These are proceedings for defamation in relation to two publications:
1. an email sent on or about 17 July 2017 by an officer of the Australian Health Practitioner Regulation Agency ("AHPRA") in relation to the plaintiff's application for renewal of her registration as a nurse; and
2. the publication of a document described in paragraph 13 of the amended statement of claim as being "the orders and conditions made in respect of the plaintiff," which were sent to a Dr Andrew Adams on or about 24 April 2018.
I note that there is a description of how "orders and conditions" made in respect of health professionals may be regarded in Nyoni v Pharmacy Board of Australia (No 6) [2018] FCA 526, although the substance of the issues in that case are not applicable here.
The plaintiff has pleaded the following imputations in relation to each of these publications:
1. The plaintiff is not a fit and proper person to practice as a registered nurse.
2. The plaintiff is not a fit and proper person to practice as a registered nurse by reason of a psychiatric illness.
3. The plaintiff is not a fit and proper person to practice as a registered nurse by reason of practical incompetence.
The defence pleads a number of defences, of which the relevant one, for the purpose of this application, is that the plaintiff is not liable for publication of the first matter complained of, by reason of s 237 of the Health Practitioner Regulation National Law (NSW) ("the National Law"), which provides:
"237 Protection from liability for persons making notification or otherwise providing information
(1) This section applies to a person who, in good faith -
(a) makes a notification under this Law; or
(b) gives information in the course of an investigation or for another purpose under this Law to a person exercising functions under this Law.
(2) The person is not liable, civilly, criminally or under an administrative process, for giving the information.
(3) Without limiting subsection (2) -
(a) the making of the notification or giving of the information does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct; and
(b) no liability for defamation is incurred by the person because of the making of the notification or giving of the information.
(4) The protection given to the person by this section extends to -
(a) a person who, in good faith, provided the person with any information on the basis of which the notification was made or the information was given; and
(b) a person who, in good faith, was otherwise concerned in the making of the notification or giving of the information."
The manner in which this defence operates has been helpfully discussed by Robertson J in Naidoo v State of Queensland [2017] QDC 63 at [107] and [108], where a defence of this nature was also pleaded. Essentially, what this provision means is that a person who, in good faith, gives information to a person exercising functions under the National Law is not liable for the giving of that information, and I particularly note s 237(3)(b), which expressly excludes liability for defamation.
What the defendant's case is in relation to this provocation, is that information was provided to an officer of AHPRA derived from the records of a co‑regulatory authority, namely the defendant, following the request for information concerning the plaintiff and, in those circumstances, the good faith provision in the statute must be defeated by the plaintiff, upon whom the onus lies.
The manner in which this should be done is for a Reply to be filed in accordance with r 14.31(3) Uniform Civil Procedure Rules 2005 (NSW) ("UCPR", which provides:
"14.31 Defamation defences generally
…
(3) If a plaintiff intends to meet any defamation defence:
(a) by alleging that the defendant was actuated by express malice in the publication of the matter complained of, or
(b) by relying on any matter which, under the Defamation Act 1974 or the Defamation Act 2005, defeats the defence,
then the plaintiff must plead that allegation or matter of defeasance by way of reply."
Now, true it is that this provision does not provide for the many good faith defences which are to be found in statutes, especially in health regulation statutes, but that has been the approach that has been taken in the past, and I note in this case that it would appear that the plaintiff is not only pleading absence of good faith but, it would appear from some of the particulars she proposes to provide, also express malice which would, of course, defeat good faith.
The need for a Reply is to enable the defendant to know the case the defendant has to meet, so the need for there to be careful particularisation is for the defendant to know the case in defence that has to be met: Gross v Weston [2007] 69 NSWLR 279.
Apart from this issue of good faith, there is no need for any other matter by way of Reply, as there is an implied joinder of issues on the balance of the defence as UCPR r 14.27(2) sets out. What this means is that any document which is asserted to be a Reply - which the plaintiff tells me is the document which is now exhibit B - should contain only those particulars and not material of the kind which currently appears.
There are some additional issues referred to in the document (which I have marked exhibit B), which the plaintiff tells me is the current Reply, despite it being headed "Plaintiff's Written Submissions". I particularly note the issues raised in paragraphs 14 to 16 and 26.
However, what needs to be done is for the particulars asserted by the plaintiff to establish absence of good faith clearly. As Levine J pointed out in Drinkwater v Barwon Health Services & Butler (Supreme Court of New South Wales, Levine J, 27 June 1996), issues of absence of good faith are matters for careful particularisation because they amount to a statutory form of defence and are also relevant to the defence of qualified privilege. It is essential that these issues be pleaded carefully because, as Levine J pointed out in Drinkwater v Barwon Health Services & Butler, the factual nature of these issues means that summary judgment is not available.
The next issue is whether those particulars should apply in relation to one or both of the matters complained of, since it is unclear to me, from the submissions before me, as to whether the statutory defence applies to the second publication, or whether a simple defence of qualified privilege applies. It has been confirmed to me by Mr Sibtain that the sole defence to the other matter complained of is denial of publication, so the issue of the Reply relates only to the first matter complained of.
The remaining question is the terms upon which leave should be granted to file a further Reply. This requires me to go through the history of these proceedings:
1. On 7 February 2019, I made an order for the plaintiff to file and serve any Reply by 11 April 2019. On 10 April 2019, the plaintiff served a six‑page affidavit and 100 pages of documents, which purported to be the Reply.
2. On 20 May 2019, the defendant foreshadowed an application to strike out this document, on the basis that it did not comply with UCPR r 14.31(3)(b), and directions were made for an exchange of evidence and submissions.
3. On 13 June 2019, Judge Mahony SC struck out this Reply and granted leave to the plaintiff to file and serve an amended Reply by 18 July 2019. Such a document was filed, but that has now been struck out by consent.
4. On 24 July 2019, the defendant's solicitors wrote to the plaintiff concerning the purported Reply, setting out in some detail the basis upon which it failed to comply, not only with UCPR r 14.31, but also with the need to identify clear particulars of the facts and matters relied upon to establish absence of good faith.
Following those orders, at a directions hearing on 25 July 2019, Judge Letherbarrow SC made the following orders:
1. The defendant is to file and serve written submissions in support of its strike out application by 1 August 2019.
2. The plaintiff is to file and serve written submissions in answer to that application by 8 August 2019.
3. The application is fixed for argument on 15 August 2019.
UCPR r 14.4 permits the plaintiff to file a Reply to a Defence, but that Reply must relate to the issues of law raised in the Defence and not amount to a re‑agitation of the factual matters behind the whole of the litigation, as is the case with the document which is exhibit B before me.
This is, effectively, the plaintiff's third attempt at filing such a document, in circumstances where I am the second judge to be considering such an application, the previous judge having struck out the document in question in its entirety.
Sections 56 to 62 Civil Procedure Act 2005 (NSW) require the Court to take into account, in accordance with the formula set out in s 56, the need for justice to be efficiently administered as well as being fairly administered. I am prepared to grant the plaintiff a final opportunity to do so, but it must be in the form of a self‑executing order.
For the benefit of the plaintiff, I explain that a self‑executing order means that, if those particulars are not provided in accordance with principles set out by Hunt J in Gross v Weston, and in a clear and precise manner, no further leave may be granted. That, of course, will expose the plaintiff to an application of the kind that was made in Drinkwater v Barwon Health Services & Butler, on the basis that there can be no particularisation of lack of good faith at the trial and, therefore, summary dismissal is appropriate.
The plaintiff is warned of the importance of compliance with these orders.
[2]
Orders
1. On the application of the defendant and with the consent of the plaintiff, the filed pleading headed "The plaintiff's reply" filed on 18 July 2019 is struck out. It is agreed that it is not a "Reply" for the purposes of this litigation and the document to be relied upon is the document headed "Plaintiff's written submissions" filed on 8 August 2019.
2. The plaintiff's Reply dated 8 August 2019 is struck out with leave to amend by 26 September 2019, such order to be self-executing in nature.
3. The plaintiff is to pay the defendant's costs of the application to strike out the Reply.
4. A restriction against inspection or further publication of the material set out on pages 6, 26, 22, 31, 66 and 73 and upon any access to the affidavit of Ms Clarke without prior permission of the court.
5. Matter stood over to the Defamation List on Thursday 17 October 2019.
[3]
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: 02 October 2019