THE ROYAL AUSTRALIAN COLLEGE OF OPHTHALMOLOGISTS v ROGERS AND ORS [1992] NSWCA 217

THE ROYAL AUSTRALIAN COLLEGE OF OPHTHALMOLOGISTS v ROGERS AND ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MAHONEY and SHELLER JJA 4 March 1992, 4 March 1992

[1992] NSWCA 217

INJUNCTION — appeal against injunction granted which restricted College of practitioners referring information of the behaviour of three of its members to the Medical Board — trial judge found College actuated by malice in its referral — evidence did not support such a serious finding of fact or any conclusion of abuse of power by the College.

Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 applied.

Gleeson CJ The respondents to this appeal, who were the plaintiffs in the proceedings at first instance, are three medical practitioners who specialise as ophthalmologists. The appellant is the Royal Australian College of Ophthalmologists, a company limited by guarantee. Each of the respondents is a member of the College.

The respondents, who were successful at first instance, obtained from Mr Justice Young, in the Equity Division of the Court, injunctive relief restraining the College from communicating certain information to the Medical Board. The terms of the injunction granted by his Honour were as follows: "The Court orders that defendant by its servants and agents be restrained from making or forwarding to the Medical Board of New South Wales any complaint or information against the plaintiffs relating to the publicity concerning the use of the excimer laser treatment."

During the hearing of this appeal senior counsel for the respondents indicated that if they were otherwise successful they would seek a slightly different order. The order now sought is in the following terms:

"The plaintiff by itself its servants and agents be restrained from carrying into effect any decision made by the appellant on or before 6 November 1991 to forward to the Medical Board of New South Wales the appellant's letters dated 29 October 1991 or 5 November 1991 and addressed to the Secretary, the Medical Board of New South Wales or any of the material contained in annexure A or referred to in para3 of the affidavit of Claire Alice Mirabello sworn on 6 November 1991 and filed in the proceedings under appeal."