the applications would be aided by the application of the principles embodied in SCR Pt 1 r 3, the "overriding purpose" provisions. They will certainly apply to the proceedings hereafter. I do not, however, think it appropriate to determine whether or not now Dr McBride's action be dismissed in the context where nothing was done for an extended period of time, but not without explanation as far as the plaintiff was concerned, and nothing was done by the defendants at all save for deciding not to file their defence, by applying to that vacuum, as it were, an approach that the overriding purpose has somehow been offended and therefore the plaintiff should be deprived of an opportunity to pursue his remedy. It was also submitted that I could take into account the recent amendment to the Limitation Act 1969 (s14B) which provides essentially for a limitation period of one year in a cause of action for defamation. I think that has even less merit that the suggestion that I take into account the underlying principles in SCR Pt 1 r 3. 31 When I approach the weighing process as is referred to in Stollznow I am not persuaded that the interests of justice as between these parties could be served by the plaintiff being deprived of an opportunity to progress with diligence and vigour the remedy he sought initially so long ago against defendants who have not satisfied me of the existence of any prejudice if Dr McBride was allowed to do so. 32 The formal orders are:

1. I dismiss the defendants' Notice of Motion filed on 21 March 2003.
2. I make an order in accordance with the plaintiff's Notice of Motion filed on 19 December 2002 that the proceedings be restored to the active list.
3. The defendants are to pay the plaintiff's costs of the plaintiff's Notice of Motion and of the defendant's Notice of Motion.
4. I place the matter in the Registrar's 9am list on Friday 26 March 2004.

IN THE SUPREME COURT OF NEW SOUTH WALES SYDNEY REGISTRY COMMON LAW DIVISION DEFAMATION LIST

"Fairfax Proceedings" means McBride v John Fairfax Publications Pty Ltd: Supreme Court Proceedings No. 13029 of 1989, ie these proceedings.

"ABC Proceedings" means Mc Bride v Australian Broadcasting Corporation: Supreme Court Proceedings No. 15135 of 1988

"Medical Tribunal Proceedings" means the proceedings commenced by the Medical Tribunal of NSW against Dr McBride in 1989

Date Proceedings Event 8 August 1988 ABC Proceedings ABC broadcast Four Corners programme about Dr McBride 27 August 1988 ABC Proceedings Statement of Claim filed on behalf of Dr McBride in ABC Proceedings 12 August 1989 Fairfax Proceedings Publication of Norman Swan's article in the Sydney Morning Herald 17 August 1989 Fairfax Proceedings Statement of Claim filed on behalf of Dr McBride in Fairfax Proceedings 22 August 1989 Fairfax Proceedings Defendant filed notice of appearance in Fairfax Proceedings 24 August 1989 Fairfax Proceedings Defendant requested particulars of Statement of Claim in Fairfax Proceedings Directions given by Hunt J for the further conduct of Fairfax Proceedings: 1. Plaintiff to supply answers to particulars requested by defendant by 22 September 1989 2. Defendant to file defence by 13 October 1989 3. Plaintiff to request particulars of defence by 3 November 1989 4 Defendants to supply to answers to request for particular of defence by Plaintiff by 24 November 1989 25 August 1989 Fairfax Proceedings 5 Plaintiff to file and serve reply by 8 December 1989 6 Defendant to request particulars of reply by 22 December 1989 7 Plaintiff to supply answers to request for particulars of reply by 12 January 1990 8 Lists of discovered documents to be file and served by 26 January 1990 9 Inspection of discovered documents to be completed by 9 February 1990 10 Matter listed for further directions on 2 March 1990 11 Leave given to the Plaintiff to file an Amended Statement of Claim 22 September 1989 Fairfax Proceedings Plaintiff supplied answers to defendant's request for particulars 22 September 1989 Fairfax Proceedings Plaintiff filed Amended Statement of Claim Proceedings commenced against Dr McBride by Medical Tribunal of NSW 6 November 1989 Medical Tribunal Proceedings · the hearing lasted 198 days · Dr McBride unavailable to attend for two days whilst having a tumour removed from vocal cords 29 July 1993 Medical Tribunal Proceedings Decision of the Medical Tribunal of NSW delivered - Dr McBride's name removed from the medical register. "Shortly after" 29 July 1993 Dr McBride underwent coronary graft surgery October 1993 Medical Tribunal Proceedings Dr McBride appealed the verdict of the Medical Tribunal of NSW to the NSW Court of Appeal July 1994 Medical Tribunal Proceedings Decision of the NSW Court of Appeal delivered - appeal dismissed. February 1995 Medical Tribunal Proceedings Leave to Appeal to the High Court refused March 1996 Dr McBride unsuccessfully applied to have his name restored to the medical register March 1998 Dr McBride successfully applied to have his name restored to the medical register 1 September 1998 ABC Proceedings Motion filed on behalf of Dr McBride seeking orders that the ABC Proceedings be restored to the active list 18 September 1998 ABC Proceedings Motion filed on behalf of ABC seeking to have the ABC Proceedings struck out for want of prosecution 6 November 1998 ABC Proceedings Decision of Levine J restoring the ABC Proceedings to the active list and dismissing the ABC's motion that the proceedings be struck out. 30 April 1999 ABC Proceedings Motion filed on behalf of Dr McBride seeking orders that contextual imputations be struck out of the ABC's Defence 4 August 2000 ABC Proceedings Levine J ordered that those contextual imputations bar one be struck out 31 August 2000 ABC Proceedings ABC sought leave to appeal the decision of Levine J 12 March 2001 ABC Proceedings Application for leave heard and leave granted 19 September 2001 ABC Proceedings Appeal heard by Court of Appeal 1 November 2001 ABC Proceedings Court of Appeal delivered judgment dismissing the appeal 6 June 2002 ABC Proceedings Notice of Discontinuance filed following settlement 11 July 2002 Fairfax Proceedings Notice of change of solicitor filed on behalf of Dr McBride 19 December 2002 Fairfax Proceedings Notice of Motion filed on behalf of Dr McBride seeking orders that the proceedings be restored to the active list. 21 March 2003 Fairfax Proceedings Notice of Motion filed on behalf of Fairfax seeking orders that the proceedings be struck out for want of prosecution.

Last Modified: 03/23/2004 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.