Lucire v Parmegiani & Anor

Background 16The defence of absolute privilege requires an understanding of the statutory provisions for dealing with complaints made to the Board against medical practitioners. 17I turn first to the relevant provisions of the Medical Practice Act 1992 (the MP Act). 18The Board is a corporation constituted by s 129(1). Its functions include those conferred by the MP Act or any other Act (s 132(1)), one of which is the registration of medical practitioners (s 7). Its functions with respect to complaints are provided for under Div 3, and Div 5 of Pt 4. It is to be distinguished from the Medical Tribunal (the Tribunal) and the Professional Standards Committee (the Committee) which are bodies constituted under s 146 and s 167 respectively. It is also to be distinguished from the Health Care Complaints Commission (the Commission) which is a body constituted under the Health Care Complaints Act 1993 (the HCC Act). 19Division 2 of Pt 4 is concerned with making a complaint, and Div 3 with how complaints are dealt with. Any person can make a complaint (s 41). Complaints are to be made to the Board or the Commission (s 42) and a complainant may be required to provide further particulars (s 45). 20Relevantly, the MP Act provides: "46 Board and Commission to notify each other of complaints (1) The Board and the Commission are to notify each other when a complaint is made to or by either of them and this is to be done as soon as practicable after the complaint is made. (2) The Board and the Commission are also to notify each other of any matter that comes to the notice of either of them which may involve the professional misconduct of a registered medical practitioner. This is to be done as soon as practicable after the matter comes to the notice of the Board or the Commission. 47 Protection of complainants and other persons (1) If a person makes a complaint, and does so in good faith: (a) the making of the complaint 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 because of the complaint, and (c) the making of the complaint does not constitute a ground for civil proceedings for malicious prosecution or for conspiracy. (2) The protections given to a complainant by this section extend to: (a) any person who, in good faith, provided the complainant with any information on the basis of which the complaint was made, and (b) any person who, in good faith, was otherwise concerned in the making of the complaint. (3) This section does not limit or otherwise affect the operation of section 96 of the Health Care Complaints Act 1993. Division 3 How complaints are to be dealt with 48 Complaints to be dealt with expeditiously All complaints are to be dealt with expeditiously. 49 Board and Commission to consult on complaint (1) Before any action is taken on a complaint, the Board and the Commission are to consult in order to see if agreement can be reached between them as to the course of action to be taken concerning the complaint. (2) Division 2 of Part 2 of the Health Care Complaints Act 1993 applies to the consultation, despite the other provisions of this Division. 50 Courses of action available to Board on a complaint (1) The following courses of action are available to the Board in respect of a complaint made to the Board, referred to the Board by the Commission or that the Board has decided to make: (a) the Board may refer the complaint to the Commission for investigation, a Committee or the Tribunal, as the Board thinks fit, (b) the Board may: (i) refer the matter to an Impaired Registrants Panel, or (ii) refer the professional performance of the practitioner concerned for assessment under Part 5A, (c) the Board may direct the practitioner concerned to attend counselling, (d) the Board may refer the complaint to the Commission for conciliation or to be dealt with under Division 9 of Part 2 of the Health Care Complaints Act 1993, (e) the Board may determine that no further action should be taken in respect of the complaint. (2) Before or at the same time as it refers a complaint to a Committee or the Tribunal, the Board must refer the complaint to the Commission for investigation. (3) The Commission must, on receipt of a complaint referred by the Board for investigation, investigate the complaint or cause it to be investigated. (4) If the Board makes a referral under subsection (1) (b), the matter ceases to be a complaint for the purposes of this Act and the Health Care Complaints Act 1993. (5) Subsection (4) ceases to apply in respect of any matter that the Board subsequently deals with as a complaint. 51 Courses of action available to the Commission on a complaint (1) The following courses of action are available to the Commission in respect of a complaint made to the Commission or that the Commission has decided to make: (a) the Commission may refer the complaint to the Board or, after consultation with the Board, to a Committee or the Tribunal, (b) the Commission may refer the complaint for conciliation or deal with the complaint under Division 9 of Part 2 of the Health Care Complaints Act 1993, (c) the Commission may determine that no further action should be taken in respect of the complaint, (d) the Commission may take any other action that it can take under the Health Care Complaints Act 1993. (2) If the Commission refers a complaint to a Committee or the Tribunal, the Commission is to inform the Board accordingly. (3) If the Commission refers a complaint to the Board, a Committee or the Tribunal, the Commission is to investigate the complaint or cause it to be investigated. 52 Serious complaints must be referred to Tribunal (1) Both the Board and the Commission are under a duty to refer a complaint to the Tribunal if at any time either forms the opinion that it may, if substantiated, provide grounds for the suspension or deregistration of a registered medical practitioner. (2) However, either the Board or the Commission may decide not to refer the complaint to the Tribunal if of the opinion that the allegations on which the complaint is founded (and on which any other pending complaint against the practitioner is founded) relate solely or principally to the physical or mental capacity of the practitioner to practise medicine. (3) If the Board decides not to refer the complaint to the Tribunal, the Board must instead refer the complaint to a Committee. If the Commission decides not to refer the complaint to the Tribunal, the Commission must instead refer the complaint to the Board. (4) This section does not require the Board or the Commission to refer a complaint that the Board or Commission thinks is frivolous or vexatious. ... 56 Inquiries etc not prevented by other proceedings A complaint can be referred to a Committee or the Tribunal, and dealt with by the Committee or Tribunal, even though the practitioner concerned is the subject of proposed or current criminal or civil proceedings relating to the subject-matter of the complaint." 21Committees and the Tribunal are empowered to deal with disciplinary matters arising from complaints under Div 4 of Pt 4. Included are powers to caution, reprimand, counsel, fine, and suspend. These provisions do not apply to the Board. Divisions 2 and 3 of Pt 11 deal with the conduct of proceedings before, and the jurisdiction of, the Tribunal. Divisions 2 and 3 of Pt 12 deal with the conduct of proceedings by, and the powers of, a Committee. 22An Impaired Registrants Panel is a panel constituted under Pt 13, and a Performance Review Panel is a panel constituted under Pt 13A. 23The HCC Act provides for the making, resolution, investigation and prosecution of health care complaints. The Commission has a responsibility for dealing with complaints, with particular emphasis on the investigation and prosecution of serious complaints in consultation with relevant registration authorities (s 3A). The Board is a registration authority. 24Under Div 2 of Pt 2 of the HCC Act, the Commission is required to consult the appropriate registration authority with regard to complaints made to it, and those of which it has been notified by a registration authority. Complaints notified by registration authorities are taken to have been made to the Commission (s 11). Relevantly, the HCC Act provides: "12 Consultation between the Commission, a professional council and the Registrar (1) Before determining, as a result of the assessment of a complaint, whether to investigate a complaint, to refer the complaint for conciliation, to deal with the complaint under Division 9 or to discontinue dealing with the complaint, the Commission must consult with the appropriate professional council (if any), subject to this section. (1A) If it is proposed, as a result of the assessment of a complaint, to refer the complaint for conciliation, the Commission must also consult with the Registrar. ... 96 Exoneration from liability (1) A matter or thing done or omitted by a person, being the Commissioner, an officer of the Commission, the Registrar or a conciliator does not, if the matter or thing was done or omitted in good faith for the purpose of executing this Act, subject the person personally to any action, liability, claim or demand. (2) The making of a complaint, or the reporting of any matter or thing that could give rise to a complaint, to the Commission or a professional council by any person does not, if it was done in good faith, subject the person personally to any action, liability, claim or demand." 25Division 4 of Pt 2 of the HCC Act provides the procedure for the assessment of complaints by the Commission, including those notified, or referred to it by the Board. 26So far as is relevant, the Board's functions under the MP Act may be summarised as follows. Under s 50(1) it has a discretion as to the course of action to be taken in respect of a complaint made to it. It may refer the complaint to either the Commission, a Committee, or to the Tribunal for investigation as it thinks fit, or it may refer the matter to an Impaired Registration Panel, or to a Performance Review Panel. Alternatively, under s 50(1)(e), it may determine that no further action should be taken. 27The Board may decide not to refer a complaint if the medical practitioner is no longer registered (s 58) or if the complainant fails to provide further particulars (s 59). Furthermore, before any action is taken on a complaint, the Board and the Commission are required to consult to see if agreement can be reached as to the course of action to be taken (s 49(1)). 28Accordingly, the Board's function is one of administration. It is required to act as a clearing house for complaints made against medical practitioners. Essentially, its task is to determine whether any and, if so, what action should be taken in a particular case. Unlike, for example, the Commission, it has no powers of investigation. It exercises no quasi-judicial function; its process is purely administrative. Whether a complaint reaches the Tribunal is a discretionary matter for the Board. 29A further matter of significance is the structure of the MP Act in respect of complaints and the process by which they are dealt with. Under Div 2 of Pt 4 specific provisions are made for the making of a complaint, and for the protection of a complainant who acts in good faith against, inter alia, liability for defamation. Separately dealt with under Div 3 of Pt 4 are the courses of action, including assessment or referral, available to the Board and the Commission when a complaint is made.

Determination 30It is well settled that absolute privilege attaches to all statements made in the course of quasi-judicial proceedings which are proceedings of tribunals recognised by law and which act in a manner similar to that in which a court of justice acts. It extends to statements in originating process, in pleadings, or in other documents filed in the proceedings, and to any document published on an occasion properly incidental to judicial proceedings, and necessary for them. The scope of absolute privilege is no less extensive in other respects than in the case of statements made in the course of judicial proceedings (Mann p 211, 212).

The issue under cl 15(1)(a) 31Section 27(2)(d) of the Act establishes a defence of absolute privilege for matter published in any circumstances specified in Sch 1. As at 4 August 2008, cl 15(1)(a) of Sch 1 provided: "15 Matters arising under Medical Practice Act 1992 (1) Without limiting section 27 (2) (a)-(c), matter that is published: (a) to or by any of the following for the purpose of the 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: (i) the New South Wales Medical Board, (ii) an Impaired Registrants Panel, (iii) a Performance Review Panel, (iv) a Professional Standards Committee, (v) the Medical Tribunal, (vi) a member of any of the bodies referred to above in subparagraphs (i)-(v), (vii) an assessor" 32The respondents submitted that upon the proper construction of the clause, the publication of matter "for the purpose of the assessment ... of a complaint" should be understood to include matter published by the making of a complaint. It was put that as the underlying purpose in making a complaint was that it be assessed, the complaint was a publication within the category described. It was put that, in this case, such purpose was evident from the terms of the letter itself. Thus it was submitted that the making of the complaint was protected by absolute privilege under s 27(2)(d) of the Act. 33As its very words make plain, the clause should be read congruently with the language and structure of the MP Act. It requires an understanding of the regime for the making of complaints, and the action available to be taken with respect to them. Under the statute a complaint may be the subject of assessment, referral, inquiry, review, investigation or appeal by the appropriate person or entity specified in the clause. The language of the clause is clear and unambiguous. The words "the assessment or referral ... or the holding of any inquiry, performance review, investigation or appeal under the Medical Practice Act 1992" refer to the functions which may be carried out under the MP Act. The opening words "... to or by any of the following for the purpose of ..." describe communications made for the purpose of the performance of those functions. 34As analysis of the statute shows it is not until a complaint has been made that any of these functions would be undertaken. The respondents' submission fails to take into account the clear distinction made under the MP Act between the making of a complaint, and the process of dealing with it by assessment, referral or otherwise. The making of the complaint is a publication by the complainant to the Board, whereas matter published for the purpose of its assessment or referral, or otherwise, is necessarily another publication made on a subsequent occasion. The function of assessment or referral is not initiated until a complaint has been made to the Board, and the Board has decided to take that course. The publications envisaged by the clause are separate and distinct from the publication by which the complaint was made. So understood, the language of Sch 1, cl 15(1)(a) gives effect to the intention expressed in the Attorney-General's second reading speech on the Defamation Bill 2005 (Hansard, 13 September 2005) as follows: "... The defence of absolute privilege recognises that, at certain times, society's interest in free speech must prevail over other considerations. It simply would not be possible to effectively perform judicial, legislative and other official functions without the freedom to make statements that might be defamatory in other contexts. The publications listed in schedule 1 were drawn from part 3 of the New South Wales Defamation Act 1974 and include publications by a range of bodies, including the Ombudsman, the Independent Commission Against Corruption, and the Police Integrity Commission." 35In my opinion, the inevitable conclusion is that it was the legislature's intention to confine the protection of absolute privilege to communications made for the purpose of dealing with a complaint once made. Acceptance of the respondents' submission requires reading into the clause words which are not there, and a result not intended by the legislature. It must be rejected. 36In any event, there are reasons of principle which support the conclusion that it was not intended to include the making of a complaint in Sch 1, cl 15(1)(a). The reluctance of courts to extend the occasion of absolute privilege is well established (Mann). In Gibbons v Duffell [1932] HCA 26, (1932) 47 CLR 520 (p 528), Gavan Duffy CJ, Rich and Dixon JJ said: "... The truth is that an indefeasible immunity for defamation is given only where upon clear grounds of public policy a remedy must be denied to private injury because complete freedom from suit appears indispensable to the effective performance of judicial, legislative or official functions. The presumption is against such a privilege and its extension is not favoured (Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson). Its application should end where its necessity ceases to be evident." Evatt J spoke to the same effect (p 534). 37In Rajski v Carson (1988) 15 NSWLR 84 (p 91, 92) Kirby P and Hope JA said: "... absolute privilege in defamation can amount to a serious derogation from ordinary civic rights. Whilst the purpose of Parliament must be faithfully upheld by the courts, it is not readily to be assumed that Parliament intended to derogate from the ordinary protection of civil rights, except to the extent that Parliament made such derogation clear. In Gibbons v Duffell (1932) 47 CLR 520, the High Court of Australia held that a report, made in the course of his duty by an inspector of police to a superior officer, which contained defamatory references to a subordinate officer, was not the subject of absolute privilege. Evatt J, in the course of his judgment, said (at 534-535): '... Absolute immunity from the consequences of the defamation', as Mr E E Williams wrote in 1909, 'is so serious a derogation from the citizen's right to the State's protection of his good name that its existence at all can only be conceded to those few cases where overwhelmingly strong reasons of public policy of another kind cut across this elementary right of civil protection; and any extension of the area of immunity must be viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated.' (25 Law Quarterly Review p 200). Extension of the privilege by reason of analogies to recognized cases is not justified. Even if it were, there is no analogy between the Police Force preserving the State from 'internal enemies' and the Army preserving it from 'external enemies.' Since those words were written in 1909 and reiterated by Evatt J in 1932, legislatures have expanded the categories of bodies attracting absolute privilege. What began with judicial proceedings, strictly so-called and later extended to Parliamentary proceedings, was expanded to other categories of publication as the list of protected provisions referred to in and about s 17 of the Defamation Act 1974 demonstrates. The reluctance of the courts to extend the number of occasions on which no action at all will lie, although a defendant published words with the full knowledge of their falsity and even with the express intention of injuring the plaintiff, is expressed to the law in England, as well as Australia see e.g. Law v Llewellyn [1906] 1 KB 487 and Beresford v White (1914) 30 TLR 591 (CA)." 38Furthermore, the descriptions of matter for the publication of which the other clauses of Sch 1 provide absolute protection indicate a high degree of specificity on the part of the legislature. Where it intended to extend the protection to the making of a complaint it has expressed that intention in clear terms, as in cl 18(a) and cl 32(a) by use of the words "... for the purpose of the making ... of a complaint". The omission of similar words from cl 15(1)(a) supports the conclusion that it was not intended to include the making of a complaint. 39It is also relevant to refer to some legislative history. In 2004 the HCC Act was amended to include s 96 which provides protection for the making of complaints in good faith. The Act commenced on 1 January 2006. On 1 August 2008 the MP Act was amended to include s 47 which also protects the making of complaints in good faith, and preserves the operation of s 96 of the HCC Act. The existence of the qualified protection afforded to a complainant under s 96 HCC Act and s 47 MP Act is an additional reason for confining "... the very substantial protection of absolute privilege to the narrow class which incontestably falls within the designated purpose" (Rajski p 93). Also apt is the following passage from the judgment of Gummow J in Mann (p 249): "... An additional reason against extension of absolute immunity is the existence, as is conceded, of another protection in the form of qualified privilege upon which a correspondent may rely. To defeat the qualified privilege enjoyed by Dr Mann it would be necessary for Mr O'Neill to prove malice. The result is to strike a balance between the interests involved and to give proper weight against improper or misguided institution of proceedings." 40In my opinion, the primary judge erred in finding that the letter was a publication to which Sch 1, cl 15(1)(a) applied. 41The respondents agreed that the challenge to the court's decision in Rajski would not arise if the appellant succeeded on the proper construction of cl 15(1)(a). It follows that grounds 1, 2, 3 and 4 of the first respondent's amended draft notice of contention should be dismissed. 42Accordingly, the appeal on this issue should be upheld, and the dismissal of the defamation claim be set aside.

The issues at common law and under s 27(2)(b)(i) 43Relevantly, the Act provides: "27 Defence of absolute privilege (1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege. (2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if: ... (b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to): (i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process) ... ... 4 'Australian tribunal' means any tribunal (other than a court) established by or under a law of an Australian jurisdiction that has the power to take evidence from witnesses before it on oath or affirmation (including a Royal Commission or other special commission of inquiry)." 44It was not disputed that the Tribunal was a quasi-judicial body, and an Australian tribunal for the purposes of the Act. It was common ground that the complaint had not been referred to the Tribunal. 45The respondents' arguments at common law and under s 27(2)(b)(i) proceeded on the basis that the letter was an originating process published in the course of the quasi-judicial proceedings of the Tribunal. The issues under the Act were not raised for determination by the primary judge. 46The respondents submitted that a complaint made to the Board initiates the process of an inquiry by the Tribunal, and is matter published in the course of the proceedings of the Tribunal under s 27(2)(b)(i). That is to say, by the making of a complaint to the Board the process by which it would become the subject of inquiry by the Tribunal is put in motion. Accordingly, the appellant's letter was, in substance, an originating process under sub-par (b)(i), and was protected by absolute privilege. It was put that for the protection to be available it was not necessary that proceedings before the Tribunal should in fact eventuate, it being sufficient that the making of a complaint may lead to the commencement of proceedings. 47For the appellant it was submitted that a complaint was not a document within the provision, and its publication was not made on an occasion of absolute privilege. It was submitted that under s 147(1) MP Act the Tribunal's jurisdiction is only enlivened upon the referral of a complaint to it. In effect, it is the referral which initiates the proceedings before it. It was put that the originating process under sub-par (b)(i) is the documentation by which the complaint is referred, and is a publication made on an occasion separate and different from that on which the complaint was made to the Board. It was further submitted that, with regard to the principles of construction referred to in Rajski, the term "originating process" should not be so widely construed as to include the letter to the Board. 48The essential question is whether the letter is properly to be regarded as a necessary first step in the proceedings of the Tribunal. It turns on the scheme and structure of the MP Act which identifies the functions of the Board upon the making of a complaint, and the circumstances in which the jurisdiction of the Tribunal is enlivened. 49Of the courses of action available to it, the Board may refer a complaint to the Tribunal, or determine that no further action should be taken in respect of it (s 50(1)(a), (e)). A Tribunal is constituted to deal with complaints when a complaint is referred to it (s 147(1)). Its jurisdiction is to conduct an inquiry into any complaint which is referred to it (s 159). 50The earlier analysis of provisions of the MP Act shows that the Board is not a body charged with the inquiry into, or the prosecution of, a complaint, and that the function invoked by the making of a complaint is an administrative function. It also shows, as the appellant submitted, that the jurisdiction of the Tribunal is only enlivened when the Board, in the exercise of its discretion, refers a complaint to it. The making of a complaint originates no proceedings in the Tribunal. It cannot be said it sets its proceedings in motion. The essential initiating step is the referral by the Board. 51For these reasons the appellant's letter is not a document to which s 27(2)(b)(i) applies. The respondents' submissions are rejected. It follows that the claim for absolute privilege at common law also fails and that the primary judge was correct to dismiss it. 52As the respondents' have failed to establish that the letter was published on an occasion of absolute privilege at common law or under the Act, the appeal should be upheld, and the orders set aside. 53Dr Parmigiani also filed a cross-summons seeking leave to cross-appeal from that part of her Honour's decision dismissing his application for summary dismissal of the claims for injurious falsehood and contravention of the Fair Trading Act 1987. I do not consider that the matters raised by the cross-summons warrant a grant for leave.

Orders 54I propose the following orders: (1)Grant leave to appeal. (2)Appeal allowed. (3)Orders of Gibson DCJ made on 28 May 2010 be set aside. (4)The first respondent's notice of motion be dismissed. (5)The respondents to pay the appellant's costs of the motion. (6)The first respondent's cross-summons for leave to cross-appeal be dismissed. (7)The respondents to pay the appellant's costs of the appeal. 55McCALLUM J: I agree with the orders proposed by Nicholas J, for the reasons given by his Honour. 56The principal contest in the proceedings below related to the question whether the letter was published "for the purpose of the assessment or referral of a complaint or other matter". The argument focussed primarily on the first part of that test, "for the purpose of". That was the expression considered (with reference to a similar but not identical provision) in Rajski v Carson. 57On behalf of both Dr Parmegiani and the Medical Council, detailed submissions were put before the Judge at first instance directed to the proper construction of that phrase. Perhaps distracted by the issue of the correctness of the majority judgment in Rajski, the defendants' submissions paid scant attention to an important threshold question, namely, whether matter published for the purpose of the assessment or referral of a complaint includes the making of the complaint itself. 58It had been submitted on behalf of Dr Lucire that clause 15 of schedule 1 of the Defamation Act 2005 protects only the assessment or referral of a complaint and not the making of a complaint. The Judge did not expressly address those submissions in the judgment. Her Honour noted (at [24]) a submission put on behalf of the Medical Council "that the words for the purpose of the assessment or referral of a complaint refer to the steps taken in relation to a complaint, which would include the letter of complaint itself". The balance of the judgment implicitly accepted that contention and dealt primarily with the meaning of the phrase "for the purpose of" and the discussion of that phrase in Rajski and other decisions. Her Honour did not expressly address the question whether publication of matter "for the purpose of the assessment or referral of a complaint" within the meaning of clause 15 includes the making of the complaint. 59The critical question in the appeal is whether clause 15 should be construed so as to throw the cloak of absolute privilege over the making of a complaint. As Nicholas J has noted, considerations militating against that construction are to be found both within the Defamation Act and upon a broader review of the suite of provisions in other statutes that govern complaints against medical practitioners. 60The construction of clause 15 contended for by Dr Lucire permits a coherent analysis of those provisions. The disciplinary regime created by the Medical Practice Act 1992 and the Healthcare Complaints Act 1993 contemplates the making of complaints, the assessment of complaints and in some instances the referral of complaints. 61The making of complaints attracts protection qualified by the requirement that the complaint was made in good faith (section 47 of the Medical Practice Act 1992 and section 96 of the Healthcare Complaints Act 1993). There is no equivalent provision in respect of the assessment or referral of complaints, which are addressed in terms in the absolute privilege defences in the Defamation Act. Nicholas J's analysis of those provisions demonstrates that clause 15 has nothing to say on the subject of the making of a complaint, as opposed to its assessment or referral by persons other than the complainant.

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: 21 April 2012