New South Wales Supreme Court CITATION : McBride v John Fairfax Group Pty Ltd [2007] NSWSC 384 HEARING DATE(S) : 18 April 2007 JUDGMENT DATE : 23 April 2007 JUDGMENT OF : Price J at 1 DECISION : 1. That general access, including photocopy access, is granted to the parties to the materials produced to the Court by the NSW Medical Tribunal in relation to the following proceedings: (a) Dr William Griffith McBride and the Medical Practitioners Act before Wall DCJ (Deputy Chairman) and Professor GD Tracy, Dr E Sussman and Ms M Brophy; (b) Dr William Mc Bride and the Medical Practice Act (File 4022 of 1995) before Judge D J Freeman; (c) In Re Mr William Griffith McBride and the Medical Practice Act (File 40014 of 1998) before the Chief Judge, Justice Blanch. 2. That the defendant is to provide to the plaintiff particulars of any allegations which it proposes to make arising from access to the materials in accordance with these orders no later than 5pm 1 May 2007. 3. That any motions seeking orders to amend or strike out pleadings be filed no later than 5pm 1 May 2007. CATCHWORDS : Order for access - defamation proceedings - defence of contextual truth - relevance. LEGISLATION CITED : Uniform Civil Procedure Rules Practice Note SC Gen 2 CASES CITED : Goldschmidt v Constable & Co [1937] 4 All ER 293 National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 PARTIES : William Griffith McBride John Fairfax Group Pty Limited FILE NUMBER(S) : SC 13029 of 1989 COUNSEL : Mr Hale SC and Mr D Casperson - Plaintiff Mr K Smark - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PRICE J 23 April 2007 13029 of 1989 William Griffith McBride v John Fairfax Group Pty Limited JUDGMENT 1 HIS HONOUR: John Fairfax Publications Pty Limited (the defendant) seeks an order for general access to the parties (in accordance with Practice Note SC Gen 2 of the Uniform Civil Procedure Rules) to the materials produced to the Court by the NSW Medical Tribunal in relation to the following proceedings: (a) Dr William Griffith McBride and the Medical Practitioners Act before Wall DCJ (Deputy Chairperson) and Professor GD Tracy, Dr E Sussman and Ms M Brophy; (b) Dr William McBride and the Medical Practice Act (File 40022 of 1995) before Judge D J Freeman; and (c) In Re Mr William Griffith McBride and the Medical Practice Act (File 40014 of 1998) before the Chief Judge, Justice Blanch. 2 For the purpose of the application it is convenient to refer to the materials, the subject of the application, as the "Medical Tribunal proceedings". 3 At paragraph 8 of its defence to the proceedings by the plaintiff claiming damages for defamation, the defendant has raised a defence of contextual truth. The additional imputations that the jury will be asked to find are pleaded at paragraph 9. Particulars are provided as to the truth of the contextual imputations. Of particular significance to this application are the particulars provided at P24 of the defence which are as follows: "P24. Further, the defendants rely upon the findings of the report by Sir Harry Gibbs, Professor Robert Porter and Professor Roger Short dated 2 November 1988 to Foundation 41 (" the Gibbs report ") and in particular to: (a) The finding of deliberate falsification in relation to a scientific research paper as described at p.24 of the Gibbs report, and the facts underlying that finding as set out in the Gibbs report; (b) The finding at p.25 of the Gibbs report that the experiment upon which the paper in question was based was not honestly reported by the plaintiff, and the facts underlying that finding as set out in the Gibbs report." 4 It is sufficient to state for present purposes that the 'Gibbs Report' was the report of a committee of inquiry concerning the plaintiff appointed by Foundation 41. The findings of the committee, which were reported to the president of the Foundation on 2 November 1988, are found at pages 24 and 25 of the report. Those findings of significance to the present application are detailed in paragraph (a) (i) to (iv) (conveniently referred to as the Gibbs report findings). 5 The apprehension of the defendant is that the plaintiff may have given evidence or made submissions in the Medical Tribunal proceedings in relation to the Gibbs Report findings. The defendant, furthermore, contends that the plaintiff may have maintained in the earlier proceedings a position contrary to the Gibbs Report findings which may subsequently have been retracted. 6 In opposition to the application, the plaintiff contends firstly that the application is an abuse of process in the sense that the documents sought to be inspected can have no relevance to the proceedings before this Court and secondly, that they should not be inspected as there is no apparent relevance. The plaintiff further refers to the particulars provided at P24 of the defence and submits that the pleading is expressed in the clearest of terms upon the findings of the Gibbs report. The plaintiff foreshadows an objection to the defendant leading evidence over and above the report itself. 7 Reference was made to what was said by Greer LJ in Goldschmidt v Constable & Co [1937] 4 All ER 293 at 294 that: "………in a libel action the party who alleges that the defamatory statements are true must make out his case on the information which he had in his possession at the time when the defence was delivered. He is not entitled to wait for discovery in order to complete his attack, but must give full particulars before discovery." The plaintiff submits that the defendant should seek leave to amend its particulars before being granted access to the Medical Tribunal proceedings. 8 Senior counsel upon instructions from the plaintiff told the Court that there was nothing in the Medical Tribunal which turned on the subject matter in the Gibbs report. 9 The reasons for the determination of each of the hearings of the Tribunals suggest otherwise. Counsel for the defendant flagged and elaborated upon references in each of the reasons which indicate that matters of relevance to the findings in the Gibb report were raised during the Medical Tribunal proceedings. There are indications in the reasons of the Tribunal chaired by Blanch CJ that the plaintiff may have changed his position. 10 As was said by Moffit P in National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 385: "The crucial question in relation to the exercise of the discretion to permit inspection in the second step is whether the documents have apparent relevance to the issues." 11 Evidence given by or submissions made by the plaintiff in the Medical Tribunal proceedings, it seems to me, touching upon the relevant findings of the Gibbs report may facilitate the determination of the issues raised by the defence of contextual truth. That would be particularly so if the plaintiff had made admissions acknowledging the truth of the findings. 12 The defendant, in my opinion, has successfully demonstrated apparent relevance to the issues in the proceedings. 13 The grant of leave to inspect does not infringe what was said in Goldschmidt. For instance, nothing material may be found on inspection. In any event the defendant may require leave to amend its defence. 14 The interests of justice are best served by granting access to the parties to the materials produced to the Court. Orders 15 I make the following orders: 1. That general access, including photocopy access, is granted to the parties to the materials produced to the Court by the NSW Medical Tribunal in relation to the following proceedings: (a) Dr William Griffith McBride and the Medical Practitioners Act before Wall DCJ (Deputy Chairman) and Professor GD Tracy, Dr E Sussman and Ms M Brophy; (b) Dr William McBride and the Medical Practice Act (File 40022 of 1995) before Judge D J Freeman; and (c) In Re Mr William Griffith McBride and the Medical Practice Act (File 40014 of 1998) before the Chief Judge, Justice Blanch. 2. That the defendant is to provide to the plaintiff particulars of any allegations which it proposes to make arising from access to the materials in accordance with these orders no later than 5pm 1 May 2007. 3. That any motions seeking orders to amend or to strike out pleadings be filed no later than 5pm 1 May 2007. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.