‘Toxic environment’: Surgeon defamation fight returns to court

Two warring surgeons have racked up hundreds of thousands of dollars in legal fees battling over a defamation case we’ll “never get to the bottom of”.

Dr Elie Khoury has been found guilty of contempt of court.

A “fine” orthopaedic surgeon found in contempt of court has pleaded with a judge to spare him a conviction, with his lawyers arguing it would crush his esteemed career.

Dr Elie Khoury was last month found guilty of contempt after disclosing confidential material as part of his upcoming defamation stoush against fellow hip and knee specialist Dr David Kirwan.

It comes as the Supreme Court heard a “big can of worms” had been opened in the orthopaedic surgery community in Albury Wodonga as the warring surgeons rack up hundreds of thousands of dollars in legal fights.

And Justice John Dixon said he’d probably “never get to the bottom” of the long running saga.

Last year Dr Khoury sued rival surgeon Dr Kirwan for allegedly mounting a “campaign of vilification” against Dr Khoury in which he claimed he was responsible for multiple patient deaths and labelled him a “random serial killer”.

But the trial, slated to begin next month, took a stunning turn when Dr Khoury admitted he had instructed his partner, Jessica Nowell, to forward confidential emails authored by a third orthopaedic surgeon — Dr Jeremy Kolt — to the head of a private hospital in Albury.

Albury Wodonga Private Hospital then used the contents of those emails in an attempt to sack Dr Kolt in July last year.

Dr Khoury (right) and his partner Jessica Nowell apologised for the breach.

Dr David Kirwan is being sued for allegedly labelled Dr Khoury a “serial killer”

The matter returned to court on Thursday with lawyers for the three surgeons arguing what penalty, if any, Dr Khoury and Ms Nowell should receive.

Barrister Sue Chrysanthou, for Dr Kirwan, said it would be “unusual” for Justice Dixon not to convict Dr Khoury given his deliberate conduct, which the court heard was motivated by his desire for “vindication”.

The court heard the three day contempt hearing had totalled almost half a million dollars in legal fees, and Ms Chrysanthou said she was “not shy about” demanding Dr Khoury foot the bill.

“We lay the blame for all those costs at the feet of the applicants,” Ms Chrysanthou said.

Meanwhile Timothy Maxwell, for Dr Kirwan, argued his client was “most directly affected” by Dr Khoury’s breach and therefore should receive costs over Ms Chrysanthou.

“(Dr Kolt) was affected in a serious way in terms of his professional reputation,” Mr Maxwell said.

Justice Dixon said he found it “extraordinary” Mr Maxwell had not sought action against Ramsay Health — who run Albury Wodonga Private Hospital — given their improper use of the subpoenaed emails and attempted dismissal of Dr Kolt.

“Your client was attacked by Ramsay Health, and you didn’t touch them,” Justice Dixon said.

“I’m never going to get to the bottom of that.

“It’s obvious there’s a big can of worms in Albury Wodonga surrounding all of this and some worms have been pulled out … and others have been left there.

“But I wouldn’t want you to think I don’t know what’s really happening,” Justice Dixon said.

Georgina Schoff QC, for Dr Khoury, said her client had worked hard in his life to help others and was not a “rule breaker”.

Ms Schoff said a conviction would likely see him dismissed from his position at a number of hospitals and have a devastating affect on him personally and professionally.

Justice Dixon reserved his decision.