CATCHWORDS APPEAL - appeal against order for separate trials of different causes of action - complex promissory estoppel, contractual and defamation causes of action - application of O22 r1 - causes of action incapable of independent resolution as interrelated. APPEAL - appeal against decision to uphold order striking out certain particulars of malice in defamation action. PRACTICE & PROCEDURE - defamation - particulars of malice - must include statement of facts from which conclusion as to malice may be drawn - primary facts to be alleged rather than conclusions -inadequacy of particulars not grounds for striking out. DEFAMATION - malice vitiating occasion of qualified privilege - truth or falsity of defamatory statement not essential - motive for defamatory statement may include reckless indifference - inference of malice to be derived from intrinsic and extrinsic circumstances. Defamation Act, O23, r2, O23 r6 NSW Supreme Court Rules, Pt 67, r11(2) English Annual Practice 1995, par 18.12.2 Horrocks v Lowe [1975] AC 135 Turner v MGM Pictures Ltd [1950] 1 All ER 449 Calwell v Ipec Australia Ltd (1975) 135 CLR 321 Turner v Bulletin Newspaper Co Pty Ltd (1974) 3 ALR 491 King v John Fairfax & Sons Ltd [1983] 1 NSWLR 31 Hanrahan v Ainsworth (1990) 22 NSWLR 73 The Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 255 On appeal from a Judge of the Supreme Court of the Australian Capital Territory ARNOLD MANN v THE BOARD OF HEALTH OF THE AUSTRALIAN CAPITAL TERRITORY, JOHN ARTHUR BISSETT, LEONARD EDWARD WITHERS, ANTHONY CHARLES CLARKE, JOHN JAMES O'DONNELL, BRIAN PETER HURLEY and NOEL TAIT No. ACT G5 of 1996 WILCOX, HIGGINS and R D NICHOLSON JJ CANBERRA 21 JUNE 1996 IN THE FEDERAL COURT OF AUSTRALIA) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) No. ACT G5 of 1996 GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: ARNOLD MANN Appellant AND: THE BOARD OF HEALTH OF THE AUSTRALIAN CAPITAL TERRITORY First Respondent AND: JOHN ARTHUR BISSETT Second Respondent AND: LEONARD EDWARD WITHERS Third Respondent AND: ANTHONY CHARLES CLARKE Fourth Respondent AND: JOHN JAMES O'DONNELL Fifth Respondent AND: BRIAN PETER HURLEY Sixth Respondent AND: NOEL TAIT Seventh Respondent CORAM: WILCOX, HIGGINS and R D NICHOLSON JJ PLACE: CANBERRA DATE: 21 JUNE 1996 MINUTES OF ORDERS THE COURT ORDERS THAT: 1. Leave to appeal granted. 2. In respect of the notice of motion dated 29 January 1996, set aside order 1 made by Miles CJ on 2 February 1996 and in lieu thereof order that orders 3, 4, 5, 6, 7, 9, 10, 11, 12, 13 and 14 made by Master Hogan on 27 October 1995 be set aside. 2. In respect of the notice of motion dated 31 January 1996, set aside orders 2(b), 2(c), 3 and 4 of the orders made by Miles CJ on 2 February 1996; 3. In respect of the further orders made that day by Miles CJ, set aside orders 1, 4 and 5; and 4. Order that the respondents to this appeal, the sixth and seventh defendants, pay to the applicant, the plaintiff, the costs incurred by him in connection with the notice of motion made returnable before the Master on 25 August 1995 and the proceedings before the Chief Justice on appeal from the orders made by the Master on 27 October 1995. 5. Order that the respondents pay the applicant's costs of the appeal to this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) No. ACT G5 of 1996 GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: ARNOLD MANN Appellant AND: THE BOARD OF HEALTH OF THE AUSTRALIAN CAPITAL TERRITORY First Respondent AND: JOHN ARTHUR BISSETT Second Respondent AND: LEONARD EDWARD WITHERS Third Respondent AND: ANTHONY CHARLES CLARKE Fourth Respondent AND: JOHN JAMES O'DONNELL Fifth Respondent AND: BRIAN PETER HURLEY Sixth Respondent AND: NOEL TAIT Seventh Respondent CORAM: WILCOX, HIGGINS and R D NICHOLSON JJ PLACE: CANBERRA DATE: 21 JUNE 1996 REASONS FOR JUDGMENT THE COURT: This is an application for leave to appeal against a decision of Miles CJ of the Supreme Court of the Australian Capital Territory in relation to certain interlocutory orders made by the Court's former Master, Master Hogan. The Master's orders covered some issues that are no longer in dispute. We are concerned with only two substantive matters: orders made by the Master for the striking out or amendment of certain of the applicant's particulars of malice and his order for a separate trial of certain issues. The proceeding The applicant is the plaintiff in a proceeding that was commenced on 9 July 1991. As initially framed, the proceeding was purely a contract claim. Subsequent amendments to the Statement of Claim added a claim of promissory estoppel and numerous defamation claims. The pre-trial period has been characterised by what the learned Master called "interlocutory trench warfare". All parties share responsibility for this unfortunate situation. Throughout the litigation the applicant has acted in person, although apparently having the benefit of legal advice from time to time. Before us, however, Mr Mark Dreyfus of counsel appeared for him. The pleadings The applicant, Arnold Mann, is a medical practitioner who formerly practised in the Australian Capital Territory. According to his Amended Statement of Claim, he was for many years employed as a salaried surgeon by the first defendant, the Board of Health of the Australian Capital Territory. In July 1986, according to the pleading, the applicant agreed with the Board for his employment to be terminated as from 1 November 1986 on the understanding that the Board would then appoint him to a visiting medical officer post as a general surgeon and would enter into a fee for service agreement with him. The appointment was to be on the same basis as other surgeons with fee for service agreements. In entering into this agreement, the applicant says he waived a statutory right of appeal against termination of his salaried employment that would have been available to him. Pursuant to the July agreement, the applicant and the Board of Health entered into a fee for service agreement operative from 1 November 1986 to 18 January 1988. Upon its expiration, the agreement was renewed and ran its course, until 20 November 1990. But it was not further renewed. As we understand the Amended Statement of Claim, the applicant claims that this omission breached the Board's contractual obligations to him in four respects. First, he says non-renewal was a breach of an agreement for renewal reached in November 1990 and evidenced by a letter dated 20 November. Second, under cl. 10.4 of the 1988 agreement, the Board was bound to renew that agreement on 20 November 1990 unless it had previously given the applicant not less than 90 days notice of a decision not to renew the agreement, and it had not done this. Third, under the 1988 agreement, the Board was obliged to treat him, in relation to the matter of renewal, in the same way as it treated other medical practitioners, at least unless it had given him a cl. 10.4 notice. He says that, in failing to renew his agreement, it treated him differently from other practitioners, whose agreements were renewed. Finally, the 1986 agreement obliged the Board to maintain the applicant's appointment on the same basis as other surgeons with fee for service contracts. The second cause of action relied on by the applicant is linked with the first. He says the Board is estopped from departing from promises made to him in 1986, at the time of the agreement for termination of his salaried appointment. The third cause of action lies in defamation. Several defamatory statements are alleged. Most of them arise out of letters written in September and October 1990. At this time, it appears, the third respondent, Leonard Edward Withers, and the fifth respondent,John James O'Donnell, sought information (apparently on behalf of the Board) about aspects of the applicant's conduct from various people. The applicant claims that three letters written pursuant to those requests, by Anthony Charles Clarke, Brian Peter Hurley and Noel Tait (the fourth, sixth and seventh respondents) were defamatory. The applicant also claims that he was defamed in a Minute sent to the Minister for Health on 7 January 1991 by Mr Withers and in a report prepared for the information of the Board by its Chief Executive Officer, John Arthur Bissett, the second defendant. The applicant also alleges various defamatory statements at a Board meeting held on 22 March 1991, and sues each of the defendants who made the statements. Only two of the seven defendants were represented on the interlocutory application that gave rise to this appeal. However, as we understand the position, the Board of Health denies that it breached any agreement with the applicant and disputes his estoppel claim. The making of some of the statements is not in issue, although there may be a question in some cases as to whether a particular statement was defamatory of the applicant. Additionally, and not surprisingly, each defendant claims that any defamatory statement made by him was the subject of qualified privilege. By his amended Reply the applicant denies the claim of qualified privilege and alleges malice. The pleading contains extensive particulars of malice, thereby giving rise to one of the issues confronting us. The hearing before the Master The matter came before the Master on an application by the sixth and seventh defendants for an order striking out one paragraph of the applicant's Reply. The Master decided not to accede to that application but to make what he called "directions about the conduct of the action in general". In undertaking that task, he published an extensive judgment, dated 27 October 1995, in which he analysed the pleadings and quoted the terms of each of the documents alleged to contain defamatory statements. He set out the applicant's particulars of malice and then turned to a consideration of the directions he ought to make. His first conclusion was that he ought to order a separate trial of the contract and estoppel claims. His reasons were as follows: "A single action for defamation against one defendant is complex enough. Here we have, in addition to the causes of action in contract, eight causes of action in defamation against seven defendants. The particulars of malice alleged against each of the other five defendants are as extensive in their scope as those the subject of this application. Those defendants wisely chose to await the outcome of this application before asking for relief in respect of the allegations against them. It is clear that those particulars must be severely pruned, but they will still be extensive. The implications for managing the preparation of the case for hearing are frightening. Unless effective control is imposed immediately it will be almost impossible to confine the processes of discovery within reasonable bounds, and to restrict the evidence so that the case does not become a Commission of Inquiry into the past management of Canberra's hospitals. It seems to me that the plaintiff's view is that the occasions on which the letters were sent, and on which the statements were made which are said to be defamatory, were all part of the process which led to the Board's failure to renew the plaintiff's Fee for Service Contract, and that the propriety of the Board's decision not to renew it will involve a consideration of many questions of fact that will be involved in the defamation actions, so that it is necessary to determine all the issues of fact and law at the one hearing. I have endeavoured to demonstrate that this view is not correct. This is not an action against the Board for wrongful dismissal, in which the Board has, by its Defence, made allegations of misconduct by the plaintiff that justified it in dismissing him. The causes of action in contract involve points of construction, and the evidence relating to them will be restricted to a relatively small number of documents. The sixth and seven defendants are in no way involved in the process of deciding them, and costs would be wasted by the attendance of them or their legal advisers while the argument takes place. The Second, Third, Fourth and Fifth Defendants are not parties to the contractual causes of action, and would not be involved in their determinations, except possibly as witnesses to some relative peripheral matter. I propose therefore to direct a separate trial of the contractual causes of action, and to take steps designed to have them heard and determined as quickly and cheaply as possible. I do not think that discovery or interrogatories will be necessary, but if any party is prepared to try to overcome the barrier placed in their way by the proviso to 0.34 r13 they will have liberty to apply." The Master referred to the applicant's denial that the defamatory statements were made on occasions of qualified privilege. Being of the opinion that it was clear from the applicant's own case that the publications were subject to qualified privilege, he directed the applicant to amend his Reply so as to admit that fact. The Master then turned to malice. He thought the applicant had misconceived the concept of malice as applied in defamation law. He explained that concept at some length and with reference to decided cases. The Master pointed out that the applicant bore the onus of proving malice and concluded: "In the context of this application, if the particulars in the replies show that the plaintiff proposes to call evidence which, if believed, could as a matter of law support the inference of malice, then the paragraphs in issue and those particulars that point to that evidence should be allowed to remain in the pleadings. Any particulars which point to evidence which could not possibly support that inference should be struck out. If there remain no particulars of any evidence that could support the inference, then the paragraphs themselves should be struck out." The Master examined each of the documents relied on by the applicant in connection with his defamation claims. He expressed the view that none of them contained intrinsic evidence of malice, so the claim of malice must depend upon extrinsic evidence. The particulars identified the extrinsic evidence relied on by the applicant. The Master went through the particulars concerning each defendant and concluded, in respect of most of them, that they were incapable of founding an inference that the maker of the statement did not honestly hold the opinion allegedly expressed by him. In the result, he ordered that almost all particulars of malice be struck out or amended. The formal orders made by the Master were as follows: "1. I direct the First Defendant to amend paragraph 6 of its amended Defence so as to make clear the precise issue tendered. 2. I order the first defendant to pay the costs of and occasioned by that amendment. 3. I direct a separate trial of the issues raised by the following allegations in the Pleadings: (a) In the Further Amended Statement of Claim, paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27 and 28; (b) In the Amended Defence of the First Defendant, paragraphs 1, 2, 3, 4, 5, 6, (as amended pursuant to order 1 above), 7, 8, 9, 10, 11 (except its reference to paragraph 24 of the Statement of Claim) and 12. (c) Paragraph 1 of the Plaintiff's Reply to the Amended Defence of the Firstnamed Defendant. 4. I direct that the trial of those issues proceed on affidavit evidence. 5. I direct the Plaintiff to file and serve within 21 days affidavits in proof of his case on those issues. 6. I direct the First Defendant to file and serve its affidavits in answer within 14 days after service upon it of the Plaintiff's affidavits. 7. I direct the Plaintiff to file and serve any affidavits in reply within 14 days after service upon him of the First Defendant's affidavits. 8. (a) Discovery is not to be given, and interrogatories are not to be administered, except by leave. (b) On any application for such leave, reference must be made to the particular issue with respect to which discovery is sought, and a list of the proposed interrogatories is to accompany the application. 9. (a) I grant leave to the Plaintiff or the First Defendant, on reasonable notice after the expiry of the time limited for filing affidavits, to apply to the Clerk to the Judges for a date to be fixed for a directions hearing, on which the judge who is to try the issues raised will give any further directions relating to that trial. (b) In default of any such application by either party I direct that the matter be listed for directions on the first day in 1996 on which a judge may be available to give directions. 10. I order the plaintiff to amend the Replies to the amended Defences of the Sixth Defendant and the Seventh Defendant - (a) by omitting paragraph 2, and (b) by deleting from paragraph 3 the words `published the letter of 24 September 1990 to the Executive Director Clinical Services, and'. 11. I order the Plaintiff to pay the costs of and incidental to those amendments. 12. I order to be struck out of the Particulars of Malice appended to paragraph 3 in the Replies to the Amended Defences of the Sixth Defendant and the Seventh Defendant the following particulars: (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (s), (t), (u) and (v). 13. I order the Plaintiff to amend particulars (q) and (r) so as to make clear the particular allegations and statements referred to. 14. I order the plaintiff to pay the costs of the Sixth and Seventh Defendants of and incidental to this Notice of Motion." The hearing before the Chief Justice The plaintiff appealed against orders 3 to 14 inclusive made by the Master. The appeal came before the Chief Justice on 17 November 1995. On 22 December his Honour delivered a judgment in which he upheld most of the Master's conclusions. One significant exception related to order 10 made by the Master, requiring the applicant to admit the sixth and seventh defendants' claims of qualified privilege. In his reasons for judgment, the Chief Justice emphasised the increasing importance of pre-trial procedures in "assisting the parties to identify the real issues and thereafter to confine the adjudication process to deciding those issues without unduly protracting the proceedings with the familiar disadvantages of costs and delay". We respectfully agree with this observation. His Honour then discussed the applicant's Reply to the amended Defences and the denial of qualified privilege. Turning to malice, he referred to authorities and the Master's analysis of the applicant's particulars. He agreed with the Master's observation that there was nothing in the letters attributed to the sixth or seventh respondent "taken by itself which is capable of showing malice ... Therefore, the particulars of extrinsic facts and matters are crucial". He went on: "Without setting out all the particulars in these reasons, I think it is convenient to divide them into various categories, namely: 1. Failing to give notice to the plaintiff of what the defendant intended to say at the meeting, or failing to obtain from the plaintiff his response to matters likely to be raised at the meeting. 2. Hypocrisy in failing to apply to himself the standards that he applied to the plaintiff and failing to inform the Board of Health accordingly. 3. Failing to take into account and/or failing to draw to the attention of the meeting proven professional misbehaviour or allegations of misbehaviour on the part of other medical practitioners. 4. Failing to disclose to the meeting professional opinion which was supportive of the plaintiff. 5. Using the occasion of publication to further the defendant's own professional interests. 6. Failing to consult others before delivering to the meeting an opinion adverse to the plaintiff. 7. Failure to disclose to the meeting correspondence with the plaintiff. 8. Failure to apologise. Broadly I agree with the Master that subject to the specific exceptions discussed below, none of these allegations if proved can give rise to an inference either that the defendant lacked a belief in the truth of what he wrote in the letter or of what he said at the meeting, or, with the possible exception of category 5 above, that his dominant motive was to injure the plaintiff's reputation by means of the matter complained. As to category 5, whilst it is possible that the defendant's mental processes were not free of a desire to further his own professional interests, there is nothing in the facts otherwise alleged in the particulars from which it could be inferred that such an intention was dominant. However, as the Master did not disallow para. (e) (which falls into category 5 above) of the particulars, and there is no cross-appeal, I would simply observe that para. (e) is incomplete in that whilst it does raise a matter which if proved may be evidence of improper motive, it does not set out the circumstances from which the Court will be asked to infer that the defendant at the time of the publication sought to advance his own professional interests. Paragraphs (o) and (p), which expressly allege knowledge of the untruth of what was said, were allowed by the Master to stand. Again, I do not offer any comment except to observe that these paragraphs are incomplete like para. (e) in that they do not set out the facts from which the defendant's knowledge of, or indifference to, the falsity of the statements is to be inferred. Particulars (q) and (r) were the subject of a direction by the Master to amend in order to remove ambiguity. The ambiguity is in the introductory words in (q) `he made his allegations of and concerning the plaintiff' and in (r) `what he was saying to the Board'. The Master thought that these words could be construed to refer to allegations and statements outside the matters complained of. I think that it is more likely that they are meant to be restricted to the matters complained of. However, the direction given by the Master was open to him and I would not interfere with it except to the extent of making it more precise in the terms which appear at the end of these reasons. For the above reasons I would dismiss the appeal as it relates to the orders made by the Master number 12 and 13." The Chief Justice then considered the Master's direction for a separate trial of the contract claims. He observed that the Master had not made a formal order to that effect; strictly speaking, therefore, no appeal was available. However, he pointed out that it was open to the Court to order a separate trial of particular issues raised on the pleadings and said: "The issues raised in the claims in defamation are very distinct from those raised in the claim in contract. The issues in the contractual claim are already settled by the pleadings and that claim is at the stage where it is appropriate to give firm directions for the further conduct of the proceedings in order to facilitate proper and prompt preparation for trial both from the point of view of the parties and from that of the Court. The Master, in fact, gave such directions. It is unlikely that much oral evidence will be needed in the claim for contract. Hence it was appropriate for the Master to direct that in the first instance at least the parties set out their evidence in affidavit form. In stark contrast, the claim in defamation has not reached the same state of preparedness. In a defamation action, affidavit evidence is usually inappropriate and the credit of witnesses is likely to be important. There was every reason for the Master to direct a separate trial for the claim in contract. Subject to hearing further from the parties, if they wish at the next directions hearing, I propose to make a formal order that there be a separate trial of the claim in contract and that it proceed in accordance with the directions and time-table laid down by the Master." Importantly the Chief Justice continued: "I invite the parties at the next directions hearing also to make submissions on whether or not there should be a separate trial of the claim in equitable estoppel or the claim in tortious conspiracy or both. I make the observation that neither of these claims has been formulated in such a way that it can be ready for trial simply by observing the directions given by the Master." The importance of that additional observation is that it makes apparent that, in reaching his conclusion to order a separate trial of "the claim in contract", the Chief Justice was not including the claim in contract so far as it was pleaded with reference to the issue of promissory estoppel. When the matter came before him again on 2 February 1996 the orders made by the Chief Justice on that date had the effect of referring for separate trial the claims in contract including the issue of promissory estoppel. The formal orders he made that day included an order refusing the application to set aside orders 3 to 14 made by the Master, with the exception of order 10 relating to the defence of qualified privilege. The result was that orders 3 to 9 and 11 to 14 were allowed to stand. The appeal The applicant appealed against the Chief Justices' orders. As previously mentioned, he raised some other matters in the Notice of Appeal. However, at the hearing of the appeal, Mr Dreyfus pressed only the issues of particulars of malice and separate trials. He also raised the question of costs. We will deal with each of those issues separately. Particulars of malice It is convenient to commence discussion of the particulars of malice by referring to some basic principles. First, Order 23 rule 6 of the Supreme Court rules requires particulars in all cases ... "in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence ..." "Malice" is not expressly referred to. The rule previously requiring particulars of malice, intent or knowledge has been repealed. Having regard to the nature of a claim of malice, however, it is appropriate to include such particulars in the pleading. It is, of course, necessary to distinguish particulars from the material facts pleaded. A party should not plead to particulars but only to the allegation of material facts in the pleadings, see Turner v Bulletin Newspaper Co Pty Ltd (1974) 3 ALR 491. It follows that facts particularised are not admitted if not pleaded to. Second, particulars are not required to be a lengthy dissertation as to how the party giving them will prove his or her case. They are not an opening address. Order 23 rule 2 requires that: "Pleadings and particulars shall be as brief as the nature of the case admits ..." A party may always request further and better particulars. Particulars indicate what facts and matters are intended to be proved in support of the allegations made in the pleadings. They should not refer to the means by which such proof will be attempted. The purpose of particulars is to: . limit the generality of the pleadings; . restrict the evidence to be led at trial; . inform the opposing party of the case to be met at trial and prevent surprise; . limit and define the issues to be tried; and . limit and define the issues as to which the discovery process may be appropriate. Third, in the case of malice, the relevant question is not whether the defamatory statement was true or false but the motive for the statement. This was made clear by Lord Diplock in Horrocks v Lowe [1975] AC 135 at 149: "For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit - the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege. So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. "Express malice" is the term of act descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests. ... Qualified privilege would be illusory, and the public interest it is meant to serve defeated, if the protection it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it." In some cases, it is claimed that an inference of malice arises from the speaker's knowledge of the falsity of the statement, or the speaker's reckless indifference to the question whether it is true or not. In such a case knowledge or reckless indifference is the critical matter, not falsity. Particulars of malice should therefore include a statement of the facts and matters from which that conclusion is intended to follow. This was pointed out by Hunt J in King v John Fairfax & Sons Ltd [1983] 1 NSWLR 31 at 33: "Indeed, it should be said in relation to both these particulars of malice relied upon by the plaintiff that the allegation of actual falsity should never have been made for, although in some cases it is permissible to prove knowledge of falsity from the fact of falsity itself, proof of the relevant condition of mind does not necessarily depend upon that fact and in many cases it is proved without falsity itself being proved. In point of principle, a defendant is actuated by malice in the publication if he has no honest belief in the truth of what he publishes even if what he has published is objectively true. And the occasion should not be allowed to pass without reminding plaintiffs that Pt 67, r19(d) requires them to give as particulars of malice the facts and matters, and not merely the unsubstantiated conclusions, upon which they rely to establish their allegation of malice. The defendant in defamation litigation is entitled to a proper warning of the case to be made against him, for he is entitled to justify the acts which he is alleged to have done and which are alleged to establish that his publication of the matter complained of was actuated by malice." [Original emphasis] Against this background, it will be apparent that there are two distinct issues concerning the particulars of malice provided by the applicant. The first is whether the particularised facts and circumstances are relevant, alone or in combination with others, to the issue of malice. The second is whether the particulars, the sufficiency or relevance of which has been put in issue, give proper notice of the facts and circumstances said to constitute or support a finding of malice. The sets of particulars relating to the sixth and seventh defendants are substantially similar. The particulars stated in relation to the sixth defendant were as follows: "(a) The said communications were imparted in the Plaintiff's absence, without notice to the Plaintiff of what the Defendant intended to convey; (b) The said communications were not put to the Plaintiff with a view to obtaining his opinion as to whether those words reflected the true position; (c) In his capacity as Chairman of the Medical Staff Committee the Defendant conducted himself with reckless indifference to the rights of the Plaintiff in that he (i) did not allow the Plaintiff any, or any reasonable opportunity to put to the Defendant his case concerning the allegations under consideration before making the defamatory statements; (ii) recklessly failed to inquire and recklessly remained in ignorance of facts which, upon reasonable inquiry, would have shown that what he said to the Board was insupportable by - fact; - law; - the ACT Branch of the Australian Medical Association; and - many if not most of the members of the Division of Surgery. (d) Manifested bias against the Plaintiff by (i) failing or refusing to respond to the Plaintiff's letters; (ii) siding and co-operating with persons whom he knew or should have known, were pursuing the Plaintiff with improper motive, namely the Defendants Bissett, Withers, Clarke, O'Donnell and Tait. (e) Acted with improper motive when expressing his opinion, namely, in seeking to (i) ingratiate himself with the administration; (ii) increase his personal influence with the administration; (iii)gain support from the administration for his efforts to secure maximum allocation of funds for a renal unit at Woden Valley Hospital - to further his ambitions. (f) He said the words and wrote the letter despite his knowledge that the alleged misdemeanours attributed to the Plaintiff, which are denied, concerning Thompson and Minter, were trivial in the extreme compared with the proven acts of very serious malpractice, of which the Defendant knew, or ought to have known, were committed by other salaried and fee-for-service contract holders. (g) He discriminated against the Plaintiff by selecting only the Plaintiff as his object of attack, even though he knew or should have made it his business to know that other specialists (i) had serious malpractice allegations made against them, including Defendant Clarke. In particular, he failed to report the actions of Defendant Clarke in relation to patient Valerie Walker or to make any inquiry of Defendant Clarke as to whether he had himself committed any acts of malpractice; (ii) had verdicts against them in favour of various plaintiffs in other actions. (h) He discriminated against the Plaintiff who had not caused any injury to or delay in treatment of Minter or Thompson, by selecting him as the one person while taking no action to bring before the Board members evidence of malpractice on the part of other Defendants and other contract holders where serious injury did result. (i) He failed or refused to apologise for his remarks about the Plaintiff made in relation to Thompson and Minter. (j) He failed to put before the Board members fairly, or in any adequate way, or at all (i) the fact that the Plaintiff had not caused the death of Myra Hayes; (ii) the contents of his own report about Myra Hayes; (iii)the contents of the report of Professor Little which was known to him, or which it should have been his business to discover. (k) He failed to familiarise himself adequately or at all with the concept of informed consent before making allegations with respect to Thompson and Minter. (l) He maliciously or with reckless indifference omitted to give the Board fair and proper information, about how Dr Tait managed Gary Minter, which if he had done, would have placed the Plaintiff in a proper light in the eyes of the Board and could have cast doubt on the malicious evidence of Defendant Tait. (m) He maliciously or with reckless indifference omitted to give to the Board fair and proper information about the fact that no other surgeon in Canberra could be found to treat Ms Thompson or Mr Minter. (n) He maliciously or with reckless indifference omitted to give to the Board fair and proper information about the fact that Minter refused treatment and that he was discharged from hospital (after being accepted as a patient by Dr Tait) with a nail file still embedded in his abdomen. (o) He maliciously with reckless indifference as to the truth thereof, adopted and promoted or failed to refute false allegations to the effect that the Plaintiff had refused to provide information when the Defendant had available to him relevant correspondence which he had either not read or concealed the contents thereof. (p) He maliciously failed to refute, or to make further enquiries about, certain allegations made by the Defendant Tait at the Board meeting held on 22 March 1991, in his presence, to the effect that the Plaintiff was the cause of the failure of the General Surgery to make progress, which allegations the Defendant knew were not true, could not be true, and which he knew were prejudicial to the Plaintiff. (q) He published the Hurley letter referred to in paragraph 30 of the Statement of Claim and spoke the Hurley words referred to in paragraph 41 of the Statement of Claim: (i) without having made any or any adequate effort in 1990 or since, to seek relevant professional opinions from persons properly qualified to express such opinions, namely, among others, Dr Peter Brown, (Chairman of the Division of Surgery in 1991), Dr Peter Hughes, (former President of the ACT Medical Association), Dr Raymond Newcombe, (neurosurgeon), Dr Grahame Bates, (gynaecologist, the then current President of the ACT Branch of the AMA), and Dr Gavin Carney (salaried nephrologist and graduate in law); (ii) while choosing to support the policies being advanced by Messrs Bissett and Withers, which included the desired exclusion of the Plaintiff and others who were critical of their policies; (iii)knowing that what he was expressing were opinions which were not shared by the body of properly qualified and experienced members of the Division of Surgery. (r) What he wrote in the Hurley letter referred to in paragraph 30 of the Statement of Claim and what he spoke in the Hurley words referred to in paragraph 41 of the Statement of Claim: (i) did not represent the views of the Medical Staff Committee which committee had not the opportunity to consider what he was planning to say to the Board thereby creating the false impression that his views were the views of the said Committee; (ii) deviated from the views of the substantial body of properly experienced members of the Division of Surgery; (iii)deviated from the views of psychiatrists then contracted or employed by the Board;" (s) He maliciously failed to inform the Board that it would be improper for the Board to fail to obtain outside opinions to avoid the possibility of personal animosities and ambitions possessed by the Defendants influencing the decision of the Board; (t) In being selective as to what he chose to say, or to conceal from, the Board he (i) sought to cause prejudice to the Plaintiff, and he acted more like an advocate for the administration than an impartial, professional witness, which he falsely held himself out to be; (ii) sought to ingratiate himself with holders of administrative power; (iii)failed to alert the Board to the ailment which might have caused Mr Withers to suffer from impaired judgement (sic), which ailment was widely known to medical practitioners towards the end of 1990; (u) He failed to apply the standards he personally adopted when he himself declined to treat the patient Saad with Plasmaphersis, to the Plaintiff, but instead chose to use entirely different discriminatory standards; (v) He adopted an entirely different standard when (i) defendant Clarke failed to call a surgeon for one month when Clarke perforated the duodenum of Valerie Walker, a fact made known to the Defendant by the Plaintiff in 1989; (ii) many specialists, such as Dr David McNicol in particular, who were repeatedly responsible for damaging patients admitted under their care. (w) The words uttered by him before the Board on 22 March 1991 and published in the letter addressed to the Executive Director Clinical Services in 1990 were (i) defamatory and published by him maliciously, without care and in recklessness as to whether they were true; (ii) intended by him unfairly to injure the Plaintiff; and (iii)intended by him to induce the Board of Health not to renew the Plaintiff's fee-for-service contract or to condone its proposed actions." ... The differences in relation to the seventh defendant are: Particular (c) commences, "In his capacity as Chairman of the Division of Surgery until 14 November 1990." Particular (d)(i) reads: (i) failing or refusing to respond to the Plaintiff's letters, and in particular he did not reply to the Plaintiff's letter dated 3 October 1990 (copy to Dr O'Donnell) headed "Restraint of Irrational Patients" concerning the problems created by self-mutilating persons and did not table this letter at the 22 March 1991 Board meeting; Particular (g)(i) reads: (g) He discriminated against the Plaintiff by selecting only the Plaintiff as his object of attack, even though he knew or should have made it his business to know that other specialists (i) had serious malpractice allegations made against them, including Defendant Clarke. In particular, he failed to report the actions of Defendant Clarke in relation to patient Valerie Walker even though Defendant Tait possessed full knowledge of Dr Clarke's malpractice; Particular (j)(ii) is omitted. Particular (l) reads: (l) He maliciously or with reckless indifference omitted to give the Board fair and proper information, about how he himself had managed Gary Minter, which if he had done, would have placed the Plaintiff in a proper light in the eyes of the Board and could have cast doubt on his own malicious evidence; Particular (p) reads: (p) He maliciously lied to the Board that the Plaintiff was the reason that General Surgery had made little progress of recent years because of the actions of the Plaintiff, which allegations the Defendant knew were not true and could not be true, and which he knew were prejudicial to the Plaintiff. Particular (u) reads: (u) He failed to apply the standards he personally adopted when he himself failed to treat the Minter to the Plaintiff (sic), but instead chose to use entirely different discriminatory standards;" The Master expressed concern as to the width of the issues of fact the particulars seemed to embrace. That concern was understandable but, given that the defendants rely upon qualified privilege, the counter that the publication was actuated by malice opens up for consideration all instances of spite, ill-will, unfair discrimination or other conduct of the relevant defendant towards the applicant that might support a conclusion that the defendant was actuated by malice. Accordingly, it is necessary to consider the nature of the allegations. It is not necessary or appropriate to determine whether a particular allegation is likely to be established by evidence or, if so, whether it is likely that it will, in fact, result in an inference of malice. As Kirby P said at Hanrahan v Ainsworth (1990) 22 NSWLR 73, 91F-G: "If there were disputed facts relevant to the issue of malice, rising above a scintilla, it was fundamental that such issues should be determined by the jury. The appellant always sought that determination. He was entitled to have it, so long as there was such evidence fit to be left to the jury." It does not matter whether the fact finding tribunal will be a jury or a judge sitting alone. The Master, correctly in our opinion, noted that an inference of malice could arise from the form and content of the matter complained of or from facts and circumstances extrinsic to it. Also, however, there may be a combination of those matters. It is often difficult to justify a finding of malice merely from the terms of the publication itself. Just because the terms of the matter published are measured, moderate and apparently reasonable, it does not follow that an inference of malice cannot arise. The test is whether in all the alleged circumstances, both intrinsic to and extrinsic of the matter complained of, an inference of malice could be drawn. We have already noted Miles CJ's summary of the particulars. For the most part, the allegations were of a failure by the relevant defendant to do something. It is important to note that it is not the applicant's case that these were accidental omissions; but rather that they were deliberate or reckless omissions and motivated by a desire to injure him. The allegation is not that these particulars prove malice but rather that, in combination with each other and with a lack of honesty or presence of a desire to injure the applicant, they support such a case. Take, for example, "failure to apologise". A failure to apologise may stem from confidence in the correctness of a relevant assertion; in which case it will merely be a matter aggravating damage. But it may stem from a desire to injure a person by dishonest or deceptive means and thus support an inference of malice. Although malice may be the less likely explanation for a failure to apologise, it cannot be said that it can never be an explanation: see The Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 255 at 267-268 per Isaacs J. Similarly, a failure to give natural justice might stem from ignorance. However, it might also be a consequence of malice. In our view, if the eight categories of facts and circumstances identified by the Chief Justice were proved, an inference of malice would, at least, be possible. It may not be a likely inference; that would depend on the motive found proved for the acts or omissions alleged. But that is not a matter to be determined at this stage. The real difficulty with the "Particulars of malice", as the applicant has drafted them, is not so much the stated facts and circumstances, but their form. Some of the particulars are unnecessarily pejorative. Some of them are incomplete. They fail to state all the elements in the series of facts that the applicant would need to prove in order to derive any benefit from those matters that are stated. For example, working from the particulars supplied to the sixth defendant, particular (f) refers to the triviality of the plaintiff's acts "compared with the proven acts of very serious malpractice, of which the Defendant knew, or ought to have known (that) were committed by other salaried and fee for service contract holders". No "proven acts" are identified, the other contract holders are not specified and no factual basis is stated for the claim that the defendant knew, or ought to have known, of the acts of serious malpractice. This is unsatisfactory. We appreciate that the applicant may be reluctant to criticise other practioners. However, if he is to make good this aspect of his claim of malice, he will have to do so at the trial and the defendants are entitled to know in advance what he will then seek to prove. Similar comments apply to particulars (g) and (v), both of which in substance claim that the defendant singled out the applicant for criticism when others guilty of more serious professional misconduct were not. Particular (t) is also incomplete. It states that the defendant "acted more like an advocate for the administration than an impartial, professional witness" and "sought to ingratiate himself with holders of administrative power". But these are conclusions; no primary facts are alleged. This particular also alleges that the defendant "failed to alert the Board to the ailment which might have caused Mr Withers to suffer from impaired judgment", without specifying the alleged ailment, "which ailment was widely known to medical practitioners towards the end of 1990", without alleging facts that reveal or suggest that the sixth defendant knew about the ailment. Once again, this may be a sensitive matter. However, if the allegation is to be pursued, it will have to be spelled out at some stage. This ought to be done immediately by way of particulars. However, these criticisms do not justify an order striking out the particulars. Provided what is said is relevant to the applicant's claims of malice, they are good as far as they go. It is no objection to particulars that they are inadequate.If the defendants are not aware of what is being said, they may seek further particulars. If the plaintiff proved unable to supply adequate particulars for example, to state the facts and circumstances from which it could be inferred that unprofessional or negligent conduct had been committed by others, then the particulars could be struck out. It is also possible to object to particulars if they are scandalous or embarrassing. In the absence of any request for clarification, it cannot be said that any one of the particulars is incapable of supporting an ultimate inference of malice. Accordingly, none of them should have been struck out. Further, in the absence of a request for clarification of particulars (q) and (r), the Master should not have required this. The defendants knew more about the case than the Court. If they did not require clarification to know the case to be met and the factual matters put in issue, the Court should have accepted that. It appears that, in striking out most of the particulars of malice, the Master was influenced by a concern about the length and complexity of a trial of all the issues they raised. He spoke of a need "to restrict the evidence so that the case does not become a Commission of Inquiry into the past management of Canberra's hospitals". We understand this concern. If these particulars are all pursued, especially the particulars that refer to the treatment of other patients by other practitioners, the case could become lengthy and complex. It would be necessary for the trial judge to exercise very tight control in order to keep the evidence within proper limits. The critical question is likely to be, not so much what treatment was accorded the other patient, but what the relevant defendant to this action knew about any malpractice. Unless the applicant can establish knowledge of any such malpractice, the evidence about treatment will prove nothing. Furthermore, if the evidence in this case is to include the treatment of other patients by other practitioners, issues of privacy emerge. It would be most undesirable for there to be a public detailing in this case of the ailments and treatment of publicly identified strangers. The trial judge will need to take steps to guard against this. Significant though these problems are, they cannot justify an order striking out the particulars. If the applicant's case is that an inference of malice should be drawn from the fact that one or more defendants pressed criticisms of him whilst taking no action in relation to others' more serious malpractices, of which they were aware, he must be allowed to put that case. He is entitled to prove malice, if he can, in order to rebut the defendants' plea of qualified privilege. If the facts are established, they are capable of supporting an inference of malice. The applicant has the right to prove those facts, notwithstanding that this may complicate and prolong the trial. In our opinion, the Master fell into error in making orders 12 and 13 and the Chief Justice erred in upholding the Master's decision. Separate trials The applicant contends that there was no basis upon which the Chief Justice could have upheld the order for separate trials; that such trials would cause additional expense and inconvenience to all parties and to the Court; and that there are questions common to all the pleaded causes of action including, in particular, the assessment of damages. To consider these submissions, it is necessary to return to the reasons of the Master for directing a separate trial of the contractual causes of action. The Master was concerned with the manageability of a trial involving both the contractual and defamation causes of action due to its likely complexity. He reached this conclusion partly on a consideration of the particulars. The applicant submitted to the Master that it was necessary to determine all the issues of fact and law at the one hearing because the occasions on which the allegedly defamatory letters were sent, and statements made, were part of the process which led to the first respondent's failure to renew his fee for service contract and the propriety of the first respondent's decision not to renew it would involve a consideration of the questions of fact involved in the defamation action. The Master rejected that submission. He thought it was incorrect on the pleadings. Further, he considered the contract causes of action involved only points of construction. Order 22 rule 1 vests the Court with discretion to order separate trials of any causes of action "if it appears to the Court that any such causes of action cannot be conveniently tried or disposed of together". Counsel for the applicant contends that the Chief Justice and the Master approached the application of this rule on the basis that certain factors made it convenient for the contract causes of action to be tried separately, rather than asking whether there were factors which made it inconvenient for them to be tried together. He says that, if the latter approach had been adopted, as required by the rule, it would have been concluded that there are no disclosed factors of inconvenience. We agree with this observation. The factors relied upon by the Chief Justice to uphold the Master, the amount of oral evidence required in connection with the contract claims and the relative state of preparedness of that claim, were factors that supported the convenience of separate trials, rather than established the inconvenience of all causes of action being tried at the same time. Order 22 rules 8 and 9 provide a procedure by which an application may be made to the Court for an order confining an action to such of several causes of action "as may be conveniently disposed of together". Where it appears to the Court that the causes of action are "such as cannot be conveniently disposed of together", the Court may order any of such causes of action to be excluded and consequential amendments to be made. But there was no application in this case for an order confining the action. It would therefore appear that Order 22 rule 1 is the relevant rule in the present matter rather then Order 22 rule 9. The nub of the applicant's case on this point is, however, less technical. He argues that the Master was wrong when he concluded that the matters referred to in the defamation claims were completely irrelevant to the matters put in issue by the contract claims and the plea of promissory estoppel. We think this submission is correct. As a relatively minor matter, we note that some of the applicant's contract claims are not capable of resolution without reference to evidence of the conduct of the first respondent in relation to agreements with other medical practitioners. But the overlap is more extensive than that. In the course of argument it became apparent that, as part of the first respondent's defence to the applicant's claims in contract, it proposed to contend, first, that there was no obligation upon it to renew or to enter into an agreement with him and, second, if there was any such obligation, that it was justified in all the circumstances in not entering into such an agreement. The second matter directly raises the issue of the applicant's conduct and the fairness of the criticisms made about him. When this situation became apparent, counsel for the sixth and seventh respondents obtained instructions to offer an undertaking to the Court that the first respondent would amend its Defence so as to confine the defence to the claim in contract to an allegation that it was justified in not renewing the applicant's contract because of his failure to supply certain information. This would preclude any contention that the first respondent was justified in not renewing the contract due to issues about the applicant's professional competence. Counsel for the applicant responded by saying that the applicant would argue he was justified in not supplying information because of the first respondent's treatment of him and that, in particular, he was justified in refusing requests for information because they were motivated by mala fides. The undertaking now proffered on behalf of the first defendant at the instance of the sixth and seventh defendants is a concession that the Master erred in concluding that, on the pleadings as they stand, the contract claims are capable of being conducted as if the matters the subject of the defamation claims are irrelevant. And, as the Chief Justice also lacked such an undertaking, he fell into the same error. So it is open to us to review for ourselves the Master's exercise of discretion. The proffered undertaking is relevant to that review but may not be decisive of the result. Particularly in the light of matters that arose for the first time at the hearing of this appeal, it seems to us that neither the claims in contract nor the claim in promissory estoppel are capable of being resolved independently of the matters germane to the defamation claims. The interrelationship between the claims is now apparent. So it is appropriate that the trial proceed on all aspects of the case and there be one resolution of all causes of action. The overlap on the issue of damages also weighs heavily in favour of that course. This may mean a lengthy and complex trial but, if so, that will be a function of the issues between the parties. Even so, it will not necessarily lead to a longer total hearing than would two separate trials; indeed we think the contrary. Although the applicant has in the past complained of delay in the resolution of his claims, his case before us is that he is prepared for the date presently set for the separate trial of the claims in contract to be vacated in favour of a later trial date at which all claims can be heard following discovery and interrogatories. It seems to us that this is a sensible approach. The defamation claims cannot be ready for hearing by the presently fixed date. Costs The Master ordered the applicant to pay the costs incurred by the sixth and seventh defendants in relation to the notice of motion. The Chief Justice added an order that the applicant pay one half of the costs of the sixth and seventh defendants' in respect of the hearing before him and the remaining half be costs in the cause. Having regard to our view about the two major matters in issue before the Master and Chief Justice, it is apparent that these orders should not stand. Instead, the sixth and seventh respondents should pay any costs which have been incurred by the applicant before the Master and the Chief Justice. The applicant must also have his costs of the appeal. Orders The formal orders of the Court will be as follows: (a) Leave to appeal granted. (b) In respect of the notice of motion dated 29 January 1996, set aside order 1 made by Miles CJ on 2 February 1996 and in lieu thereof order that orders 3, 4, 5, 6, 7, 9, 10, 11, 12, 13 and 14 made by Master Hogan on 27 October 1995 be set aside. (c) In respect of the notice of motion dated 31 January 1996, set aside orders 2(b), 2(c), 3 and 4 of the orders made by Miles CJ on 2 February 1996; (d) In respect of the further orders made that day by Miles CJ, set aside orders 1, 4 and 5; and (e) Order that the respondents to this appeal, the sixth and seventh defendants, pay to the applicant, the plaintiff, the costs incurred by him in connection with the notice of motion made returnable before the Master on 25 August 1995 and the proceedings before the Chief Justice on appeal from the orders made by the Master on 27 October 1995. (f) Order that the respondents pay the applicant's costs of the appeal to this Court. I certify that this and the preceding thirty (30) pages are a true copy of the Reasons for Judgment of the Court. Associate: Date: 21 June 1996 APPEARANCES Counsel for the Applicant: Mr M A Dreyfus Solicitors for the Applicant: Self Counsel for the Respondent: Mr K J Crispin QC and Mr B A Meagher Solicitors for the Respondent: Blake Dawson Waldron Date of Hearing: 17 April 1996 Date of Judgment: 21 June 1996