Medical Practitioners Board of Victoria & Ors v Mann [2000] VSCA 89

Medical Practitioners Board of Victoria & Ors v Mann [2000] VSCA 89 - VSCA 2000 case summary — Zoe

[20]

As you will note, the Act is a relatively new Act, and there is little case law authority on the legal meaning of the above definition. However, there seems to be a gradation in gravity as between paragraphs (a) to (c), with (a) being the least serious and (c) the most serious. Dealing with (c), the Board accepts the findings of the Courts that professional misconduct essentially means the deliberate departure from accepted standards in carrying out the practice of medicine and therefore the Board's view is that (c) is not relevant. You may be aware that the main thrust of the Act is to be found in Section 1(a) and there it is stated to be for the protection of the public. The Board considered that the complaint of excessive charging was essentially a contractual matter, and that the further complaint of Dr. Mann approaching your client for payment of his fees, whilst justifiably irritating, was at worst in all the circumstances an impudent act on the doctor's part. The Board does not therefore consider that these two grounds of complaint constitute unprofessional conduct under paragraph (a). Furthermore, the Board does not consider that they constituted unprofessional conduct under paragraph (b) for much the same reasons. The Board deliberated for some time as to whether the intemperate language used by Dr. Mann in a number of letters to you constituted `unprofessional conduct' under either of paragraphs (a) or (b). The Board considered that (b) was the more relevant provision, believing that Dr. Mann's peers could readily believe that the language used by the doctor in the correspondence with you did nothing for the reputation of the profession. However, the Board determined that, whilst you had valid grounds for being aggrieved by it, it stops short of amounting to `unprofessional conduct' as defined in s.3 of the Act. Dr. Mann however was advised not to use such language in professional correspondence in the future. The Board thanks you for bringing the various matters to its attention. ... John H. Smith - Registrar."

[25]

The respondent has sued the appellants for damages for defamation flowing from what he contends to have been the publication of the Board's minuted resolution on 3 October 1996 and the Smith-Bailey and Smith-Mann letters on 8 October 1996. The action was commenced by writ filed in the County Court in November 1997. At all times the respondent has represented himself and, not surprisingly, his pleadings are (without disrespect to him) somewhat discursive and couched in words not customarily encountered in claims for defamation. His original statement of claim, which was annexed to the Writ, has been clarified by an amended statement of claim which appears to have been filed in October 1998. Although the amended claim was filed after the dates material to the issues on this appeal, it can none the less be looked at to explain and clarify the nature of the respondent's claim. Interpreting the respondent's claim with the latitude which, in fairness to an unrepresented litigant, I think it must be given, it seems to me that what he is claiming is damages - including aggravated and exemplary damages - for defamatory words alleged to have been published by the defendants, or one or more of them, of and concerning him in the minuted resolution of the Board of the 3 October and the two letters dated 8 October. It is claimed that Smith and Stewart played a part in drafting the Smith-Bailey letter and the Smith-Mann letter. Whilst it is tolerably clear that the relevant publication of the Smith-Bailey letter is said to be the publication by the defendants to Bailey, it is not so clear what the relevant publication of the other two documents is alleged to be. It appears to be alleged that, in drafting and producing to the Board a copy of the Smith-Mann letter, Smith and Stewart published to the Board the defamatory comments alleged to be contained in that document; and that the recording by the Board of its minuted resolution was a publication of the content of that resolution to those who had access to the recorded minutes.

[53]

In my view, these arguments cannot succeed. Whilst I do not necessarily accept his Honour's view that the question whether absolute privilege attaches to the impugned communications is to be answered by determining whether the Board has exceeded its statutory powers, I nevertheless agree in his Honour's conclusion that such privilege does not attach to a Board communication, following a preliminary investigation, advising a complainant that it does not propose to further proceed with the investigation. The preliminary investigation into a complaint, envisaged by the Act, is quite separate from, and antecedent to, a formal hearing; and seems to me to be more in the nature of an administrative function rather than a quasi-judicial one. It involves an "in-house" inquiry to determine whether there should be a formal hearing. A letter, following such investigation, advising the complainant that the Board does not propose to investigate further the conduct alleged is neither a necessary incident of, nor a step in, quasi-judicial proceedings. Rather it is a communication which is necessarily dehors such proceedings because it advises that such proceedings are not in contemplation. Such a document is quite different from a document "initiating" quasi-judicial proceedings of the type which was the subject of consideration in such cases as Watson v. McEwan[13] and Hercules v. Phease & Anor. Nor is it a document which, in my view, is akin to an order made by a quasi-judicial tribunal dismissing a complaint upon which it has deliberated. There is, as I shall hereafter point out, little doubt that it is a communication which the Board makes upon an occasion of common interest or duty which it shares with the complainant, but there is nothing about the circumstances in which such communication is made which renders it necessary to clothe the occasion with absolute immunity. I cannot accept the appellants' contention that the Board's functions are to be interpreted in a broader fashion; namely to investigate all complaints made to it against medical practitioners; to pursue those found to have substance, and to terminate - for reasons to be advised to the complainant - those found to be without substance. Even if the stated functions of the Board are to be analysed in that broad way, I am by no means satisfied that every function which it performs does, or should, attract absolute privilege. Indeed, this seems to be implicit in the conferral by the Act of the privileges and immunities specified by s.21A of the Evidence Act only upon proceedings conducted by panels of the Board in formal hearing.

[69]

Furthermore, I agree with Mr. Ruskin that, on the material which was before the learned judge, it is arguable - perhaps strongly - that the whole of the Smith-Bailey letter was published on an occasion of qualified privilege and that his Honour was wrong to conclude that it was "palpably unarguable" that the matters which he identified were irrelevant to the privileged occasion which he found to exist. Paying heed to the principles to which I have already referred, it seems to me that none of those matters was so foreign or extraneous to, or so totally unconnected with, the subject matter of the privileged occasion as to inescapably lead to the conclusion that they fell outside the scope of the privilege. If an occasion of privilege arises for the Board, after preliminary investigation, to inform the complainant that it does not propose to further investigate his complaint on the grounds that it does not constitute "unprofessional conduct" within the meaning of the Act, an explanation by it of its reasons for coming to that view may well, consistently with authority, also come within the scope of the privileged occasion; notwithstanding that the reasons so given will almost inevitably refer to the views formed by the Board as to the standards of conduct engaged in by the medical practitioner against whom the complaint was made. Provided that the perceived defamatory material is not wholly unconnected with the privileged occasion, its use will be confined to demonstrating the lack of bona fides on the part of the Board. As I perceive it, the error made by his Honour in concluding that the impugned material fell outside the scope of the privileged occasion - an error perpetuated in the submissions made by the respondent - lay in defining the limits of the occasion by reference to the limits of the Board's statutory powers. By investing the Board with certain powers and obligations, the Parliament has created the circumstances in which a privileged occasion will, or might, arise; but, as I see it, it does not intend to prescribe the limits or the scope of that occasion. If it were otherwise, the Board would be prevented from the proper exercise of its powers and the fulfilment of the duties imposed upon it. The circumstances of this case point up the problem. The Act imposes the duty on the Board to investigate complaints made to it by members of the public about the conduct of registered medical practitioners. It invests in the Board the power to make a determination either to refer the complaint for "hearing" or not to proceed further with its investigation. The Act does not descend to the detail of directing the Board to inform the complainant of its determination "not to proceed", or to prescribing the limits of the information to be provided. Those limits, as I have said, will be prescribed by the nature of the relationship existing between the Board and the complainant and the scope of the common interest or duty arising from that relationship. It would, I think, be illogical - and potentially destructive of the relationship - if the Board were to be confined to informing the complainant that it had determined not to further investigate his complaint without informing him of its reasons for so concluding.

At a glance

Court

Decision date

Before

Source

Judgment (94 paragraphs)

Parties