In these proceedings the plaintiff sought damages from the defendant, who was his general practitioner, for the alleged failure of the defendant to identify, and arrange for treatment of a rectal carcinoma. The plaintiff alleged that, by the time the carcinoma was found by a gastroenterologist, Dr Butchers on 30 July 2021, it was at stage 3 disease, meaning it had penetrated through the bowel wall and lymph nodes were present.
The plaintiff had first consulted the defendant in respect of blood associated with defecation on 15 November 2018.
The plaintiff consulted the defendant on three further occasions in February 2019 and once in March 2019, although the clinical notes made by the defendant suggested not all of the consultations concerned the bleeding issue for which the plaintiff had consulted the defendant in November 2018.
The plaintiff also consulted Dr Emma Coldwell, the defendant's wife, who worked in the same practice in March 2020.
The hearing commenced on 20 May 2024. The plaintiff's evidence in chief was given by means of his written statement. He was cross-examined on Monday 20 May, Wednesday 22 May and for a short period on Thursday 23 May 2024. Thereafter his partner, Holly Martin's evidence was taken and she was also cross-examined.
The proceedings then had to be adjourned because Dr Coldwell, who was due to give evidence after Ms Martin, contracted COVID. The proceedings were fixed for further hearing on Monday, 14 October 2024 with an estimate of six remaining hearing days.
On 20 September 2024 the solicitors for the defendant forwarded a notice of motion and supporting affidavit to my Associate and sought to have the motion heard prior to the resumption of the hearing. The notice of motion filed 20 September 2024 sought that the Defendant be released from the implied Harman undertaking in respect of specified documents so that the defendant might respond to a complaint the plaintiff had made about the defendant to the Australian Health Practitioner Regulation Agency (AHPRA).
The notice of motion was listed for hearing before me on 1 October 2024. The relief sought by the defendant was not opposed by the plaintiff and after a brief debate to refine the order, I made the following order:
That the Defendant be released from the implied "Harman" undertaking in respect of the documents specified in paragraph 22 of the affidavit of Lauren Christina Biviano sworn 20 September 2024 so that it may respond to the plaintiff's complaints and the complaint of Holly Martin about the defendant to AHPRA, the HCCC and to any other regulatory body investigating the complaints.
On the same day the defendant sought, and was granted, leave in Court to file a further notice of motion seeking orders that both the plaintiff and Ms Martin be required to give further evidence under cross-examination at the resumption of the hearing. The reason for the request for further cross-examination arose from the fact that both the plaintiff and Ms Martin had lodged complaints about the defendant and Dr Emma Coldwell with AHPRA and other health regulators.
The plaintiff opposed the orders sought in the second notice of motion, but I directed that the plaintiff and Ms Martin were to attend and be subject to further cross-examination limited to the making of the complaints. I indicated that I would provide reasons for that determination in the final judgment.
On 10 October 2024 my Associate was informed that the proceedings had settled between the parties. On 14 October 2024 I made orders in Chambers finalising the proceedings. The parties requested, notwithstanding the proceedings had settled, that I provide reasons in relation to my decision on the notice of motion heard on 1 October 2024. I had indicated brief reasons orally on 1 October 2024, but what follows are my complete reasons for the course I took.
It should first be noted that the layout of the complaints annexed to the affidavit of Lauren Biviano, the solicitor for the defendant, did not make it at all easy to determine what each complaint was about. It is not clear what the source of the documents was.
On 27 May 2024 AHPRA received a complaint from the plaintiff in respect of the defendant - reference number 00562421. The complaint appeared to be that, although a certificate had been provided stating that the defendant had contracted COVID, he was still seeing patients in his practice.
On 28 May 2024 AHPRA received a complaint from the plaintiff in respect of the defendant - reference number 00562504. This appeared to be a complaint involving postings on social media by the defendant in 2014 but the attachments also involved a Mr Gilles Gohlke (see below).
On 28 May 2024 the NSW Health Care Complaints Commission (the HCCC) received a complaint from the plaintiff in respect of the defendant - file number 24/04196. The complaint was made in relation to Mr Gilles Gohlke although not at his request. It is difficult to understand what the basis of the complaint was, apart from a statement in the complaint saying, "A doctor has discussed personal health issues on a public forum".
On 28 May 2024 the HCCC received a complaint from the plaintiff in respect of the Dr Emma Coldwell - file number 24/04200. This complaint was said to be for a health service "another person" received. The complaint said that "The doctor refers to patients suffering with ADHD to Nazi soldiers (sic)". That was the plaintiff's understanding of a written submission (attached to the complaint) that Dr Emma Coldwell had made in relation to diagnosing and treating people with ADHD.
On 8 June 2024 AHPRA received a complaint from Holly Martin in respect of the defendant - reference 00563704. It concerned the plaintiff's treatment the subject of the present proceedings. The complaint noted that the plaintiff knew Ms Martin was lodging the complaint.
On 13 June 2024 the HCCC received a complaint from the plaintiff in respect of the defendant - HCCC file number 24/04650. This complaint detailed the matters the subject of the present proceedings.
On 21 June 2024 the HCCC received a complaint from the plaintiff in respect of the defendant - HCCC file number 24/04920. This complaint related to a "verbal referral to Dr Ben from CDA clinics" which the plaintiff said he could not find on Medicare.
On 15 July 2024 the HCCC confirmed its decision in writing not to take any further action in respect of complaints raised by the plaintiff in relation to the defendant with reference numbers 24/04196, 24/04650, 24/04136 and 24/04920. According to the affidavit of Ms Biviano, the complaint given HCCC file number 24/04136 was not provided to the defendant.
On 15 July 2024 the HCCC confirmed its decision in writing not to take any further action in respect of the complaints raised by Holly Martin in relation to the defendant.
Prior to the filing of the statement of claim on 2 February 2023, the plaintiff had made a previous complaint to the HCCC - file 22/07337. Subsequent to the filing of the statement of claim the plaintiff made another complaint in respect of the defendant to the HCCC - file 23/08748. Those matters were dealt with by the HCCC. The HCCC's letter made it clear that the resolution of those complaints was one of the reasons it decided not to take any action on the four complaints mentioned.
On 30 May 2024 the plaintiff sent an email to the defendant's employer, Matt Woolard, the CEO of the National Skin Cancer Centres. It alleged that the defendant was still seeing patients when he had COVID in May 2024 and that he had publicly shamed members of the public about their body image.
[2]
Disclosure of documents
Rule 21.7 of the Uniform Civil Procedure Rules 2005 (NSW) provides:
21.7 Discovered documents not to be disclosed (cf SCR Part 23, rule 3(11) and (12); DCR Part 22, rule 3(11) and (12))
(1) No copy of a document, or information from a document, obtained by party A as a result of discovery by party B is to be disclosed or used otherwise than for the purposes of the conduct of the proceedings, except by leave of the court, unless the document has been received into evidence in open court.
(2) Nothing in subrule (1) affects the power of the court to make an order restricting the disclosure or use of any document, whether or not received into evidence, or the operation of any such order.
That rule embodies what is referred to as the Harman obligation of confidentiality in relation to documents, from Home Office v Harman [1983] 1 AC 280. It also embodies the exception referred to in Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 32, that is, once the material is adduced in evidence it becomes part of the public domain.
Counsel for the defendant was concerned about a medical certificate which had been put forward on behalf of the defendant demonstrating that he had COVID and was unable to attend to give evidence on 24 May 2024. I subsequently marked the certificate as an MFI. It was relevant because one of aspect of one of the complaints made by the plaintiff was that the certificate did not reflect the true position because the defendant was continuing to see patients whilst claiming to be unable to attend to give evidence because he was suffering from COVID.
In case there were other documents that had not yet been received into evidence, I made the order in the terms set out above at [8] above.
[3]
Further cross-examination
The defendant submitted that there was a very real question about the intention for which the complaints were made. That was particularly so because, first, the plaintiff had previously complained about the defendant and that matter had been determined by the regulatory agency. Secondly, it was said that the frequency and nature of the complaints made in the middle of civil proceedings might be an attempt either to intimidate the defendant or otherwise derail his evidence in the proceedings.
The plaintiff submitted that there was nothing new contained in the complaints. What was set out had been tested in cross examination already and there was no indication in the material that there was any inconsistency between the complaints and the evidence that the plaintiff and Ms Martin had already given.
It seemed to me that further cross-examination of both the plaintiff and Ms Martin was appropriate when both the making of the complaints and the substance of the complaints were considered. Those matters gave rise to potentially serious issues of credit.
In circumstances where two complaints had previously been made to a regulatory body and concluded, the making of so many more complaints in a relatively short time and in the middle of legal proceedings might be thought to be an attempt to intimidate the defendant into settling the proceedings or perhaps to abandon a defence of the proceedings. Given the number of complaints and the nature of some of those complaints there was likely to be some ulterior motive on the part of the plaintiff and Ms Martin. The complaints of 28 May ([14] above) and 21 June ([19] above) had nothing to do with the proceedings, nor did the complaint concerning Mr Gohkle, nor the complaint made about Dr Emma Coldwell. The issues said to be raised by the complaint concerning Mr Gohkle were broad-ranging, and the complaint suggested that the public needed to be kept safe from the defendant.
Those complaints, in particular, gave the impression that the plaintiff was trying to throw a lot of dirt towards the defendant (and his wife) with the hope that it would have some detrimental effect on the result of the proceedings. If that was a finding I ultimately made, it was likely to affect the way I assessed the plaintiff's evidence. That being so, it was only fair that those matters be put to the plaintiff in cross-examination.
As far as Ms Martin is concerned, it is troubling that her complaint includes this:
As this matter is now underway at the Supreme Court, I am unsure how to proceed with the complaint and whether it could impact the outcome…
That statement could be taken to suggest an ulterior motive in making the complaint, but both Ms Martin and the defendant should be entitled in cross-examination to clarify that issue.
Although much of the information concerning the defendant's treatment of the plaintiff in relation to the subject of these proceedings is consistent with his evidence, there are matters raised which justify cross-examination at least to clear up what appear to be some inconsistencies. One matter of significance in that regard appears in the complaint details to the complaint lodged on 13 June 2024 ([18] above) where the plaintiff said this:
August 4, Dr Coldwell called me stated I have stage 3 rectal cancer (discovered by Dr Sally Butchers). Dr Coldwell felt bad and apologised, gave me his personal number, asked me not to sue him and stated he would be with me every step of the was (sic). He refused to say he misdiagnosed me.
In his statement of evidence the plaintiff said (paras 74 and 78) that it was Dr Butchers who told him he was suffering from rectal cancer. He does not mention a telephone call from Dr Coldwell on 4 August 2021 but refers to two conversations with Dr Coldwell on the telephone on 7 August 2021 where the following was said:
79. On 7 August 2021, in the morning, I also received a call from Dr Coldwell. We had a conversation using words to the following effect:
COLDWELL: "I'm guessing you have heard the news. ''
JACKSON: "Yeah I spoke to Sally, and turns out it wasn't a haemorrhoid, it's something much worse."
COLDWELL: "Yes I got the results, I'm sorry to hear the news."
JACKSON: "Yeah, I'm scared. I want to get this thing out."
COLDWELL: "Yes, I recommend having it cut out before undergoing any chemo or radiation."
JACKSON: "Yep, I'm happy to do whatever it takes. I'm really nervous."
COLDWELL: "Okay, I'll bring it up in the next multi-disciplinary meeting. I will send you my afterhours number if you ever need to contact me."
80. On 7 August 2021, in the afternoon, I received a further call from Dr Coldwell, and we had a conversation using words to the following effect:
COLDWELL: "I spoke to the other doctors during the meeting, and the plan is for you to undergo chemotherapy and radiotherapy before surgery because there could be lymph nodes involved."
JACKSON: "What does that mean?"
COLDWELL: "It could be metastatic."
Those conversations are entirely inconsistent with what the plaintiff records in his complaint, and the matter is not without significance because of the statement attributed to the defendant that he asked the plaintiff not to sue him, and also because of the implication that Dr Coldwell knew that he had done the wrong thing but would simply not admit it.
For these reasons, I made the following orders:
1. That the Defendant be released from the implied "Harman" undertaking in respect of the documents specified in paragraph 22 of the affidavit of Lauren Christina Biviano sworn 20 September 2024 so that it may respond to the plaintiff's complaints and the complaint of Holly Martin about the defendant to AHPRA, the HCCC and to any other regulatory body investigating the complaints.
2. Pursuant to sections 61(1), 61(2) and 62(1) of the Civil Procedure Act 2005 (NSW) directions be given that the plaintiff be required to give further evidence under cross-examination at the resumption of the hearing on 14 October 2024.
3. Pursuant to sections 61(1), 61(2) and 62(1) of the Civil Procedure Act 2005 (NSW) directions be given that Holly Joy Martin (DOB: 3 January 1991) be required to give further evidence under cross-examination at the resumption of the hearing on 14 October 2024.
[4]
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: 15 October 2024