Supreme Court New South Wales

• Medium Neutral Citation: Stanton v Fell [2013] NSWSC 1001
• Hearing dates: 20 May 2013; 21 May 2013; 22 May 2013; 23 May 2013; 24 May 2013; 27 May 2013; 29 May 2013
• Decision date: 29 July 2013
• Before: Simpson J

Decision

(i) Verdict for the defendant;

(ii) The plaintiff is to pay the defendant's costs.

• Catchwords: DEFAMATION - trial by judge alone - Defamation Act 2005 - publication of email - limited number of recipients - imputations pleaded related to plaintiff's competency to supervise trainee vascular surgeons' clinical work - natural and ordinary meaning - true innuendo - extrinsic facts - imputations not conveyed - verdict for defendant - plaintiff to pay defendant's costs; DEFAMATION - defences - contextual truth - s 26 Defamation Act 2005 - substantial truth - s 25 Defamation Act 2005 - qualified privilege at common law - statutory qualified privilege - s 30 Defamation Act 2005 - malice - defences of qualified privilege not defeated by malice - triviality - s 33 Defamation Act 2005
• Legislation Cited: Defamation Act 2005
• Cases Cited: Adam v Ward [1917] AC 309; Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044
• Category: Principal judgment
• Parties: Arthur Peter Stanton (Plaintiff); Gary Fell (Defendant)
• Representation: Counsel: K P Smark SC/S T Chrysanthou (Plaintiff); P J Hayes (Defendant); Solicitors: Access Law Group (Plaintiff); Russell Kennedy, Melbourne (Defendant)
• File Number(s): 2012/288471

Judgment

1 By Statement of Claim filed on 17 September 2012, the plaintiff claims damages in defamation arising out of the publication on 19 September 2011 of an email that he asserts defamed him. The claim is governed by the Defamation Act 2005. The plaintiff claims damages, including aggravated damages, and he makes a claim for special damage to compensate him for legal fees incurred following the publication in attempts to mitigate the harm that he claims was occasioned to his reputation by the publication.

The pleadings

2 The publication of which the plaintiff complains was an email written by the defendant, addressed to a single recipient (Dr David Huber), that did not name the plaintiff. The email, in full, was in the following terms;

"Dear David,

Re: Hospital Accreditation, Wollongong Hospital

Further to my correspondence date 28 June 2011 stating that Wollongong Hospital will not be accredited for next year. Upon request from your unit, the Board has reconsidered this decision.

Although the Board does feel there are some areas of the unit which are in conflict, we do believe that there have been moves to rectify these issues.

We have been assured by you and your unit that trainees placed at Wollongong will be in a good teaching environment and will not be affected by any internal issues.

The Board would request that our trainee's clinical work is with yourself or Dr Villalba.

If you have any queries or concerns please do not hesitate to contact me.

Yours sincerely"

The email was signed by the defendant, Gary Fell.

3 The plaintiff pleaded that the email was republished to two named persons, and others he was unable to nominate.

4 The plaintiff pleaded that, in its natural and ordinary meaning, the email conveyed the following two imputations:

"(a) The plaintiff, a vascular surgeon, was not competent to supervise trainees' clinical work;

(b) The plaintiff, a vascular surgeon, had so conducted himself as to warrant the Board of Vascular Surgery to remove his right to supervise trainee surgeons' clinical work."

On the fourth day of the trial, prompted by some matters raised in the oral evidence, counsel for the plaintiff sought leave to amend imputation (b) by substituting the word "privilege" for the word "right". Although an objection was initially taken, it was not pressed, and leave was granted to the plaintiff to make the amendment.

5 It was made clear in the Statement of Claim that the plaintiff's claim is that each imputation was conveyed on a reading of the "entire matter", and in particular the paragraph that reads:

"The Board would request that our trainee's clinical work is with yourself or Dr Villalba."

6 On its face, so far as the plaintiff is concerned, the email is completely innocuous. The plaintiff accepts that, as he was not named in the email, it is necessary for him to prove that one or more of its recipients identified him as having been referred to, and that, by reason of that identification, the imputations were conveyed to that recipient or those recipients. The defendant raises no issue concerning identification. As will become apparent, there is no question that any of the persons to whom the email was published (or republished) did or would have identified the plaintiff as having been referred to, although by omission.

7 Although, as I have mentioned above, the email was addressed to one recipient only, it is common ground that there was some (although very limited) republication to other recipients.

8 In addition, the plaintiff pleaded that, by reason of certain extrinsic facts known to at least some of the recipients, the imputations were conveyed as a true innuendo. The extrinsic facts were particularised. The defendant accepts that each of the facts particularised as an extrinsic fact has been established, and was known to some, if not all, of the recipients. It will be convenient to itemise those extrinsic facts at a later point in these reasons.

9 By a Second Further Amended Defence filed on 22 May 2013, the defendant admitted publication. He denied that the email conveyed, or was capable of conveying, either of the imputations pleaded, whether by way of natural and ordinary meaning or by way of true innuendo. He pleaded the following substantive defences:

(1) contextual truth (Defamation Act, s 26);

(2) substantial truth (Defamation Act, s 25);

(3) qualified privilege at common law;

(4) statutory qualified privilege (s 30);

(5) fair comment at common law;

(6) honest opinion (Defamation Act, s 31);

(7) triviality (Defamation Act, s 33).

For the purpose of the contextual truth defence, the defendant pleaded and maintains that the following additional imputation was conveyed, and is substantially true:

"The plaintiff, a vascular surgeon, did not possess suitable managerial or interpersonal skills necessary to train and supervise accredited medical practitioners in the field of vascular surgery at the Wollongong Hospital."

In final submissions, the pleaded defences of fair comment at common law and honest opinion were abandoned.

10 By Amended Reply filed on 14 March 2013, the plaintiff took issue with all matters pleaded by way of defence. He took issue with the pleaded defences of qualified privilege and he asserted that the defendant, in publishing the email, was actuated by malice. In response to the pleaded defences of fair comment and honest opinion he denied that the content of the email was comment, and asserted that the opinion said to have been expressed was not an opinion honestly held by the defendant at the time of publication.

 

Background/Chronology

11 The issues raised by the pleadings are extremely broad. They were only slightly narrowed by the abandonment of the fair comment and honest opinion defences. I propose to set out in detail the relevant facts and circumstances, much of which are not in dispute. It will be necessary to refer to witnesses, all of whom (except one who is a general practitioner) are specialist surgeons. At times they were referred to, or referred to themselves, as "Dr ..."; at others by other honorifics. It was never clear what rule or convention governed the title to which they are to be referred. I have generally adopted the terminology used in the evidence, although that has resulted in some inconsistency.

12 What follows is, although lengthy, an outline of relevant events. It will be necessary, when I consider the individual defences, and other issues, to delve more deeply into the evidence. Exhibit A was a folder of documents tendered on behalf of the plaintiff. Exhibit 1 was a similar folder of documents tendered on behalf of the defendant. I will refer to various of the documents by their Tab numbers.

13 The Wollongong Hospital ("the Hospital") is the major health facility in the area south of Sydney known as the Illawarra. A formal Department of Surgery was established in the Hospital in 2007. It included a unit known as the Vascular Surgery Unit.

14 The plaintiff is and was a specialist vascular surgeon. From 1999, he operated a private practice in Wollongong and held an appointment as a Visiting Medical Officer ("VMO") in the Vascular Unit at the Hospital. At the time he took up his appointment, Dr David Huber was already in private practice in Wollongong as a vascular surgeon, and also held an appointment as VMO at the Hospital. From 1999 to 2008 the plaintiff and Dr Huber, although operating independent private practices, shared premises and facilities. Dr Huber, as the senior VMO, was the acknowledged Head of Vascular Surgery at the Hospital. Dr Huber also operated at other local hospitals.

15 The Royal Australasian College of Surgeons ("RACS") is the body responsible for the conduct of specialist surgical training. Under its auspices are a number of Specialist Surgical Boards, one for each of nine recognised surgical specialities, of which vascular surgery is one. The Board of Vascular Surgery ("BVS") is one such entity, responsible, inter alia, for the training of vascular surgeons. A policy document of RACS (Ex B) sets out the responsibilities of Speciality Boards. These include the delivery of surgical education and training programmes, accreditation of hospital posts, and assessment and supervision of surgical trainees (also called "registrars"). Specific responsibilities of Speciality Boards are listed. Relevantly for present purposes is:

"f. Inspection and recommendations for accreditation of hospital posts and supervisors."

16 Each Specialty Board has a Chair and Deputy Chair, elected by the members of the Board. The duties of the Chair (or nominee) are listed in Item 3.6 of the policy document. They include:

"3.6.1 The principle (sic) duty of the Board Chair (or nominee) is to represent the decisions and principles of the Board relevant to section 3.1 of this policy."

17 The policy of RACS requires that all meetings of Speciality Boards have a formal agenda and that the proceedings are minuted. Copies of the minutes of all meetings are to be forwarded to the Chair of the Board of Surgical Education and Training.

18 The defendant, Dr Fell, was a member of the BVS from 2006 to 2011, and its Chair in 2010-2011. Since about 2006, Dr Jennifer Chambers has been a member of the BVS. She undertook particular responsibility for the selection, education and welfare of medical graduates wishing to specialise in vascular surgery. One aspect of training is the selection and accreditation of hospitals as training posts for aspirant surgeons. This involves assessment of the relevant specialist surgical unit in the Hospital whose accreditation is under consideration.

19 The accreditation process and criteria are spelled out in a joint publication of RACS and the Specialist Surgical Associations of Societies of Australia and New Zealand under the title "Accreditation of Hospitals and Posts for Surgical Education and Training". The aim of surgical education and training is stated to be:

"... to ensure trainees progress through an integrated program which provides them with increasing professional responsibility under appropriate supervision in order to acquire the competencies needed to become fully fledged surgeons, able to practice independently or as part of a multidisciplinary team, in a range of hospitals, locations and practice settings. In order to facilitate this aim the College accredits hospital posts and ambulatory care facilities for surgical training in Australia and New Zealand." (Ex C)

20 Appendix 1 to this publication lists "RACS Nine Key Competencies for Surgeons" as:

"Medical Expertise

Judgment - Clinical Decision Making

Technical Expertise

Professionalism

Scholarship and Training

Health Advocacy

Collaboration

Communication

Management and Leadership".

21 In 2007 the Hospital held accreditation as a training post for general surgery. It sought accreditation as a training post in vascular surgery. For the purpose of the assessment of that application, it was inspected in May 2007 by an inspection team comprised by the then Chair of the BVS (Mr Alan Scott) and a member (Mr Timothy Wagner). The inspection team recommended that the Hospital be provisionally accredited for an advanced trainee in vascular surgery for 12 months, with a view to further inspection at the end of that time. A condition of the provisional accreditation was appointment of a Supervisor of Surgical Training. Dr Huber was appointed to that office. Dr Laurencia Villalba, who already held overseas qualifications in vascular surgery, undertook training in 2007.

22 A trainee (Dr Richard Kerdic) undertook training in 2008.

23 Ordinarily, trainees were accredited to a specialist unit. Occasionally, a medical practitioner who aspired to train in a speciality could be taken on as an unaccredited trainee. It was not uncommon for trainees in other specialities (for example, general surgery) to spend a period of time in the vascular surgery unit.

24 In order to satisfy the requirements for qualification as specialist vascular surgeons, it was necessary that trainees obtain and demonstrate sufficient experience in surgical techniques. Specialists who undertook their training supervised their work, and progressively allowed them to perform surgery as "primary operator" - that is, to undertake the whole or part of a procedure, under supervision. (There were, of course, other requirements, but they need not be explored here.)

25 Training depended heavily on the goodwill and generosity of the "surgical trainers". At best, they exposed trainees to the full range of patients, and patients' conditions, both in their private rooms and in the Hospital, and in theatre, and, as they developed expertise, allowed them to operate. There was some corresponding benefit to the specialist surgeon, who received the benefit of the assistance of the trainee.

26 The responsibilities of surgical supervisors are spelled out in another policy document of RACS (Ex 1, Tab A). "Surgical trainers" are consultant medical practitioners who are members of a RACS accredited surgical training post, and who take part in the training of trainees. Their responsibilities are set out in another document (Ex 1, Tab D). Inter alia, surgical trainers are required to:

"a. Liaise with and assist the Surgical Supervisor with the management, education and training of accredited trainees rotating through their designated accredited training position(s).

b. Supervise trainees appropriate to their level of competence and the complexity of the surgical procedure/activity being undertaken.

...

e. Participate in unit meetings addressing trainee assessment, performance and/or feedback

..."

27 In her evidence, Dr Chambers said that teaching is an important component of a surgeon's competence because:

"We have been taught by others and therefore will feel responsible to - to pass that on, and it helps to ensure that the quality of our surgeons is always the best." (T 303)

The benefit the trainee obtains is, to an extent, a function of the amount of time and access the surgical trainer gives.

28 That trainees were accredited (and assigned) to a unit, rather than an individual specialist, is of some significance. Trainees were expected to work with as many qualified specialists as were engaged in their training unit. Thus, the trainees in the Hospital's vascular surgery unit for 2008 were expected to work with both Dr Huber and the plaintiff.

29 By 2008 the previously cordial relationship between the plaintiff and Dr Huber had deteriorated, to such an extent that the arrangement for sharing the private facilities was terminated. It is no part of my function in these proceedings to explore the reasons for the ultimate disintegration of the relationship, or to allocate blame. While both surgeons continued to hold appointment as VMO at the Hospital, and to operate in the Vascular Surgery Unit, their contact was limited. Such contact as did exist, however, was in an atmosphere of tension, even hostility. It is plain enough that they had, in some respects, different philosophies, priorities and approaches to patient management, and the practice of medicine.

30 The plaintiff asserted (and Dr Huber accepted) that his private practice was significantly the more successful of the two. He claimed to have been very popular with patients, a claim that was not disputed. He claimed that this was the reason for the deterioration in the relationship with Dr Huber. It was accepted that the plaintiff was a very competent and highly skilled vascular surgeon.

31 In 2008, on the completion of her training, Dr Villalba joined the Vascular Surgery Unit as a third VMO. She also joined Dr Huber in his private practice, in an arrangement similar to that which had previously existed between the plaintiff and Dr Huber.

32 Each of the three surgeons in the unit - the plaintiff, Dr Huber and Dr Villalba - was allocated a day a week in the operating theatre. The Hospital prepared the lists for surgery on any given day. The plaintiff's operating list was scheduled for Tuesdays.

33 An integral part of continuing quality control in the Hospital was the institution of regular meetings, known as "Morbidity and Mortality meetings". These were designed to ensure that any complications that had arisen, and any unforeseen or undesirable outcomes, were fully explored. They took place approximately four times per year. Attendance at the meetings was in fact a requirement of VMO's pursuant to the VMO contract provisions. Until 2007 the plaintiff attended these meetings. Thereafter, he perceived that they had become adversarial and hostile towards him, and he ceased attendance. This was, he said, because he considered that they no longer achieved their purpose. When, after being directed to attend, the plaintiff did so, he attended to papers, mail or electronic communication, rather than participate in the meeting.

34 There were also weekly teaching meetings, aimed at teaching medical students, registrars and "house staff". By at least 2008 the plaintiff had ceased attendance at these meetings.

35 In 2009 Dr Rebecca Jack was the vascular surgery trainee at the Hospital. She was expected to present herself to the theatre on the operating days of each of the three surgeons. She experienced considerable difficulties in her interaction with the plaintiff. She found that he was less than generous in allowing her to undertake procedures as "primary operator"; he did not provide her with access to the patient files of patients that were retained in his private rooms. She did have access to the Hospital files. There were occasions of conflict and rudeness on the part of the plaintiff to her. It is clear from the evidence that there arose a significant personality clash between the plaintiff and Dr Jack. It will, unfortunately, be necessary to detail some of the evidence concerning the conflict and refer to some specific incidents. I will do that in due course.

36 The plaintiff, for his part, complained that Dr Jack's attendance at his Tuesday list became sporadic and erratic, and that, when she attended, she was unprepared, not having familiarised herself with the patient files.

37 On 2 July 2009 a BVS accreditation inspection of the Hospital took place. The inspection team comprised Dr Frank Quigley, then Deputy Chair of the BVS, and Mr Tim Wagner (who had been a member of the previous inspection team). The inspection team interviewed Dr Villalba, Dr Jack, and others. Separately, at his request, they interviewed the plaintiff. Dr Huber was absent on leave.

38 The inspection team reported, inter alia, that the proportion of cases in which Dr Jack was assistant (rather than primary operator) was too high for her level of training, and that this related primarily to personal issues with the plaintiff. In his interview the plaintiff acknowledged that he was the primary operator in most procedures, but put this down to "a combination of factors", including a large waiting list. The inspection team reported on the visit generally favourably, with the sole reservation being that Dr Jack was not exposed to sufficient primary operator experience, and was having insufficient ultrasound experience. The inspection team recommended that the Hospital be reaccredited for an advanced trainee in vascular surgery for a 5 year period (Ex 1, Tab 2).

39 The plaintiff's evidence was that in July 2009 he had become concerned about Dr Jack's surgical progress, affected (as he perceived it) by her lack of commitment. He said that on one occasion when she did not attend his Tuesday list, he found that she was with Dr Huber at a local private hospital. It is plain from his evidence that the plaintiff perceived this as a slight on the part of both Dr Huber and Dr Jack.

40 As a result, the plaintiff said, he contacted a colleague who had been a mentor of his, and professor of surgery. The colleague recommended that the plaintiff make an appointment to see Dr John Quinn who, the plaintiff thought, was president or vice-president of the Vascular Society (in fact, according to Dr Chambers, Dr Quinn was the Executive Director of Surgical Affairs of RACS). After a telephone conversation with Dr Quinn, on 25 July the plaintiff flew to Brisbane for a face-to-face meeting with Dr Quinn. The meeting extended over two to two and a half hours.

41 On his return to Wollongong, on 27 July, the plaintiff wrote to Dr Quinn. It is necessary to set out the bulk of that lengthy letter. It was in the following terms:

"Thank you very much for meeting me on Saturday the 25th of July 2009 in Brisbane.

I went through and I told you about the problems that I had been experiencing in WoIIongong with my colleagues Dr Huber and Dr Villalba, and also with Medical Administration. There is a fair amount of intimidation and of what I perceive as jealously (sic) related to my successful practice. I mentioned to you that I have had no patient complaints in the Private Sector for eleven years. I have had no patient complaints in the Public Hospital for eleven years. All my complaints seem to be centered around Anaesthetists and my colleagues and only in the Public system where they are able to throw dirt and hide behind a corrupt administration. There were two predominant concerns that I had;

1. The Medical Administrators, mostly composed of nurses, have on one occasion with my solicitor approximately one and a half months ago, mentioned that my practice was different to my colleagues. They would not reiterate in what way, but I presume it is the volume of patients that I see. My practice is much larger on a percentage basis also in the Private than my colleagues, and logically it would be much larger in the Public as well. In addition to that there was a recent meeting the day before I saw you where the General Surgeons also brought up the same issue.

I feel that there is a tremendous amount of professional jealousy associated with this. WoIIongong Hospital has major medical breaches in the operating theatres, none of which are investigated by the Surgeons. There have been attempts to write incident forms about me regarding clinical issues, none of which have ever amounted to anything and I am in the process of gaining even further retractions from the people who put these incidents forms in. The hospital has dismissed these forms six months ago in the presence of my solicitor.

I really wanted to know whether the College could pro-actively look at my practice and see if there was anything that they had any issue with. I did not want any first request to come initially from the Medical Administrators, and I wanted to be pro-active in this regard. If you could let me know whether this is possible. I accept that if I were to pay for this, then it would not be seen as truly independent. Maybe if the College wrote to the hospital and said that there had been some comments made and could they verify exactly these comments in writing or desist from making these comments. If they thought that there was any significant issue, then I would have thought that it would have been legally binding on them to pursue this via the College. However I understand that you will get some legal advice regarding this.

2. The other main issue is in regard to my vascular trainee, Rebecca Jack. She came to the unit not having ever done or seen a high ligation and stripping of a long saphenous vein, and told me that she had seen one when she was a medical student. In addition to that she had only ever done one temporal artery biopsy prior to coming onto the unit. She did not have a very sound knowledge of operative intervention. However she has improved in the last six months. My emergency operating list, which was half a day every two weeks was taken away by the hospital administrators, presumably with the blessing of the Director of Vascular Surgery, Dr David Huber, when Dr Laurencia Villalba joined his practice. I perform approximately 90% of the number of cases that Dr Villalba and Dr Huber already perform (280 for Dr Huber and Dr Villalba combined, and 245 for myself in the last 6 months), but only do it in half the available operating time. Therefore when Tim Quigley and Tim Wagner from the College came to assess the unit, I brought up these issues in the presence of the Nursing Medical Administrators. I had also offered them extra operating times, but they have not given me any in order to reduce the significant waiting list. This has had impact on my ability to teach the fellow and give her cases. The fellow over the last three weeks has shown up to the operating list at 12:00 noon on one day (Tuesday 7th July 2009), not shown up on the subsequent week (Tuesday 14th July 2009), and has shown up on the more recent week (Tuesday 21st July 2009). She did not personally tell me that she was not going to turn up for these lists. She phoned the registrar two minutes before the operating time and said that she would be 'late indefinitely' for those lists. This is an extremely arrogant position by the trainee. I understand that she was in the operating theatres at Figtree Hospital with Dr Huber. Dr Huber fully knows that she is meant to be with me on the Tuesdays. This behaviour is disrespectful, and represents a degree of arrogance, which I feel is a significant character flaw in this trainee. I have not been asked or shown an assessment form by the vascular trainee, and she has also over the last six months been quite instrumental in intimidating and abusing our general surgical trainee, in addition to the other two consultants, Dr Huber and Dr Villalba. I am not happy to continue having her looking after my patients. If she wishes to stay with Dr Huber and Dr Villalba, I would be more than happy to just accept the general surgical trainee, who I will train in vascular surgery.

..." (Ex A, Tab 2A)

42 Following that, by arrangement between Dr Huber and Dr Chambers representing the BVS, from 9 September, Dr Jack ceased attending the plaintiff's Tuesday list, and used the time instead in ultrasound sessions. On 26 September 2009, Dr Quigley emailed Dr Chambers, in the following terms:

"Hi Jenny,

I have had a call from Rebecca Jack the trainee at Wollongong Tim Wagner and I did the inspection there in July and although Rebecca was enjoying her time there it was clear that one of the surgeons wasn't allowing her to do anything other than assisting The surgeon concerned explained to us that this was because he had no time to teach and carry out all the work he needed to do.

Tim and I were not sympathetic to his concerns and were in favour of the trainee doing more

Rebecca is having difficulty getting her ultrasound hours and wants to use the time she would be in theatre with Dr Stanley (sic - Stanton) to do ultrasound

I think this should be discussed with David Huber who is head of Unit" (Ex 1, Tab B2)

43 On 30 September 2009 Dr Chambers emailed Dr Huber. She referred to the accreditation report that had found Dr Jack's training to be deficient in ultrasound experience and primary operator experience. She copied the email to the plaintiff and Dr Villalba. The plaintiff then telephoned Dr Chambers at home, where he spoke at length. Dr Chambers described the call as "a harangue", in which she was given no opportunity to intervene or ask questions. The plaintiff told Dr Chambers that the reason that he was not allowing Dr Jack more opportunities to be the primary operator was that he was very busy, that he was the best surgeon, and that he did not have time to teach. He took the opportunity to ask Dr Chambers to arrange for him to have more operating time at the Hospital. Dr Chambers considered this inappropriate; her role was to look after the trainee, and ensure that she was getting the best training possible.

44 On 28 November 2009 a meeting of the BVS took place. On the agenda was the recommendation of Dr Quigley and Mr Wagner that the vascular surgery unit at the Hospital be reaccredited for training. The Minutes (Ex A, Tab 6) record the following:

"5.1.4 Exposure at Wollongong Hospital

The Board discussed this post at length. The unit offers good exposure to Vascular surgical procedures, but the interpersonal problems between the consultants in the unit, has resulted in significant difficulties for the trainee. As a temporary measure the trainee has ceased to work with Mr Stanton and is working with Dr Laurencia Villalba and Mr David Huber. As the current trainee is deficient in ultrasound time, this has been a satisfactory temporary arrangement; however it is not an appropriate long term arrangement."

The BVS approved accreditation for the Hospital for one vascular surgery post for an additional five years, but the Chair (the defendant, Mr Fell) recommended a further inspection before June 2010. No inspection took place in 2010. The next inspection was in March 2011.

45 During the remainder of 2009, Dr Chambers and other members of the BVS continued to express concerns about Dr Jack's training. For example, on 29 September, Dr Chambers emailed Dr Scott, in the following terms:

"Dear alan,

I have had phone calls and emails re Rebecca Jack at Wollongong. the accreditation visit by Tim and Frank highlihgted (sic) that she wasnt getting to the US [ultrasound] lab and that her time in OT [operating theatre] with Arthur Stanton was assisting only as he did not give her any cases to do. She would like therefore to go theb (sic) US lab on the day she is meant to be in theatre with Arthur and the general trainee can assist him instread (sic). there are other issues with bullying and Arthur not working as part of the Unit etc and i feel it would be best for Rebecca to go with this plan as does David Huber, theb (sic) Supervisor ..." (Ex 1, Tab B1)

46 Dr Scott replied by agreeing to the proposal put by Dr Chambers and expressing his concern about the information and noting that;

"There some serious issues raised here and I think it is important that perhaps you can research this further.

There is not much we can do about it for 2010, but as the issues raised are of a serious nature, then the personell (sic) involved require to know that their accreditation is under some degree of doubt." (Ex 1, Tab B1)

47 In January 2010, Dr Jack completed her training. The vascular surgery trainee for that year was Dr Sergei Thicov.

48 On 15 June 2010 another meeting of the BVS was held (Ex A, Tab 7). The Minutes record the following:

"3.1 Member with primary responsibility for trainees, Dr J. Chambers

...

Wollongong Hospital

There are ongoing consultant staff issues, however the unit has offered to remove this person.

Action - Jenny Chambers to contact John Quinn and update the Board of the status of the post."

It was common ground that "this person" was the plaintiff.

49 The vascular surgery trainee for 2011 was Dr Rui Feitosa.

50 On 25 March 2011 a further accreditation inspection of the vascular unit took place (Ex A, Tab 9). The inspection team comprised Mr Mark Jackson and Dr Chambers. In their report, they recorded:

"The previous issue with the amount of operating rather than assisting that was available was not seen as an issue for the current trainee. It was identified that the proportion of cases obtained as primary surgeon varied from surgeon to surgeon but was heavily related to trainee experience and time in heavily booked lists. (largely related to operating sessions with Dr Stanton)."

51 The "Summary and Recommendation" of the inspection team included:

" The only major concern was that historically the trainees are not getting as much experience as primary operator as would be desirable for more senior trainees, specifically when attending lists of 1 surgeon, AS. That surgeon has stated he is happy to work with the general trainee. It is however recommended that the Vascular Surgical dept remain in its current structure rather thsn (sic) be divided in 2.

...

The inspection team recommended that Wollongong Hospital be reaccredited for an Advanced Trainee in Vascular Surgery for a 2-year period."

52 However, that recommendation was rejected at a meeting of the BVS on 17 June 2011 (Ex A, Tab 10). The Minutes record the reason as follows:

"The Board unanimously agreed the conditions to offer a post were unsatisfactory at this stage, but could be deemed satisfactory in the future."

53 That decision was communicated to Dr Huber by Mr Nick Boyne, the then Deputy Chair of the BVS on 30 June 2011. Mr Boyne said:

"Due to the uncertainty of circumstances and the conflict within the unit at Wollongong, the Board is very concerned about exposing our trainees to a unit that has such political issues.

The Board has therefore decided to not accredit the training position at Wollongong Hospital.

We would encourage the hospital to try and resolve the issues within the unit; we would be pleased to re-visit the topic of accreditation once this has happened.

..." (Ex A, Tab 11)

54 That decision was the cause of some consternation at the Hospital. On 20 July 2011 (Ex A, Tab 12), Ms Sue Browbank, the Chief Executive of the Hospital, wrote to the plaintiff, advising of the decision, referring to that part of Mr Boyne's letter that cited "uncertainty of circumstances and the conflict" and "political issues", and advising that the loss of accreditation was "a matter of great concern" to the Executive. Ms Browbank told the plaintiff that, with a view to regaining accreditation, she had initiated a review of "the Department" (which I take to be the vascular surgery unit). She set out the terms of reference. That request resulted in a Department of Health inspection or inquiry, to which I will come in a moment.

55 In about June 2011, Dr Villalba replaced Dr Huber as the approved Supervisor of Vascular Surgery.

56 In the meantime, another, at this stage quite unrelated, problem was emerging. A vascular trainee surgeon, Dr Taraneh Amir-Nezami, had been allocated to a far-north Queensland hospital for training. Due to her personal family circumstances, it was virtually impossible for her to undertake this placement. She appealed to Dr Chambers for help. Dr Chambers emailed Dr Huber on 13 August 2011 (Ex A, Tab 13), saying:

"Dear David,

I know we, the Board, have mucked you around and I am sorry that in spite of Mark's and my support of your post remaining accredited, the Board was against a trainee going to Wollongong because of Arthur's behaviour. I expect the General surgery board has filled the term for next year and so you would expect to have a general surgery trainee for 2012. We would certainly revisit the post as soon as Arthur was removed from the term as numbers and the term otherwise was excellent. We have a problem with a female trainee who wanted to come to Wollongong for 2012 as she has a young child and a husband who cant move and [she] somehow was allocated to Townsville. If perchance your term hasnt already been filled and it was possible to remove Arthur from the term would you consider her for next year? I realise it is asking a lot when we havent helped you and it is a long shot but I am trying to find a spot for this trainee, thanks for considering this ..."

57 On 19 August, Dr Chambers emailed the defendant, and Ms Abby Richardson (the Executive Officer of the BVS), in the following terms:

"Dear Gary and abby,

David Huber rang me last night and told me that therre (sic) is a NSW Dept of Health inspection of the Wollongong vascular unit ie Arthur Stanton from 29th to 31st August and it is expected that AS may be stood down immediately or at worst not be re-employed from June next year when his appointment id (sic) up. DH is hopeful the first will be the case and they would be very keen to take out (sic) trainee who wishes to go there. He will let me know outcome,

Cheers

Jenny" (Ex A, Tab 14)

58 The solution proposed by Dr Chambers in the email of 13 August was accepted and implemented. This was done by discussion and agreement between Dr Chambers and the defendant, after Dr Chambers had secured the cooperation of Dr Huber. Two things may here be mentioned. First, the "solution" to Dr Amir-Nezami's problem was predicated upon the exclusion of the plaintiff from her training. Second, Dr Chambers and the defendant made the arrangement, which was on its face contrary to the decision of the BVS of 17 June. It may or may not be the case that the defendant and Dr Chambers lacked the legal authority to override the minuted decision of the BVS, and that may have implications for the validity of the decision. It is no part of my function in this case to review the workings of the BVS and its members. But the standing of the decision arises in respect of the qualified privilege defences, and the circumstances therefore need to be mentioned.

59 The review of the vascular surgery unit instigated by Ms Browbank took place, and was conducted by a Dr Peter Brennan and Dr Alan Scott who reported on 19 September 2011 (Ex A, Tab 16) ("the Brennan/Scott report"), coincidentally the same date as the defendant wrote the email the subject of these proceedings. The outcome was not as Dr Huber and Dr Chambers had hoped - that is, that the plaintiff be stood down. The report covers a number of pages, and addresses, individually, the terms of reference ("TOR") they had been given. Inter alia, the reviewing doctors reported:

"TOR 1: General functionality, nature and culture of the department.

The Vascular Surgery Department at Wollongong Hospital is dysfunctional. This conclusion is one that unites the stakeholders. The visible manifestation is the relationship (or lack of relationship) of the two senior surgeons. The origins of the interpersonal conflict are outside the hospital and hence beyond the purview of this report.

The conflict has permeated almost every aspect of day-to-day function of the Vascular Department and has created a working environment that is anathema to most, irrespective of personal affiliations.

...

Doctors, nurses and managers from all disciplines have serious concerns about the conflict and disharmony within Vascular Surgery. Most respondents who work within or closely with Vascular Surgery believe the disharmony is affecting their professional and personal lives. Many, but not all, attribute the disharmony to one particular surgeon and of considerable concern have, at least up until now, little faith in management's ability to do anything about it.

...

TOR 3: Effectiveness of systems to monitor and manage clinical practice and outcomes.

...

In terms of monitoring clinical outcomes there is a mandatory bi-monthly Morbidity and Mortality meeting for the Department of Vascular Surgery. Additionally the Department and individual surgeons contribute data to the national Australian Vascular Audit which is conducted under the auspices of the Australian and New Zealand Society for Vascular Surgery.

One of the surgeons has not entered the data for 2010 as yet and consequently the data have not been considered by the Morbidity and Mortality meeting (M&M).

The same surgeon has attended only one of the M&M meetings in the last two calendar years (August 2010). On questioning the surgeon indicated that the meeting was not impartial. It should be noted that participation in quality and clinical governance activities is a requirement of both the Visiting Medical Officer (VMO) employment contract and Crown indemnification for VMOs.

A VMO cannot simply choose not to participate in a M&M meeting or any other clinical governance meetings.

...

TOR 4: Relationships between the Department of Vascular Surgery and other key partners.

[The report listed eight 'key partnerships', including, for example, the Surgical Division, Executive Management and Anaesthesia.]

The view that the Vascular Surgery Department is dysfunctional and disruptive was expressed by representatives of, or on behalf of, all these services.

Common themes to emerge were:

 a lack of respect for the opinions and the professionalism of colleagues,

 criticism of colleagues behind their backs, and

 strategies to obtain resources (beds, ICU admissions, theatre time, emergency theatres etc) at the expense of other clinicians and their patients.

Most of the tension concentrates on the theatre where overbooking and deliberate overruns have become the norm. Many frontline Theatre Staff have become emotionally distraught, allegedly due to the environment in which they work.

Practices such as unbooked patients presenting to ED or admissions, fasted and expecting to be operated on, have resulted in well-intentioned staff withdrawing support from parts of the Vascular Department.

These complaints are all directed at one surgeon. Two respondents, one senior theatre nurse and an anaesthetist defended certain behaviours by pointing out the surgeon's total commitment to his patients and his fierce and unswerving loyalty to them. Both claim that the critics simply do not understand that this is what is motivating him and underpinning his perceived behavioural shortcomings.

...

The reviewers have tried to step back from the he said, she said approach and instead look at the broader picture. The one that emerges is that of a talented person dedicated to patients but unwilling or unable to temper that dedication with an understanding of the priorities and commitment of others.

...

Conflict between the Department of Vascular Surgery and other clinical groups

The other major conflict is between one of the Surgeons and several external key partners. There have been previous complaints and an official warning for one of the surgeons.

Three new complaints are under consideration.

...

Where to From Here?

The issues that need to be addressed are:

 A breakdown in clinical management.

 A breakdown in clinical governance processes.

 The perceived dysfunctional behaviour of one of the Surgeons.

 The requirement to provide a safe and healthy workplace.

...

Integrity of Clinical Governance

Once the appropriate line of authority is established all Surgeons should be reminded (and directed if necessary) of their contractual obligations to participate in quality activities and in this case specifically the Morbidity and Mortality meetings. Failure to participate in quality and safety committees is clearly a breach of the employment contract and negates crown indemnification under the TMF agreement.

...

Behavioural Issues

Notwithstanding the surgeon's passionate commitment to his patients, the expression of that passion and the methods used to advance the needs and priorities of his patients is offensive to many of his professional colleagues.

...

The reviewers believe that the surgeon (AS) should be formally informed of the expectation that his behaviour and relationships with others needs to be consistent with the CORE values and that future re-appointment processes will include assessment of his compliance with this requirement.

..."

60 Also on 19 September 2011 the defendant sent to Dr Huber the email that is the subject of these proceedings. It is set out above and I do not propose to repeat it. The email reflects the proposal made by Dr Chambers and accepted by the defendant in order to accommodate Dr Amir-Nezami's needs. That is, that the accreditation of the vascular surgery unit be reinstated, but that the plaintiff not be involved in training (Ex 1, Tab 16A).

61 I have already observed that the decision reflected in the email was made by the defendant, in consultation with Dr Chambers, principally to provide a solution to the difficulties being experienced by Dr Amir-Nezami. It was contrary to the decision of the BVS made at the meeting of 17 June, although it should not be overlooked that the minutes of that meeting record express recognition that the conditions at the vascular surgery unit "could be deemed satisfactory in the future".

62 The proposal had not been submitted to other members of the BVS nor, so far as the evidence goes, been discussed with them. It was not put to the BVS until its next meeting, on 12 November 2011 (Ex 1, Tab 20) by which time it had been put into effect. At that meeting, Dr Chambers reported on what had occurred. The Minutes record:

"The Board has been reassured that the problem surgeon previously discussed in Board meetings will not be involved in her training."

63 Thereafter, there was correspondence from and to the plaintiff's solicitors.

64 On receipt of the defendant's email, Dr Huber forwarded it to Dr Villalba, Ms Christine Mitchell (the Head of Nursing at the Hospital), Ms Browbank, Dr Ragu Murthy (a Medical Administrator), and Dr Chambers (Ex A, Tab 18A). This constituted the limited republication to which I have referred above. On 1 November Ms Browbank forwarded to the plaintiff a copy of the accreditation inspection report of 25 March, and a copy of the defendant's email. She drew attention to the plaintiff's failure to attend Morbidity and Mortality meetings, and told him that that was in breach of his obligations as a VMO, and the insurance cover contract provided as a term of his appointment. She directed him to attend the meeting and advised that failure to do so would result in consideration of his position as VMO and possible termination of his appointment. With respect to the defendant's email, she then said:

"I consider that the Board's request that the trainee in vascular surgery work with Dr Huber and Dr Villalba, but without mention of your role, calls into question your capacity as a VMO at the hospital, considering inter alia the role of the trainee in providing support and clinical care for your patients, the role of Wollongong Hospital as a major teaching hospital with a responsibility to train post graduate medical practitioners, and the role of a VMO in providing post graduate training, as required in your VMO contract.

In light of the Board's request and the importance of you working with RACS trainees as part of your VMO appointment, I will be considering whether to terminate your appointment as VMO. In that regard I invite you to tell me of any information or matters that would relevant to my consideration." (Ex 1, Tab 19)

The plaintiff's solicitors apparently replied by communicating the plaintiff's undertaking to attend the meetings.

65 On 29 December 2011, Ms Browbank wrote to the plaintiff's solicitors. On this occasion, she raised concerns, in the light of the defendant's email (and his decision with respect to Dr Amir-Nezami), about the plaintiff's capacity to discharge the obligation of his contract as a VMO, given that one of the duties of a VMO is to participate in the teaching and training of accredited trainees, and the need to work with an accredited trainee in the care and management of patients (Ex A, Tab 25).

66 On 11 January 2012 Professor Denis King, the Chair of the Local Health District Board, wrote to the plaintiff's solicitors, expressing similar concerns. He told the solicitors that consideration was being given to the termination of the plaintiff's contract as VMO, and invited the plaintiff to advise how he proposed to discharge his contractual obligations (Ex A, Tab 27).

67 On 18 January 2012, the plaintiff's solicitors wrote to the defendant, referring to "the determination which you communicated to Dr David Huber in a letter dated 19 September 2011"; the solicitors claimed that the decision was "marred by a failure to afford procedural fairness", and that the defendant had no power under the RACS's "Complaints Process Policy" to deal with the matter, make a determination, and remove rights and privileges. They said that complaints about the plaintiff should be dealt with under the terms of that policy in which procedural fairness and natural justice are clearly enshrined (Ex A, Tab 30).

68 On 20 January 2012 Ms Browbank wrote to the plaintiff, referring to correspondence that had followed her invitation to him to provide information concerning the future of his appointment as VMO (Ex 1, Tab 33). She said:

"Accordingly, based on the decision of the Board of Vascular Surgery, RACS, and the expert advice provided to me, I have decided to suspend your clinical privileges as a Visiting Medical Officer in vascular surgery to the Illawarra Shoalhaven Local Health District, effective Monday, 23 January 2012, being the date on which the new advanced trainee in vascular surgery is scheduled to commence duty."

She advised the plaintiff that he had a right of appeal.

69 The suspension lasted no more than one day. After further correspondence with the plaintiff's solicitors, on 24 January 2012 Ms Browbank wrote again to the plaintiff, advising that she had "lifted" the suspension "with immediate effect" (Ex 1, Tab 36).

70 The term of the plaintiff's appointment as VMO at the Hospital expired in June 2012. He was not reappointed. By letter to the plaintiff dated 21 May 2012, Ms Browbank provided reasons for the decision not to reappoint him. That decision is not here in issue. Although at the outset of the hearing senior counsel asserted that publication of the defendant's email of 19 September 2011 was "one of the factors involved" in the decision not to reappoint him, that position was subsequently disclaimed. Dr Jack was appointed to the position previously occupied by the plaintiff.

The plaintiff's character, conduct, and reputation

71 The plaintiff called seven witnesses, all medical practitioners, to attest to his character, conduct and reputation. There was a high degree of unanimity in the evidence they gave. A unifying theme in their evidence about the plaintiff's reputation is that he was an extremely hard worker, held in high regard for his work ethic as well as technical skills, and loved by his patients. He readily made himself available for consultation with others. As a technician, he was highly thought of by medical colleagues and nurses, students and trainees.

72 Given the common elements of the evidence, I will deal briefly with each of the witnesses. I deal with them, not in the order in which they gave evidence, but arranged sequentially in accordance with the time of their contact with the plaintiff.

73 Dr Bruce Ashford is a general surgeon, in public and private hospitals in Wollongong and Liverpool. During the first six months of 2004, he was a general surgical trainee at the Hospital, and worked with both the plaintiff and Dr Huber. He had almost daily contact with the plaintiff. As a teacher, he found the plaintiff to be generous with his time, "reasonably demanding", and set high standards for trainees to aspire to. He provided formal and informal teaching sessions to other general surgical trainees as well as other junior medical staff.

74 As to the plaintiff's reputation, Dr Ashford said:

"We would all hope that our reputation amongst our patients with their loyalty towards us as treating surgeons would be that that Dr Stanton has had. His patients would not believe me until I told them that Dr Stanton had told me this is how it was going to be. They were very loyal and that's you know, vascular surgery is tough surgery. It involves a lot of disappointment to patients, constant set-backs and I think unless you have that, it is difficult to practise."

75 Dr William Nguyen worked as a general surgical trainee with the plaintiff for six months in 2005, and had known him in 2004. He considered the plaintiff to be a very good doctor, who was loved by all his patients. He thought him to be a "tough supervisor", but reasonable. He had taught Dr Nguyen a lot. Dr Nguyen is now a general practitioner in the south west of Sydney, having been forced to abandon surgery by reason of a medical condition.

76 Dr Anthony Freeman is a vascular surgeon at various Sydney hospitals. He was the vascular surgery trainee at the Hospital in 2005, over a six-month period. He found the plaintiff to be an excellent teacher. He felt that the plaintiff gave him sufficient opportunities to perform surgery as primary operator. He never had any difficulty contacting the plaintiff. He considered the plaintiff's reputation among other surgeons was that he worked very hard and was technically very good and had a big and busy practice.

77 Dr Daniel Kozman is now a colorectal surgeon in the St George and Bankstown districts. He was engaged at the Hospital for six months in 2005 as a second level surgical trainee. He was in regular contact with the plaintiff, and had no difficulty contacting him. He considered the plaintiff to be "a wonderful teacher", and said that he learned "a huge amount" from him, not just clinically, but also surgically and ethically. He spoke of the plaintiff's reputation as being that of "a very hard working surgeon", with a busy practice, a capable and competent surgeon whose patients loved him.

78 Dr Kim-Chi Phan-Thien is a colorectal fellow at the St George Hospital. She was the general surgery trainee at the Hospital for six months in the first half of 2008. Dr Phan-Tien considered the plaintiff to be "a great teacher"; he showed her a lot of techniques, some of which she continues to use. In about March or April 2008 the plaintiff conducted teaching sessions for vascular surgery trainees. He gave her opportunities to conduct surgery as primary operator. In respect of his reputation, she said:

"I think overall everyone felt that Dr Stanton was a very hard working man. He put surgery as a priority above other things in his life. He put his patients above other priorities in his life ... His reputation among the trainee[s] was very similar that he was a very hardworking man, that he was very driven, that his work ethic was such that he expected a good work ethic of his trainees as well ... As a teacher I guess his reputation was that if a trainee was willing to put in the hours, you were willing to put in the work, then he was willing to teach ... His patients loved him. They trusted their lives in his hands. They would trust his decision. They also all really enjoyed being looked after by him."

79 Dr Allan Mekisic is a general surgeon in Wollongong. He has known the plaintiff since 1988, when Dr Mekisic was an intern at the Royal Prince Alfred Hospital, and the plaintiff was a resident. Subsequently, at another hospital, they worked together. They worked together in 1997 at St George Hospital when Dr Mekisic was undertaking general surgery training. The plaintiff, who was by then a general surgeon, supervised Dr Mekisic. It may here be observed that Dr Mekisic was an unabashed and determined admirer and supporter of the plaintiff. So determined was Dr Mekisic to support the plaintiff that, in 2011, he completed a peer performance review form, by providing the incorrect information that the plaintiff attended all departmental meetings including the weekly vascular surgery meetings and the Morbidity and Mortality meetings. He sought to justify this in his oral evidence by saying that 100 per cent attendance at meetings was not necessary. While Dr Mekisic's objectivity may be doubted, the strength of his commitment to the plaintiff cannot.

80 Dr Stuart McKay is otolaryngologist (ear, nose, throat and neck surgeon) in the Illawarra, working in both public and private health systems. He has worked with the plaintiff on only two occasions, but said that the plaintiff would be his first choice of vascular surgeon in an emergency. On the occasions he had worked with the plaintiff, he had seen no cause for concern in respect of the plaintiff's interaction with other members of the team. Dr McKay agreed that the plaintiff was highly thought of by surgeons and patients alike, was regarded as highly competent, and a very hard worker.

81 A somewhat different perception emerged from the evidence given by witnesses called on behalf of the defence.

82 Dr Villalba, as mentioned above, held overseas vascular surgery qualifications. She undertook retraining at the Hospital for the purpose of obtaining local accreditation. She began that training in 2007. From the outset Dr Villalba found it difficult to relate to the plaintiff. She found him reluctant to allow her to perform any surgeries, to the point where she raised the issue with Dr Huber. Nevertheless, on her initial appointment as VMO, the plaintiff was welcoming and supportive. It was on her taking up the offer of Dr Huber to share private practice facilities with him that things changed. She said that the plaintiff "cut all communications" with her.

83 Dr Villalba recounted two specific incidents relevant to the issues in these proceedings. One took place in 2007, when she was a trainee. A private patient of the plaintiff's was due for a specific kind of surgery for which a CT scan was normally taken. Dr Villalba was to perform the surgery as primary operator. No CT scan was available. Dr Villalba asked the plaintiff, who told her that no such scan had been taken, but the patient had had an angiogram, and that was sufficient. He told Dr Villalba to proceed with the surgery.

84 Complications arose and Dr Villalba called for the plaintiff. He told her that the patient had a "horseshoe kidney" that should have been approached in a different way. He made it plain that he blamed Dr Villalba for what had happened. Subsequently, Dr Villalba said, the plaintiff refused to allow her to perform a toe amputation because of the earlier incident.

85 Dr Villalba said that for the years between 2008 and 2012 (by which time she held appointment as a VMO) the plaintiff avoided any contact with her. He did not respond to telephone calls or messages, and, if he were called upon to deal with an emergency situation with one of her patients, he took care of the patient as though she had not been involved.

86 In 2008 Dr Villalba began a program of more structured teaching and invited the plaintiff to participate, an invitation he did not take up. She said that he seldom attended Morbidity and Mortality meetings. On the rare occasions that he did, he did not engage or participate. She observed that his treatment of junior trainees was variable, depending upon his personal opinion of them.

87 In cross-examination, Dr Villalba accepted that there was an occasion when she experienced a particular problem, arising out a disagreement with a physician, who wished her to perform an amputation on a patient. Neither Dr Villalba nor Dr Huber considered the operation appropriate. Dr Villalba called on the plaintiff to offer a third opinion, which he did. As a result, she sent him a text message expressing her appreciation.

88 On other occasions, however, the plaintiff ignored her telephone calls and messages. He told her that, since she had taken up the offer of sharing facilities with Dr Huber, she should call on him first for assistance; only if Dr Huber were not available, would the plaintiff attend.

89 Dr Jack was, as outlined above, the vascular surgery trainee at the Hospital in 2009. She is now a VMO at the Hospital, and engaged in a private practice arrangement with Dr Huber and Dr Villalba.

90 Although Dr Jack found her training with Dr Huber and Dr Villalba rewarding, she experienced significant problems in her interactions with the plaintiff. Some of the problems have already been mentioned and confirmed by other evidence. One problem was a very limited extent to which the plaintiff permitted Dr Jack to perform surgery as primary operator. (This does not appear to have been a problem with any other trainees.)

91 Dr Jack said that the plaintiff barely communicated with her, even with respect to patients. When she raised issues with him, he told her "this is treatment hospital, not a teaching hospital". (This was not put in issue by the plaintiff.)

92 Dr Jack said that the plaintiff spoke to her in "a condescending tone". On one occasion he told her that her opinions were not welcome in the theatre. On another, she asked him to explain a particular suturing technique she had not previously seen. He told her to "look it up". She did so, but could not find any reference to it. She returned to the plaintiff to ask again; he told her that she had not "looked hard enough" in the literature.

93 On another occasion an issue arose concerning the extent of a patient's consent to surgery that had been proposed, and for which the patient was prepared. The issue arose because it emerged, while the patient was on the operating table, that the proposed surgery could not go ahead. Both the plaintiff and Dr Jack gave evidence about this incident. Their perceptions and recollections varied only slightly, but in significant respects. It is neither necessary nor appropriate in these proceedings to explore the details of the debate between Dr Jack and the plaintiff on this issue. What is important for present purposes is that Dr Jack did not have access to the plaintiff's notes in the file maintained in his private rooms, nor to the radiological investigations. That she did not have such access was not denied by the plaintiff. Access to such information is important in a trainee's education. Why it was important was explained by Dr Jack as follows:

"Well, as a registrar, they are important documents for - for learning to see how each surgeon treats certain diseases and there is some variation with diseases between surgeons and that's why we have to move hospitals every year so that we are exposed to a varying number of ways that different surgeons treat different diseases and so seeing the way, for example, Dr Huber does a lot of endovascular procedures so everything, or almost everything, he treats in an endovascular or keyhole surgical technique whereas when I was in Melbourne, those diseases, those blockages were treated with bypasses and so looking at how a surgeon treats a certain disease is - is important to learning and training ... [Access to a surgeon's notes] allows you to see their train of thought. It allows you to see how they assess the disease, the patient and how they come to the decision that they have made in the way that they are going to treat the person ..."

94 She said the plaintiff did not permit her to look at his notes or the radiological information; she saw them very, very infrequently. It was, in fact, commonplace for the plaintiff to obstruct Dr Jack's access to such information. Dr Jack experienced no such difficulty with Dr Huber or Dr Villalba.

95 Similarly, the plaintiff did not allow Dr Jack access to his ultrasound laboratory. Dr Jack was, in the report of Dr Quigley and Mr Wagner (Ex 1, Tab 2, see [38] above), found to be deficient in ultrasound experience.

96 The plaintiff's account of his relationship with Dr Jack was very different. He said that, initially, she attended his lists, but her attendance soon became "quite erratic"; sometimes she did not "show up" at all, at others she would arrive at 9 o'clock for what was normally an 8 o'clock start; on some occasions she appeared at midday. He was deprecatory of her technical skills, which he put down partly to her non-attendance and partly to what he said was her lack of preparation. This he appeared to give as his explanation for not permitting her to have more primary operator experience. He was critical, for example, that Dr Jack had not spoken to the patients, and ascertained their symptoms and signs, nor investigated their "imaging".

97 Eventually, he said, her absences became quite frequent, and on some occasions, by late May or June of 2009, she did not attend at all.

98 It was as a result of these concerns that the plaintiff contacted Dr Quinn (see [40] above), and wrote the letter of 27 July (see [41] above, Ex A, Tab 2A).

99 However, by October 2009 it was decided by the BVS that there should be a recasting of the training arrangements so that, instead of attending at the plaintiff's Tuesday list, Dr Jack spent time in the ultrasound laboratory gaining relevant experience in that skill.

100 I turn now to deal with the various issue for determination.

Publication

101 No issue concerning publication arises. The defendant accepts that he published the email to Dr Huber, that it was republished, and that the republication was a natural and ordinary consequence of its initial publication. The extent of republication was extremely limited - only five additional recipients could be identified, all of them integrally involved in the Hospital administration. There was a suggestion that the subject matter of the email was also published to Dr Quinn, but it is not clear that the email itself was received by him.

102 The plaintiff also relies on evidence that Dr King became aware of the content of the email, and relied on "the grapevine effect". It is interesting to note the manner in which counsel for the plaintiff state their reliance on the grapevine effect. In written submissions they wrote:

"96. The plaintiff also relies on the grapevine effect of the publication - namely that the drastic steps of excluding Dr Stanton from training or the accreditation of the vascular unit came to the attention of other surgeons, registrars and trainees at Wollongong Hospital, and in Sydney.

97. It would have also come to the attention of nurses and administrators at the hospital who would necessarily need (sic) to be informed of the fact that Dr Stanton would not be assisted by the vascular registrar in his operating lists."

103 These passages expose what lies at the heart of the plaintiff's complaint, and the difficulty he faces in bringing his claim in defamation. It is apparent that his real complaint lies in the decision made by the defendant and Dr Chambers to approve accreditation of the Vascular Surgery Unit at the Hospital as a training post, with the implied requested exclusion of the plaintiff from training duties. His real complaint is not with the means by, or manner in, which that request was communicated. The two things are distinct.

104 In this respect it is to be noted that, in the email, the defendant did not require or direct the exclusion of the plaintiff from involvement in the training of a proposed accredited trainee. Nor did he purport to make the plaintiff's exclusion a condition of reaccreditation of the vascular surgery unit for training. However, it may be accepted that he anticipated that the request expressed in the email would be acted upon, and would in all likelihood result in his exclusion.

Imputations

Natural and ordinary meaning

105 The first question to arise is whether, either in their natural and ordinary meaning, or by way of true innuendo, either of the imputations pleaded by the plaintiff was conveyed. (It was accepted that, if conveyed, they were defamatory.)

106 The defendant argued that neither was conveyed. In this, the defendant is correct.

107 For this purpose, it may be taken, as was conceded, that Dr Huber and the subsequent recipients of the email all readily identified the plaintiff by the omission of his name from those surgeons expected to be involved in the training of vascular surgery trainees. There is, however, nothing in the email, including the penultimate paragraph, that could realistically raise any issue concerning the plaintiff's competence (imputation (a)) or his conduct (imputation (b)).

108 What might be read into an allegedly defamatory publication is to be measured against the yardstick of the ordinary reasonable reader. The ordinary reasonable reader, in this case, is not one who is familiar with the history and workings of the Hospital or the vascular surgery unit. It is one who reads the material unaffected by special knowledge. No such reader, even one who identified the plaintiff, could, in the absence of more, possibly read incompetence or unsatisfactory conduct into the email.

109 There is, in the email, simply no hint of any reason for the proposed exclusion of the plaintiff from training vascular surgery trainees. The ordinary reasonable (fair-minded) reader, even one who perceived that the BVS requested that training be undertaken by only two out of the three vascular surgeons at the Hospital, would be unlikely to inquire into the reasons for the proposed exclusion of the third. Any who did might hypothesise any number of reasons, a host of which could be suggested for the proposed exclusion of the plaintiff, all of them as realistic and feasible as incompetence or unsatisfactory conduct. Some of those reasons are: the plaintiff had requested that he not be involved in training; the plaintiff was taking holidays during a part of the training period; he was too busy; training operated on a rotation system, and the plaintiff had performed the training function previously; the plaintiff had medical issues of his own; the plaintiff had other additional functions. No doubt there are many more. None of those I have listed is, of course, suggested in the email, but each has as much basis in the email as incompetence or unsatisfactory conduct.

110 To the ordinary reasonable fair-minded reader, not familiar with events at the Hospital, there could be no possible suggestion of incompetence or unsatisfactory conduct.

111 Moreover, the ordinary reasonable reader would interpret the email as conveying a decision of the BVS (whether or not that was strictly correct). The most that the ordinary reasonable reader could read into the email was that the BVS considered that there were reasons (unstated) for a request that the plaintiff not be involved in training. That is a very different proposition to the defendant asserting (by imputation or implication) that the plaintiff ought not to be involved in training. Rather than asserting a fact (of incompetence or unsatisfactory conduct), at most it asserts an opinion held by the BVS. But, as I have said, no hint of lack of competence or of unsatisfactory conduct is to be found in the email.

112 Neither imputation was conveyed by the email in its natural and ordinary meaning.

True innuendo

113 The plaintiff, however, also invokes the doctrine of "true innuendo". He claims that, by reason of extrinsic facts known to the recipients of the email, the imputations were conveyed. This must be examined in the light of the extrinsic facts as particularised in the statement of claim. They are:

"(a) Throughout 2011, including in September 2011 the plaintiff was one of three vascular surgeons attending on the public list at Wollongong Hospital.

(b) Throughout 2011, including in September 2011 the other vascular surgeons attending on the public list at Wollongong Hospital were Dr David Huber and Dr Laurencia Villalba.

(c) On about 25 March 2011 the Royal Australasian College of Surgeons, a company limited by guarantee, ('RACS') inspected Wollongong Hospital for the purpose of assessing its suitability to continue as an accredited training post for Vascular Surgery.

(d) On about 25 March 2011 the RACS inspection team recommended that Wollongong Hospital be reaccredited for an Advance Trainee in Vascular Surgery for a 2 year period.

(e) The Australian and New Zealand Society for Vascular Surgery is an agent of the RACS.

(f) The Board of Vascular Surgery is an unincorporated association.

(g) On about 30 June 2011 Mr Nick Boyne, Deputy Chair of the Board of Vascular Surgery wrote to Dr David Huber informing him that the Board of Vascular Surgery had decided not to accredit the training position at Wollongong Hospital due to 'political issues' within the Vascular Surgery Unit.

(h) Readers of the matter complained of, or some of them, were aware of the matters set out in (a) to (g), above.

(i) Further and in the alternative to (h) above, the following persons who read the matter complained of were aware of the facts set out in (a) to (g), above:

i. Dr David Huber;

ii. Sue Browbank;

iii. Dr Laurencia Villalba."

There was no issue that those facts were known to all, or most, of the recipients.

114 The list of extrinsic facts is significant for what is not particularised (but was certainly known to most, if not all, of the recipients). There is no mention of the conflict between the plaintiff and Dr Huber, of the conflict between the plaintiff and Dr Jack, to the existence or content of the Brennan/Scott report, or of the grievances listed by the plaintiff in his letter to Dr Quinn of July 2009 ([41]). There is nothing in the particularised extrinsic facts that adds anything to the content of the email. Just what purpose, in throwing light on whether either imputation was conveyed, the facts particularised as (c), (d), (e) or (f) are said or thought to cast upon whether the imputations were conveyed is a mystery. The letter of 30 June referred to in particular (g) relevantly mentions only "political issues" and "conflict"; it does not make any mention of the plaintiff. Taken at its highest for the plaintiff, the ordinary reasonable reader, having identified the plaintiff by omission of his name from the list of potential training surgeons, and putting that together with the reference to "political issues" would not, and could not, draw any inference of incompetence or unsatisfactory conduct on the part of the plaintiff.

115 Neither imputation was conveyed, whether in the natural and ordinary meaning of the email, or to those recipients in possession of the special knowledge upon which the plaintiff relies.

116 It might be different if the plaintiff had chosen to include in the particularised extrinsic facts those matters concerning his relations with others in the vascular surgery unit, and in the Hospital. However, while that might have strengthened the plaintiff's case with respect to the questions of whether either of the imputations was conveyed, to have pleaded those matters as extrinsic facts would involve the plaintiff accepting them as "facts". That would not ultimately have assisted the plaintiff's case. Indeed, it would have handed to the defendant on a platter the defences of truth and qualified privilege.

117 The plaintiff's case fails at the outset.

118 However, in case a different view is taken elsewhere, it is necessary to consider the fate of the various defences pursued.

Defences

(i) Contextual truth

119 The defence of contextual truth is provided for in s 26 of the Defamation Act. Section 26 provides:

"26 Defence of contextual truth

It is a defence to the publication of defamatory matter if the defendant proves that:

(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and

(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations."

The contextual imputation pleaded by the defendant is set out above at [ REF _Ref361057871 \r \h \* MERGEFORMAT 9]. For the same reasons as given in relation to the imputations by the plaintiff, this imputation was not conveyed. There is nothing in the email that touches upon the "managerial or interpersonal skills" of the plaintiff.

120 Moreover, it is essential to the defence that, by reason of the truth of the contextual imputation, the imputations pleaded by the plaintiff do not further harm the plaintiff's reputation. That means that contextual imputation[s] must be of at least equal gravity to any of those pleaded by the plaintiff and not proved to be true.

121 Even if the defendant were able to prove the truth of the contextual imputation, it is of significantly less harmfulness than those (or either of them) pleaded by the plaintiff.

122 This defence would fail.

(ii) Qualified privilege at common law

123 The defence of qualified privilege at common law was spelled out in Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044 and Adam v Ward [1917] AC 309. In the former case, the following was said:

"In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned ... If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society ..." (italics added)

124 In the latter case, Lord Atkinson said:

"It was not disputed ... that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential."

125 At first blush, this would appear to be a quintessential case for the application of the common law defence. The defendant was the Chair of professional organisation, communicating on a relevant matter to a single recipient, who had a relevant interest in receiving information on the subject, with limited republication to other recipients also having the relevant interest.

126 However, counsel for the plaintiff raised an interesting point. They rely upon the procedures in the BVS. Acting in accordance with their Charter, at a regularly convened meeting, the BVS declined to reaccredit the vascular surgery unit at the Hospital for training purposes. In apparent breach of the set procedures, the defendant and Dr Chambers departed from that decision, effectively overriding it. In those circumstances, the plaintiff's counsel argued, the defendant did not have any duty to communicate with Dr Huber as he did. The defence of qualified privilege at common law is therefore not available to him.

127 One difficulty with that proposition is that it overlooks the reference in Toogood v Spyring to "legal or moral" duty, and "matters where his interest is concerned", and the reference in Adam v Ward to "an interest or a duty, legal, social, or moral ...".

128 There is no doubt in my mind that the defendant had the relevant interest. I incline also to the view that, even if the decision making process was irregular, he nevertheless had a duty to communicate with Dr Huber what he and Dr Chambers had decided. Whether there were administrative failures in the decision making process is not something with which these proceedings are concerned.

129 I am satisfied that, subject to the question of malice, if either imputation had been conveyed, it would have been protected by the defence of qualified privilege at common law.

(iii) Qualified privilege: Defamation Act, s 30

130 Section 30 of the Defamation Act provides:

"30 Defence of qualified privilege for provision of certain information

(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that:

(a) the recipient has an interest or apparent interest in having information on some subject, and

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and

(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.

(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.

(3) [Sub-section (3) sets out relevant matters to take into account in determining the reasonableness of a publisher's conduct.]

(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.

(5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward."

131 As indicated in relation to the common law defence of qualified privilege, I am satisfied that the defendant believed, on reasonable grounds, that Dr Huber had an apparent interest in having information on the subject matter of the email. Although it does not strictly arise, I am equally satisfied that, to the extent that he was aware that they were likely recipients, the defendant also believed, again on reasonable grounds, that those to whom the email was republished had the relevant interest. I am satisfied, for the purposes of s 30(1)(b), that the email was published to Dr Huber, and the other recipients in the course of giving them information on the subject, and, for the purposes of sub-s (3), I am satisfied that the defendant's conduct was reasonable in the circumstances.

132 In particular, with respect to the reasonableness of the defendant's conduct, I am satisfied that his sources of information were unquestionable (see sub-s (3)(g) and (i)). Sub-paragraphs (a), (b) and (f) are also relevant. The content of the email was specifically published in relation to what were, in reality, public functions of the plaintiff, and publication was limited to those involved in his performance of those functions. The performance of VMOs in public hospitals, and the training of surgeons, is plainly a matter of public interest.

133 I am satisfied that, subject to the question of malice, the defence of qualified privilege pursuant to the Defamation Act would succeed.

Malice

134 As is plain from the passage extracted from Toogood v Spyring, the privilege operates only if not defeated by malice. The plaintiff pleaded that the defendant was actuated by malice. He pleaded no fewer than 24 particulars of malice, of which the first two were:

"(a) The matter complained of was published for the improper motive of harming the plaintiff.

(b) Further and in the alternative to (a), the matter complained of was published for the improper purpose of assisting Dr David Huber and/or Dr Laurencia Villalba, or other persons to the plaintiff's detriment."

135 It is also asserted that the defendant was aware that "the allegations made" in the email about the plaintiff were false; that, at the time of publication the defendant had no proper basis to allege that the plaintiff was not competent to supervise trainees' clinical work. Reference was made to many of the historical matters concerning relationships in the Hospital.

136 The particulars lettered (t) and (u) referred to communications made in November 2011 - post-dating publication of the email. How these could establish malice at the time of publication was never explained.

137 I record that I am abundantly satisfied that the email was not published for the purpose of harming the plaintiff nor of assisting either Dr Huber or Dr Villalba or anybody else "to the plaintiff's detriment". I am satisfied that the purpose of the defendant in publishing the email was to communicate to Dr Huber (and to the Hospital) the decision that he and Dr Chambers had made, in the interests of resolving the personal difficulties being experienced by Dr Amir-Nezami. In order to do this, the defendant perceived it as necessary, if possible, to have the plaintiff excluded from supervising her clinical training. Whether that was a correct, or a fair, decision, does not arise in these proceedings. The publication was made for precisely the purpose for which privilege is granted.

138 The defences of qualified privilege are not defeated by malice.

(iv) Triviality

139 Section 33 of the Defamation Act provides as follows:

"33 Defence of triviality

It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm."

140 This defence also would succeed. The email was published only to individuals who were fully aware of the conflicts that had existed between the plaintiff and others. They were all individuals who knew the plaintiff well. They undoubtedly had their own opinions of him. It is highly unlikely that any of those opinions (whether favourable to the plaintiff or unfavourable) would have been affected by the publication of the email. This is borne out by the unusual circumstances that not one of the recipients of the email was called to give evidence of its effect on his or her opinion of the plaintiff; and no evidence was called of any damaging effect on his reputation by the publication. To the extent that there was any evidence of damage to the plaintiff's reputation (and such evidence was minimal), the damage was attributed to what was seen as the decision of the BVS to seek the removal or exclusion of the plaintiff from the training position - the same distinction I have earlier made.

141 Given the very limited publication, in those circumstances, I am satisfied that it was unlikely that the publication of the email would be the occasion of any harm to the plaintiff.

(v) Truth

142 The evidence relevant to the truth of each imputation is, predominantly, that of the seven witnesses called on behalf of the plaintiff, the plaintiff himself, Dr Huber, Dr Villalba and Dr Jack. That evidence reveals sharply divided opinions about the plaintiff in general, and about his professional interactions with trainee vascular surgeons, and with other members of the vascular surgery unit. A number of the witnesses called in the defence case found the plaintiff very difficult to deal with. They considered him to be arrogant, self-centred, and unprepared to work as part of a team delivering medical services to the Illawarra community.

143 Witnesses called on behalf of the plaintiff had a very different perception. Some, notably Dr Mekisic, were unabashed admirers and supporters of the plaintiff. In Dr Mekisic's case, I find that his loyalty to the plaintiff was such that he lacked objectivity.

144 As I have said above, while Dr Mekisic's objectivity may be questioned, the level of his support for the plaintiff cannot. Other witnesses called on behalf of the plaintiff were more restrained, but nevertheless offered strong support.

145 There is an interesting observation to be made about the character and reputation witnesses called on behalf of the plaintiff. Of those seven witnesses, Dr Mekisic alone has had experience of working closely with the plaintiff at any time since 2008. Dr McKay operates at the Hospital (and a number of hospitals) but his contact with the plaintiff is limited.

146 Neither Dr Thicov nor Dr Feitosa, who were the vascular surgery trainees in 2010 and 2011 respectively, was called. Thus, there is no significant contemporaneous evidence in the plaintiff's case with respect to his capacity to supervise trainees. That is an important matter, taking into account the significance of events in 2008, when the breakdown of the relationship between the plaintiff and Dr Huber culminated.

147 For the purpose of this defence, it is necessary to examine each imputation individually.

Imputation (a)

148 Imputation (a) is unambiguous. It is not that the plaintiff was incompetent or not competent as a surgeon. The imputation as framed imports something significantly narrower than that. The focus of the imputation is on the plaintiff's competence in a very particular respect - his capacity to supervise the clinical work of trainee vascular surgeons.

149 The accreditation document of RACS (Ex C) sets out "Nine Key Competencies for Surgeons" (see [20] above). There is no question about the plaintiff's medical expertise, judgment in clinical decision making or technical expertise. Other of the competencies, however, with particular respect to the role of a surgeon involved in training, are lacking. At least since 2008, the plaintiff has been deficient in communication and collaboration, and, to a lesser extent, in teaching and in management and leadership. In reaching this conclusion, I have not relied solely upon the experience of Dr Jack. I cannot exclude the possibility that there were deficiencies in her own participation (although the only evidence to that effect is that of the plaintiff), and the difficulties may have been attributable to no more than a personality clash. The evidence of Dr Villalba and Dr Huber persuades me that, by 2008 and continuing to at least 2011, because the plaintiff was unable to interact with other members of the vascular surgery unit, he was also unable to perform the role of trainer surgeon.

150 I find that imputation (a) (if it were conveyed) was substantially true.

Imputation (b)

151 An issue arose during the course of evidence with respect to whether the involvement in the training of surgeons was or was not a right. That gave rise to the amendment by the substitution of the word "privilege" for the word "right". The distinction does not matter. It was a false issue. The focus of imputation (b) is on the plaintiff's conduct.

152 Evidence relevant to the truth of this imputation includes the Brennan/Scott report (Ex A, Tab 16). Large sections of that report are set out above ([59]). I will here refer only to limited passages. The inspection team found that the vascular surgery unit at the Hospital was dysfunctional, and that this was the common, even universal, perception. They found that the visible manifestation was the lack of relationship between the two senior surgeons. Of those consulted by the inspection team, many, but not all, attributed the disharmony to the plaintiff.

153 The inspection team commented unfavourably upon the plaintiff's absenting himself from important meetings. They outlined common themes of complaint and noted that they were all directed at one surgeon. It was accepted that that one surgeon was the plaintiff. The inspection team said:

"The [broader picture] that emerges is that of a talented person dedicated to patients but unwilling or unable to temper that dedication with an understanding of the priorities and commitment of others."

154 In writing this, Drs Brennan and Scott were recording what they had learned and observed from a number of individuals involved in the Hospital. Those observations were confirmed by the evidence in the trial.

Reputation

155 To the extent that any damage was done to the plaintiff's reputation, it was done by the fact that the BVS had taken the step of reaccrediting the Hospital for vascular surgery training with an implied request that the plaintiff not be involved in that training. An answer given by Dr Mekisic is telling:

"Q. What has Dr Stanton told you about the case?

A. He said that, you know, this letter was written by Gary Fell, whom he had never met, saying that he can't teach the trainees, and he had been stabbed in the back by his colleagues because his colleagues must have approached the College to have this happen."

156 Even if, contrary to my various conclusions above, the email conveyed either or both of the imputations, and none of the defences succeeded, I would award no more than nominal damages.

157 The orders I make are:

(1) Verdict for the defendant;

(2) The plaintiff is to pay the defendant's costs.

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Decision last updated: 29 July 2013