(d) inconsistent findings
223The third ground of challenge invited this Court to revisit the factual findings relevant to malice. This was put in a variety of ways: (i) that his Honour's other findings were consistent only with malice; (ii) that the finding as to lack of malice was contradicted by contemporaneous evidence; and (iii) that the finding as to lack of malice was contrary to the evidence. (These propositions involved repetition and overlapped.) There was also a challenge to the trial judge's findings as to the credit of Dr Prince.
224First, Dr Malouf maintained that certain findings in relation to Dr Prince's state of mind warranted a finding of malice. The findings on which he relied were that (i) Dr Prince was angry and highly emotional because of the contract dispute and that this "allowed him to conduct himself in a manner which was inadvisable" by publishing the letters without proper enquiry; (ii) Dr Prince's failure to enquire was significant, totally inappropriate, a serious omission and inexcusable; (iii) Dr Prince went too far in accusing Dr Malouf of "professional misconduct", as he did in the letter to the Health Care Commission and elsewhere; and (iv) Dr Prince did so because of a failure to make proper enquiries. It was submitted that those findings were inconsistent with the finding that patient care was Dr Prince's predominant motive in publishing the respective letters.
225Dr Malouf pointed to Dr Prince's acceptance that (i) his state of mind had led to his correspondence being "emotive" and being published without proper research into the allegations he made about Dr Malouf (Tcpt, 10/05/11, p 1370); (ii) if he had had a "clearer head", he would have made enquiries of the hospital staff and contacted Dr Malouf and regretted not doing so (Tcpt, 10/05/11, p 1372); (iii) he went "too far" in accusing Dr Malouf of professional misconduct (Tcpt, 20/04/11, p 765); (iv) his allegations were based primarily on assumptions (Tcpt, 20/04/11, p 764; 21/04/11, p 847; 02/05/11, p 931) and were sometimes contradictory of each other (Tcpt, 21/04/11, p 839); (v) he did not check his facts before writing the matters complained of (Tcpt, 03/05/11, p 960); and (vi) he should have qualified the allegations he made in his letters about Dr Malouf (Tcpt, 10/05/11, p 1412).
226The above submissions, at least in part, drew no distinction between the cause of Dr Prince's emotional state when he published the letters and the motivation for the publication of those letters. A finding that Dr Prince acted emotionally does not mean that Dr Prince was motivated by an improper purpose. Dr Prince's emotional state may have made him more quick to criticise the conduct of Dr Malouf or to be more intemperate in the tone of the communications to the hospital administration, but it does not mean that Dr Prince did not, as his Honour found, have genuine concerns as to patient care if Dr Malouf were to conduct the additional lists.
227The judge's findings (at p 75) that the contractual dispute was "to some degree ... in his mind", "was a contributor to Dr Prince's emotional response and ... allowed him to conduct himself in a manner which was inadvisable", were not inconsistent with the finding that the contractual dispute was not the predominant motive for the publications.
228As to the reliance placed on the statement in the letter to the Health Care Complaints Commission that Dr Malouf's actions constituted professional misconduct, as evidence of Dr Prince's state of mind, consistent with the use of the same term in a draft letter to the Medical Board, Dr Prince submitted that such a statement could not be used to establish malice in relation to the four publications, on the basis that this was a communication made under absolute privilege pursuant to s 27 of the Defamation Act, Sch 1, item 27. That would not necessarily prevent the letter being used as evidence of malice in relation to another publication. However, he also submitted, and the transcript supported such a submission, that his concession as to the incorrect use of the term "professional misconduct" was made by reference to the distinction between that and "unsatisfactory professional conduct", Dr Prince maintaining his view as to the latter (Tcpt, 20/4/11, pp 764(40)-765(13)). That evidence did not support a conclusion of malice by reference to the motive relied on by Dr Malouf.
229Secondly, Dr Malouf submitted that the finding of dominant motive and lack of malice was contrary to (and contradicted by) the evidence, referring to (i) Dr Prince's statement that he did not know whether the statement made as to the use or otherwise of pre-operative audiograms was true (Tcpt, 21/04/11, p 832); (ii) the disavowal by Dr Prince of any concern about Dr Malouf's ability as a surgeon or the quality of the surgery he performed at the hospital (Tcpt, 19/04/11, p 664; 04/05/11, p 1090); and (iii) the acceptance by Dr Prince of the proposition that he went too far in accusing Dr Malouf of professional misconduct in his letter to the Health Care Commission (Tcpt, 20/04/11, p 765). This submission was, in large part, a reformulation of the first.
230Dr Malouf submitted that Dr Prince must have known that the pre-operative care allegations were false, referring to the analysis of evidence set out in Schedule B to his written submissions that was said to establish that: (i) Dr Prince had been told that Dr Malouf would see every patient pre-operatively; (ii) Dr Prince had more reason to believe that Dr Malouf had access to audiometry before surgery than to believe that he did not, since he knew Dr Malouf had his own audiology practice; (iii) it was inherently unlikely that any ENT surgeon would operate on an ear patient without an audiogram; (iv) as at 10 March 2006, he had information from a patient that Dr Malouf had offered her an audiogram before surgery; and (v) Dr Prince failed to make any enquiry to establish whether audiograms had been performed before surgery in January, despite talking to Dr Collie, Mr Wickham and Dr Malouf on 3 March 2006 before publishing his first letter on 6 March 2006 and seeing two ear patients in his rooms on 9 March 2006 on whom Dr Malouf had performed surgery in January, both of whom had audiograms before surgery but as to which no enquiry was made during the consultation on 9 March 2006.
231Further, Dr Malouf took issue with the finding (at [122]) that the existence of a number of patients who had an appointment to be seen by Dr Malouf in the weeks after surgery gave Dr Prince a basis for his concern as to post-operative care. Dr Malouf submitted that Dr Prince did not have that information at the time of publication, a point which derogated from the last complaint above in relation to the patients seen on 9 March.
232Dr Malouf criticised the judge's reasoning in concluding that there was, objectively, a proper basis for concern about arrangements for the post-operative care of patients; and that his Honour proceeded on the basis of that conclusion to accept that Dr Prince believed in the truth of that allegation at the time it was made (referring to the analysis at [115], [122]). Dr Malouf submitted that his Honour there relied on his own view that the post-operative care arrangements were not ideal and that this was a retrospective justification for the publication. He submitted that what should have been considered was the state of Dr Prince's knowledge at the time of publication in order to determine whether Dr Prince had any basis to make the allegations.
233Insofar as his Honour reached the conclusion as to the adequacy of post-operative arrangements on the basis of the evidence of Dr O'Neill, Dr Malouf contended that his Honour erred. First, he submitted that Dr O'Neill was not called as an expert witness and therefore his evidence went no further in this regard than his own experience of post-operative care arrangements for his patients. Secondly, he submitted that the only evidence relevant to determining Dr Prince's state of mind was the information Dr Prince had at the time of publication. Dr O'Neill's opinion was not shown to have been known to Dr Prince at that time.
234Dr Malouf submitted that Dr Prince's evidence that his concern derived from information he had about or from individual patients could not be sustained; nor could his evidence that his concern derived from phone calls from January patients. He further submitted that Dr Prince's concern for post-operative arrangements for tonsillectomy patients was exaggerated, since his own management of tonsillectomy patients at the hospital did not address the risks the subject of his criticism of both Dr Malouf and the hospital.
235Reliance was placed on the following evidence that the dominant motivation for publication of the offending letters was the contractual dispute with the hospital: (i) in the 3 March telephone conversation Dr Prince had asked Dr Malouf not to operate at the hospital because it would disadvantage him in the contractual pay dispute; (ii) Dr Prince's own correspondence in March 2006 asserted that the engagement of Dr Malouf by the hospital was part of the hospital's strategy against him in the contractual pay dispute; (iii) Dr Prince's evidence that he believed the hospital and NCAHS were trying to force him out and would do anything to ensure that he "did not win" the dispute (Tcpt, 06/05/11, p 1263) and that he saw the hospital bringing in Dr Malouf as an attempt by it to isolate him in the contract dispute (Tcpt, 06/05/11, p 1253).
236Reliance was also placed on various other matters as indicia of malice: (i) the disputed threat made by Dr Prince in the 3 March 2006 conversation to defame Dr Malouf (which his Honour did not accept had been made in the terms contended for by Dr Malouf); (ii) the tone and language of the letters and, in particular, the use of the term "operate and forget" locum surgeon; (iii) Dr Prince's stated intention to publish the matters complained of widely; and (iv) the making by Dr Prince of particular notes in patient files that were critical of Dr Malouf (Tcpt, 21/04/11, p 851; 10/05/11, p 1345-1352).
237Dr Prince cavilled with the factual foundation for a number of the above submissions. For example, he submitted that Dr Prince had not threatened to withdraw his services when made aware of the pressure on the hospital to reduce the ENT waiting list in November 2005 and did not object to, or take steps to prevent, the engagement of Dr Malouf for the January lists. He further submitted that he did not threaten to withdraw his services in 2005-2006 - rather, he indicated that he was not prepared to do more than his normal lists in March 2006. He took issue with the suggestion that he had threatened to withdraw his services in 2002 to improve his bargaining position in the contractual dispute; rather, he said that he suspended his elective surgical lists at the hospital on 23 December 2002 because of the hospital's refusal to participate in a mediation and noted that he did not ultimately withdraw his services - instead he commenced proceedings in relation to the dispute in the Industrial Commission. (What happened in 2002 can have had little bearing on the issues in 2006.)
238There are different characterisations that might equally be placed on Dr Prince's conduct in sending the letters: as Dr Malouf contended, that he was seeking to gain an advantage in the contractual dispute, or, as Dr Prince contended, that he had genuine concerns as to the adequacy of Dr Malouf's pre- and post-operative care of patients in the January lists. Dr Prince's statement that it would be better, in the context of his contractual dispute, for Dr Malouf not to come to the hospital was consistent with the purpose for sending the letters that was pressed by Dr Malouf. On the other hand, as Dr Prince submitted, if the contractual dispute had been the predominant motivation then there would have been no reason not to withdraw the complaints on 24 March 2006, when a temporary accommodation was reached with the NCAHS, but that this did not occur until Dr Prince had reviewed the detailed response from Dr Collie in her letter of 30 March 2006.
239There was substance in Dr Malouf's submission that the judge should have relied upon what Dr Prince knew at the time, not on ex post facto evidence purporting to attack the competence of Dr Malouf, such as Dr O'Neill's evidence. However, as Dr Prince submitted, all but one of the telephone calls to the surgery occurred before the letter to patients was sent.
240Finally, Dr Malouf submitted that if the findings in relation to malice are properly to be understood as based on an acceptance of Dr Prince as a witness of credit, then his Honour wrongly overlooked the substantial attack made on Dr Prince's credit at trial on several bases including: (i) his evidence about certain patients; (ii) his inconsistent evidence about his selection of patients to whom to write and his contradictory sworn answer to interrogatories; (iii) incorrect evidence about contact with another patient; (iv) his denial, said to be contradicted by objective evidence, that he had refused to operate in the context of the past contractual dispute in 2002 (Tcpt, 19/04/11, p 642; cf Tcpt, 05/05/11, p 1196); (v) the denial, contradicted by evidence accepted by his Honour, that he had refused to undertake further waiting list reduction surgery when asked in February 2006 (Tcpt, 03/05/11, pp 986-987; cf [101(o)]); (vi) inconsistent evidence regarding to whom he had shown the matters complained of, and his responses when questioned about that topic (cf Tcpt, 21/04/11, pp 783-785); (vii) his evidence about the two page database notes in which he was critical of Dr Malouf's treatment of every patient (Tcpt, 05/05/11, p 1112; cf p 1117); and (viii) the admission (which Dr Prince disputed) as to a made up explanation for why he had not mentioned his conversation with Mr Wickham in his affidavit (Tcpt, 05/05/11, p 1206).
241While it is true that these matters, which themselves involved disputed evidence, were not expressly addressed in the discussion as to credit, in a lengthy trial, with extensive cross-examination, it may be accepted that the trial judge's conclusion on credit was impressionistic: the failure to make and rely upon findings of the kind raised by Dr Malouf did not bespeak error. Clearly, absent error, this Court could not usefully address these matters.
242As to the conduct of the proceedings, Dr Malouf relied (i) on the initial maintenance, and later abandonment, of the defence of substantial truth; (ii) what he contended was an accusation of racism by Dr Prince against him (Tcpt, 02/05/11, pp 879, 893, 889); and (iii) the persistence in Dr Prince's submissions on appeal of what was referred to as the "pseudo-medical negligence" case and the proposition that Dr Malouf suffered no great hurt. As to those matters, maintenance of a truth defence itself would not be consistent with knowledge of the falsity of that which was claimed to be true and there might be a number of forensic reasons for its abandonment. Of itself, it does not reveal malice at the time of publication of the letters. The accusation of racism was denied, although it was conceded that there had been an allegation that Dr Malouf had treated Aboriginal patients differently - an allegation that his Honour found to be defamatory and untrue.
243The "pseudo-medical negligence case" was a reference to the allegations made as to the risks that Dr Prince considered would flow from inadequate post-operative care. Since both parties appear to have spared no efforts to raise issues in support of their respective positions or to counter the other's case, it is difficult to see that the tender at trial of the confidential patient notes bespoke malice in relation to the publications in question. As to the submissions that were dismissive of any great hurt suffered by Dr Malouf as a result of the publications, this was in fact the conclusion reached by his Honour and again did not bespeak malice at the time of publication.
244The difficulty with these submissions is that much of the factual background was capable of interpretation consistently with one or other of the contentions and, therefore, it is not possible to say that the judge's conclusion as to lack of malice is not consistent with the factual findings made; nor is it possible to say that it is glaringly improbable having regard to the contemporaneous facts and logic of events. It is impossible, having regard to his Honour's reasons, not to accept that his Honour relied, when rejecting the contention of malice, on Dr Prince's evidence as a witness in the proceedings and the manner in which he responded to challenge in cross-examination on critical parts of the case.
245Dr Prince maintained that resolution of the claim as to malice, or improper purpose, required a finding as to his state of mind at the time he wrote the relevant letters and that the judge's findings in this regard should not be disturbed. Reference was made to what was said by Heydon J in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 86 ALJR 1044 at [141]:
"The assessment of a witness's mental processes is an assessment of that witness's state of mind. It is pre-eminently a matter in which a trial judge has a considerable advantage over an appellate court. In the course of his great speech in Nocton v Lord Ashburton, Viscount Haldane LC said:
'it is only in exceptional circumstances that judges of appeal, who have not seen the witness in the box, ought to differ from the finding of fact of the judge who tried the case as to the state of mind of the witness.' "
246Dr Prince emphasised that he consistently denied that in sending the letters he was motivated by the contractual dispute: Tcpt, 21/04/11, pp 777(40)-(46), 782(46)-783(34); 20/04/11, p 724(39)-(48), 03/05/11, p 959(5)-(16), 06/05/11, pp 1244(40)-1245(29), p 1253(30), pp 1262 (30)-1266(31); 09/05/11, pp 1302(26)-1308(30), pp 1312(8)-1314(21), pp 1326(14)-1327(50). While there was a basis on which Dr Prince's intention in publishing the letters could have been seen as consistent with him being principally motivated by the improper purpose of furthering his own position in the pay dispute, and the timing of the letters suggested that his motivation was not the altruistic one of warning hospital and patients of his "significant concerns", the trial judge's acceptance of Dr Prince's evidence to the contrary has not been demonstrated to be inconsistent with incontrovertible facts and should not be overturned. The challenge to his Honour's factual findings as to malice does not meet the Fox v Percy standard in a case such as this where the assessment of the respective witnesses' credit was highly relevant.