The plaintiff commenced proceedings by statement of claim filed on 10 September 2018 for a slander which the defendant states was provided "by way of telephone communication" to the Nursing and Midwifery Council of New South Wales (paragraph 3 of the statement of claim) on 17 September 2015, one week short of the three-year maximum limitation period, and for which an extension of time to bring proceedings is required.
The plaintiff has accordingly brought an application for extension of time to commence proceedings and set out, in her notice of motion filed on 30 October 2018, the orders she seeks as follows:
"1 The Plaintiff seeks the order be granted leave to extend the limitation period according to her supporting Affidavit filed 10 September 2018.
2 The Plaintiff seeks leave from this Honourable Court to amend her Statement of Claim accordingly.
3 The plaintiff seeks the order under 17.3 & 17.4 of the UCPR Act 2005 to file a Notice to admit Facts and authenticity of documents in respect to the matter alleged by the Defendant.
4 Any other order this Honourable Court thinks fit in relation to the matter complained about due to fact/s intrinsically involved with the Defamation Claim 2018/113261 and the Respondents are acting for those Defendants.
5 The order the court should use its discretionary powers to reject any summarily disposal of the matter complained about due to the question of fact transparent and in the administration of justice in the matter complained about."
The text of the matter complained of is not provided. The plaintiff has, however, included a file note (Annexure A to the statement of claim) which sets out the statements she asserts must have been made on or about 17 September 2018:
"FILE NOTE
Mrs Sharmain Naicker (RN1749622)
Author: Letetia Gibbs
Date: 17 September 2015
Phone call to Maria Senn [sic], Act DON - Royal Hospital for Women to request further information.
1. Performance issues included;
- Inability to put theory into practice, for example inappropriate oxygen administration in recovery ward.
- Poor communication, for example poor handover and poor interpersonal communication with colleagues.
- Issues with medication safety, specifically failing drug calculation tests and clinical skills assessments.
- Inappropriate response to emergency situations.
2. Conduct issues include;
- Fabricating patient observations.
- Habitually denying and lying about clinical incidents to colleagues.
3. Health;
- Ms Senn [sic] does not have any evidence of a health impairment that may impact on Ms Naicker's practice, but does consider her to be a very difficult personality
4. Current employment;
- Ms Senn [sic] believes that Ms Naicker may be working for a Nursing agency, but was unable to tell me which one."
There are significant deficiencies in the pleading of the cause of action set out in the statement of claim, namely:
1. The plaintiff has not set out or pleaded the words alleged to have been said by the defendant during this telephone conversation. Although this was not regarded as an incurable difficulty by the New South Wales Court of Appeal in Coles Supermarkets Australia Pty Ltd v Clarke [2013] NSWCA 272 at [89]-[94] (where there was, additionally, no evidence of any third party hearing the matter complained of), the plaintiff must set out the words to the best of his or her ability or alternatively must promptly bring an application for interrogatories as to what was said: Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288; R E Brown, Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States), Second Edition (Carswell) at [19-125] and [19-130].
2. Rule 13.30 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") requires the plaintiff to plead the imputations upon which she brings the proceedings. Although the plaintiff states in paragraph 13 of the statement of claim that she "annexes the imputations to the Statement of Claim marked Annexure "A"" these are not in fact attached. While failure to distil imputations is not necessarily fatal to a statement of claim particularly in relation to a litigant in person (Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19), this is a significant problem.
3. The oral defamation was published on 17 September 2015 and the plaintiff acknowledges an application for extension of time is necessary. However, the explanation provided does not identify the factors within the one-year period following publication, and instead refers to factors occurring after that period expired.
4. The publication was made on an occasion protected by absolute privilege, namely the carrying out of investigations which were part of a quasi-judicial process: Nyoni v Pharmacy Board of Australia (No 6) [2018] FCA 526 at [189]-[229].
The issues before the court are as follows:
1. Whether an extension of time should be granted;
2. Further or in the alternative, whether the publication was made on an occasion protected by absolute privilege; and
3. Whether the claim for absolute privilege should be dealt with summarily (see the authorities set out in Cumberland v Clark (1996) 39 NSWLR 514) or, in the mode of trial adopted in Nyoni v Pharmacy Board of Australia (No 6), left to the trial judge for determination.
[2]
The evidence
The plaintiff relies upon her signed statement (Exhibit 3; which is not an affidavit in the formal sense), as well as a reference and file notes dated in August and September 2015 (Exhibits 4 and 5). The file note from which the matter complained of is derived is attached to the plaintiff's statement of 10 September 2018.
The defendant relies upon two affidavits of Chloe May Ellis sworn 16 October and 5 November 2018.
There was no cross-examination and the evidence set out above is not the subject of dispute.
[3]
The timing and circumstances in which the publication was made
The plaintiff was employed as a registered nurse at the Royal Hospital for Women from about 17 October 2011 until her employment was terminated on 5 May 2015. On or about 21 August 2015, the Acting Director of Operations of the Royal Hospital for Women completed and signed an Australian Health Practitioner Regulation Agency (AHPRA) Notification (Complaint) Form which was referred to the Nursing and Midwifery Council of New South Wales ("the Council").
The practice of the Council is to request further and better particulars and to collect information for the purpose of dealing with the complaint. The relevant steps after that time are set out in paragraphs 15-22 of the affidavit of Ms Ellis sworn on 16 October 2018 as follows:
"Council's response to notification
15. On 9 September 2015 the Council sent an email to Ms Madunic requesting further information in relation to the Notification. At page 10 of the Exhibit is a copy of the email from Kim Bryant to Ms Madunic dated 9 September 2015.
16. On 17 September 2015 the Council received an email from Ms Madunic attaching further information about the Notification. At page 11 to 90 of the Exhibit is a copy of the email from Ms Madunic to Mr Kim Bryant.
17. At page 91 of the Exhibit is a copy of a file note drafted by Letitia Gibbs, describing a conversation between 'Maria Senn Act DON - Royal Hospital for Women' dated 17 September 2015 (File Note).
18. The File Note is the matter complained of in these proceedings and attached to the Statement of Claim filed 10 September 2018.
19. I am instructed by Ms Campbell that:
(a) Ms Gibbs is a registered nurse and midwife and was employed by the Ministry of Health as a professional officer on a part time basis for about 6 months in 2015. This role was needed because one of the professional officers went from fulltime to part time hours. On or about 17 September 2015 Ms Gibbs was engaged as a professional officer to assist the Council in its regulatory work. Ms Gibbs is no longer in that role assisting the Council.
(b) The number marked "AHPRA Reg No. NMW0001241003" on the File Note, is Ms Clarke's clinical practitioner registration identification number allocated by AHPRA. The file note is an automatically generated precedent form generated in the Monitor and Compliance (MaCs) system. When documents such as file notes are generated through the Council's MaCs system, the practitioner's clinical practitioner registration identification number is automatically inputted on the file note.
(c) When the file note is generated the author inputs a unique reference number (known as a TRIM number) by clicking a button on the ribbon. The TRIM document number is then auto populated into the document. TRIM is a records management system. The number marked "Our ref 34675/15" is the TRIM number for the File Note and the document can be searched within the Council's computer system by reference to that number.
(d) The number marked 'RN1749622' is a unique identification number generated by the Council for Ms Clarke. Every practitioner with a NSW principal place of practice has a Council unique identification number.
20. On 18 September 2015, the Council sent a letter to Ms Clarke and notified her that the Council had considered the Notification and were to hold an urgent meeting to determine if interim action to place conditions on her registration was required under section 150 of the National Law. Ms Clarke was invited to send any submissions in response to the Notification. At page 92 to 94 is a copy of the letter.
21. The Council held proceedings under section 150 of the National Law on 21 September 2015. Registered practitioners Elisabeth Black and Kate Cheney and a person who is not and has not been a registered practitioner in the profession (Margo Gill) were the Council's delegates in accordance with section 41J of the National Law. The delegates reviewed the documents and submissions and it was determined that it was appropriate to impose conditions on the Plaintiff's registration as a health professional under section 150(b) of the National Law.
22. At page 95 to 116 of the Exhibit is a copy of the letter from the Council to Ms Clarke dated 30 November 2015 enclosing the Council's Section 150 Reasons for Decision."
The information provided by the defendant during the telephone conversation on 17 September 2015 referred to in the file note was provided to the Council in the course of the Council's investigation of the notification, exercising the powers and functions invoked under the National Law. This is not disputed by the plaintiff.
In addition, the conversation the subject of the plaintiff's claim for defamation took place on 17 September 2015, which is two years 11 months and three weeks prior to the commencement of these proceedings. As is set out in more detail below, the file note referring to this conversation was one of a series of documents provided to the plaintiff in or about January 2016, when the plaintiff was served with material relating to the complaints process.
[4]
The relevant statutory provisions and principles concerning extension of time
Section 14B Limitation Act 1969 (NSW) provides:
"14B Defamation
An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of."
Section 56A of the Limitation Act 1969 (NSW) provides:
"56A Extension of limitation period by court
(1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.
(2) A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 14B to a period of up to 3 years running from the date of the publication.
(3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2)."
The correct test to apply to applications for extension of time to commence proceedings is set out in detail by the New South Wales Court of Appeal in Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304. The onus lies on the plaintiff (Carey v Australian Broadcasting Corp (2012) 84 NSWLR 90 at [55] and [61]) to establish that it was not reasonable in the circumstances to have commenced an action in relation to the matter complained of within the one year period from the date of publication. Once this has been established the court must extend the one year limitation period to a period of up to three years running from the date of publication, which in the present case would be approximately seven days before the three year period elapsed.
In applications of this kind, the extension may be sought on the basis that the matter complained of was unknown to the plaintiff until after the limitation period had expired. In the present case, however, the plaintiff acknowledges that she has in her possession the text of the email from which she derives the conversation in question from approximately January 2016 when she was delivered a large amount of material to her home which included this document. Her explanation is that her state of mental health and problems in relation to the storage of this box means that the time should not run from the date when the publication in question became known to her, namely in approximately January 2016. No evidence was provided concerning her mental and physical issues during the application, but an additional affidavit providing this information was served (albeit without leave) after I reserved judgment.
Applying the one year limitation period for defamation causes of action, the publication in question was made on 17 September 2015 and the three year period commences to run from that date. The plaintiff became aware of this publication in or about January 2016 in circumstances where she was provided with documents for the purpose of conducting her response to the complaint made against her by Ms Madunic.
The plaintiff told the court that she really only became aware of this document on or about 23 September 2017. This was because she had had difficulty reading all of the material she was served with for the purpose of dealing with the complaint due to the fact that she had divorced her husband and was homeless for part of this period and the box of material in question remained in storage. This was compounded by her serious health problems.
However, as the plaintiff acknowledges in paragraph 2 of her affidavit dated 10 September 2018, the file note from the defendant dated 17 September 2015 recording this conversation "was distributed within a formal process to the Nursing and Midwifery Council NSW; AHPRA (Australian Health Practitioners Regulatory Authority); Nursing and Midwifery Association (NSWNMA); Industrial Relations Commission (IRC) and the Health Care Complaints Commission (HCCC) and was used to support her case in respect to why my employment was terminated" (Exhibit 2). I understand the plaintiff's complaint to be that she did not realise the implications of the publication or her entitlement to commence proceedings for defamation.
The plaintiff also told the court she was involved in other litigation. I note that she received pro bono assistance in this court in late 2016 and has commenced other proceedings against other defendants in relation to the subject matter of these proceedings: Clarke v South East Sydney Health District (No 2) [2018] NSWCA 226; Clarke v South East Sydney Local Health District [2018] NSWSC 66; Clarke (previously Naicker) v Herrick [2017] NSWDC 302. She brought proceedings in the Fair Work Commission in 2016: Naicker v South Eastern Sydney Local Health District T/A Royal Hospital For Women [2016] FWC 5697; in the course of refusing an extension of time to bring proceedings (on the basis of ill health), Commissioner Riordan noted that the plaintiff had been able to bring other proceedings (at [16]). The limitation period for defamation had not yet expired at the time the plaintiff brought the Fair Work Commission proceedings which resulted in this judgment dated 2 September 2016.
While the plaintiff was preoccupied with other litigation, including the complaints procedure in the course of which the matter complained of, and was suffering health problems, I am satisfied that she would still have been properly able to commence proceedings during the 12 months following publication of the matter complained of. It was not necessary for her to wait until the end of the 12 month period for the termination of her employment to be ruled upon either by the Council, Health Care Complaints Commission or Industrial Relations Commission.
However, if I have erred in making that finding, any extension I would have granted of the limitation period would be limited to a period of approximately six weeks following 23 September 2017, when the plaintiff says that she "discovered this document" as this would be sufficient for the drafting of an originating process, particularly since the plaintiff had already managed to commence other proceedings (including proceedings for defamation) and had received pro bono advice over this period.
Applying the general discretion as to the length of any discretion of the limitation period under s 56A(2) in the manner explained by the New South Wales Court of Appeal in Barrett v TCN Channel Nine Pty Ltd, I would not permit the plaintiff to delay the commencement of these proceedings until 10 September 2018, which is close to a year after the discovery of the publication in question, particularly since the only reason advanced is the plaintiff was "on medication" at the time in circumstances where she now says she is "doing very well" and no longer relies upon it.
Accordingly, the plaintiff's application for an extension of time in which to commence proceedings against Ms Fenn must be refused.
In addition to the above, I note my findings in relation to the defendant's submission that the publication in question was made on an occasion protected by absolute privilege and ought to be dismissed summarily.
[5]
The relevant statutory provisions and principles concerning summary dismissal
Courts are conscious of what has been called the "constitutional right" (Kostov v State of New South Wales [2018] NSWSC 1252 at [17]) of a plaintiff to bring proceedings and to require them to proceed to a hearing rather than for summary dismissal. This fundamental principle in the common law is an underlying reason for the failure of many applications for summary dismissal where the court has preferred to proceed all the way to trial, whether under the docket system or otherwise.
The preliminary issue is whether applications of this kind should be dealt with summarily, or, in the manner preferred by the Federal Court of Australia (Nyoni v Pharmacy Board of Australia (No 6)), if the proceedings should go to trial.
[6]
Nyoni v Pharmacy Board of Australia (No 6)
Mr Nyoni, a pharmacist, brought proceedings for defamation and injurious falsehood as well as an action based on s 18 of the Australian Consumer Law for misleading or deceptive conduct in relation to the inclusion of restrictions imposed on his registration as a pharmacist by the Pharmacy Board of Australia and published by the Board and the Australian Health Practitioner Regulation Agency (AHPRA). This is the same kind of publication that the plaintiff complains of here.
The proceedings in Nyoni v Pharmacy Board of Australia, commenced on 27 November 2014, resulted in a five day trial in August and September 2017, followed by written submissions in November 2017. Judgment was handed down on 17 April 2018, four years after the proceedings were commenced. The trial judge found that the statements were not made in the course of trade or commerce, that Mr Nyoni had failed to establish any actual economic loss by reason of the imposition of conditions on his registration as a pharmacist in the national register and on the AHPRA website (at [117] and [168]), and that the publication was made on an occasion protected by absolute privilege.
Siopis J's findings that the publication of restrictions on Mr Nyoni's licence to practice as a pharmacist was protected by the defence of absolute privilege. This was because the publications were not merely part of but were in fact the result of proceedings which were quasi-judicial in nature (at [219] and [228]-[229]). Given the high level of similarity in terms of the publication here, I set out Siopsis J's explanation of the basis for this finding (at [221]-[227]):
"[221] First, the Board satisfies the first of the relevant considerations identified by the High Court in Mann, namely, that the tribunal is recognised by law. This is evidenced by the fact that the Board is given power under s 178 of the National Law to consider whether the professional conduct of a practitioner is or may be unsatisfactory and, if the Board reasonably believes that to be the case, to impose sanctions.
[222] Secondly, in my view, the proceedings before the Board under s 178 of the National Law fall within the description of proceedings from which will emerge a "determination the truth and justice of which is a matter of public concern". A primary purpose for the enactment of the notification and disciplinary provisions found in Pt 8 of the National Law is the protection of the public. (See s 3(2)(a) of the National Law.) Plainly, the protection of the public from unsatisfactory professional conduct by health practitioners is a matter of public concern. Section 178 gives effect to this public concern by providing for the professional conduct of a health practitioner to be scrutinised by the Board, and, if the Board is reasonably satisfied that such conduct is unsatisfactory, for sanctions to be imposed upon that health practitioner.
[223] Thirdly, unlike the Attorney-General in Mann, or the Bar Council in Lincoln, the Board is given power under s 178 to consider whether the conduct of a health practitioner is unsatisfactory and also to impose sanctions upon the Board being reasonably satisfied to that effect.
[224] In this respect the Board is in a different position to the Bar Council in Lincoln in receiving a complaint about the professional conduct of a barrister because the Bar Council was no more than a clearing house and had no powers to consider whether the barrister had acted unprofessionally nor to impose sanctions attendant upon any such finding. Likewise, the Attorney-General in considering a complaint about the magistrate in Mann received the letter of complaint in no more than an administrative capacity.
[225] The Board also has the power to refer more serious departures by health practitioners from professional standards to different bodies such as a panel or, in Western Australia, to the State Administrative Tribunal. However, the existence of that power does not detract from the fact that it has the power to consider and determine complaints of professional conduct which depart from professional standards and to impose sanctions, albeit, that the departures from such standards may be less serious. Accordingly, in my view, the same considerations that would motivate the rationale for according absolute privilege to proceedings before a panel or the State Administrative Tribunal also operate in relation to disciplinary proceedings conducted by the Board under s 178 of the National Law.
[226] That rationale has been identified by Sankey J in Copartnership Farms v Harvey-Smith [1918] 2 KB 405 at 408 in the following observations:
That point of law now comes on for determination, and it falls to be decided whether a local tribunal set up under the Military Service Acts, 1916, and the regulations made in pursuance thereof is a tribunal of such a character that any statements made by a member thereof during the course of proceedings before it are absolutely privileged. A number of cases have been cited, but in my opinion there cannot be any controversy upon the principle of law which is applicable to the present case. That principle I conceive to be this, that where a tribunal is a Court of justice, or a body acting in a manner similar to that in which a Court of justice acts, any statement made by a member thereof is absolutely privileged and no action can be brought thereon. This absolute privilege extends also to advocates, litigants, and witnesses, and the reason which has induced our law to adopt that principle is, if I may be allowed to say so, best stated by Channell J in Bottomley v Brougham, "the reason being that it is desirable that persons who occupy certain positions as judges, as advocates, or as litigants should be perfectly free and independent, and, to secure their independence, that their acts and words should not be brought before tribunals for inquiry into them merely on the allegation that they are malicious."
[227] Fourthly, s 179 of the National Law provides that the practitioner whose conduct is to be considered by the Board and in respect of which a sanction may be imposed under s 178, is to be given an opportunity to make a written or verbal submission in respect of the proposed action. The Board is required to consider any submission made in accordance with that section. The procedures proposed by s 179 in respect of proceedings under s 178 are different from those identified in respect of proceedings before a panel (see [215] above) and a tribunal (see [214] above). Before a panel, a health practitioner is entitled to a hearing and to be accompanied by a legal practitioner or other person."
Siopis J expressed doubts as to whether the defence of absolute privilege would relate to the entry of the conditions on the national register as a document associated with the quasi-judicial proceedings of the board but did not determine that question, on the basis that the defendant could rely upon the defence of publication in a public document, a defence which was also made out (at [231]-[319]).
All three of the causes of action, and particularly the cause of action for defamation, were dismissed on bases which could have been determined summarily as opposed to going to trial. Should I follow the example of Siopsis J and leave the issue of absolute privilege to the trial?
[7]
Summary disposal, or an issue for the trial?
For the reasons set out in the authorities referred to by Levine J in Cumberland v Clark, notably Rajski v Carson (1986) 4 NSWLR 735 at 743 - 744, claims of absolute privilege have generally been dealt with on a summary basis rather than as issues for determination at the trial. The public policy reasons giving rise to the defence of absolute privilege are often referred to as part of the rationale for this (Mann v O'Neill (1997) 191 CLR 204).
In addition, issues of costs proportionality and the need for case management to produce a result that is not merely just but also quick and cheap would tend to favour early resolution of issues about which there is no disputed issue of fact. This is particularly the case in defamation proceedings, where the high cost of litigation is compounded by the absence of insurance. It is contrary to the principles of "just, quick and cheap" (ss 56 - 62 Civil Procedure Act 2005 (NSW)) for proceedings to be permitted to go to trial where the issues of fact are substantially not in dispute.
Finally, the court should have regard to the observations of Hunt J in Hanrahan v Ainsworth (1985) 1 NSWLR 370 at 377 (see similar observations by Levine J in Cumberland v Clark at 529) about the distress caused to individuals who are sued for defamation, even where their employer is footing the bill, should also be given some degree of acknowledgement in this court, although such considerations may carry less weight in other jurisdictions where the emphasis is on commercial law issues.
There are no disputed issues of fact for determination. The publication the subject of these proceedings is part of the quasi-judicial process, as opposed to publication of the "public document" kind that troubled Siopsis J. All that is necessary for me to determine is that these are proceedings of a quasi-judicial nature, which is clearly the case, having regard to the statutory provisions the subject of consideration by Siopis J.
I am satisfied that Ms Fenn's role in those proceedings was analogous to that of a witness in quasi-judicial proceedings and, as such, is protected both pursuant to the principles of immunity from suit at common law and pursuant to s 27 Defamation Act 2005 (NSW).
I also note that, as this was a complaint which was acted upon and the subject of quasi-judicial proceedings, the unfortunate lacuna in relation to complains concerning medical practitioners identified in Lucire v Parmegiani (2010) 10 DCLR (NSW) 364 would not apply.
[8]
Conclusions concerning the application for summary dismissal on the basis of absolute privilege
For the above reasons, if time to commence proceedings were to be extended, I am satisfied that, unlike the proceedings in Nyoni v Pharmacy Board of Australia (No 6), these proceedings are appropriate for summary dismissal as opposed to the determination of this issue at the trial, and that the publication the subject of these proceedings was made on an occasion protected by absolute privilege.
[9]
Orders
1. Notice of motion filed on 30 September 2018 dismissed.
2. These proceedings are struck out and dismissed.
3. The plaintiff is to pay the defendant's costs.
4. Liberty to apply in relation to costs.
5. Exhibits retained for 28 days.
[10]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 16 November 2018