FEDERAL COURT OF AUSTRALIA

 

Paramedical Services Pty Ltd v Ambulance Service of New South Wales [1999] FCA 548

MISLEADING AND DECEPTIVE CONDUCT – No question of principle

PARAMEDICAL SERVICES PTY LTD v THE AMBULANCE SERVICE OF NEW SOUTH WALES

 

NG532 OF 1997

 

 

HELY J

SYDNEY

5 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 532 OF 1997

 

BETWEEN:	PARAMEDICAL SERVICES PTY LTD Applicant
AND:	THE AMBULANCE SERVICE OF NEW SOUTH WALES Respondent
JUDGE:	HELY J
DATE OF ORDER:	5 MAY 1999
WHERE MADE:	SYDNEY

 

THE COURT ORDERS THAT:

 

1.         Application dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 532 OF 1997

 

BETWEEN:	PARAMEDICAL SERVICES PTY LTD Applicant
AND:	THE AMBULANCE SERVICE OF NEW SOUTH WALES Respondent

 

JUDGE:	HELY J
DATE:	5 MAY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1                     Garry Mikhail and Peter Mangles commenced work as ambulance officers employed by the respondent, in 1980 and 1984 respectively.  Each rose to the level of Paramedic – Level 5 - the highest level of training in the Ambulance Service.

2                     The applicant was incorporated on 20 November 1991.  Garry Mikhail is its managing director.  I infer, although the evidence is not explicit on the point, that the applicant was formed by Messrs Mikhail and Mangles, or at least, by Mr Mikhail.

3                     Since its formation, the applicant has been involved in the areas of training in first aid and advanced pre-hospital care, and has also been involved in the provision of paramedical and ambulance services at sporting and recreational events.  Messrs Mikhail and Mangles were engaged in casual part-time employment with the applicant whilst they were ambulance officers employed by the respondent.  Whilst that employment was undertaken with the consent of officers of the respondent, ultimately it gave rise to the expression of some concerns.

4                     On 13 July 1993 a meeting was held between, amongst others, Mr McLachlan and Mr Webster of the respondent, and Mr Mikhail.  At that meeting concerns were expressed that Mr Mikhail, in his activities in relation to the applicant, was tendering for business in competition with the respondent.

5                     In the result, Garry Mikhail resigned from the respondent on 18 July 1993.  Peter Mangles resigned from the respondent on 23 August 1993.  From about late in 1993 the applicant commenced providing ambulance and paramedical services to the sporting community by the provision of on-site ambulances and paramedical services at sporting venues.  The applicant purchased its first ambulance in late 1994, and a second ambulance in June 1996.

 

The Ambulance Service of New South Wales

6                     The respondent is a corporation constituted by the Ambulance Services Act 1990 (NSW).  It represents the Crown (s.4(2)).  The functions of the respondent (s.12(1)(a)) include the provision of “ambulance services”.  “Ambulance services” is defined in s 3 of the Ambulance Services Act as meaning services related to the work of rendering first aid to, and the transport of, sick and injured persons.  The functions of the respondent also include co-ordination and planning of the future development of ambulance services, and consultation with the Department of Health towards that end (s 12(1)(f)).

7                     Section 23(1) of the Ambulance Services Act provides:

“A person must not:

(a)               directly or indirectly provide or take part in the provision of transport for sick or injured persons for fee or reward; or

(b)               conduct for fee or reward any operations similar to the operations carried on by the Ambulance Service under this Act,

without the consent of the Director-General [of the Department of Health] and except in accordance with such conditions (if any) as the Director-General may from time to time impose.”

8                     By s 22(1) of the Ambulance Services Act the Minister may, by notice published in the Gazette, fix a scale of fees in respect of ambulance services provided by the respondent, and amend or revoke any scale of fees so fixed.  From time to time, notices of that type were published in the Gazette.

 

The present proceedings

9                     The present action was commenced on 7 July 1997.  The Statement of Claim has undergone a number of revisions.  A variety of causes of action were relied upon at various times, including allegations of misuse of market power by the respondent in contravention of s 46 of the Trade Practices Act 1974 (Cth).

10                  However, in the Statement of Claim as ultimately formulated (Second Further Amended Statement of Claim) the only causes of action relied upon are breach of s 42 of the Fair Trading Act 1987 (NSW) by the making of a number of representations on the part of the respondent in the period between October 1994 and June 1995.  Those representations are also alleged to constitute injurious falsehoods on the basis that they were published with the intention of causing harm to the business of the applicant.

11                  In the course of final submissions, counsel for the applicant abandoned any case based on the Fair Trading Act insofar as the representations pleaded in paragraphs 15(d)(iii), (e), (f), (g) and (h) of the Second Further Amended Statement of Claim is concerned.  However, he continued to rely on those representations in connection with the allegation of injurious falsehoods pleaded in par 20.

 

The Fair Trading Act 1987 (NSW)

12                  The Fair Trading Act (“the Act”) binds the respondent insofar as it carries on a business (s 3(1)). “Business” includes a business not carried on for profit, and a trade or profession (s 4(1)).  Section 42 of the Act provides that a person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.  By s 4 of the Act “trade or commerce” includes any business or professional activity.

13                  Thus the issues in relation to the Fair Trading Act claim are:

Ÿ                     Whether the representations pleaded in pars 15(a)-(d) and (i) were made;

Ÿ                     Whether the making of those representations was conduct that is misleading or deceptive or likely to mislead or deceive;

Ÿ                     Whether the representations were made in trade or commerce;

Ÿ                     Whether the representations were made in the course of carrying on a business by the respondent, or whether they were outside the scope of any business being carried on by the respondent;

 

Ÿ                     Whether the applicant has established that it suffered loss or damage by the conduct in question.

CAMS

14                  The Confederation of Australian Motor Sport (“CAMS”) is, and was in 1994 and 1995, an umbrella association for a number of motor racing and motor sporting associations including race track, off road motor racing, motor kart racing and rallying.  The clubs affiliated with CAMS are listed in the 1997 CAMS Manual of Motor Sport for 1997.  CAMS had a number of advisory panels, including the Track Side Medical Panel, which gave the board of CAMS advice on track side medical matters, including ambulance attendance at sporting events.

15                  The 1997 Rules (Appendix T Part 3 – Medical and Ambulance Requirements) required one or more ambulances to be present at National and International Level Race Meetings, State Level Race Meetings and State, National and International Level Speed Events and Open Long Course Off Road events.  Where two ambulances are required, the rules specify that at least one of them shall be provided “by the State Civil Ambulance Service or equivalent”.  Where one ambulance is required the rules specify that it must be provided “by the State Civil Ambulance or equivalent”.  For Club and Multi-Club Level Speed Events and Closed Long Course Off Road Events at least one ambulance must be provided, but there is no specification of the service by which it must be provided.

16                  The equivalent rules for 1994, 1995 and 1996 are not in evidence.  I was informed by counsel for the respondent, without objection, that under the rules which applied in those years, ambulance services were required to be provided by the State Ambulance Service for all race meetings above the level of Go Kart meetings.  In relation to meetings above Go Kart level it was not until 1997 that the concept of “or equivalent” was introduced into the CAMS rules.

17                  I have some reservations as to whether what I was told accords with the facts, having regard to the terms of a letter from the NSW State Manager of CAMS to Mr Mikhail of 2 August 1996 which the applicant tendered.  That letter (Vol 8 p 234) includes the following:

“Under Section 7.1 Karts (Page 9-20, 1996 CAMS Manual of Motor Sport), there is provision for a substitute to the relevant State Ambulance Service to be approved.  As you are aware, this has been done for kart meetings.

While there is a similar provision in Appendix T, the inability of any organisation other than the State Ambulance Service in all States of Australia to carry an injured competitor directly to hospital has resulted in CAMS requiring the State service to be in attendance. 

At this time, I can see no reason to change this standard practice and would not be able to approve Paramedical Services Pty Ltd for other than kart meetings.”

There is no evidence of any response by Mr Mikhail to this letter.

 

The services offered by the applicant and respondent

18                  The services which the applicant offered to provide were defined in paragraph 12 of the Second Further Amended Statement of Claim as follows:

(a)                The provision of ambulance and paramedic services or facilities at sporting and other public events for reward.

(b)               Non-emergency transport of sick and injured persons for reward.

(c)                The training of persons in first aid and advanced first aid and paramedical procedures in NSW for reward.

19                  Exhibit GM1 (Vol 2(a) pp 1-7) includes a pamphlet entitled “Emergency Medical Support” published by the applicant.  It describes a “new alternative” for Motor Racing, Sporting, Recreational and Cultural Events.  Implicitly it is an alternative to the ambulance and paramedic services which the respondent provided for such events.  There is no express statement in the pamphlet as to whether the emergency and medical support offered by the applicant in return for a fee includes, or does not include, the provision for the transport of a sick or injured person, although the pamphlet is replete with pictures of ambulances apparently suited to that end.

20                  It is clear that at the relevant time both the applicant and the respondent were engaged in the provision of ambulance and paramedic services or facilities at sporting and other public events for reward, but the applicant was and is inhibited by s 23(1)(a) of the Ambulance Services Act from taking part in the provision of transport for sick or injured persons for fee or reward.

21                  The evidence establishes that where a person is injured at such an event, the usual practice is for the on-site ambulance and staff to stabilise the patient at the scene of the accident.  If there is an on-site medical centre or sick bay the patient may be transported there by the on-site ambulance.  The standard procedure then is to call for an ambulance provided by the NSW Ambulance Service which then transports the injured person to hospital.  The on-site ambulance and paramedical staff then remain at the sporting venue to deal with any possible further emergency.

22                  Mr Mikhail’s evidence was that subject to two exceptions – one in late 1998 and the other in 1999 – the applicant had never transported any sick or injured persons from the sporting event to hospital.  The two exceptions were emergency cases, where the patient was conveyed to hospital on the direction of a doctor and accompanied by the doctor.  No extra charge was made for the provision of that transport.

23                  As will later appear, the applicant was granted an authority under the Poisons Act 1966 (NSW) to have restricted substances in its possession on 29 February 1996.  An internal memorandum of the respondent of 29 July 1996 (Vol 3 p 201) suggests that at about that time the applicant had requested consent to transport patients under s 23 of the Ambulance Services Act.  But it is common ground that no such consent has been forthcoming.

24                  Non-emergency transport of sick and injured persons for reward was not dealt with in the submissions of either party.  The position in relation to training in first aid and paramedical procedures arises directly in relation to the claims made with respect to the Fire Brigade, and I will deal with this aspect of the matter under that heading.

 

Paragraphs 15(a)-(d): The CAMS representations

25                  The following representations are alleged to have been made by the respondent to Mr Peter Corke, the NSW Manager of CAMS, in about early May 1995:

(a)                That the applicant is not lawfully entitled to provide the services it offers [15(a)];

(b)               That the applicant is not lawfully entitled to transport sick or injured persons in its ambulances [15(b)];

(c)                That the officers and staff of the applicant lack suitable training and qualifications to provide the services offered by the applicant [15(c)];

(d)               That the applicant does not have adequate quality assurance programs in place [15(d)].

26                  In May 1995 there was a meeting at CAMS premises attended by a number of persons.  Evidence was given by two of them – Mr Corke of CAMS, and Mr Webster, the State Superintendent of the respondent.  After the meeting Mr Corke wrote a letter dated 12 May 1995 to Mr Mangles in which he referred to a visit from three senior administrators of the respondent “who raised some doubts that they have concerning your operation”.

The letter continued:

“Having heard what they had to say, I indicated that I would correspond with you, outline those concerns and get back to them some time in the future.

Questions raised during the discussion included:

1.                  Paramedical Services advising potential clients that you have a service equal to or better than the NSW Ambulance (only you could tell that).

2.                  As both of the two principals of Paramedical Services are no longer employed by NSW Ambulance, your standing as a paramedic is no longer recognised.

3.                  What are the legal ramifications for (a) CAMS and (b) Promoters if they use your service as opposed to a NSW Ambulance.

4.                  Does the use of your “Ambulance”, contravene Section 23 of the Ambulance Services Act 1990.

5.                  What Quality Assurance systems do you have in place?

As you would be aware I have supported your endeavours and enthusiasm all the way however I need answers to the above queries so that I can say with confidence to anyone who asks, exactly what the situation is.”

27                  No reply to this letter was tendered in evidence.  However, Mr Corke said (T p 60):

“Now, that raised a number of questions at that meeting which I then subsequently wrote to them and asked them to provide me with some satisfactory answers, which I believe we got and the relationship continued from there.  I was satisfied, as was my board, that they comply with all the requirements to provide medical services to race meetings.”

Mr Corke was, and remained after the May 1995 meeting, a relatively enthusiastic supporter of the applicant.  He was happy with their professionalism and level of service.  After the meeting by:

“whatever means at my disposal I ensured that they were given a fair and equal chance of competing for business ...”

(T p 59)

 

Representations 15(a) and (b)

28                  Turning then, to the alleged representations, it is convenient to consider (a) and (b) together.  Mr Corke does not assert a representation in the terms pleaded in (a).  As to (b) he says that one of the officers present said:

“Paramedical Services cannot transport patients on public roads.”

[Affidavit 19 January 1998 par 18]

Q 4 in the letter of 12 May 1995 asks the question whether the use of the applicant’s ambulance contravenes s 23 of the Ambulance Services Act.  Clearly, there was some discussion about s 23 at the meeting attended by Mr Webster.

29                  Mr Webster accepts that he said words to the effect of:

“the Ambulance Service of New South Wales is the only service entitled to provide pre-hospital care and transport for a fee.” 

[Affidavit 9 March 1998 par 7]

.

He accepts that he said that the applicants would have been operating outside the Ambulance Services Act by providing an ambulance service for hire or reward (T p 144 (15-20)).  He also accepts (T p 144 (29-32)) that he told the meeting that the applicant could not transport patients on public roads if for hire or reward.  He says (T p 153) that he was expressing “a view that I held about the operation outside the Ambulance Act”.  He says (T p 154) that he probably took a copy of s 23 with him to the meeting and thinks that he left it there.  Mr Corke does not agree with this aspect of Mr Webster’s evidence.

30                  In a letter of 22 March 1995 (Vol 8 p 177) a legal officer of the Health Department advised the Chief Executive Officer of the respondent that it was arguable that the applicant’s activities in providing first aid services for reward contravened s 23(1)(b) of the Ambulance Services Act on the basis that the services were of a similar nature to those provided by the respondent.  At this time, it was I think, a common view within the more senior members of the respondent that the provision by the applicant of ambulances and paramedic services or facilities at sporting and other public events for reward attracted the operation of s 23(1) of the Ambulances Services Act and was unlawful without the consent of the Director-General of Health.  I am satisfied that this was Mr Webster’s view (T p 154).  There was, I think, concern within the respondent at this time about the applicant’s activities (see the evidence of Mr McLachlan at T p 69, 74), which was reinforced by the concerns expressed by the Health & Research Employees Association at the meeting attended by Mr Webster on 8 May 1995 (Vol 3 p 264) about the provision of ambulance services by private contractors.

31                  That being so, I am satisfied on the balance of probabilities that at the meeting with Mr Corke in May 1995 there was discussion of s 23 of the Ambulance Services Act, and that Mr Webster expressed the view at this meeting that the applicant was not entitled to provide ambulance and paramedic services at sporting events for reward, nor could it lawfully transport injured persons from those events to hospital for reward.  That finding does not, of course, support a finding of the representations in the precise terms pleaded although, at least in some respects, it comes close.

32                  But the question which then arises is where my finding leaves the applicant.  If I am right in my view that Mr Webster was expressing an opinion as to the impact of s 23 on the applicant’s activities in providing ambulances at sporting events (and the way in which Q 4 in the letter of 12 May 1995 was structured, and the fact that Mr Corke was satisfied with the answer given by Mr Mikhail suggests that nothing stronger than an opinion was conveyed) there is no basis for a conclusion that Mr Webster did not hold that opinion, or that it was without reasonable foundation.  On that basis there is no contravention of s 42.

33                  Even if I am wrong in the view that there was merely an expression of an opinion, and Mr Webster made statements as to what the legal position in fact was, then what he said was, in my view, a correct statement of the position.  The operations which the applicant conducted in providing ambulance and paramedic services at race tracks and other sporting events for reward were, as a matter of fact, similar to the operations carried on by the respondent in that regard.

34                  The applicant submitted that, nonetheless, the operation of s 23(1)(b) was not attracted because the provision by the respondent of ambulance and paramedic services at sporting and other events was not an operation carried on by the respondent “under this Act”.  That is because s 12(1)(a) only authorises the provision of "ambulance services” which has its defined meaning.  The provision of an ambulance and paramedics at a sporting fixture is not a service “relating to” the work of rendering first aid to, and the transport of, sick and injured persons,  because, so it was submitted, no one may become sick or injured.

35                  This submission would produce the consequence that the respondent’s activities, insofar as they concern the provision of ambulances at sporting events, are ultra vires, at least if no one is injured.  In my opinion the submission pays insufficient regard to the words “relating to”.  A service calculated to enable “ambulance services” to be provided should the need for them arise is, in my view, a service “relating to” the work of rendering first aid to, and the transport of, sick and injured persons because it enables that work to be undertaken should the need arise.

36                  It is beside the point that the applicant may not impose an extra charge for conveying an injured person from the sporting venue to the hospital should it be necessary for this to be done and should one of the respondent’s ambulances not be available.  The applicant’s brochure (Vol 2(a) p 1-7) describes the services which it provides and the fees that it charges for provision of those services.  The brochure represents that an ambulance, fitted and equipped for the transport of injured persons, will be supplied in connection with the provision of those services.  If there is an on-site medical centre or sick bay, the ambulance may be used to transport the injured person to that location.  Only exceptionally will the on-site ambulance (whether supplied by the applicant or the respondent) be used to convey the injured to an off-site location, because the conduct at the sporting event would have to be suspended until the ambulance returned or a substitute provided.  But that does not mean that the provision of an ambulance on site is outside the definition of “ambulance services”, nor does it mean that if such an ambulance is used for transport of a sick or injured person, whether to another location on site or to a location off-site, the provision of that transport is otherwise than for fee or reward.  By implication the brochure represents that transportation services will be provided if and as needed as part of the service offered in return for the fee.  It was not submitted that the applicant’s brochure was not in accordance with that fact.

37                  Even if I am wrong in my view that the statements, whether regarded as statements of opinion or of fact, are not misleading or deceptive, there is the further problem that, on the evidence of Mr Corke they had no continuing impact on him or the board of CAMS.  He asked the applicant the questions listed in the letter of 12 May 1995, including a question in relation to s 23 of the Ambulance Services Act, and received satisfactory answers.  Both he and his board were satisfied that the applicant complied with all the requirements to provide medical services to race meetings.  In the light of that evidence, I cannot be satisfied that the applicant suffered any loss or damage by the conduct in question.

38                  Counsel for the applicant put his case on the basis that I should conclude that by reason of representations (a)-(d) the applicant lost the chance of securing engagements for the provision of ambulance services to CAMS affiliated clubs until 1997, when the rules were changed by the addition of “or equivalent” after the words “by the State Civil Ambulance Service”.

39                  Representations (c)-(d) have yet to be considered.  But, in relation to representations (a) and (b), the first problem is that there is an inconsistency between counsel’s statement as to the effect of the CAMS rules in the years in question, and the letter of 2 August 1996 which he tendered (Vol 8 p 234) quoted in par 17 above, written to Mr Mikhail in response to a letter from a CAMS officer of 1 August 1996 (Vol 8 p 233) recommending that affiliated clubs should use the applicant’s paramedical services.  Whatever the resolution of this problem, the more fundamental problem is that there is simply no link to be found in the evidence between representations made to Mr Corke by the respondent’s officers in May 1995 and any inability on the part of the applicant to secure engagement from CAMS affiliated clubs in the period 1995-1997.

40                  If it be the fact that the CAMS rules in that period were such as to preclude the use of the applicant’s services by CAMS affiliated clubs, there is no evidentiary foundation for a conclusion that this state of affairs was referable to the misleading conduct alleged.  If that is not the fact, and if the CAMS letter of 2 August 1996 (or the view expressed in it) was in some way instrumental in bringing about that result then, again, there is no evidentiary linkage between that letter and the misleading conduct alleged.  If there is some other explanation, then again there is no evidentiary link between that explanation, and the representations pleaded.

41                  For all of these reasons the claim based on representations (a) and (b) must fail.

 

Representation 15(c)

42                  Mr Mikhail was last certified as a Paramedic by the respondent in June 1992.  Under the respondent’s procedures, certification subsisted for a period of two years, after which recertification was required.  Mr Mikhail’s certification by the respondent thus lapsed in June 1994.  Recertification was a process involving testing, lecturing and attention to practical skills.

43                  The applicant developed its own recertification program.  It is described in a letter of 12 February 1996 to the Department of Health (Vol 3 p 180, 184).  Mr Mikhail was unable to state when the applicant instituted a recertification program, but maintained that it was prior to mid 1995 (T p 94).  Mr Mikhail claimed that he had been recertified as a Level 5 Paramedic by the applicant’s own program.

Mr Corke did not give evidence in terms of the representation pleaded.

44                  Mr Corke attributes the following statements to an officer of the respondent:

Ÿ                     “The qualifications of those running Paramedical Services are not recognised.  They are no longer employed by NSW Ambulance Services and their qualifications as Paramedics are no longer recognised.”

Ÿ                     “Paramedical Services are not professional in providing their services.”

And he attributes to himself the following statement:

Ÿ                     “I was informed the qualifications of those involved in Paramedical Services are current.”

Q 2 and 5 of the letter of 12 May 1995 touch and concern the paragraph 15(c) representation.

45                  In his oral evidence (T p 60) Mr Corke said:

“... they [ie the respondent] made it very plain to me that they didn’t believe them [ie the applicant] to be professional.  They made it very plain to me that they didn’t believe that their [ie the applicant’s] qualifications were as current as what they should be and that therefore their [ie the respondent’s] service was more superior.”

46                  Mr Webster accepts that he said:

“the principals and employees of Paramedical Services are not employed by the Ambulance Service of New South Wales and accordingly we are unable to guarantee their level of training and expertise.”

[Affidavit 9 March 1998 par 7]

In cross-examination Mr Webster said that whilst the level of professionalism of the service provided by Paramedical Services “got a mention” he did not recall saying that they were not professional in the way they provide their services, and was not sure whether or not one of the other ambulance officers present made a statement to that effect.  The following appears at T p 143 of Mr Webster’s cross-examination:

“At that meeting you said to Mr Corke, did you not, that the qualifications of those running Paramedical Services are not recognised? --- I said something like that, yes, by the ambulance service.

Well, did you not say to him:  they are no longer employed by the New South Wales Ambulance Service and their qualifications as paramedics are no longer recognised? --- That’s true because the paramedic qualification is one that’s given to people whilst they’re in the employ of the Ambulance Service.”

47                  In Watson v Foxman & Ors (Supreme Court of NSW, 3 August 1995, unreported) McLelland CJ in Eq adverted (at p 6) to the difficulties of proof which an applicant may encounter where spoken words in a conversation occurring years beforehand are relied upon as the foundation for a claim under s 42 of the Fair Trading Act, in the absence of some reliable contemporaneous record or other satisfactory corroboration:

“In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition.”

48                  I am not persuaded that a representation in the terms pleaded was made.  I think that the most reliable indicator of the thrust of the discussion at the meeting is Mr Corke’s letter of 12  May 1995 to Mr Mangles.  I am satisfied that Mr Webster made a statement to the effect that the qualifications of Messrs Mikhail and Mangles as paramedics were no longer recognised by the respondent, because they were no longer employed by the respondent.  I am also satisfied that Mr Webster was generally concerned to emphasise what he perceived to be the benefits offered by the respondent in comparison to those offered by the applicant (T p 147 (1-5)).

49                  It was the respondent’s attitude or philosophy at the time that to be a paramedic, one had to be working for the respondent, and that when a paramedic ceased to work for the respondent, he ceased to be a paramedic (T p 242 (10-15)).  That, I think, tends to support the proposition, confirmed by the letter of 12 May 1995, that the probabilities are that Mr Webster was stating that the qualifications of the applicant’s officers were no longer recognised by the respondent (cf Mr McLachlan T p 249 (27)) rather than making a representation in the terms pleaded.  Neither the oral evidence of Mr Corke nor Mr Webster supports the making of a representation to that effect.

50                  In any event, even if I were wrong in the view which I have formed, I could not be satisfied that the applicant suffered any loss or damage in consequence of the pleaded representation, assuming it was made, having regard to the evidence of Mr Corke discussed in pars 27 and 37 above.

 

Representation 15(d)

51                  The letter of 12 May 1995 suggests that there was some discussion at this meeting as to the Quality Assurance Systems which the applicant had in place.

52                  Mr Corke gave evidence, that at the meeting an ambulance officer said:

Ÿ                     “The qualifications of those running Paramedical Services are not recognised.  They are no longer employed by NSW Ambulance Services and their qualifications as Paramedics are no longer recognised.”

Ÿ                     Paramedical Services are not professional in providing their services.”

These statements were relied upon as sustaining the pleaded representation.  In my view, neither does.

53                  Mr Webster accepts that he said:

“The Ambulance Service has a quality assurance program and a recertification program for all clinical staff and it is unknown whether Paramedical Services have any in place.”

[Affidavit 9 March 1998 par 7]

 

Mr Webster (T p 146) describes the respondent’s quality assurance programs.  I am not satisfied that anything was said upon this topic beyond the statement for which Mr Webster contends.

54                  The statement is not shown to be misleading or deceptive.  For the same reasons as have been given in relation to the alleged representations in pars 15(a)-(c), I could not be satisfied in the light of Mr Corke’s evidence that the par (d) representation, even if established, leads the applicant anywhere.  That position is exacerbated having regard to the vagueness of the representation in question and, because I am uncertain as to whether the applicant’s recertification policy attached to its letter of 12 February 1996 (Vol 3 p 180) was in existence prior to 20 September 1995.  Mr Mikhail asserts that it was, but I find it surprising that no documentary evidence was available in the applicant’s files to corroborate that contention, particularly as Mr Mikhail was asked to produce any such material overnight.  I am not persuaded that this recertification policy was in existence in May 1995.

55                  The result is that the claim pleaded in par 15(d) of the Second Further Amended Statement of Claim fails.

 

Infringement of copyright and the Fire Brigade: par 15(i)

56                  Paragraph 15(i) of the Second Further Amended Statement of Claim alleges that the respondent was guilty of misleading and deceptive conduct by forwarding a letter dated 9 June 1995 to the NSW Fire Brigade (“NSWFB”) , representing:

“That the applicant had breached the copyright of the respondent by publishing a first aid training manual entitled ‘Casualty Handling Black Level Training Manual’.”

The applicant claims that as a result of this misleading and deceptive conduct (also pleaded as an injurious falsehood) the Commissioner of NSWFB directed the withdrawal of the manual, directed the cancellation of further training programs by the applicant for members of the NSWFB, and the applicant failed to receive the tender to supply training in first aid and advanced first aid for members of the NSWFB.

 

Background

57                  In the second half of 1993 NSWFB introduced a higher level, styled a “Black Level”, into its cordage (rescue with ropes) skills course, which was to have as one of its components first aid medical training.  In late 1993 a then Deputy Commissioner of NSWFB, Ross Freeman, asked Peter Mangles if the applicant could provide NSWFB with a course which was above first aid certificate, but below paramedical standard, similar to the Emergency Medical Technicians in the United States and Canadian Fire Departments.

58                  On 3 December 1993 the applicant submitted a draft outline of the “medical” component of the Black Level Cordage program which the applicant had compiled (Vol 2(a) p 10).  On 23 March 1994 NSWFB notified the applicant that approval had been given to accept the applicant’s medical course to be incorporated in NSWFB’s “Black Level Training” (Vol 2(a) p 20).

59                  The applicant notified NSWFB that all material submitted by the applicant remained its property (Vol 2(a) p 21) but (Vol 2(a) p 31) it authorised NSWFB to reproduce the applicant’s training program “Emergency Medical Technician” for the purpose of providing students participating in the Black Level Cordage Course with copies of relevant reference material.  A copyright notice was endorsed on the front of the training program.

60                  The applicant ran four courses for NSWFB over the period 1994 to 1995.  The Black Level Cordage course involved training fire officers to do some things which had traditionally been done by ambulance officers, and that was likely to produce, and in fact produced, considerable controversy between the two unions involved (T p 109).

61                  On 25 November 1994 NSWFB raised with the respondent the feasibility of the respondent training NSWFB personnel as rescue medical technicians (Vol 3 pp 24, 28).  The respondent notified NSWFB on 25 January 1995 that staff of the respondent had expressed:

“... their concerns about a perceived expansion of the role of Fire Fighters in pre-hospital care.”

(Vol 3 p 31)

62                  The respondent was accustomed to seek legal advice from the Legal Branch of the NSW Health Department.  On 28 February 1995 (Vol 2(b) p 431) it wrote to an officer in the Legal Branch.  The briefing note attached to that letter included the following:

“The training manual used by Paramedical Services Pty Ltd was reviewed by Ambulance Training Officers in November 1994.  This review identified numerous similarities in course content and layout to course material used by the Ambulance Service of NSW.  The reporting officers stated that there appeared to be high degree of plagiarism in the training manual.”

In the context, I think that the purpose of this communication was to seek legal advice upon the subjects dealt with in the briefing paper, including possible infringement of copyright.  The s 42 case based on this letter and the briefing paper attached was abandoned.  A claim for injurious falsehood cannot be sustained so far as this communication is concerned.

63                  On 22 March 1995 a legal officer in the Health Department advised the respondent that the provision of training courses by the applicant is probably not contrary to the Ambulance Services Act, as this was not a function specifically conferred on the respondent by that Act (Vol 8 p 179).  On the issue of copyright, the following opinion was expressed:

“From the limited information that has been provided about the materials in dispute, it would appear that the Ambulance Service may have a reasonable case should it wish to pursue the Company [ie the applicant] for copyright infringement.”

(Vol 8 p 177)

64                  Further advice was received from the Department of Health on 30 May 1995 (Vol 8 p 181).  That letter included the following:

“The authors of the Black Level Training Manual have copied significant amounts of material from the Services ‘Protocols Procedures and Pharmacology’ Documents.  I understand that this was done without first seeking your permission.  Accordingly, the authors of the Black Level Training Manual have breached the copyright which is held in the Ambulance Service Documents.

The Ambulance Service represents the Crown and, accordingly, copyright in the Ambulance Services documents is Crown copyright.”

The letter enclosed a draft of a letter which it was recommended be sent to NSWFB which “will assist us [ie the Legal Branch of the Department of Health] in determining what remedies should be pursued”.

65                  On 9 June 1995 the respondent forwarded a letter in accordance with the Health Department’s draft to NSWFB.  That letter stated:

“NSW FIRE BRIGADES

CASUALTY HANDLING BLACK LEVEL TRAINING MANUAL

It has been brought to the Service’s attention that the above document contains material which is identical to or substantially the same as material contained in the Ambulance Service of NSW’s ‘Protocols Procedures Pharmacology’ training documents.  The permission of the Ambulance Service for use of the material was not sought.

The document indicates that it was prepared by a company called Paramedical Services Pty Ltd.

We bring this matter to your attention as it is in neither the Brigade’s nor the Service’s interest for such situations to arise.  It would be of assistance to us in addressing this situation if you could inform us whether the Black Level Training Manuals are currently in use, and the fee paid to Paramedical Services Pty Ltd for producing the document for the Fire Brigade.  This will assist us in the examination of possible legal proceedings against any person who may have infringed the copyright in Ambulance Service material.

Your cooperation in this regard is appreciated.”

On the same date a letter (Vol 6 p 1) was sent to the applicant indicating that the matter was viewed seriously, and the respondent was seeking legal advice with a view to instituting proceedings for breach of copyright.

66                  On 29 June 1995 NSWFB advised the respondent that as a result of the concerns expressed in the respondent’s letter of 9 June 1995 the Casualty Handling Manual had been withdrawn from service, and replaced by a commercial publication (Vol 6 p 3).  Mr Freeman of NSWFB gave evidence of a conversation with Mr Mikhail in which he denied any copyright infringement, but agreed that the manual should be withdrawn until the matter was resolved.

67                  On 7 July 1995 the applicant’s solicitors denied infringement , requested particulars of the infringement alleged and suggested a round table conference (Vol 6 p 3A).  The respondent did not take up the invitation to participate in a round table conference, nor did it provide any particulars of infringement.  The matter simply rested there.

68                  At about this time an industrial issue was developing as to whether the future of the Paramedic Service in NSW was to be in the Fire Brigade or the Ambulance Service (see, eg Vol 3 p 29, 31, 43).  That culminated in the execution on 19 July 1995 of a Memorandum of Understanding (“MOU”) between NSWFB and the respondent (Vol 3 p 69).  Under the heading “Training”, the MOU included the following:

“It is agreed, in principle, that opportunities may exist for each agency to assist the other in training of their staff in areas within the other’s area of expertise.  Normal Government practises regarding purchasing of services will apply.  This training is to be an appropriate level as agreed between the Brigades and the Service.”

The “Government practises” referred to are those prescribed under the Regulations made under the Public Sector Management Act 1988 (NSW).  For goods and services over $1,000 and up to $50,000 in value a minimum of three quotations must be obtained (Vol 8 p 240).  This procedure had not previously been followed in relation to the securing of training services from the applicant apparently on the basis of a perception that it was the only body offering those services.

69                  On 28 August 1995, under the hand of a Commissioner of NSWFB, the following instruction was issued on the subject of “First Aid Training”:

“All training being facilitated by Paramedical Services Pty Ltd is to cease immediately.  Until further notice all First Aid training or any training related to Health Care will only be permitted to proceed with my approval.  Further, a list of all training courses facilitated by Paramedical Services to the Brigades and the costs for these services over the last Financial year is required in my office no later than Friday 8 September.”

(Vol 3 p 72)

 

The Tendering Process

70                  On 20 November 1995 NSWFB indicated to NSW Supply Service that it wished to invite expressions of interest from suitably qualified organisations to provide its personnel with training that would lead to a variety of first aid qualifications (Vol 7 p 1).  On 29 March 1996 NSWFB provided the NSW Supply Service with a list of five suppliers including the applicant and the respondent.  Tenders were invited (Vol 7 p 4).  Eight tenders were received.

71                  The offers were evaluated (Vol 7 p 5).  The respondent was the recommended tenderer.  The Evaluation Committee said of the respondent:

“The Committee believe that the Ambulance Service of NSW meets all the selection criteria stated in the tender document and have extensive experience in Senior First Aid and Advanced Resuscitation training.  Their proposal was reflective of a genuine understanding of the needs of the NSW Fire Brigades and demonstrated superior experience and technical skills.

For these reasons and as the lowest priced tender the Committee recommends the Ambulance Service of NSW for acceptance.”

The other tenders, including that of the applicant, were not considered further, as the premium involved in engaging their services did not represent any extra value for NSWFB.

72                  No complaint has been made in these proceedings about the conduct of the tendering process, nor has any impropriety in the decision to select the respondent been identified.

 

The respondent’s manuals

73                  The evidence establishes that the respondent’s manuals were originally based upon material prepared by Dr Wright, the former head of intensive care at St Vincent’s Hospital and a member of the respondent’s Medical Advisory Committee.  Dr Wright was retained by the respondent to provide paramedic training for the respondent.  The manuals are the subject of constant revision by the Medical Advisory Committee, and one can see from the pages in Exhibit JM2 notations that particular pages have been approved on specified dates by the Chairman of the Medical Advisory Committee, or nominated officers of the respondent.

74                  A comparison of Exhibit JM2, and Exhibit JM1, indicates that the applicant has reproduced slabs of the respondent’s manual.  According to Mr Freeman (Affidavit 3 September 1997 par 26) Garry Mikhail came to see him and said, in relation to the applicant’s manuals:

“There is no breach of copyright by Paramedical Services.”

But it is clear, at least, that there was copying, and Mr Mikhail, in his evidence, admitted as much .  At T p 103 the following appears:

“You found it convenient, I suggest, in preparing the document from time to time to simply copy out sections of the ambulance protocol and procedure? --- Yes, the same as we did with a whole heap of other material.  We did modify certain bits.  We’re not inventing the medical practice of pre-hospital emergency care and we put down what we have been taught and what we believe to be the best for New South Wales Fire Brigade.

That included simply copying out parts of what you regarded as relevant portions of the text of the ambulance service protocol documents that you had with you? --- Yes.”

 

The letter of 9 June 1995

75                  It was put to Mr McLachlan (T p 253) that in writing the letter of 9 June 1995 he was not genuinely seeking to raise a copyright issue, but his purpose was to shut down the applicant.  Mr McLachlan denied that this was so.  I accept his denial.

76                  In my opinion, the claim that the dispatch of this letter amounted to misleading and deceptive conduct on the part of the respondent or an injurious falsehood, resulting in the loss of the NSWFB tender, is utterly without merit, because the letter of 9 June 1995 does not convey any material misrepresentation and because the decision to award the NSWFB tender to the respondent is not shown to have been linked in any way to that letter.  Nor is there any inadequacy or impropriety identified in relation to the tendering process.  The lowest and best tender was successful.

77                  In substance the letter asserts that:

Ÿ                     The Black Level Training Manual was prepared by the applicant – admittedly true.

Ÿ                     This manual contains material copied from the respondent’s documents – admittedly true.

Ÿ                     The respondent’s permission for copying was not sought – admittedly true.

Ÿ                     The respondent is complaining that the copying of its manuals involved an infringement of copyright and (by inference) that it makes that claim on reasonable grounds – this claim, in my view, is soundly based.

78                  The tender process was a direct result of the MOU of 19 July 1995.  The sums involved were such that the tender was probably obligatory in any event, in the light of those who were prepared to supply training services in 1995.  It was put to Mr McLachlan that the MOU “was simply a cover ... to effect the training of fire fighters in first aid by the Ambulance Service?”  He denied that.  He said that it was intended as a very powerful statement that the fire brigade was not trying to be involved in pre-hospital care (T p 257).  In my view the MOU represented a resolution of what was, in effect, a demarcation dispute between the NSWFB and the respondent.  I accept Mr McLachlan’s evidence that it was a genuine resolution of that dispute, and not simply a cover for action designed to harm the applicant.

 

In trade or commerce

79                  Having regard to the conclusions which I have reached it is not necessary to reach a conclusion as to whether the representations the subject of par 15(a) - (d) and (i) of the Second Further Amended Statement of Claim were made in trade or commerce, in the course of carrying on a business by the respondent.  However, as that aspect of the matter was the subject of submission, I should deal with it briefly.

80                  Mr McLachlan (T p 269) accepted that the respondent has been in competition with the applicant in relation to the provision of ambulance and paramedical services at sporting events.  An effect of that competition has been a reduction in the period since 1995 in the rates charged by the respondent for the provision of that service.

81                  Mr McLachlan (T p 249) also accepted that a purpose of the meeting with Mr Corke and Mr Webster in early May 1995 was to promote the use of the respondent’s services by CAMS affiliated clubs in preference to the applicant’s services.

82                  When the respondent supplies an ambulance and paramedical services at a sporting or similar event, it does so at the request of the promoters and by arrangement with them.  The respondent seeks to recover at least the cost of provision of those services.  It needs to ensure that it has sufficient funds to run the emergency side of the service (T p 86).

83                  In 1994/95 user charges imposed by the respondent for attendance at sporting events were $1.319 million out of total user charges for that period of $47.872 million.  The Auditor-General’s Performance Audit Report with respect to the respondent of September 1996 (Vol 4 p 33) recommended that charges for attendance at sporting events be reviewed and revised annually to cover costs.  The total expenses for the respondent in 1994/95 was $171.6 million, which was funded from a variety of sources, the primary source being a state government contribution of $117.5 million (Vol 4 p 186).  It is government policy that ambulance attendances at sporting and recreational fixtures are to be on the basis of cost recovery (Vol 4 p 189).

84                  It is clear that the performance of some of the respondent’s functions do not involve the carrying on of a business.  For example, consultation with the Department of Health in relation to the coordination and planning of the future development of ambulance services under s 12(1)(f) would be outside the scope of any business carried on by the respondent.

85                  In relation to other functions of the respondent, the position may be less clear.  But, if in some aspects of its operations the respondent is carrying on a business then insofar as it does so, the Fair Trading Act applies to it.  Having regard to the way in which the case was ultimately put, the question is whether the respondent, in providing ambulances at sporting events for fee or reward was carrying on a business, and whether the respondent, in providing education or training in first aid for reward (as it did for NSWFB) was carrying on a business.  Even if the respondent was carrying on a business at the relevant time there is the further requirement that the conduct in question be in trade or commerce.

86                  Section 4 of the Fair Trading Act defines “business” to include a trade or profession and a business not carried on for profit.  In addition, relevantly, the authorities establish:

·        Generally, the word “business” in the Act means trade, commercial transactions or engagement: Fasold v Roberts (1997) 145 ALR 548 at 588; Durant v Greiner (1990) 21 NSWLR 119 at 128.

·        The term “business” ordinarily, but not necessarily, connotes activities engaged in for the purpose of profit on a continuous and repetitive basis: Hope v Bathurst City Council (1980) 144 CLR 1 at 8; Smith v Capewell (1979) 142 CLR 509 at 518-519; Plimer v Roberts (1997) 80 FCR 303 at 305.

·        Usually, the less commercial the character and objectives of an organisation, the greater the degree of system and regularity required for the organisation’s activities to be characterised as a “business”: Fasold v Roberts at 525.

·        Even a voluntary organisation pursuing purely altruistic or charitable goals can conduct a business: Fasold v Roberts at 525.

·        A business activity is an activity which takes place in a business context but which also, of itself, bears a business character: Plimer v Roberts at 308.

·        The provision of services for remuneration, regardless of the commercial adequacy of such remuneration, may constitute the carrying on of a business: J S McMillan Pty Ltd v Commonwealth (1997) 77 FCR 337 at 355.

·        The application of the Fair Trading Act to the Crown “in so far as” it carries on a business circumscribes the extent to which the Act binds the Crown.  Those words ensure that persons dealing with the Crown in relation to the conduct of a business will have the same protection as when dealing with a private trader who is carrying on such a business but will not enjoy that protection when entering into other dealings with the Crown: see J S McMillan Pty Ltd v Commonwealth at 356.

87                  When providing ambulance services at sporting events the respondent was engaged by the relevant organising sporting body.  This was not an isolated practice.  Whilst it formed a comparatively small part of the respondent’s activities, the provision of ambulance services at sporting events by the respondent occurred frequently.  In order to secure this work the respondent competed with, amongst others, the applicant.  Fees were charged for the provision of services, even if primarily to recoup costs.  In my opinion it follows that, in these circumstances, the respondent was carrying on a business.  The provision of ambulance services at sporting events for a fee not only took place in a competitive and commercial context, it bore a business character.  Accordingly, the Act provides that persons who dealt with the respondent in this domain of its activities enjoyed the same protection as if they had retained a non-Crown entity for supply of the same services.

88                  Whether the respondent was carrying on a business in respect of its provision of first aid training for reward is perhaps less clear.  The circumstances giving rise to the securing of a contract by the respondent to provide first aid training to NSWFB are referred to at pars 68 to 72 above.  Though the respondent and NSWFB executed the MOU mentioned at par 68, NSWFB retained the respondent by way of competitive tender.  The tender was contested by eight parties - at least half of which were private companies.  The respondent submitted the lowest priced tender and secured a three year contract.  The tendering process was not the subject of complaint.  Whilst it remains unclear whether the provision of first aid training services for reward by the respondent was distinguished by system and regularity, the process by which the respondent came to provide first aid training to NSWFB for reward was certainly business-like.  In these circumstances I am prepared to proceed upon the basis that the respondent was carrying on a business when it provided first aid training for reward to NSWFB.

89                  The respondent submitted that in providing its services it was performing its functions prescribed by s 12 of the Ambulance Services Act rather than carrying on a business.  Reliance was placed upon the decision of Davies J in Mid Density Development Pty Limited v Rockdale Municipal Council (1992) 39 FCR 579 in which his Honour held (at 585) that the carrying out of a statutory function in the interests of the community for a fee was not a trading activity.  The Court was also directed to that part of the decision of Emmett J in J S McMillan Pty Ltd v Commonwealth (at 355) in which his Honour referred approvingly to the approach of Davies J and considered it relevant to whether the Commonwealth was carrying on a business in the relevant circumstances.  There is force in the respondent’s submission – particularly in view of the very broad terms within which s 12 is couched.  However, it cannot stand in relation to the provision by the respondent of either ambulance services at sporting events for reward or first aid training to NSWFB for reward.  In supplying these services the respondent was doing what any citizen or private trader might potentially do, namely, providing those same services for remuneration: see J S McMillan Pty Ltd v Commonwealth at 355.  Indeed the respondent had to compete with other suppliers in order to be retained for the provision of these services.  For these reasons the respondent’s submission fails.

90                  Of course, that is not the end of the matter.  Section 42 of the Act requires that the relevant conduct be “in trade or commerce”.  Section 4 states “trade or commerce includes any business or professional activity”.  In Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 the High Court held (at 603):

“…the reference to conduct ‘in trade or commerce’…can be construed as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character.”

91                  Relevantly, the High Court also held (at 604) that misleading or deceptive promotional activities directed towards actual or potential consumers are proscribed.

92                  The alleged misrepresentations of the respondent pertaining to its provision of ambulance services at sporting events for reward and its supply of paid first aid training to NSWFB were said to be made in the business setting referred to above.  As I have already indicated, that context and the specific activities concerned both bore a commercial character.  Importantly, the relevant alleged misrepresentations were portrayed by the applicant as attempts to promote the services of the respondent, at the expense of its competitors, with a view to securing contract work.  It follows that if the representations had been made out and if they had have occurred in the settings asserted, they would have occurred in trade or commerce.

Injurious Falsehood

93                  The common law action has four elements:

Ÿ                     A false statement of or concerning the applicant’s business.

Ÿ                     A publication of that statement by the respondent to a third person.

Ÿ                     Malice on the part of the respondent – that is, that the statement was made mala fide or with a lack of good faith.

Ÿ                     Proof by the applicant of a particular and identifiable loss suffered as a result of the statement.

Law of Torts, Balkin & Davis (2^nd Edn) p 677

The respondent must know that the statement is false, or be recklessly indifferent as to whether it is true or false.  If this condition is satisfied, it is no excuse that the statement was made with a view to furthering the respondent’s own business interests: Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275, 290-291.

94                  My findings in relation to the s 42 claim pleaded in par 15(a)-(d) of the Second Further Amended Statement of Claim mean that the applicant cannot sustain a case of injurious falsehood based upon those representations.

95                  The applicant relies upon other statements, in addition to those already dealt with, in support of its injurious falsehood claims.  The first is a statement in relation to the eligibility of Messrs Mikhail and Mangles for enrolment at the Charles Sturt University.  In final submissions counsel for the applicant accepted, correctly in my view, that he could not establish any loss flowing from this alleged falsehood.  The tortious claim therefore fails.  But as counsel continued to rely upon the circumstances surrounding the alleged representation as evidence of malice, it remains necessary to deal with the claim.

 

Charles Sturt University – para 15(g)

96                  The allegedly false statement is pleaded in this way:

“(g)     That certain directors of the applicant did not possess the requisite qualifications to be accepted as candidates for the degree of Bachelor of Health Science (Pre-Hospital Care) offered by Charles Sturt University at its Bathurst Campus.”

97                  The representation is particularised as being contained in a letter in about early March 1995 from the respondent to Charles Sturt University, Bathurst Campus.  In fact, the relevant letter is dated 15 May 1995 from the respondent to the University.

98                  The introductory words to par 15 of the pleading assert that the representations were made to third parties, being third parties using or likely to use the services of the applicant, and being customers or potential customers of the ambulance and paramedical and other services supplied by the applicants.  Whilst Charles Sturt University is no doubt a third party, it does not otherwise satisfy the description referred to in the introduction to par 15, as there is no warrant for a conclusion that the University was an actual or potential consumer of the applicant’s services.

99                  There is within the Charles Sturt University a School of Paramedical Studies.  The head of that School was Dr J Field who, at the relevant time, was also an officer of the Ambulance Service.  The University offered a degree styled Bachelor of Health Science (Pre -Hospital Care) Conversion.  The 1995 undergraduate handbook contained the following statement, in relation to that degree:

“The course is designed to meet qualified and practising Advanced Life Support Officers’ needs (equivalent to Level 5 Paramedics in NSW) and to recognise their prior education and training through a credit package.”

100               The admission requirements for the degree were expressed as follows:

“Applicants must be qualified and practising Advanced Life Support Officers (equivalent to Levels 4 or 5), with a minimum of 5 years experience who hold an Associate Diploma of Health Science (Pre-Hospital Care) or equivalent.”

101               On 14 September 1994 Mr Mikhail completed an application for admission to the University which was accepted on 12 December 1994, when the University offered him admission to the course commencing in the Autumn Session of 1995.

102               On 17 February 1995 Dr John Field, who described himself as Head, School of Paramedical Studies, sent a memorandum to an officer in student administration which stated that it had been drawn to his attention that Messrs Mikhail and Mangles, whilst fulfilling the appropriate academic criteria for entry to the degree are not “practising ALS (Level 4/5) Ambulance Officers” and therefore do not fulfil the admission requirements quoted above.  He recommended that the offer of a place be withdrawn “at this stage”, and that the applicants be informed that the admission requirements may be reviewed.  This document, as I have said, is internal to the University; it is not a document emanating from the respondent, nor is it a document the subject of complaint in the present proceedings.

103               On 13 March 1995 the University wrote to Mr Mikhail advising that the School of Paramedical Studies has now withdrawn its offer of admission and enrolment in the Bachelor of Health Science (Pre-Hospital Care) Conversion course at the University because:

“Applicants must be qualified practising Advanced Life Support Officers (equivalent to Levels 4 or 5), with a minimum of 5 years of experience who hold an Associate Diploma of Health Science (Pre-Hospital Care) or equivalent.  The School was not aware of your status when the offer was made.”

104               On 17 March 1995 solicitors acting for Messrs Mikhail and Mangles wrote to the University protesting the decision, and requesting a reconsideration of the matter.  On 21 March 1995 the University responded to the solicitors.  The letter included the following:

“When it was discovered that your clients were not practising life support officers (equivalent to Levels 4 and 5) the University reluctantly had to withdraw the offers.  The reason for this is that the Pre-Hospital Care Course is funded partially by the NSW Government through the Department of Health.  The NSW Government provides the funding for the basic training of officers for its Ambulance Service, hence the employment condition imposed on applicants.”

105               On 5 April 1995 the University wrote to the solicitors advising them that their clients had been reinstated in the Bachelor of Health Science (Pre-Hospital Care) course and that they had been advised of this verbally by the Registrar’s staff.

106               The reason for this change in position appears from a memorandum to Dr Field from the Registrar of the University of 28 April 1995 to the effect that although Messrs Mikhail and Mangles were not members of the NSW Ambulance Service, the University’s legal advice is that the students nonetheless satisfy the admission requirements referred to above.

107               On 8 May 1995 a meeting took place between officers of the Ambulance Service, and representatives of the Health and Research Employees Association of New South Wales, which was the union representing the interests of employees of the Ambulance Service.  The minutes of that meeting contain the following:

“2.2     Paramedical Services

Ÿ                     Mr Clapham advised the meeting of HREA’s understanding that the principals of “Paramedical Services” would be ineligible to enrol in the Charles Sturt University (CSU) programs.  He has since been advised that the principals had been admitted and sought the Ambulance Service’s support for their exclusion.

Ÿ                     Advice received from CSU has indicated that they were eligible and their enrolments would be maintained.  The Ambulance Service is of the opinion that the principals were not qualified in terms of the admission requirements and would communicate this view to CSU.

Action:

Mr J Field to write directly to CSU registering the Ambulance Service’s view that the principals of “Paramedic Services” should be excluded from the program.  HREA will be advised on progress.”

108               On 15 May 1995 Dr John Field, this time on behalf of the respondent, wrote to the Dean of the Faculty of Health Studies at the University, and the letter stated:

“The enrolment of Messrs Mikhail and Mangles into the Conversion program for qualified and practising advanced life support officers, continues to give serious concern to the Ambulance Service.  The Ambulance Service of New South Wales maintains strenuously that these applicants are not qualified in terms of the intention of the conditions for entry to the program.  When the applicants left the employment of the Ambulance Service of New South Wales they relinquished their right to function as Ambulance Officers.  Neither Mikhail or Mangles has undertaken a recertification course.  In the opinion of the Ambulance Service neither is qualified to practice.

The position of the University vis a vis the possibility of legal action is recognised.  It is recognised further that neither student represents a charge to the Health Department.

The Ambulance Service requests that the University reviews the position with respect to the continued enrolment of the two students and ask that consideration be given to the modification of enrolment conditions to prevent a recurrence of a situation which has caused the Service serious embarrassment with respect to the industrial union.”

109               It is this letter which was originally relied upon as giving rise to a breach of s 42 and as the injurious falsehood.

110               On 29 May 1995 the University responded to Dr Field.  In substance the University indicated that it proposed to continue to act on the legal advice given to it and that the two students satisfied the admission requirement in question.

111               In fact Mr Mikhail completed his degree.  What the position is in relation to Mr Mangles does not emerge from the evidence.

112               Mr McLachlan’s evidence, which I accept, was that the respondent then took the view that only employees of the respondent qualified for the description of paramedics, and the course in question was designed for the respondent’s ambulance officers.  There were more ambulance officers wanting to undertake the course than there were places available.  Mr McLachlan said “We felt because of the work we’d done with Charles Sturt in setting up the course, that they [ie the respondent’s employees] should be the ones with the priority into the course”.  He denied that the respondent “wanted to try and get at” the applicant in any way it could.  I accept what he says in this regard.

 

The Health Department communications of 10 October 1994, 20 April 1995 and 26 April 1995: pars 15(d) (iii), (e) and (h)

113               Section 16(1)(d) of the Poisons Act 1966 (NSW) (now the Poisons and Therapeutic Goods Act 1966 (NSW)) makes it unlawful for a person to have a prescribed restricted substance in his possession unless he is a person authorised in writing in that regard by the Director-General of the Department of Health.  Regulations 147 and 148 of the Regulations made under the Poisons Act deal with the granting of authorities in that respect.

114               On 15 April 1994 (Vol 3 p 160) the applicant applied for an authority under s 16(1)(d) of the Poisons Act.  (The letter wrongly refers to s 16(1)(e).)

115               On 10 October 1994 the medical director of the respondent wrote to the NSW Health Department indicating the views of the Medical Advisory Committee on that proposal.  The Medical Advisory Committee provides expert assistance to the respondent in ensuring that treatment protocols, procedures and pharmacology are representative of international best practice in pre-hospital care.  The committee is comprised of experts from both within and outside the respondent.  Its composition in 1996 is to be found at Vol 4 p 79.  It will be recalled that one of the functions of the respondent involves consultation with the Department of Health in relation to the future development of ambulance services.

116               The letter of 10 October 1994 provided as follows:

“The Ambulance Service of NSW is concerned at the proliferation of private paramedic services.

The advanced life support skills and drug therapies used by ambulance staff are practised under the authority of the Medical Advisory Committee of the Ambulance Service Board.  Clinical Audit and Quality Control are built into the administration of the Ambulance Service.  Every member of the service is accountable through the organisational structure to the Health Department and the community.

There is no mechanism for NSW Health to provide such scrutiny, Quality Assurance or Clinical Audit for private operators.  There are no universally agreed standards.  There are dangers in permitting private operators to develop services in the absence of suitable performance indicators and quality control.

The ‘paramedics’ employed by Paramedical Services Pty Ltd are to operate under the direct supervision of the medical staff of that company, there is no need for the exceptions to the Poisons Act for which they have applied.  It, therefore, follows that the company anticipates these paramedics will be operating without direct supervision.

The scheduled medications under Schedule 2 pose no difficulty as they are available over the counter.

The restricted substances under Schedule 4 cannot be authorised until the issues of quality assurance, clinical audit, standards of training and supervision are answered.

Paramedical Services Pty Ltd states it will offer ‘intensive care style services’ but this proposal is clearly not a comprehensive one – there is no suggestion of analgesia, intravenous therapy or intubation – which are skills considered of paramount importance in administering advanced life support to high risk activities.

The Medical Advisory Committee was unable to support this proposal.”

117               That letter is alleged to involve the making of a representation to the following effect:

“That it would be dangerous to the public if the applicant and its officers were authorised to carry and administer drugs otherwise proscribed under the Poisons Act (NSW).”

[Par 15(e) Second Further Amended Statement of Claim]

118               The pleaded representation is a distortion or exaggeration of the thrust of the letter.  It ignores the fact that the tenor of the letter is an assertion that there are dangers in permitting private operators to develop paramedic services in the absence of suitable performance indicators and quality controls.  Authority should be denied until the issues of qualityassurance, clinical audit, standards of training and supervision are answered.

119               The acting Director, Clinical Policy & Practice in the Department of Health advised the applicant that its application was refused.  The letter stated:

“Upon receipt of your request with accompanying treatment protocols, I sought the advice of the Medical Advisory Committee of the Ambulance Service Board of New South Wales.  Of particular concern to the Committee were the issues of quality assurance and clinical audit.

However, after careful consideration of these issues, the Committee concluded that it could not support your application.”

120               Thereafter, the applicant “attempted to address the concerns raised by the NSW Ambulance Service” and sought a review of the decision (Vol 3 p 167).  On 31 March 1995 the Department of Health wrote to the medical director of the respondent.  The letter included the following:

“I would appreciate your further advice on this matter.  In particular, I would appreciate comment on the level of training or qualification or certification that would be required of individuals working for such an organisation and undertaking the responsibilities as indicated.  I would also appreciate comment on what, if any, mechanisms or professional organisations exist to accredit individuals in this role outside of the Ambulance Service.”

121               On 20 April 1995 the Chief Executive Officer of the respondent (T Overall) wrote to the Director-General of the Health Department (Mr J Wyn Owen).  The letter stated:

“The Ambulance Service is aware that a number of private concerns have recently established companies to provide first aid and pre-hospital care.  These organisations have to date marketed their services to sporting bodies, where, for a fee, they provide an on-site presence and treatment to people as required.

In previous correspondence with the Health Department, the Ambulance Service has advised against an exemption from the Poisons Act requested by one of these companies.  However, we have additional concerns about the functioning of such organisations that need to be clarified before details such as the possession and administration of drugs should be considered.

Firstly, the legal standing of any organisation intending to provide first aid or ambulance services to the community needs to be clarified.  The Ambulance Services Act 1990 specifically addresses the transport of patients, but does not consider the delivery of pre-hospital care in any other detail.

Secondly, if such operations are legal, the setting and maintenance of standards, reporting and registration requirements need to be established.  Issues relating to the type of treatment provided and drug possession and prescription can be considered in this context.

Should it be determined that private companies be authorised in some form to operate, the relationship between these organisations and the Ambulance Service would need to be considered and clarified.  As the Ambulance Service is the only organisation authorised to transport patients (on a fee basis) the Service is clearly concerned about the quality of first aid and pre-hospital care that may be initially provided by a private company as well as issues of duplication of services.

The above raises complex legal/regulatory and medical issues.

I would appreciate the Department’s advice in how these matters should be addressed and in this regard I will be directly contacting the General Manager, Policy and Planning Unit.”

122               That letter is said to involve the making of a representation to the following effect:

“That the granting of an exemption to the applicant to carry certain drugs otherwise proscribed under the Poisons Act would lead to unnecessary duplication of services.”

[Par 15(h) Second Further Amended Statement of Claim]

Again, the letter does not sustain the pleaded representation, which involves a distortion or exaggeration of what the letter, on a fair reading of it, conveys.

123               On 26 April 1995 the Medical Director of the respondent replied to the enquiry made by the Department of Health on 31 March 1995.  The letter stated:

“I refer to your letter regarding the request from Paramedical Services Pty Ltd to possess and administer drug therapies.

The Ambulance Service has reviewed the matter, and are concerned about several issues.  The issues of quality assurance and clinical review raised by the Service in previous correspondence are important concerns that need to be considered in the granting of permission for any organisation or person to prescribe and use drug therapy.  However, in reviewing the situation in relation to Paramedical Services, we believe that this decision is secondary to several other issues that need clarification.

These issues include the legal standing of any organisation aiming to provide pre-hospital care, and the setting and maintenance of standards, reporting and registration requirements for such organisations if they are operating legally.  The type of treatment provided and drug possession and prescription can be considered in this context.  In addition, the public perception about pre-hospital care and The Ambulance Service will need to be addressed, as will the relationship between the Service and any other operator.

Tim Overall, Chief Executive Officer of the Ambulance Service, has written to John Wynn Owen seeking clarification from the Health Department about these issues.

I do not think that it is appropriate for the Ambulance Service to comment at this stage on the Paramedical Service’s quality assurance and clinical review processes.

In your letter you asked for comment about the level of training and qualification required for officers working in the pre-hospital field.  There are 5 levels of officer in the NSW Ambulance Service, with each higher level building on ability and knowledge from previous levels.  The NSW Ambulance Service has a detailed training program for each of these levels, with additional mandatory annual in-service updates, and recertification required for levels 4 (advance life skills) and 5 (paramedics) officers.  Different medications form part of the armamentarium for each level of officer.  If it will be helpful, I can supply details of our education program.

I am not aware of any organisations other than the Ambulance Service who have the authority to accredit individuals in this role.  Ambulance officers working for the Ambulance Service of NSW are specifically authorised to possess and administer drugs, including drugs of addiction, in the Poisons Regulations 1994.

As requested in their letter, I am returning the documentation from Paramedical Services.

If you would like to discuss any of these issues further, please contact me on the telephone number above.”

124               On 27 April 1995 the Health Department notified the applicant that its application was under review (Vol 3 p 171).  On 20 September 1995 the applicant was informed (Vol 3 p 176) that a recommendation had been made to the Director-General that appropriately qualified staff of the applicant be given permission to use the drugs in question, subject to specified conditions; including recertification at least equivalent to that undertaken by the respondent having been successfully undertaken by the relevant employees of the applicant within the previous two years.

125               On 12 February 1996 (Vol 3 p 180) the applicant addressed that letter, and supplied a copy of its recertification policy.  On 29 February 1996 the applicant was advised (Vol 3 p 199) that the authority under the Poisons Act had been granted.

126               As earlier indicated, the Fair Trading Act claim based upon these communications was abandoned.  The injurious falsehood claim was nonetheless maintained.  That claim fails, in my view, because none of the letters conveys the pleaded representations in relation to the applicant’s business, and because there is no warrant for a conclusion that any of the communications were undertaken in bad faith.  Nor is there any basis upon which it could be concluded that the applicant suffered particular loss as a result of these intergovernmental communications.  Certainly none was identified in the course of the applicant’s submissions.

127               The application for an authority under the Poisons Act was referred to the respondent’s Medical Advisory Committee for advice.  The application was perceived as raising a number of issues which needed to be addressed, and which were addressed.  Ultimately they were resolved in favour of the applicant.

128               These communications, in my view, are unremarkable in character, and not indicative of malice or bad faith on the part of those of the respondent’s officers who were parties to them.

129               The claim for injurious falsehoods pleaded in pars 18, 19 and 20 of the Second Further Amended Statement of Claim is not made out.

130               The application should be dismissed with costs.

I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:              5 May 1999

Counsel for the Applicant:	M B Evans
Solicitor for the Applicant:	Quinns Solicitors
Counsel for the Respondent:	S J Gageler
Solicitor for the Respondent:	Crown Solicitor
Date of Hearing:	12, 13,14, 15, 16 April 1999
Date of Judgment:	5 May 1999