Supreme Court New South Wales Medium Neutral Citation: Hussey v Ramsay Healthcare Australia Pty Limited [2015] NSWSC 1769 Hearing dates: 13 November 2015 Date of orders: 13 November 2015 Decision date: 13 November 2015 Jurisdiction: Common Law Before: McCallum J Decision: Grant leave to the plaintiff to file a further amended statement of claim in accordance with these reasons within 14 days. Catchwords: DEFAMATION – pleadings – application to file amended statement of claim Cases Cited: Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 Davis v Nationwide News Pty Ltd [2008] NSWSC 693 Galloway v Telegraph Group Limited (2005) EMLR 115 Prince v Malouf [2014] NSWCA 12 Triggell v Pheeney [1951] HCA 23; 82 CLR 497 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 Category: Procedural and other rulings Parties: Melissa Hussey (plaintiff) Ramsay Health Care Australia Pty Limited (first defendant) Grant Frecklington (second defendant) Maria Read (third defendant) Representation: Counsel: M A Karam (plaintiff) R Potter (defendants) Solicitors: Robertson Saxton Primrose Dunn (plaintiff) Morris Legal (defendant) File Number(s): 2015/279947 Publication restriction: None Judgment – Ex Tempore 1. HER HONOUR: These proceedings are before the Court today for the first listing in accordance with the practice note governing proceedings in the Defamation List (SC CL 4). 2. In accordance with cl 13(b) of the practice note, the defendants have informed the Court that publication is denied. The defendants also informed the plaintiff of a number of objections to her imputations. In a helpful and sensible exchange between Bench and Bar, those objections were largely resolved by compromise (or capitulation to hints from me) with the following conclusions. 3. Imputation (iv) will be removed from the pleading. Imputation (vi) will be replaced with a new formulation and it is acknowledged that existing imputation (v) may be relied upon only as a fall back to that new imputation. Imputation (viii) will be repleaded in the manner indicated in the plaintiff's written submission and imputation (ix) will be amalgamated with that imputation or otherwise not pressed. 4. The defendants objected to imputation (x) as effectively saying nothing different from imputation (viii). I reject that contention and would allow a separate imputation referring to a breach of professional ethical obligations as distinct from disloyalty to an employer. Imputation (xi) is not pressed. Imputation (xii), it was accepted, is rhetorical in the sense explained in Prince v Malouf [2014] NSWCA 12 at [125] and is not pressed. Imputation (xiii) is not pressed. 5. The plaintiff has leave to file a further amended statement of claim in accordance with those indications. 6. Separately, the defendants objected to a number of the matters relied on by the plaintiff as particulars of aggravated damages. The first is "the falsity" of each matter complained of and "therefore the falsity of the imputations arising therefrom and the knowledge by the second defendant and the third defendant of the falsity of such statements". The defendants noted (correctly, in my view) that falsity and knowledge of falsity on the part of the defendants are not on their own grounds for an award of aggravated damages. 7. Mr Karam, who appears for the plaintiff, identified a statement in the judgment of McClelland CJ at CL (as his Honour then was) in Davis v Nationwide News Pty Ltd [2008] NSWSC 693 at [34] to [35] where his Honour said as much in terms. His Honour said, "the falsity of imputations may also justify an award of aggravated damages at common law," citing Australian Consolidated Press v Uren (1966) 117 CLR 185 at 205 and Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75. Neither party brought either of those authorities to Court and I have not adjourned (during the conduct of a busy practice list) to check them. My understanding of the principle has always been that it is the plaintiff's knowledge of the falsity of an imputation and of the fact that the defendant knew it to be false which is regarded as being capable of aggravating the hurt and harm suffered by the plaintiff. 8. Separately, it may be that the argument is intended to be that publication of a false imputation aggravates the harm to reputation, although there is some tension between that understanding of the principle and the proposition assumed in defamation actions that a defamatory imputation is false (until proved true). In any event, the parameters of the argument have been identified by reason of the issue having been raised at this point and those matters should be left to trial. I do not propose to strike out the particular but simply, by recording the argument in this judgment, to note that it will have to be debated at trial. 9. The second particular objected to is that the matters complained of imputed that the plaintiff had committed criminal or unlawful acts. In support of the contention that that is a matter that can be relied upon by way of aggravated damages, Mr Karam cited the judgment of Eady J in Galloway v Telegraph Group Limited (2005) EMLR 115 at [218]. Any judgment of his Honour in this field of the law of course warrants due respect and careful attention. 10. However, it is doubtful, in my view, whether in this jurisdiction the publication of a serious imputation would properly be regarded as something capable of being relied upon as a particular of aggravated damages in the sense in the orthodox comprehension of that term, having regard to the principles stated in Triggell v Pheeney [1951] HCA 23; 82 CLR 497. Of course it goes without saying that a more serious imputation attracts a higher award of damages than a less serious one. In any event, as with the first objection, a point has been properly raised by the defendants and is now duly recorded as one which may need to be debated at the trial. I would not propose to strike the particular from the pleading at this point. 11. The third particular of aggravated damages objected to is: "the intention of each of the second defendant and the third defendant to make defamatory statements designed to cause maximum professional harm to the plaintiff in a small industry in circumstances where she is specialised, long-serving and highly regarded". 1. As correctly noted by Mr Potter on behalf of the defendants, their state of mind is not a particular in relation to the degree of harm suffered by the plaintiff and does not in itself constitute conduct which is in some way unjustifiable, improper or lacking in bona fides. As it stands, the particular would, in my view, be liable to be struck out. However Mr Karam accepted that further particulars would have to be provided of that contention and that may be done in the amended pleading which will be filed in accordance with the points recorded earlier in this judgment, failing which it should be removed from the pleading. 2. The fourth particular of aggravated damages objected to is the failure of the defendants to make any reasonable inquiries before making the statements. Mr Potter noted that a simple failure to make reasonable inquiries before publication is not in itself conduct falling within the principle in Triggell v Pheeney but accepted that having raised the issue, that is a matter which could properly be determined at trial depending on how the evidence falls out. 3. Finally, particulars five and six allege or rely on the defendants' failure to publish a retraction after being asked to publish one, combined with their failure to make an offer of amends. Mr Potter submitted, correctly in my view, that a bare failure to make an offer of amends is not in itself capable of being regarded as unjustifiable, improper or lacking in bona fides. Mr Karam responded that the allegation was intended to be understood as a continuation of the complaint raised by the reliance upon the failure to publish an apology and on that basis Mr Potter accepted that those particulars could stand on the pleading to be argued at trial. 4. I have taken the trouble to state these matters comprehensively in deference to the careful argument put by each party on these issues, but in the result there is no warrant, in my view, to make any order at this stage in respect of the particulars of aggravated damages. It follows that the only order required to be made today is to grant leave to the plaintiff to file a further amended statement of claim in accordance with these reasons within 14 days. 5. ADDENDUM 6. By way of addendum (since publishing my ex tempore reasons) I note that, having now looked at Uren and Waterhouse, it appears the argument could properly be put in the manner set out at [8] above. As I have already held, that is an issue which can be debated at the trial. ********** 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. Decision last updated: 25 November 2015