Lucire v Parmegiani & Anor

Judgment 1BATHURST CJ: I agree with the orders proposed by Nicholas J for the reasons given by him. I also agree with the additional reasons of McCallum J. 2ALLSOP P: I agree with the orders proposed by Nicholas J, for the reasons his Honour gives; and I also agree with the additional comments of McCallum J. 3BEAZLEY JA: I agree with Nicholas J and with the additional comments of McCallum J. 4NICHOLAS J: This is an appeal from the judgment and orders of a judge of the District Court of New South Wales (Gibson DCJ) by which the appellant's claim for defamation was summarily dismissed on the ground that the matter complained of was published on an occasion of absolute privilege pursuant to s 27(2)(d) Sch 1, cl 15(1)(a) of the Defamation Act 2005 (the Act).

Introduction 5The appellant's claim arose from the publication by the first respondent on 4 August 2008 of a letter to the New South Wales Medical Board (the Board) in the following terms: "Thank you for your letter dated 1 August 2008, in response to my letter of 29 July 2008. I understand it is now an obligation of medical practitioners in New South Wales to report flagrant breaches of standards of professional practice or competence. I will now to [sic] provide further details, identifying the medical practitioner. I was retained by the Crown Solicitor's Office as an expert witness in a personal injury matter. The plaintiff's solicitors engaged Dr Yolande Lucire, specialist psychiatrist, to prepare an expert opinion. The matter was: Mohammad Bohsali v State of New South Wales The hearing was held in the NSW District Court, on 14 July 2008. I was called to give evidence at 2pm, at the John Maddison [sic] Tower. The instructing solicitors was Ms Lisa Hemingway, of the Crown Solicitor's office, DX 19 Sydney, Tel 02 9224 5326. I arrived at the requested time, and sat in the court while that Dr Lucire finished giving her sworn evidence. Her opinion was based on her unusual beliefs about side effects of psychotropic medication. While I am concerned about Dr Lucire's professional standards, and unnecessary costs to society as an expert witness, her behaviour in court was of greater concern. Dr Lucire was asked on repeated occasions whether the New South Wales Medical Board had placed conditions on her registration. Each time Dr Lucire denied it. In essence, Dr Lucire not only displayed a disregard for the NSW Medical Board, but she committed perjury, a criminal offence." 6In her statement of claim the appellant claimed damages for defamation, injurious falsehood, and for misleading or deceptive conduct under s 42 Fair Trading Act 1987. 7The first respondent's defence included a defence of absolute privilege under s 27 of the Act, particulars of which were as follows: "(a) The matter complained of was published in the course of the proceedings of an Australian tribunal; and/or (b) The matter complained of was published in circumstances specified in item 15 of Schedule 1 to the Defamation Act 2005, namely to the New South Wales Medical Board for the purpose of assessment or referral of a complaint or other matter or the holding of any inquiry, performance review, investigation or appeal under the Medical Practice Act 1992 (NSW)." 8By notice of motion filed 26 October 2009 the first respondent sought summary dismissal of the proceedings under UCPR Pt 13, r 13.4 and Pt 14, r 14.28. By consent, the second respondent was given leave to intervene on the hearing of the motion. On 28 May 2010 the primary judge dismissed the claim for defamation on the ground of statutory absolute privilege. Her Honour rejected an argument that the publication also attracted absolute privilege at common law, and dismissed the application for dismissal of the claims of injurious falsehood, and misleading or deceptive conduct. 9The appellant seeks leave to appeal against the dismissal of her claim for defamation on the following grounds: "1. Her Honour erred in apparently holding, that s 27(2)(d) and schedule 1, clause 15 should be construed to give absolute privilege to a publication for the purpose of making a complaint under the Medical Practice Act 1992. 2. Her Honour erred in failing to consider the appellant's submissions, that s 27(2)(d) and schedule 1, clause 15 did not give absolute privilege to a publication for the purpose of the making of a complaint under the Medical Practice Act 1992, as distinct from its 'assessment' or 'referral' under that Act." 10The first respondent was given leave to file an amended draft notice of contention which included the following grounds: "1. On its proper construction, the reference to 'purpose' in schedule 1, clause 15 of the Defamation Act 2005 (NSW) does not call for an assessment of the motive of the defendant. 2. There was therefore no arguable issue of fact for determination that would prevent a judge, on the defendant's application, determining the question of the defendant's purpose as a separate issue to be tried and dismissing the proceedings. 3. Rajski v Carson (1998[sic]) 15 NSWLR 84 was wrongly decided. 4. Even if the defendant's subjective purpose or motive was to denigrate the plaintiff such a purpose is no bar to the defendant's application for summary judgment as such a purpose is entirely consistent with the purpose of having the complaint assessed. 5. In any event, the respondent's publication was protected by absolute privilege pursuant to s 27(2)(b) Defamation Act (NSW) and/or at common law." 11The second respondent's notice of contention raised issues similar to those raised by the first respondent. 12The application for leave and the appeal were heard together. 13As a matter of history, on 14 August 2008 the Board referred the letter to the Health Care Complaints Commission for investigation. The investigation was terminated on 23 September 2008. It was common ground that the letter was not referred as a complaint to the Medical Tribunal. 14The primary judge found that the letter, on its face, was a complaint made to the Board by a practitioner about another practitioner. She concluded that it was a publication made for the purpose specified in cl 15(1)(a), and held that the statutory defence of absolute privilege applied. However, with regard to the principles in Mann v O'NeilI [1997] HCA 28; (1996-1997) 191 CLR 204 she held that the common law provided only a defence of qualified privilege for a publication which initiated a process of complaint, and rejected the respondents' claim that the privilege was absolute. 15The questions for determination by this Court were whether the publication of the letter by the first respondent to the Board was on an occasion of absolute privilege, either at common law, or under s 27(2)(b)(i) or s 27(2)(d) Sch I, cl 15(1)(a) of the Act.