Hunter v Hanson

Court of Appeal (NSW)|2017-06-30|Before: McColl JA, Gleeson JA, Coll JA

Solicitors: Brendan Pigott (Applicant) Banki Haddock Fiora (Respondent) File Number(s): 2017/9582 Publication restriction: No Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: Unreported Date of Decision: 16 December 2016 Before: Judge McLoughlin SC File Number(s): 2011/37759

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

McCOLL JA: The applicant, Mr Scott Hunter, seeks leave to appeal from a decision of the District Court in which his Honour Judge McLoughlin SC found him liable to pay the respondent, Dr Benjamin Hanson, damages in respect of defamatory imputations conveyed by two letters sent by the applicant, the first on 5 February 2010 to the New South Wales Medical Board (NSW Medical Board) (First Letter) and the second on 28 March 2010 to the NSW Medical Board and the Health Care Complaints Commission (HCCC) (Second Letter).
It was common ground at trial that the two letters conveyed the defamatory imputations the respondent had pleaded and that those imputations were all false.
At the commencement of the trial, the applicant had not pleaded any positive defence. The only issue was whether, by virtue of the nature of the publication to bodies statutorily bound to keep the letters confidential neither of which, on the applicant's case, believed or gave them any credence, the respondent could not have suffered any loss or damage. On the second day of the hearing the applicant applied for, and despite the respondent's objection was granted, leave to plead a defence of triviality pursuant to s 33 of the Defamation Act 2005 (NSW) (Defamation Act). The primary judge rejected this defence and the applicant's submission that only nominal damages should be awarded. He held that the appropriate award of damages was $68,000, which included aggravated damages in the sum of $10,000 and interest in the amount of $8,000.
Leave to appeal is necessary because the judgment involves a claim of less than $100,000 in value. [1]
As originally formulated, the application for leave to appeal sought to challenge the primary judge's rejection of the triviality defence and the nominal damages submission. However, by notice of motion filed on 9 June 2017 the applicant sought to raise three new grounds of appeal, as set out in a Final Draft Amended Notice of Appeal (FDANA). They were, in short, first, that the primary judge had no jurisdiction to uphold the respondent's defamation case because in writing the letters, the applicant acted in good faith in accordance with s 96(2) of the Health Care Complaints Act 1993 (NSW) (HCC Act) and s 47 of the Medical Practice Act 1992 (NSW) (MP Act) [2] (good faith defence). Secondly, that the First and Second Letters were protected by absolute privilege pursuant to s 27(2)(d) and cll 15 and 27 of Sch 1 of the Defamation Act (absolute privilege defence). Thirdly, that the primary judge erred in failing to consider these defences. [3]
On the hearing of the leave application, Mr C Evatt, who appeared for the applicant with Mr J Henness, but not at trial, advanced the absolute privilege defence as the principal basis of the leave application and, at least initially, the good faith defence.
At the conclusion of the hearing, the Court made orders dismissing the application for leave to appeal and the notice of motion dated 9 June 2017 with costs. These are my reasons for joining in those orders.

Factual and procedural history

The letters were written in the context of a long running dispute involving the use of a Crown Road running through a property owned by the applicant and his wife. The respondent and his partner were entitled to, and did, use the road to access their property. The road also provided access for a third neighbour, Mr Anthony, to two properties he owned. It is unnecessary to recount the background in detail. A broad statement of the underlying facts can be found in an earlier judgment in this Court dismissing the applicant's appeal from a decision of the District Court granting the respondent leave to serve his statement of claim initiating the defamation proceedings 15 months after it was filed. [4]
On 5 February 2010 the applicant sent the First Letter to the NSW Medical Board setting out seven core complaints concerning the respondent, including allegations that the respondent had been guilty of unsatisfactory professional conduct or professional misconduct or both, had deliberately misused and exaggerated Mr Anthony's condition, had made mental health allegations about the applicant and his wife, and had intentionally agitated Mr Anthony.
The First Letter attached a 32 page dossier in which the applicant set out what he described as "background information related to the situation, Dr Hanson's breaches of the Medical Practices Act [sic, as in original] and evidence to support my claims." As a broad description, all of the attached material related to, or stemmed from, the dispute between the Hunters on the one hand and the respondent, his partner and Mr Anthony on the other concerning the Crown Road. The applicant sought to characterise various aspects of this conduct as supporting his core complaints.
On 24 March 2010 the HCCC wrote to the respondent informing him of the applicant's complaint. The letter asked that he prioritise his response to that one of the applicant's seven complaints which contained allegations of professional misconduct. The respondent provided his response two days later.
On 28 March 2010 the applicant sent the Second Letter to the NSW Medical Board and the HCCC making a further complaint. On this occasion the applicant complained of a "false, vindictive" statement allegedly made about the applicant and Mrs Hunter by the respondent and his partner to the police in seeking an apprehended personal violence order against the Hunters. The Second Letter alleged the statement was made in retaliation to the applicant sending the First Letter.
On 26 May 2010 the HCCC wrote to the applicant and to the respondent informing them that the HCCC had decided to discontinue dealing with the applicant's complaints. The letter stated that the applicant's complaint concerned "a long term dispute between you in relation to property rights, however, this is not a matter that would concern the Commission".
As I have said, it was common ground at trial that the letters conveyed the imputations the respondent pleaded. Among the imputations the applicant conceded the First Letter conveyed were imputations that the respondent was so unprofessional that he breached standards of professional practice, that he was so unethical that he deliberately misused and exaggerated a patient's medical condition for his own gain, that he was so mentally unstable that he was not competent to practice medicine, that he had committed perjury, a criminal offence, made false complaints to the police and was so delusional that he had a mental illness and/or a manic disorder.
Insofar as the Second Letter was concerned, it was common ground that it conveyed imputations that the respondent was so vindictive that, in retaliation to the First Letter, he had made a false complaint to the New South Wales police and that he was so unethical and unprofessional that he used his medical status to make a false diagnosis of the applicant.
In the light of the narrow focus of Mr Evatt's oral submissions, it is unnecessary to set out the primary judgment in any detail. However some aspects both of the hearing and the judgment are relevant to Mr Evatt's submissions.
At the trial, the respondent gave evidence. He also called a number of witnesses who gave evidence concerning the manner and the way in which the respondent reacted to the publication of the letters. The applicant did not call any evidence.
In the course of propounding the triviality defence, Mr C Bevan, who appeared for the applicant at trial, submitted that no reasonable person, especially an intelligent and educated medical practitioner, such as the respondent could have sustained hurt feelings from the publication of the letters for the following reasons: "[18] It can be seen from this review of the MP Act that the publication of the letters, as a consolidated complaint, to the [NSW Medical Board] and the HCCC could not have caused any reasonably minded person at whom the complaint was directed to suffer loss in consequence of the false assertions made in the letters. [19] The letters make allegations about [Dr Hanson] which make out [Mr Hunter] to be unbalanced, emotional and far removed from reality because of the self-evident absence of objective facts supported by accompanying documents to support the complaints made. The vast majority of the matters complained about have nothing whatsoever [sic, to do] with [Dr Hanson's] practice as a medical practitioner. The complaints are a self-evident case of abuse by a disgruntled neighbour about a dispute over access to neighbouring land at Hampton. [20] The conduct of the HCCC in dismissing the consolidated complaint within three months of receiving it, without calling on [Dr Hanson], as the subject of the complaint, to ever answer it on the merits apart from merely denying it, reinforces the absence of coherence in the complaints, the absence of any bona fides in the complaints and the absence of any objective factual support for the complaints. [21] No reasonable person, especially an intelligent and educated medical practitioner, could have sustained hurt feelings from the publication of the letters to a handful of bureaucrats trained to deal with vexatious complaints in complete secrecy and who dealt with this consolidated complaint for what it was - a vexatious complaint devoid of any substance in fact made by a disgruntled neighbour. Hence the HCCC's decision to dismiss the complaint on 26 May 2010. Any feelings of hurt were sourced in the bitter access dispute and Local Court matter on the balance of probabilities having regard to the absence of any medical evidence from a psychiatrist or psychologist attributing its source to the letters." …. [45] … the known facts at the date of publication of the letters of complaint … included false allegations made to a handful of public servants administering medical practitioner complaints in the [NSW Medical Board] and the HCCC. It is those facts against which the defence of triviality must be judged." [Emphasis added; footnotes omitted.]
In awarding aggravated damages in the amount of $10,000 the primary judge observed "[w]hen one looks at the admissions made in the defences, there can be no other view open to the Court except that [the applicant's] conduct was lacking in bona fides, was improper and is unjustifiable." [Emphasis added.]

Consideration

Where an application for leave to appeal is brought in a small claim, an applicant for leave must demonstrate the matter involves issues of principle, questions of general public importance or an injustice which is reasonably clear, that is to say goes beyond merely being arguable. [5] In such cases, there must be early finality and determination of litigation, otherwise the costs which will be involved are likely to swamp the money sum involved in the dispute. [6]
Mr Evatt submitted that, by reason of the proposed absolute privilege defence, the District Court had no jurisdiction to entertain the defamation proceedings. That submission should be rejected at the outset. A defence of absolute privilege pursuant to s 27 of the Defamation Act does not go to jurisdiction. It is a defence, which like, for example, a limitation period defence, should be specifically pleaded if it is to be relied upon to defeat a defamation claim. [7]
Section 27(2)(d) and cl 27(a) of Sch 1 of the Defamation Act provides a defence of absolute privilege for matter that is published "to or by the Health Care Complaints Commission of or concerning a complaint by a complainant under the Health Care Complaints Act 1993 …".
At the time of the publication of the letters, s 7(1) of the HCC Act provided that a complaint might be made under the Act concerning "the professional conduct of a health practitioner (including any alleged breach by the health practitioner of Division 3 of Part 2A of the Public Health Act 1991 or of a code of conduct prescribed under s 10AM of that Act)". Pursuant to s 11, when, in accordance with a health registration Act (which included the MP Act), a registration authority (which included the NSW Medical Board) notified the HCCC of a complaint made under the health registration Act, the complaint was taken to have been made in accordance with the HCC Act to the HCCC. [8]
Pursuant to s 96(2) of the HCC Act "[t]he making of a complaint … to the Commission or a registration authority by any person does not, if it was done in good faith, subject the person personally to any action, liability, claim or demand." Section 47 of the MP Act provided a similar good faith defence to "a person [who] makes a complaint". Section 47(3) provided that s 47 did not limit or otherwise affect the operation of s 96 of the HCC Act.
Pursuant to s 46 of the MP Act, the NSW Medical Board and the HCCC were, relevantly, required to notify each other when a complaint was made to either of them as soon as practicable after the complaint is made. Pursuant to s 50(1)(a) it was open to the NSW Medical Board in respect of a complaint made to it, to refer the complaint to the HCCC for investigation.
Mr Evatt submitted that, although the First Letter was only directed to the NSW Medical Board, by reason of the requirement that that body notify the HCCC of its receipt, the First Letter could also be treated as a complaint to the HCCC within the meaning of cl 27 of Sch 1 of the Defamation Act. It is tolerably apparent from the papers that the NSW Medical Board referred the First Letter to the HCCC for investigation. Mr A T S Dawson SC, who appeared for the respondent on the leave application with Ms M Rabsch, but not at trial, accepted that was an available inference.
In Lucire v Parmegiani, [9] this Court held that the defence of absolute privilege under s 27(2)(d) and Sch 1, cl 15 of the Defamation Act, so far as it concerned complaints to the NSW Medical Board, was confined to communications made for the purpose of dealing with a complaint once made, but not to the complaint itself. [10] In reaching that conclusion, Nicholas J relied on the distinction the MP Act drew between the making of a complaint and the process of dealing with it by "assessment or referral" as referred to in cl 15, the well-established reluctance of courts to extend the occasion of absolute privilege and the "existence of the qualified protection afforded to a complainant under s 96 HCC Act and s 47 MP Act [being] an additional reason for confining '... the very substantial protection of absolute privilege to the narrow class which incontestably falls within the designated purpose'". [11]
Mr Evatt submitted that by reason of the different language of cl 15 and cl 27, the ratio of Lucire could not be applied by parity of reasoning to the construction of cl 27. Properly construed, he submitted that cl 27 applied to a complaint ab initio and, accordingly, to both letters.
It is unnecessary, in my view, to resolve on a leave application the proper construction of cl 27. However, there is much to be said, in my view, for the proposition that, having regard to the statutory text, the protection cl 27(a) affords to "matter that is published (a) to or by the Health Care Complaints Commission of or concerning a complaint" [emphasis added] in contrast to the good faith protection s 96 affords to the "making of a complaint", the common law's refusal unnecessarily to extend absolute privilege so as to override a citizen's right to invoke the law of defamation and the principle of statutory construction requiring a construction of cl 27 so that it is consistent with the language and purpose of all the provisions of the statute, [12] in this case cl 15, tend to support the view that neither complaint letter is protected by absolute privilege. Applying Lucire, that would certainly be the case insofar as each letter was published to the NSW Medical Board.
There is a more pragmatic reason for holding that the applicant should not be able to rely upon whatever protection cl 27 affords for the first time on appeal. The proposed absolute privilege defence does not stand or fall on the mere receipt by the HCCC of the letters and their unchallenged characterisation as complaints per se. In order to attract the benefit of cl 27, the letters had to be "of or concerning a complaint by a complainant under the Health Care Complaints Act 1993" [emphasis added]. Such a complaint would have to be one concerning the "professional conduct of a health practitioner" (s 7, HCC Act). Whether the letters were such complaints is a question of fact which requires consideration of whether the conduct of which the applicant sought to complain in the letters (and, I note, the First Letter was incorporated by reference into the Second Letter), could be so characterised.
This is not a simple issue. The First Letter, as I have said, was supported by an extensive dossier largely relating to the Crown Road issue. It is apparent from the HCCC's correspondence to the applicant and the respondent that it regarded the First Letter as only partially addressing matters within its remit. Where the line could or should properly be drawn is not a matter which should be addressed on appeal for the first time. [13]
The proposed good faith defence turned on the proposition that because the First Letter was addressed to the NSW Medical Board, and the Second Letter to the NSW Medical Board and the HCCC, they are both subject to the good faith protection respectively afforded by s 96(2) of the HCC Act and s 47 of the MP Act.
As I think Mr Evatt ultimately conceded, the proposed good faith defences would lead to the matter being considered on a basis diametrically opposed to the forensic course the applicant pursued at trial and, further, is inconsistent with the findings made by the primary judge.
At trial the applicant's submissions in support of his only substantive defence, that of triviality, included the assertion that his letters lacked "any bona fides", indeed, that his complaints had "nothing whatsoever [sic, to do] with [Dr Hanson's] practice as a medical practitioner", were vexatious and included false allegations. [14] The Court would infer that these submissions were made upon the applicant's instructions, such as to constitute admissions. Further, in awarding aggravated damages, the primary judge held that his conduct "was lacking in bona fides was improper and unjustifiable". [15]
Mr Evatt referred to Roberts v Bass, [16] a case concerning what a plaintiff had to establish to demonstrate malice in reply to a plea by a defendant of the common law defence of qualified privilege where Gaudron, McHugh and Gummow JJ, stated that "honesty of purpose is presumed in favour of the defendant. It is for the plaintiff to prove that the defendant did not use the occasion honestly or, more accurately, for a proper purpose." Mr Evatt submitted that the same proposition applied to good faith, namely that it was presumed, and implicitly, that it fell to the respondent to displace that presumption.
That is an inherently unattractive submission from an applicant for leave to appeal seeking to raise a defence not hitherto raised. Even if correct, it would reinforce the application of principles refusing granting leave to an appellant to raise an argument for the first time on appeal where it could have been met by evidence. It would also attract the application of case management principles requiring the power of amendment not to be exercised in favour of an applicant who has run a limited case, then seeks to change course in a manner prejudicial to the other party and inimical to the public's confidence in the legal system. [17]
Once again, it is unnecessary finally to decide this matter, however, in my view Mr Evatt's submission does not withstand scrutiny. It is sufficient to refer to Bankstown City Council v Alamdo Holdings Pty Ltd, [18] which concerned s 733 of the Local Government Act 1993 (NSW), a provision which conferred immunity from liability on councils in respect of any advice furnished, or anything done or omitted to be done, in good faith in particular respects relating to flooding. It is manifest from that decision that the Court was of the view that the Council bore an evidentiary burden to establish it had acted in good faith in order to attract the immunity. [19]
To permit the applicant to raise either the absolute privilege or the good faith defences on appeal would, in my view, be inimical to the proposition that it is "fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial." [20] To permit him to do so would mean the costs of the trial had been wasted. [21]
Although it was not apparent Mr Evatt pursued the matters which originally formed the basis of the leave application, against the possibility that he does, I make the following observations.
To establish the triviality defence the applicant had to prove that, in the "circumstances of publication" [emphasis added] of each letter, the respondent was not likely to suffer harm in the sense of proving the absence of a real chance or possibility of harm. [22] "Harm" in s 33 refers, at least, to whether the respondent's reputation was likely to be damaged. [23]
The primary judge clearly had regard to these matters. His Honour considered the imputations set out in each letter, rejected the applicant's submission that the letters would be immediately dismissed by the recipients (the professional bodies which had the right to discipline the respondent and, at worst, deregister him) as, in effect, scurrilous ravings and concluded that the letters were intended to, and did, create mischief for the respondent and (albeit speaking in the language of negligence) that it was readily foreseeable the respondent would suffer angst/hurt. In the latter respect, it is evident that his Honour was alluding to the "harm" to which s 33 refers. The applicant has not identified any error of principle in the primary judge's consideration of the triviality defence which would warrant granting leave to appeal.
Insofar as the proposed damages complaint is concerned, the primary judge referred to the applicant's reliance on the s 34 requirement that there be an appropriate and rational relationship between the harm sustained by the respondent and the amount of damages awarded. His Honour had to award the respondent damages such as would operate as a vindication of him, as reparation for harm done to his personal and professional reputation and as consolation to him for a wrong done. [24]
As the harm caused to a plaintiff by the publication of the defamation often lies more in the plaintiff's own feelings, that is to say in what the plaintiff thinks other people are thinking of him or her, than in any actual change made manifest in their attitude towards him, "[a] solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the [general compensatory] damages". [25]
The primary judge was dealing with publications which conveyed imputations of the most egregious nature against the respondent, imputations which attacked him at the core of his professional and personal reputation. His Honour observed the respondent give evidence and would have been acutely sensitive to his evidence of the personal distress and hurt the letters caused to him.
His Honour also had to consider that, limited though the publication of the letters may have been, they were conveyed to those responsible for the respondent's future as a medical practitioner, whose regard for him, having regard, in particular, to the large number of imputations which went to the respondent's general character as opposed to his medical practice, may well have diminished. [26] Further, the respondent had to undergo the no doubt unhappy experience of having to disclose the letters to this professional association and, possibly, his insurers. All of these matters were relevant both as objective evidence of the damage caused to the respondent's reputation and as matters going to his personal hurt.
In order to attract appellate intervention in the award of damages, it would be necessary for the applicant to demonstrate that the $68,000 awarded was manifestly excessive. In my view the applicant has not identified any matter which could lead to an appellate court forming that opinion.
GLEESON JA: My reasons for joining in the orders made on 30 June 2017 that the application for leave to appeal and the notice of motion dated 9 June 2017 be dismissed with costs, accord with the reasons of McColl JA.

Endnotes

District Court Act 1973 (NSW), s 127(2)(c)(i).
The MP Act was repealed by the Health Practitioner Regulation Amendment Act 2010 (NSW), Sch 3 with effect from 1 July 2010.
Paragraph 6 of the FDANA sought to raise the absolute privilege defence only in relation to the Second Letter and was subsumed by paragraph 8 which sought to raise the defence in relation to both letters.
Hunter v Hanson [2014] NSWCA 263; special leave refused Hunter v Hanson [2015] HCA Trans 16.
Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 (Carolan) per Kirby P; see also Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 (at [13]) per Bathurst CJ.
Carolan per Cole JA.
Uniform Civil Procedure Rules 2005 (NSW), r 14.14(2), (3); see, for example, Sydney South West Area Health Service v MD [2009] NSWCA 343; (2009) 260 ALR 702 (at [20], [25]) per Hodgson JA (Allsop P and Sackville AJA agreeing); (at [51]) per Allsop P (Sackville AJA agreeing).
HCC Act, s 11; see also s 4 (definition of "health registration Act" and "registration authority").
[2012] NSWCA 86 (Lucire).
Ibid (at [35], [40], [51]) per Nicholas J (Bathurst CJ, Allsop P, Beazley JA and McCallum J agreeing).
Ibid (at [36], [39]) citing Rajski v Carson (1988) 15 NSWLR 84 (at 93) per Kirby P and Hope JA.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (at [69]) per McHugh, Gummow, Kirby and Hayne JJ.
Coulton v Holcombe (1986) 162 CLR 1 (at 7 - 8); [1986] HCA 33 per Gibbs CJ, Wilson, Brennan and Dawson JJ.
See [18] above.
See [19] above.
(2002) 212 CLR 1; [2002] HCA 57 (at [96] - [97]).
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (Aon Risk Services) (at [5], [31]) per French CJ.
(2005) 223 CLR 660; [2005] HCA 46.
Ibid (at [47] - [48], [51]) per Gleeson CJ, Gummow, Hayne and Callinan JJ; see also Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57.
Coulton v Holcombe (at 7).
Cf Aon Risk Services (at [102]) per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
Jones v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439 (at [21] - [24]) per Beazley JA (Santow JA and Stein AJA agreeing).
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 (at 799) per curiam (Moffitt P, Hope and Reynolds JJA). It is unnecessary to consider the question whether it also extended to whether his feelings were likely to be hurt. Cf Szanto v Melville [2011] VSC 574 (at [161] - [164]) per Kaye J.
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 (at 150); [1966] HCA 40 per Windeyer J; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 (at [60]) per Hayne J (Gleeson CJ and Gummow J agreeing).
Gacic v John Fairfax Publications Pty Ltd (2015) 89 NSWLR 538; [2015] NSWCA 99 (at [64]) per McColl JA citing Cassell & Co Ltd v Broome [1972] AC 1027 (at 1125) per Lord Diplock.
See Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 (at 70 - 71); [1993] HCA 31 per Brennan J. 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: 06 July 2017

Medical Practice Act 1992(NSW)

Health Practitioner Regulation Amendment Act 2010(NSW)

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