Supreme Court Fifth Adjournment In Motion For Injunction

Press, Volume XCVII, Issue 28551, 2 April 1958, Page 20

Supreme Court Fifth Adjournment In Motion For Injunction

A motion by two doctors for •n injunction against their former partner was adjourned for the fifth time in the Supreme Court yesterday. The hearing, which was before Mr Justice Adams, will continue this morning. Eric Robert Blakely and Colin Graeme Anderson <Mr J. G. Leggat) sought an injunction against Fz—Marmaduke de Lambert 'Mr E. P. Wills) to prohibit him from practising privately as a radiologist within 10 miles of the Christchurch Post Office, for five years. The plaintiffs alleged that the dtfendant had committed a breach of convenant by accepting an appointment as a radiologist at Calvary Hospital. The covenant was contained in a partnership agreement entered into by the partners in 1953, and the prohibition sought by the plaintiffs relied on a r'-ise which operated on the retirement of one of the partners. The case opened on March 3 •nd was heard in part on March 15. 19, and 20. Evidence was given by several prominent medical men on the meaning of “private medical practice.” At the conclusion of the evidence on March 20. Mr Wills had begun bis final address when the case was again adjourned. Claims on Fund Continuing his submissions Mr Wills said that the claims by the radiologists on the Social Security Department for radiological services were theoretical claims only, as, in fact, the fees were paid to the hospital. The actual payment clearly went in theory and in fact to the hospital. Under the partnership agreement all case histories and records of treatment in respect to the private practice were to be kept at the practitioners' rooms, Mr Wills said. But the fact that the radiological records and case histories were kept at the hospitals indicated that the radiological work was not a private practice but a hospital practice. "If private hospital practice means private medical practice what does the covenant mean?" said Mr Wills. Hie plaintiffs argued that the defendent could not practice at all, except in a public hospital or some Government post. Dictionary Definition "The Court must interpret what was stated in the deed and not what the parties intended to state," said counsel. Mr Wills said the Court should abide by the simple definition of "private practice” as given in the dictionaries. The essential features were that the doctor should own

the practice which was an asset and had a goodwill value; that the patient should seek out and choose the doctor's services and pay him a fee for treatment. According to the dictionary definition private practice meant that a doctor was practising on his “own account." But a fulltime salaried hospital position, with no right of private practise was not practising on one’s own account, said Mr Will. On the question of the restraint on trading, counsel submitted that if the defendant was held to be in private practise and to have retired from the partnership, the covenant and the restraint were void and illegal as being contrary to public policy. The restraint must be reasonable in that it afforded adequate protection to the party concerned. and must in no way be injurious to the public, counsel submitted. The radius of 10 miles stipulated in the agreement was wider than necessary to give protection, as most radiologial practise in Christchurch was confined to the city area. Other Remedy for Plaintiff In a motion for an injunction or any other action taken in equity the plaintiffs had to “come with clean hands,” said Mr Wills. The plaintiffs’ conduct in declining to pay goodwill to the defendant disentitled them to the relief they sought. If the injunction was refused the plaintiffs could seek a remedy in an action for damages, said counsel. The granting of the injunction would force the defendant to leave Christchurch and seek work elsewhere, but the plaintiffs would gain nothing. The fees earned by the plaintiffs were substantial and there was no question of penury if the injunction was refused. Opening his address Mr Leggat said that the retirement clause in the deed contemplated an agreement for life and provided circumstances in which a partner might retire as of right. Mr Leggat said that de Lambert’s retirement from the partnership had none of the ingredients of a dissolution. The defendant had retired at an earlier date than he could “of right” and received the share due to him. Shipowner’s Death.— Sir William Burrell, a shipowner, who in 1944 gave Glasgow an art collection valued at £1,500.000. died at his home, Hutton Castle, Berwickshire, on Saturday. He was aged 96—Glasgow, March 31.