Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Stanton v Fell [2014] NSWCA 44
• Hearing dates: 7 March 2014
• Decision date: 07 March 2014
• Before: Macfarlan JA at [1]; Ward JA at [11]

Decision

The application for leave to appeal is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: PRACTICE AND PROCEDURE - leave to appeal - less than $100,000 at issue - not sufficient to show arguability of appeal - leave refused
• Legislation Cited: Defamation Act 2005 (NSW), ss 25, 30, 33; Supreme Court Act 1970 (NSW), s 101
• Cases Cited: Be Financial Pty Ltd v Das [2012] NSWCA 164; Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; Kassem v Colonial Mutual [2001] NSWCA 38
• Category: Procedural and other rulings
• Parties: Arthur Peter Stanton (Applicant); Gary Fell (Respondent)
• Representation: Counsel: K P Smark SC (Applicant); P J Hayes (Respondent); Solicitors: Access Law Group (Applicant); Russell Kennedy Lawyers (Respondent)
• File Number(s): CA 2013/256516

Decision under appeal

• Jurisdiction: 9111
• Citation: [2013] NSWSC 1001
• Date of Decision: 2013-07-29 00:00:00
• Before: Simpson J
• File Number(s): SC 2012/288471

Judgment

1 MACFARLAN JA: This is an application for leave to appeal against a decision of Simpson J directing judgment for the defendant in proceedings for damages for defamation brought by Dr Arthur Stanton ([2013] NSWSC 1001).

2 At the relevant times, Dr Stanton was a specialist vascular surgeon holding an appointment as a Visiting Medical Officer ("VMO") in the Vascular Surgery Unit of the Wollongong Hospital. The two other VMOs in that unit were Dr David Huber and Dr Laurencia Villalba. On 30 June 2011, Mr Nick Boyne, Deputy Chair of the Board of Vascular Surgery (which operates under the auspices of the Royal Australasian College of Surgeons) wrote to Dr Huber informing him that the Board had decided not to continue Wollongong Hospital's accreditation as a training post for vascular surgery due to "political issues" within the Vascular Surgery Unit. Dr Stanton claims that he was defamed in an email sent on 19 September 2011 to Dr Huber by Mr Gary Fell, who was the Chair of the Board. The email 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"

3 In his proceedings in the Common Law Division, Dr Stanton alleged that imputations arose out of the email that he was not competent to supervise trainees' clinical work and/or that he had so conducted himself as to warrant the Board of Vascular Surgery removing his "privilege" to supervise trainee surgeons' clinical work. He alleged that these imputations arose out of the email in its natural and ordinary meaning or alternatively arose by reason of the knowledge of extrinsic facts of those to whom the email was published or republished (that is by way of "true innuendo"). He sought general, aggravated and special damages. Mr Fell pleaded a number of defences including substantial truth (that is justification pursuant to s 25 of the Defamation Act 2005), qualified privilege (under the common law and s 30 of the Act) and triviality (s 33 of the Act).

4 The primary judge rejected the claim on a number of bases. First, her Honour held that the email did not give rise to the imputations alleged, either in its natural and ordinary meaning or when read with knowledge of the particularised extrinsic facts. Her Honour found that nothing in the email could realistically suggest to the ordinary reasonably fair-minded reader that Dr Stanton was incompetent or was guilty of unsatisfactory conduct.

5 Her Honour also held that if, contrary to her view, the imputations alleged did arise from the publication, they were justified in that they were substantially true, that the publication occurred on an occasion of qualified privilege both at common law and pursuant to s 30 of the Act, that Mr Fell was not actuated by malice, and that the defence of triviality had been made out as the publication was in any event unlikely to cause harm. Her Honour's view was that if these findings were in error, the damages to which Dr Stanton was entitled were only nominal. Underlying a number of the findings was her Honour's view that Dr Stanton's real complaint concerned, and any damage suffered by him flowed from, the decision made by Mr Fell and Dr Jennifer Chambers to approve accreditation of the Vascular Surgery Unit as a training post with the implied requested exclusion of Dr Stanton from training duties, rather than the communication constituted by the email (Judgment [103], [104] and [155]).

6 Dr Stanton has accepted that he requires leave to appeal upon the basis that the amount in issue is less than $100,000 (Supreme Court Act 1970, s 101(2)(r)). As this Court has pointed out on many occasions, the legislative requirement for leave in the case of appeals involving less than a specified sum of money is indicative of a policy that the Court should not in ordinary circumstances be troubled by such appeals. In Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69, Kirby P identified a number of presumed reasons for the adoption of this policy. As Basten JA pointed out in Be Financial Pty Ltd v Das [2012] NSWCA 164, not all of these reasons remain relevant. Nevertheless, most do.

7 It is also established that it is not enough for an applicant for leave in such a case to demonstrate that a judgment below is arguably wrong (Carolan per Sheller JA; Kassem v Colonial Mutual [2001] NSWCA 38 at [74] - [77]; Be Financial at [32]). Ordinarily it is appropriate to grant leave to appeal in cases of this type only where they involve "issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond [what is] merely arguable" (Be Financial at [33] quoting Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]).

8 For Dr Stanton to succeed on an appeal in the present case, he would have to persuade the Court that the primary judge was in error in a number of respects. He would have to demonstrate that at least one of the imputations upon which he relies arose out of the email, that at least one of the imputations so arising was not justified, that the publication did not occur on an occasion of qualified privilege or was actuated by malice, that the circumstances of the publication were not such that Dr Stanton was unlikely to sustain any harm (that is, the triviality defence was inapplicable) and that he should be awarded more than nominal damages.

9 Investigation of these issues would involve a wide ranging consideration of the extensive evidence given before the primary judge and require this Court to find a number of errors in factual and evaluative conclusions of her Honour. Bearing in mind the nature of the proceedings at first instance, it is not possible on an application such as this to conclude that Dr Stanton does not have an arguable case on the points at issue. However, even if such arguability be assumed in his favour, the basis for a grant of leave to appeal is not established as it is not apparent that the matter involves any issue of principle or of general public importance, and I cannot conclude that Dr Stanton's case rises above mere arguability such that it can be said that a real risk of an injustice having been suffered has been established.

10 Dr Stanton seeks to mount an appeal raising a large number of factual and evaluative issues in a case where he has no right of appeal but only a right to the grant of leave to appeal in the event that he establishes that his prospective appeal is out of the ordinary. In my view, he has not done this and his application for leave to appeal should be dismissed with costs.

11 WARD JA: I agree that the application for leave to appeal should be dismissed with costs for the reasons given by Macfarlan JA.

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Decision last updated: 07 March 2014