Federal Court of Australia

Borody v Vickers [2021] FCA 618

ORDERS

THE COURT ORDERS THAT:

1.    The proceedings are summarily dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

2.    The applicant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(revised from transcript)

THAWLEY J:

1    On 27 August 2020, Dr Thomas Borody commenced proceedings in this Court against Dr Christopher Vickers. By an interlocutory application dated 11 December 2020, Dr Vickers seeks summary judgment dismissing the whole of the proceedings, or, in the first alternative, orders striking out the Amended Statement of Claim or, in the second alternative, that the following questions be heard separately from the rest of the proceedings:

(1)    Is Dr Vickers immune from, or privileged against, Dr Borody’s claims and/or any liability under them as pleaded at paras 33 to 35 of the Defence to the Amended Statement of Claim filed by the Respondent on 11 December 2011 (the Defence)?

(2)    Were any representations alleged in para 14 of the Amended Statement of Claim made in trade or commerce within the meaning of s 18 of the Australian Consumer Law (ACL), in sch 2 of the Competition and Consumer Act 2010 (Cth) (CCA)?

2    The proceedings in this Court are related to earlier proceedings which had been commenced in the District Court of NSW and later transferred to the Supreme Court of NSW (the District Court proceedings). In the District Court proceedings, Dr Borody was sued for medical negligence by a former patient, Ms X. Dr Vickers was retained by the solicitors acting for Ms X, to prepare an expert report concerning Dr Borody’s medical assessment and treatment of Ms X (the Vickers Report). Dr Borody alleges that the Vickers Report contained representations which were misleading or deceptive in contravention of s 18 of the ACL.

3    The key issue that arises on the present application is whether Dr Vickers is immune from suit on the basis of witness immunity or, more precisely, whether Dr Borody’s claim has no reasonable prospect of success because Dr Vickers is immune from suit – see, for example: Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268.

4    A second issue is whether summary judgment should be granted on the basis that Dr Vickers’ preparation of the Vickers Report was not “in trade or commerce” with the consequence that s 18 of the ACL cannot apply.

5    A third issue is that the claim as presently pleaded does not contain sufficient material facts to engage the operation of the ACL given that Dr Vickers is an individual, not a corporation – see: ss 6, 131(1) of the CCA. It is likely that this third issue could have been cured by an amendment and the parties were content to proceed on the basis of the first two issues being resolved on this application.

Background

6    Dr Borody and Dr Vickers are both gastroenterologists. Dr Borody is the founder and medical director of the Centre for Digestive Diseases in Sydney.

7    Before commencing the District Court proceedings, Ms X’s lawyers wrote to Dr Vickers. The letter included:

Dear Dr Vickers,

Our client:     [Ms X]

We act for Ms [X] in a medical negligence claim for a damages arising out of the treatment that she received at The Centre of Digestive Diseases from 20 November 2015 up to the time of her hospital admission to Royal North Shore Hospital on 23 October 2017.

Thank you for agreeing to prepare a report in this matter on the issues of breach of duty of care and causation.

…

Instructions

We would be grateful if you prepare a report in response to the following questions based on your training, study and experience:

…

Expert witness code of conduct

In your report, kindly include a statement that you have read, agree to be bound by and understand the Expert Witness Code of Conduct. A simple “form of words” to use is: “I have read the Expert Witness Code of Conduct within the said rules and agree to be bound by it”.

Should you require a copy of the Expert Witness Code of Conduct kindly let us know.

It is vital that you expose the reasons for your opinions and cite the basis for them, including relevant clinical experience and medical literature.

…

8    The District Court proceedings were commenced on 25 June 2019. The Vickers Report was filed with the Statement of Claim, as an “Expert Report”. The Vickers Report referred to the letter of instructions, set out the background facts and then continued:

For the purposes of background and information for the Court I provide elementary information on the subject in question.

9    The report then provided background information under the following headings: “clostridioida difficile infection”, “constipation dominant irritable bowel syndrome”, “vancomycin”, “colchicine” and “dipentum (olsalazine)”. The report then answered the questions which had been posed in the letter of instruction. The letter was signed by Dr Vickers and, underneath his signature, the following acknowledgement was given:

The author acknowledges the rules for Expert Witness statements under the Uniform Procedure Rules.

10    The Vickers Report was filed as an expert report accompanying the Statement of Claim to meet the requirement of r 31.36(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which requires a person commencing a professional negligence claim of the relevant kind to file and serve, with the statement of claim, an expert’s report that includes an opinion supporting breach of duty of care, damage and causation. Rule 31.36 includes:

31.36 Service of experts’ reports in professional negligence claims

(1)     Unless the court orders otherwise, a person commencing a professional negligence claim (other than a claim against a legal practitioner) must file and serve, with the statement of claim commencing the professional negligence claim, an expert’s report that includes an opinion supporting—

(a)     the breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and

(b)     the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and

(c)     the causal relationship alleged between such breach of duty or obligation and the damage alleged.

…

(3)      If a party fails to comply with subrule (1) or (2), the court may by order made on the application of a party or of its own motion dismiss the whole or any part of the proceedings, as may be appropriate.

(4)      Without limiting subrule (1) or (2), the court may, on the application of any of the parties, give directions as to the expert evidence to be adduced at trial.

(5)      Directions under subrule (4) may be sought at any directions hearing or case management conference or by notice of motion.

(6)      Unless the court otherwise orders, no party may adduce any expert evidence at trial unless the evidence—

(a)     has been filed and served under subrule (1) or (2), or

(b)     has been served pursuant to directions given under subrule (4).

11    Reference should also be made to certain other provisions of the UCPR. Rule 31.18 includes the following definitions (emphasis added):

expert, in relation to any issue, means a person who has such knowledge or experience of, or in connection with, that issue, or issues of the character of that issue, that his or her opinion on that issue would be admissible in evidence.

expert witness means an expert engaged or appointed for the purpose of—

(a)    providing an expert’s report for use as evidence in proceedings or proposed proceedings, or

 (b)     giving opinion evidence in proceedings or proposed proceedings.

expert’s report means a written statement by an expert (whether or not an expert witness in the proceedings concerned) that sets out the expert’s opinion and the facts, and assumptions of fact, on which the opinion is based.

12    Rule 31.23(1) provides that an expert witness must comply with the code of conduct in Sch 7. Rule 31.23 provides:

31.23 Code of conduct

(1)      An expert witness must comply with the code of conduct set out in Schedule 7.

 (2)      As soon as practicable after an expert witness is engaged or appointed—

(a)     in the case of an expert witness engaged by one or more parties, the engaging parties, or one of them as they may agree, or

(b)     in the case of an expert witness appointed by the court, such of the affected parties as the court may direct,

must provide the expert witness with a copy of the code of conduct.

(3)      Unless the court otherwise orders, an expert’s report may not be admitted in evidence unless the report contains an acknowledgment by the expert witness by whom it was prepared that he or she has read the code of conduct and agrees to be bound by it.

(4)      Unless the court otherwise orders, oral evidence may not be received from an expert witness unless the court is satisfied that the expert witness has acknowledged, whether in an expert’s report prepared in relation to the proceedings or otherwise in relation to the proceedings, that he or she has read the code of conduct and agrees to be bound by it.

13    Schedule 7, being the “expert witness code of conduct”, includes (emphasis added):

1 Application of code

This code of conduct applies to any expert witness engaged or appointed—

(a)     to provide an expert’s report for use as evidence in proceedings or proposed proceedings, or

 (b)     to give opinion evidence in proceedings or proposed proceedings.

2 General duties to the Court

An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the court impartially on matters relevant to the area of expertise of the witness.

14    Clause 3 of Sch 7 sets out requirements in relation to the content of reports.

15    It is clear from the terms of the letter of instruction and from the Vickers Report that Dr Vickers was retained to provide evidence in the District Court proceedings as an expert witness.

16    The District Court proceedings, after being transferred to the Supreme Court, were settled on confidential terms without a hearing and without the Vickers Report being tendered into evidence. Dr Borody commenced the present proceedings before that settlement was reached.

17    As mentioned, the proceedings in this Court were commenced on 27 August 2020. Paragraph 13 of the Amended Statement of Claim pleads:

By letter from Law Partners to Vickers dated 17 April 2019, [Ms X] retained Vickers to give [Ms X] an opinion as to Borody’s and Vivekanandarajah’s medical assessment and treatment of [Ms X].

18    Paragraph 14 identifies the relevant representations contained in the Vickers Report. It is in the following terms:

On or about 23 May 2019, Vickers provided a written report to Law Partners as to [Ms X]’s medical assessment and treatment by Borody and Vivekanandarajah (the Vickers’ Report). The Vickers’ Report was provided by Vickers in trade or commerce and contained the following representations which were matters of fact or matters of opinion in trade and commerce (the Representations):

(a)     Colchicine is a medication that should not have been recommended or used in the treatment of [Ms X] because it is only used to treat gout and Behcet’s disease which [Ms X] did not have, and not used to treat the Condition,

(b)     the Condition, is multi-factorial and typically treated with dietary and lifestyle changes and not using the medication prescribed by the June Treatment Regime or the September Treatment Regime without:

(i)     evaluation by an Ethics Committee,

(ii)     an approved controlled clinical trial,

(iii)     expert analysis from multiple resources, including a microbiologist and pharmacologist

(c)     on the grounds that the June Treatment Regime and September Treatment therapy Regime were ‘experimental and dangerous’ and not subject to proof,

(d)     the Vancomycin incorporated in the June Treatment Regime and the September Treatment Regime should not have been used to treat [Ms X] and the Condition because:

(i)     Vancomycin is exclusively used to treat staphylococcal aureus resistant infections, C. difficile infections and staphylococcal enterocolitis which [Ms X] did not have, and

(ii)     Vancomycin is not given as an outpatient prescription unless that treatment is a continuation of a hospital-initiated treatment plan, and the June Treatment Regime and the September Treatment Regime were not a continuation of hospital-initiated treatment plans,

(e)     The June treatment regime and the September treatment regime were not a commonplace treatment for the symptoms presented by [Ms X] as constipation and bloating.

(f)     Long term use of Vancomycin in the dosages in the June Treatment Regime and the September Treatment Regime can lead to development of ‘Vancomycin-resistant enterococci’ (VRE)

 (g)     There is no scientific or medical evidence for the long term use of vancomycin

(h)     the second line therapy for [Ms X] would have been prokinetic drugs such as prucalopride and psychological evaluation not June Treatment Regime or the September Treatment Regime

(i)     the June Treatment Regime and September Treatment Regime subjected [Ms X] to risks to develop:

(i)     severe protracted pseudo-membranous colitis

(ii)     losing weight

(iii)     developing hypoalbuminaemia

(iv)     developing toxic spidermolsis of the entire colonic mucosa.

(v)     developing vancomycin resistant enterococci carriage

(vi)     experiencing years of bad irritable bowel time symptoms with visceral pain

(vii)     having altered bowel habits

(viii)     having irregular bowel habits

(ix)    suffering from severe illness

19    Paragraph 15 of the Amended Statement of Claim pleads that the representations are misleading or deceptive and identifies contended material facts in support of that conclusion.

Principles regarding summary judgment

20    Section 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides:

31A     Summary judgment

…

(2)     The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)     the first party is defending the proceeding or that part of the proceeding; and

(b)     the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)     For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)     hopeless; or

(b)     bound to fail;

for it to have no reasonable prospect of success.

(4)     This section does not limit any powers that the Court has apart from this section.

…

21    Rule 26.01(1) of the Federal Court Rules 2011 (Cth) includes:

26.01     Summary judgment

(1)     A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or …

22    The principles regarding the scope and operation of s 31A of the FCA Act are well known: see Spencer v Commonwealth (2010) 241 CLR 118 at [17]-[26], [58]-[60]; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [5]-[6]; Richards v Han [2020] FCA 1886 at [46]-[57]. In Spencer, French CJ and Gummow J stated at [25]:

Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. … Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

23    If it is clear that Dr Borody’s case has no reasonable prospect of success by reason of the application of the principles concerning witness immunity it would follow that the proceedings should be dismissed summarily, as it would if the conclusion were that there was no reasonable prospect of success because any representation was not made in trade or commerce: s 31A(2).

Witness Immunity

24    The witness immunity principle was explained by Gleeson CJ, Gummow, Hayne and Heydon JJ in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 (a case concerned with advocate’s immunity) at [39] (citations omitted):

From as early as the sixteenth century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps. That the immunity must be pleaded as a defence makes it nonetheless an immunity from suit. As the whole Court said in Lange v Australian Broadcasting Corporation [(1997) 189 CLR 520 at 565]:

The result [of the defence] is to confer upon defendants, who choose to plead and establish an appropriate defence, an immunity to action brought against them.

25    Their Honours referred to the rationale for the principle in the following way at [41] and [42] (citations omitted):

[41]     Statements can be found in the cases that the immunity of witnesses serves to encourage “freedom of expression” or “freedom of speech” so that the court will have full information about the issues in the case. Statements also can be found that place the immunity of those who participate in court proceedings on the desirability of avoiding baseless actions being brought against those who were merely discharging their duty, but these considerations are advanced in answer to another kind of argument. As Fry LJ said in Munster v Lamb:

Why is it that a judge who disgraces his office, and speaks from the bench words of defamation, falsely and maliciously, and without reasonable or probable cause, is not liable to an action? Is not such conduct of the worst description, and does it not produce great injury to the person affected by it? Why should a witness be able to avail himself of his position in the box and to make without fear of civil consequences a false statement, which in many cases is perjured, and which is malicious and affects the character of another?

The answer proffered (that it is more necessary to prevent the baseless action than provide for the kind of case described) may well suffice to meet the point. But the deeper consideration that lies beneath the principle is that determining whether the complaint made is baseless or not requires re-litigation of the matter out of which the complaint arises.

[42]     In R v Skinner, Lord Mansfield said that “neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office”. Of that immunity it has been said in Mann v O’Neill that it responds to two related considerations, “to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences” and “the avoidance of the re-agitation by discontented parties of decided cases after the entry of final judgment” other than by appellate processes. That view of the matter reflects the consideration that what is at stake is the public interest in “the effective performance” of its function by the judicial branch of government.

26    The rationale for the principle was considered by Bathurst CJ in Young v Hones [2014] NSWCA 337 at [15] to [18]:

[15]    In Giannarelli the existence of the advocate’s immunity was affirmed. Mason CJ described at 533 the foundation of the principle as being that mischief would result if those engaged in the administration of justice were not able to speak freely (see also 569-570 per Wilson J and 595 per Dawson J).

[16]    The immunity was also affirmed by the plurality in D’Orta at [39]-[40]. They referred at [41] to the fact that statements can be found in the cases that the immunity serves to encourage freedom of expression or freedom of speech. They also stated that the deeper consideration that lies beneath the principle is that determining whether the complaint against the witness is or is not justified requires relitigation of the matter out of which the complaint arises.

[17]    Two matters arise from those cases. First, it is not open to this court to vary or engraft exceptions to the immunity. Second, once it is appreciated that, like advocate’s immunity, the principle underlying the immunity is the principle of finality, there is no logical reason to exclude experts from its scope.

[18]    There remains the question to what extent the immunity extends to out of court work conducted by experts. The immunity of witnesses from activities engaged pre-trial have been considered in a number of cases. However, in dealing with those cases it is important to bear in mind the underlying rationale for the immunity in this country.

27    Ward J stated at [236]:

The rationale underlying witness immunity was considered by the High Court in D’Orta in the course of the Court’s consideration of advocate’s immunity. The plurality there noted (at [39]): that it mattered not how the action against the witness was framed; that witness immunity was an immunity from suit; and that the immunity extended to preparatory steps. Their Honours emphasised that witness immunity was ultimately, although not solely, founded in considerations of the finality of judgments and that “the deeper consideration that lies beneath the principle is that determining whether the complaint made is baseless or not requires re-litigation of the matter out of which the complaint arises”.

28    The extent to which witness immunity attaches to acts which are preparatory to trial was examined in detail by Beazley JA in Griffiths. In Griffiths, a substance analyst undertook analysis of a seized substance that the police believed to be a prohibited drug. The analyst issued a certificate stating that the relevant substance was a prohibited substance. The certificate of analysis was used by the Commonwealth in the prosecution of Mr Griffiths, who was found guilty. Mr Griffiths was later acquitted on the basis that the analyst had manipulated the testing. Mr Griffiths brought proceedings against the analyst. Beazley JA, with whom Mason P and Young CJ in Eq agreed, held that witness immunity applied to protect the analyst from suit.

29    Beazley JA held that whilst there was no doubt that the immunity extended to conduct beyond the giving of evidence in court, for the immunity to apply, there must be a connection with the evidence that is to be given in court; it is not a requirement for application of the immunity that evidence is in fact given: Griffiths at [84].

30    In reaching her conclusion that witness immunity applied to the analyst, Beazley JA stated:

[91]     In my opinion, Mr Ballard was not “investigating” the crime alleged against Mr Griffiths. He was analysing a sample of a substance that had been seized from Mr Griffiths’ premises and which was to have been used in furtherance of a prosecution, if the substance was a prohibited substance. Lord Hope of Craighead’s remarks (cited at 284 [73] supra [in Darker v Chief Constable of the West Midlands Police [2001] 1 AC 633]) make particular mention of people in Mr Ballard’s position and states they would be protected by the immunity.

[92]     The matter may be tested by considering it in this way. It seems that the certificate of analysis was not tendered in Mr Griffiths’ trial. Rather, he was called to give evidence and gave evidence of all of the tests that he conducted and the manner in which he conducted those tests. The action against Mr Ballard is based upon the manner in which he conducted those tests. Although Mr Griffiths has advanced a number of possible arguments as to why those tests may not have been carried out with a view to, or in furtherance of, the prosecution case, the fact is, Mr Ballard gave evidence of all of them. Nor was there any suggestion that the certificate of analysis was prepared other than as part of the steps preparatory to trial. And, in my opinion, there is no possible basis to suggest that his earlier or later testing was carried out for any other purpose unassociated with the prosecution.

[93]     The matter may then be tested further by having regard to the underlying rationale for the immunity. As was stated by the High Court in D’Orta-Ekenaike, the immunity is founded ultimately in consideration of the finality of judgments. If this matter were to proceed to trial, it would involve a suit based upon negligent conduct of a series of tests carried out. Those tests were relied upon by the Crown for the purpose of proving that the substance found in Mr Griffiths’ possession was methcathinone. Mr Ballard gave evidence of all of the testing that he undertook. That could only have been relevant and admissible evidence if the whole of the testing was relied upon as proof that the substance was methcathinone. Accordingly, a trial based upon the negligent performance of that testing would involve the retrial, not only of the evidence given at trial but also of the preparatory steps taken to prove an essential ingredient of the charge brought against Mr Griffiths, namely, that the substance was the prohibited substance methcathinone.

[94]     It follows in my opinion, that even without resort to the English authorities, this case falls within the principle stated by the High Court as to the application of the immunity. When regard is had to the English authorities, then, on balance, the claim against Mr Ballard would have the protection of the immunity, on the basis of the principles discussed in those cases.

31    The application of witness immunity to out of court work by an expert witness was also addressed in Young. In that case, the applicant made claims of negligence against her former solicitors, barrister and expert engineer and engineering firm, in relation to earlier Land and Environment Court proceedings. The Land and Environment Court proceedings had settled on the basis that the applicant’s neighbour would undertake certain “rectification works” which had been recommended by the expert engineers at an expert conclave which had taken place immediately before the settlement. The expert engineer claimed that he was immune from suit on the basis of witness immunity. The Court of Appeal agreed, dismissing the appeal against the expert engineer on this basis.

32    After examining various authorities concerning the extent to which the immunity applies to out of court work conducted by experts, Bathurst CJ at [35] stated that the test for witness immunity was the same as the test for advocate’s immunity:

This review of the authorities reveals a somewhat divergent approach to the application of the immunity to out of court work done by an expert. However, once it is appreciated that the rationale for the immunity is the same as that for advocate’s immunity, there is no reason for the test for the application of the immunity to be different in either case. Thus the immunity will apply where the work in question is work done in court or work done out of court which leads to a decision affecting the conduct of the case in court or putting it another way, is work intimately connected with the work in court: D’Orta at [86].

33    The passage of the plurality in D’Orta referred to by Bathurst CJ was:

Again, we consider that no sufficient reason is proffered for [reconsidering the decision as to advocate’s immunity in Giannarelli]. In particular, there is no reason to depart from the test described in Giannarelli as work done in court or “work done out of court which leads to a decision affecting the conduct of the case in court” (124) or, as the latter class of case was described in the Explanatory Memorandum for the Bill that became the Practice Act, “work intimately connected with” work in a court. (We do not consider the two statements of the test differ in any significant way.)

34    Dr Borody placed emphasis on the articulation of the test as connection with “work in court”.

35    In Young, Ward JA (with whom Emmett JA agreed) stated (emphasis added):

[251]     In Griffiths, her Honour did not frame the test by reference to the purpose or intention, subjective or otherwise, of the person undertaking the work about which complaint is made. Rather, her Honour looked to see whether there was a connection between the work performed and evidence given or to be given in the subsequent hearing.

[252]     His Honour [the trial judge in Young], while not expressly articulating the test adopted for determining whether the work undertaken by the engineer respondents was of a preparatory kind in connection with the litigation so as to come within the scope of the privilege, clearly had in mind (as evident from what his Honour said at [186]) that it was necessary for there to be a connection between the work in question and steps taken or to be taken in the conduct of the litigation. In particular, his Honour had regard to the connection between the advice “given in the course of proceedings” and the settlement which occurred ([189]) by reference to two matters: the report and “appropriate remediation plan” being “made available in the litigation” and the participation of the fifth respondent in the expert conclave that resulted in the production of the detailed drainage works document that formed part of the consent settlement in the proceedings ([186]).

[253]     His Honour did not err in the test (of “connection” between the work and the litigation) that was applied in order to determine whether the work undertaken by the engineer respondents fell within the reach of witness immunity.

36    In determining whether a person is immune from suit on the basis of witness immunity, the court must consider the connection between the impugned conduct and the relevant court proceedings. Whether this enquiry is framed as considering the connection between the work done by the expert witness and:

    the work in court: Bathurst CJ in Young at [35]; or

    the steps taken or to be taken in the conduct of the litigation: Ward JA (with whom Emmett JA agreed) in Young at [252]; or

    the evidence given or to be given in the hearing: Beazley JA in Griffiths at [84] and [92];

there is no reasonable prospect of successfully arguing that Dr Vickers is not immune from suit on the pleadings in the Amended Statement of Claim by reason of the principles concerning witness immunity.

37    Dr Vickers’ report was intimately connected with the District Court proceedings. He was retained in connection with those proceedings for the purpose of giving evidence in them. The report was necessary for the commencement of those proceedings. The Vickers Report was filed to satisfy the requirement in r 31.36(1) of the UCPR that an expert report accompany a statement of claim commencing a professional negligence claim of the relevant kind – see: [10] above. It was not just closely connected with the District Court proceedings; it was an essential step in bringing those proceedings.

38    Further, the Vickers Report was part of the evidence relied upon in connection with the District Court proceedings, albeit it had not by the time of settlement in fact been adduced into evidence. This is made clear by the terms of the letter of instruction, the terms of the Vickers Report and the fact that it was filed with the statement of claim commencing those proceedings.

39    It was submitted for Dr Borody that the Vickers Report was not prepared as evidence, but rather was prepared to provide an opinion to Ms X for the purpose of assessing whether Ms X had grounds to commence proceedings. It was submitted that the report was wholly “preparatory” to proceedings, or at least insufficiently connected with them, because no proceedings had been commenced at the time the report was sought or obtained.

40    A not dissimilar issue arose in Griffiths, where the fact that the analyst’s work was likely used both to inform the decision to commence proceedings and as evidence in contemplated proceedings did not prevent witness immunity attaching to the analyst’s conduct. The fact that the Vickers Report was prepared before the proceedings were commenced, and would likely have been used to determine whether there were adequate grounds to commence proceedings and, if so, to file with the statement of claim, does not prevent the principles of witness immunity from being invoked. Indeed, in the circumstances of this case, it establishes the operation of those principles.

41    In Watson v M’Ewan [1905] AC 480 (in a passage referred to by Beazley JA in Griffiths at [52]), the Earl of Halsbury LC (Lord Justice James and Lord Justice Robertson agreeing) stated (emphasis added):

It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice – namely, the preliminary examination of witnesses to find out what they can prove.

42    Dr Borody referred to various statements in the authorities said to show that the case could not be described as one which had no reasonable prospect of success within the meaning of s 31A(2) of the FCA Act. Dr Borody referred to [50] of the decision of the majority of the High Court in Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1, where their Honours stated:

The insufficiency of a mere historical connection between an advocate’s work and a litigious event may be illustrated by reference to negligent advice to commence proceedings which are doomed to fail. No one suggests that the immunity is available in such a case. Likewise, advice to cease litigating or to continue litigating does not itself affect the judicial determination of a case.

43    It was submitted that Dr Vickers provided advice about whether to commence the District Court proceedings. However, that is not the pleaded case or a reasonably arguable characterisation of the facts adduced on this application. The pleaded case is that Dr Vickers was retained to provide an opinion about Dr Borody’s assessment and treatment of Ms X, not that he was retained to advise in relation to the commencement of proceedings.

44    In any event, Attwells does not address the present situation. No doubt a lawyer who gives negligent advice to commence proceedings might be liable in negligence for that advice. The present situation is quite different. Dr Vickers was retained by lawyers to provide a report to the Court, in accordance with the procedural requirements of the Court and the Court’s code of conduct, for the purpose of commencing proceedings on behalf of the lawyer’s client should those lawyers so advise.

45    Dr Borody also referred to the comments of Chadwick LJ in Stanton v Callaghan [2000] 1 QB 75 at 100. This passage was referred to (but not adopted as an authoritative statement of principle) by Bathurst CJ in Young in the context of considering the extent to which witness immunity extends to out of court work conducted by experts. The reference is at [25] in the following part of the Chief Justice’s reasons (emphasis added):

[24]    In Stanton v Callaghan [2000] 1 QB 75 the plaintiffs engaged the defendant, a structural engineer, to prepare a report on repairs necessary to a property. The plaintiffs’ insurers rejected a claim for the cost of the work and proceedings were commenced. The defendant was retained as an expert but following a meeting with the insurers’ expert he changed his report. The plaintiff brought proceedings claiming the defendant was negligent in accepting as adequate the work proposed in the joint report. It was held that the defendant was immune from suit. It does not appear to have been alleged that the engineer was negligent in the preparation of his original report.

[25]    Chadwick LJ, after reviewing the authorities, stated the following principles in relation to experts’ reports at 100:

What, then, is the position in relation to expert reports? It seems to me that the following propositions are supported by authority binding in this court: (i) an expert witness who gives evidence at a trial is immune from suit in respect of anything which he says in court, and that immunity will extend to the contents of the report which he adopts as, or incorporates in, his evidence; (ii) where an expert witness gives evidence at a trial the immunity which he would enjoy in respect of that evidence is not to be circumvented by a suit based on the report itself; and (iii) the immunity does not extend to protect an expert who has been retained to advise as to the merits of a party’s claim in litigation from a suit by the party by whom he has been retained in respect of that advice, notwithstanding that it was in contemplation at the time when the advice was given that the expert would be a witness at the trial if that litigation were to proceed.

[26]    However, his Lordship was prepared to accept at 101-102 that the immunity extended to a report prepared for the purpose of exchange prior to trial even if a trial of the proceedings did not take place.

[27]    Otton LJ, after referring with approval to Palmer stated at 104 that the relevant test was one “of principal and proximate connection”. Nourse LJ, after referring to Palmer said at 109 that a substantial purpose test might be preferred.

46    Dr Borody submitted that the third proposition made by Chadwick LJ (emphasised above) provided a basis for concluding that Dr Borody’s case should not be summarily dismissed because it could not be said that it enjoyed no reasonable prospect of success. This argument is similar to that made by reference to [50] in Attwells and suffers the same fate.

47    In my view, assuming for the purposes of argument only, that the third proposition reflects the law in Australia, it is not applicable to the present circumstances. Dr Vickers was not retained to give advice about the merits of the potential plaintiff’s claim. Dr Vickers was, as Dr Borody pleaded at [13] of the Amended Statement of Claim, “retained … to give … an opinion as to [Dr] Borody’s … medical assessment and treatment” of the proposed plaintiff. Whether the claim in negligence had any merit was a matter for the advice of the proposed plaintiff’s lawyers who had retained Dr Vickers.

48    Dr Borody also relied upon the case of Palmer v Durnford Ford [1992] QB 483, where Deputy Judge Tuckey stated at 488-489:

The problem is where to draw the line given that there is immunity for evidence given in court and it must extend to the preparation of such evidence to avoid the immunity being outflanked and rendered of little use. This problem was considered by the House of Lords in Saif Ali v Sydney Mitchell & Co [1980] AC 198 in the analogous but not identical situation of the advocate’s immunity from suit for what he does in court. In that case the House decided that the immunity extended to some pre-trial work but only where the particular work was so intimately connected with the conduct of the case in court that it could fairly be said to be a preliminary decision affecting the way that the case was to be conducted when it came to a hearing.

I think a similar approach could be adopted in the case of an expert. Thus, the immunity would only extend to what could fairly be said to be preliminary to his giving evidence in court judged perhaps by the principal purpose for which the work was done. So the production or approval of a report for the purposes of disclosure to the other side would be immune but work done for the principal purpose of advising the client would not. Each case would depend upon its own facts …

49    There is no “dominant purpose” test as such in Australia. Purpose might be relevant in determining the connection between the impugned conduct and the relevant proceedings, but it is not a necessary criterion. It is not necessary for the immunity to be engaged to establish that the dominant purpose of the conduct was one of giving evidence, albeit – if it were established – that would go a long way to establishing the immunity applies. In the present case, the purposes for which the Vickers Report was prepared included it being filed as evidence to be relied upon in the proceedings and to satisfy the requirement in UCPR r 31.36(1). The only reasonable conclusion on the case as pleaded is that there is a sufficient connection to the District Court proceedings to establish that witness immunity applies. The fact that the report would naturally also be relied upon by the lawyers who had retained Dr Vickers in deciding whether to commence proceedings does not disengage the witness immunity principle. Indeed, in the circumstances of this case, it supports the connection between the report and the District Court proceedings. I note that Palmer was considered, and not adopted, in Young at [22] (Bathurst CJ) and [248] to [251] (Ward JA, with whom Emmett JA agreed).

50    Dr Borody also submitted that witness immunity did not extend to proceedings in professional tribunals. It may be accepted that the immunity may not apply so as to preclude disciplinary proceedings in professional tribunals in respect of evidence given by the professional – see: Meadow v General Medical Council [2007] 1 All ER 1 at [44]-[46]; Scanlon v Director-General, Department of the Arts, Sport and Recreation (2007) 70 NSWLR 1; Griffiths at [97]; Ollis v New South Wales Crime Commission (2007) 177 A Crim R 306 at [53]. The proceeding commenced in the District Court was not of that nature.

In trade or commerce

51    It is not strictly necessary to consider whether Dr Vickers’ conduct was “in trade or commerce”. Nevertheless, I would state my conclusion that on the facts as pleaded there is no reasonable prospect of establishing that the provision of the report was “in trade or commerce” – see: Little v Law Institute of Victoria (No 3) [1990] VR 257 at 273 (lines 33-34); Griffith at [142]; compare the factually different case of Stockland (Constructors) Pty Ltd v Retail Design Group (International) Pty Ltd [2003] NSWCA 84 at [18] to [22].

Conclusion

52    Dr Borody’s proceedings have no reasonable prospect of success and should be brought to an end summarily. Dr Vickers’ application for summary judgment is allowed.

Associate:

Dated:    7 June 2021