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

Medical Practice Act 1994, Part 3.

2. The Medical Practitioners Board of Victoria (which is the first appellant and will hereafter be referred to as "the Board") is a body established under Part 6 of the Medical Practice Act 1994 ("the Act") to, inter alia, investigate the professional conduct or ability of registered medical practitioners and impose sanctions where necessary (see s.66 of the Act). It is a body comprised of 12 members appointed by the Governor-in-Council, nine of whom must be medical practitioners, two of whom must not be medical practitioners and one of whom must be a lawyer. At relevant times the "lawyer member" was John Erwin Stewart who is now deceased. He was the third appellant in these proceedings but, by consent, the appeal has been discontinued on his behalf. The conduct of Stewart, in so far as it is relevant to matters pursued in the respondent's claim against the Board, is conceded to be conduct for which the Board is vicariously responsible. Pursuant to the provisions of the Act the Board has the power to employ a Registrar to maintain the medical register in this State. The Registrar, at all relevant times, was John Hartley Smith ("Smith") who is the second appellant. From time to time I will refer to the continuing appellants as "the appellants" or "the defendants".

5. The respondent, Arnold Mann, to whom I shall refer as "the respondent" or "Mann", was at all material times a registered medical practitioner carrying on practice as a surgeon in Melbourne. He has retired from clinical surgical practice but specializes in "reporting and giving evidence in Court in connection with malpractice claims" (paragraph 1 of the amended statement of claim).

8. In 1996 the respondent was in dispute with a Sydney solicitor, Mr. Paul Bailey ("Bailey") of Messrs. Rockliffs, Solicitors. The dispute concerned payment of a fee owing to the respondent in respect of services given and to be given by the respondent in respect of a proceeding brought by a Mrs. Ziarkowski in the District Court of New South Wales. The claim was listed to be heard in that court on 15 April 1996, but was settled before trial.

11. In the course of the dispute correspondence was exchanged between the respondent, on the one hand, and Bailey and Mrs. Ziarkowski on the other. On 5 June 1996, Bailey wrote to the Board complaining, inter alia, that the respondent had charged excessive fees, had behaved in an unprofessional manner by directly approaching his client for the fees, and had been abusive and intemperate in the communications which he had had with Bailey's firm.

14. S.22 of the Act, which is contained in Division 1 of Part 3, entitles a member of the public to make a complaint to the Board about a registered medical practitioner. S.24(1) of the Act requires the Board to investigate any complaint so made "if the complaint concerns the professional conduct of a registered medical practitioner and if ... the Board has not determined the complaint to be frivolous or vexatious". A "preliminary investigation" may be conducted by a designated delegate, but must be conducted to determine whether or not it is necessary to conduct a "formal or informal hearing into the complaint" (s.24(2) and (3) of the Act). The person carrying out the preliminary investigation can make recommendations to the Board either that the matter proceed no further or that an informal or formal hearing should be held. It is then for the Board to determine whether to act on the recommendation (s.25). If the Board determines to hold a formal or informal hearing then it must appoint a panel, comprising members of the Board, to "hold the hearing", fix a time and place for it, and give notice of it to the complainant and the practitioner (ss.39 and 46 of the Act).

17. If the Board has determined, following preliminary investigation, to hold an informal or formal hearing, then certain consequences, stipulated by the Act, follow. Informal hearings are conducted in private, the practitioner is entitled to make submissions and be accompanied by "a friend" but not a legal practitioner. Following such a hearing the Board's panel can only make limited adverse findings - namely that the practitioner has engaged in "unprofessional conduct which is not of a serious nature" - in respect of which it can only impose limited sanctions, none of which involve suspension or cancellation of registration. On the other hand, a formal hearing is required (except in limited circumstances) to be conducted in public; the practitioner is entitled to be legally represented; and the panel is to comprise Board members who are "disinterested" in the sense that they cannot be persons who have undertaken the preliminary investigation or been part of an "informal hearing". If, upon such a formal hearing, the panel finds that the practitioner has engaged in "unprofessional conduct of a serious nature", it can impose sanctions of various kinds, including fines and cancellation or suspension of registration.

20. Having regard to the scheme of the Act, it is perhaps not surprising that the immunities and privileges given and conferred by s.21A of the Evidence Act 1958 (Vic.) apply only to a "panel in the conduct of a formal hearing as if it were a Board ... appointed by the Governor in Council" (s.53 of the Act). S.21A of the Evidence Act gives to "members of the board, legal practitioners and others appearing by leave, and witnesses the same privileges and immunities as would be attracted if the proceedings were being conducted in the Supreme Court".

23. It can thus be seen that it is only a panel, following an informal or formal hearing, which can make a finding of "unprofessional conduct" against a registered medical practitioner. Insofar as is relevant, "unprofessional conduct" is defined by s.3 of the Act as meaning:

"(a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered medical practitioner; or (b) professional conduct which is of a lesser standard than that which might reasonably be expected of a medical practitioner by her or his peers; or (c) professional misconduct; or (d) infamous conduct in a professional respect; ... "

27. In accordance with the scheme of the Act to which I have referred, the Board caused a preliminary investigation to be made of Bailey's complaint against the respondent. At its meeting on 3 October 1996, the Board made a resolution in the following form:

"Dr. A. Mann - The Board considered all the documentation provided by Dr. Mann and Mr. Bailey from Rockliffs, Solicitors, which related to three alleged incidents of unprofessional conduct by Dr. Mann namely: (a) excessive charging for an appearance in Court, (b) approaching the client of Rockliffs direct seeking payment, and (c) using immoderate language in correspondence with Rockliffs. The Board determined that a letter be sent to Dr. Mann advising him that it did not consider the complaints of excessive charging and directly approaching the client of Rockliffs constituted unprofessional conduct. However, the Board did find his language to be intemperate, but that action stopped short of unprofessional conduct. Mr. Bailey to be advised of the Board's findings (a copy of the response attached)."

(I will hereafter refer to this resolution as "the resolution", or "the minuted resolution".)

32. In accordance with the resolution, a letter signed by Smith as the Board's Registrar, was sent to Bailey on 8 October 1996. That letter, excluding formal parts, was in the following form:

"Dear Mr. Bailey re: complaint against Dr. A. Mann. I refer to previous correspondence on the above matter. The Board believes you had valid reason to feel aggrieved at the conduct of Dr. Mann particularly in regard to the intemperate language used in various exchanges of correspondence with you. The task of the Board, however, is to consider whether the various complaints made by you constitute `unprofessional conduct' as defined in the Medical Practice Act ("the Act"). To the extent considered relevant to your complaints, `unprofessional conduct' is prescribed in s.3 to mean all or any of the following:

(a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered medical practitioner; or

(b) professional conduct which is of a lesser standard than that which might reasonably be expected of a medical practitioner by her or his peers; or

(c) professional misconduct.

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."

(I will refer to this letter as the "Smith-Bailey letter".)

41. On the same date as the Smith-Bailey letter was sent, namely 8 October 1996, Smith, again in his capacity as the Board's Registrar, sent a letter to the respondent (which I will refer to as the "Smith-Mann letter"). It is unnecessary to set out the details of this letter in full in the text of this judgment. It begins by rehearsing, in much the same way as the Smith-Bailey letter, the Board's view of the proper interpretation of the meaning of "unprofessional conduct" as defined in s.3 of the Act and its conclusions. However, in respect of the complaint that the respondent had directly approached Mr. Bailey's client, the letter said:

"... the Board considered that there were some mitigating circumstances associated with your behaviour in that you believed that the approach you made was consistent with your view that the debt was owed by the litigant. Also the Board noted that the language used in the letter to the client was nothing other than moderate."

"An aspect of the paragraph (a) which the Board considered at some length was whether the immoderate language used in your correspondence with Rockliffs constituted a lesser standard of conduct than [that] which the public might reasonably expect of a registered medical practitioner. On balance, the Board's view was that the language used by you in some of the correspondence was of a kind where Mr. Bailey had valid reason to feel aggrieved, but that it did not amount to unprofessional conduct under paragraph (a). The Board considers that your description of the language as "robust comment" is certainly not apt. By a similar line of reasoning, the Board did not consider that the complaints of excessive charging and directly approaching the firm's client constituted `unprofessional conduct' under paragraph (b). Again, however, the Board deliberated for some time as to whether your intemperate language as used in various letters to the firm constituted a lesser standard of conduct than that which might reasonably be expected of you by your peers. In all the circumstances (and here the Board takes into account the tone of the responses made by Rockliffs), the Board finds that your language was intemperate and does nothing for the reputation of the profession. However, the Board finds that it stops short of constituting unprofessional conduct. For reasons that should be apparent to you, the Board advises you to desist from using such language in any professional correspondence in the future ... ."

47. 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.

50. The appellants have made common cause to the respondent's allegations. They admit that Smith and Stewart participated in drafting the impugned letters; that Smith was the Registrar of the Board and that Stewart was, at material times, the "lawyer member" of the Board. They also admit that the Board passed the impugned resolution on 3 October 1996 and sent or caused to be sent to Bailey and Mann respectively the Smith-Bailey and Smith-Mann letters on 8 October 1996. They deny relevant publication of the Board's minuted resolution and the Smith-Mann letter and contend that those documents are not actionable. They take a variety of other defences including justification, fair comment (in the form of the "rolled-up" plea) and, in respect of Smith and Stewart, the defence of "immunity" provided by s.76 of the Act to individual Board members and the Registrar for acts and omissions done in good faith and without negligence.

53. Whilst the defence admitted that Stewart had conducted the preliminary investigation and had recommended to the Board that no action be taken against the respondent, it would appear from subsequent material filed in the proceedings (for what purpose it is unclear), that it is now contended that Stewart did not conduct the preliminary investigation into Bailey's complaint; nor did he make the suggested recommendation. It is now said that other Board officers or members did those things and that Stewart was appointed, shortly before 3 October 1996, to present a report on the matter prepared by another Board member who had taken ill. Whilst I am prepared to assume that the current defendants may wish to amend their defences accordingly, it does not seem to me that such amendments will have any relevant bearing on the issues which have been raised in this appeal.

56. The defences which were taken by the defendants, and which are in issue on this appeal, were the defences of absolute and qualified privilege asserted in paragraphs 48 and 49 of the defence filed on 19 December 1997. Those paragraphs were as follows:

"48. Further and alternatively, the Smith-Bailey letter (and, if any of the other communications complained of in the Statement of Claim were published and are actionable, which is denied, each of those other publications), if defamatory, was published on an occasion of absolute privilege. Particulars The Board and its officers, including the second and third defendants, were charged under the Act with receipt of the complaint and investigation of the complaint. In the matters complained of, the defendants were doing so or purporting to do so and were acting on an occasion of absolute privilege. 49. Alternatively to paragraph 48, the Smith-Bailey letter (and, if any of the other matters complained of in the Statement of Claim were published and are actionable, which is denied, each of those other publications), if defamatory, was published on an occasion of qualified privilege. Particulars The publication was pursuant to:

(a) a duty of the person publishing it to the person to whom it was published;

(b) a common interest of the person publishing it and the person to whom it was published."

In reply to the defence of qualified privilege, the respondent alleged that the Board had been actuated by express malice.

64. On 20 March 1998 and 16 November 1998 a judge of the County Court, sitting as the judge in control of the "defamation list", respectively struck out paragraphs 48 and 49 of the defendants' defence. Although the documents initiating the respective proceedings are not included in the appeal books, we were informed that, in each application the respondent applied, by summons, to strike out the respective defences pursuant to O.23 R2; and did so at different times.

67. In striking out the plea of "absolute privilege" the judge was content to act on the pleadings as they stood which included, as I have noted, the defendants' concession that Stewart had conducted the preliminary investigation and had made the relevant recommendation to the Board - concessions from which, as I have noted, the defendants now wish to resile. It remains true, however, and is accepted by the current defendants that Stewart "presented the matter" to the Board at its 3 October meeting and contributed to the drafting of the relevant letters of 8 October. For my own part, as I have already said, nothing turns on these changed circumstances for the purposes of disposing of this appeal.

72. As previously stated, his Honour struck out the defendants' plea of "absolute privilege" on 20 March 1998; some 8 months before he entertained the application in respect of the "qualified privilege" plea. In doing so he took the view that the facts relevant to the question whether absolute privilege attached to the impugned publications were non-contentious, and that no other facts were necessary to determine the issue. His Honour decided to deal with the matter on a pre-trial basis because, in his view, there was "some merit in deciding the matter as a preliminary issue".

75. His Honour concluded that the impugned communications (which he described as the Smith-Bailey letter and the minuted resolution only) were not statements made in the course of proceedings which the law would regard as protected by absolute privilege. He referred to the limited categories of absolute privilege, including statements made in or in the course of judicial and quasi-judicial proceedings, and noted that the authorities recognized that the extension of absolute privilege beyond the established categories should be resisted unless the circumstances suggested it was absolutely necessary. His Honour then referred to the provisions of the Act, to which I have previously referred, and said that:

"it is apparent from the Board's minute of 3 October 1996 that it did not consider that any of Bailey's complaints constituted unprofessional conduct on the part of [Mann]."

He then referred to the last three paragraphs of the Smith-Bailey letter and said that, although the Board was bound by its charter to investigate the Bailey complaint, the Act:

"limits the person conducting the preliminary investigation to two recommendations, namely, that the investigation ... should not proceed further or that an informal or formal hearing should be held."

His Honour accordingly concluded that, in publishing the Smith-Bailey letter the Board was "not conforming with the statutory procedures it was required to observe" and that there was "no statutory mandate for advising the plaintiff to desist from using such language in any professional correspondence in the future or in telling Bailey that Dr. Mann had been so advised, or in making any comment about the plaintiff's language - other than that it did not constitute unprofessional conduct". It was his Honour's view that "the Board's decision to include those matters was beyond its statutory powers and functions" and that, in the circumstances:

"it is not necessary that statements made by the Board not sanctioned by statute be absolutely privileged. ... [and that] the public policy which requires that a citizen's reputation must be protected against defamatory statements outweighs any public policy which is said to protect a quasi-judicial Board conducting a preliminary investigation which acts outside the ambit of its statute."

Accordingly, his Honour ordered that paragraph 48 be struck out.

85. Some eight months later, his Honour was also asked to strike out paragraph 49 - the plea of "qualified privilege". His Honour acceded to that request and, in doing so, referred to that part of his former ruling to which I have referred in the concluding part of the previous paragraph. He said that it was "these observations" that formed the basis of the application to strike out the defence of qualified privilege". His Honour agreed that it was "clear beyond argument" that the Board had a duty to notify Bailey of the outcome of his complaint as that was a "matter of common interest to the Board and Bailey". However, because the matters published in the Smith-Bailey letter did not confine themselves to the matters limited by s.25 of the Act, the Board had exceeded the privilege afforded to it because the "interest or duty" which it might have had in communicating with Bailey did not extend to making comments reflecting adversely upon Mann's conduct; such comments being extraneous and irrelevant to the privileged occasion. His Honour referred to passages in the oft-cited decision of the House of Lords in Adams v. Ward.[1] In his Honour's view the defamatory imputations contained in the Smith-Bailey letter went beyond the occasion protected by the privilege. Rather they were:

"unnecessarily extraneous and not ... appropriate to the ... occasion."

Accordingly he struck out paragraph 49. In doing so he ruled that it was not necessary to "await evidence at a trial" because the circumstances surrounding the publication of the impugned documents were not in dispute and that "it is simply a matter of applying the law to the particular communications". Accordingly, his Honour ruled that it was "palpably unarguable" that the defence of qualified privilege could apply to those parts of the letter which reflected upon the conduct of the respondent.

91. On 5 February 1999 this Court (Brooking and Phillips, JJ.A.) gave leave to the appellants to appeal from each of his Honour's orders dated respectively 20 March 1998 and 16 November 1998. Leave, in each case, was limited to appealing against the orders striking out the defences of absolute privilege and qualified privilege and the consequential orders for costs.

94. It was contended on behalf of the appellants that his Honour had erred in striking out the defendants' plea of absolute privilege. In the course of what he described as his "second-string" argument, Mr. Ruskin, senior counsel for the appellants, submitted that his Honour had applied the wrong test in determining the application and had wrongly treated the application as one where all the relevant facts were admitted or accepted and that no other facts were necessary in order to dispose of it. He submitted that the question whether the Board's response to Bailey attracted absolute privilege was not "palpably unarguable", and that was the test which his Honour should have applied.[2] In support of these submissions, Mr. Ruskin contended that it would, or might, be open to the appellants to lead evidence at the trial tracing the history of the practices followed by the Board in responding to complainants, which practices had been shaped by criticism from the Ombudsman following complaints to him in 1988. Such evidence, Mr. Ruskin submitted, was relevant to show the necessity to extend absolute privilege to publications in the nature of those which were the subject of the respondent's claim.

97. As I have indicated, these arguments were only faintly pressed before us and, in the unusual circumstances of this case, they should not be allowed to prevail. The application to the judge was made more than two years ago and, although no one has been able to inform us of the precise manner in which it proceeded before the judge, it appears likely that the parties had been content to argue the point on the basis that all the necessary facts were before the court. It appears from what we have now been told that it was only after the judge had published his ruling that the appellants raised for the first time the matters to which I have referred, in the course of asking the judge to re-open his findings. When that was refused, the appellants were content to accept the ruling for a period of eight months, and it was only after their defence of qualified privilege had been struck out that they sought to challenge it. Quite apart from the fact that, in my view, the type of evidence to which Mr. Ruskin adverted, would have no relevant bearing upon the issue of absolute privilege, it would not be appropriate for this Court to entertain a ground of appeal which is inconsistent with the manner in which the application was argued before the judge.

100. The appellants' primary argument to this Court was that, on the assumption that the judge was right in regarding himself to be in as good a position to resolve the issue of absolute privilege as the judge at trial would have been, his conclusion that such privilege did not exist was erroneous. Counsel submitted that when regard is had to the nature of the functions and powers invested by the Act in the Board when investigating complaints made against medical practitioners alleged to have engaged in unprofessional conduct, it is clear, and the judge should have found, that absolute privilege attached to any communication made in the course of such investigations. The submission, as I understood it, was that the duties and powers imposed and conferred by the Act upon or in the Board to investigate complaints are "indivisible" and prescribe a "total process" which may result in the Board imposing sanctions upon medical practitioners after a formal hearing. It cannot be denied, counsel contended, that absolute privilege would be attracted to communications made in the course of a formal hearing and that, because a preliminary investigation of a complaint is a necessary step along the path to a formal hearing, a communication made in or following a preliminary investigation is clothed with the same privilege as would attach to one made in the course of a formal hearing.

103. For my own part, I find these submissions unpersuasive. The occasions in respect of which the law will accord absolute privilege to the publication of defamatory statements are limited. It has always accorded such a privilege to statements made in the course of proceedings in established courts of justice, whether such statements are made by witness, counsel, judge or juror, notwithstanding that the statements are made honestly or maliciously, or are the product of anger, spite or ill-will. It extends to oral statements, documents tendered in evidence, or allegations made in pleadings.[3] Over the years the law has recognized that a similar privilege attaches to the proceedings of certain bodies and tribunals of a quasi-judicial nature, which exercise functions similar to those of established courts of justice.[4] Thus it has recognized that absolute privilege attaches to the proceedings of the disciplinary committee of the Law Society of England and Wales[5]; to the proceedings of the disciplinary committee of the Law Institute of Victoria[6]; to proceedings before the Benchers of the Inns of Court[7]; and to proceedings before a board of inquiry into police malpractices.[8] It is said that absolute privilege attaches to the proceedings of such bodies by reason of necessity in the sense that it is necessary that the persons involved in the proceedings be able to discharge their duties freely and without fear of civil action.[9] But extension of the categories of the occasions to be afforded absolute privilege has been resisted unless its necessity has been demonstrated.[10] In Mann v. O'Neill at 264-5, Kirby, J. expressed the basis for according absolute privilege to the activities of the arms of government, and the reasons for a reluctance to expand them, in this way:

"6. This much is common to the categories of absolute privilege which are undoubted. They relate to essential communications within the legislative, executive, judicial and quasi-judicial activities of government which are strictly necessary for the effective performance by those organs of government of their functions. There must be a special need in them to ensure the fearlessness of expression and to remove the risk of litigation such as to attract a protection which deprives an individual who is defamed by malicious falsehood of any right of redress and effectively puts the communication beyond the ordinary sanctions of the law. 7. When so explained, it will be understood why absolute protection or immunity is still regarded as wholly exceptional and why the courts, which uphold the rule of law, are unsympathetic to its expansion."

107. It is apparent from the authorities to which I have referred that, in determining whether communications made during the course of proceedings in "quasi-judicial" tribunals will attract absolute privilege, much will depend upon the constitution of the particular tribunal, upon its functions and powers and upon the procedures which it employs; and whether, in the light of those factors, there is a compelling need in the particular instance to ensure fearlessness and freedom of expression of all kinds at the expense of the protection of individual reputation. It would, I think, be difficult to resist the conclusion that communications made in the course of a "formal hearing" into alleged misconduct of a medical practitioner, and conducted by a panel of the Board in accordance with Division 3 of Part 3 of the Act, would attract absolute, rather than limited, privilege. Such proceedings are adversarial in nature; require conformity with rules of procedural fairness; are conducted in public; entitle representation; and carry the potential for significant sanctions.[11]

110. Counsel for the appellants accepted these principles, but contended that the proper application of them in this case should have led the judge to the conclusion that the publications complained of were covered by absolute privilege. In this regard, it should be noted that counsel, like the judge, did not draw any distinction between the three publications, but concentrated his argument towards the publication of the Smith-Bailey letter, no doubt because the relevant "publication" of that letter is capable of being readily identified. Counsel submitted that the judge should have concluded that the publication of that letter was absolutely privileged because, whilst not published in the course of disciplinary proceedings which themselves would attract such privilege, it was so closely connected with them that it is necessary to extend the privilege to it to maintain the integrity of those proceedings. In support of this contention, counsel relied upon the decision in Hercules v. Phease and Anor[12], in which the Appeal Division of the Supreme Court concluded that a letter of complaint, directed to the Secretary of the Law Institute of Victoria, by a solicitor's client about the conduct of the solicitor was absolutely privileged. By parity of reasoning, counsel submitted that the Smith-Bailey letter - being a response by the Board advising the complainant that it did not propose to further investigate his complaint - was so closely interwoven with the Board's quasi-judicial processes which attracted absolute privilege that it, too, attracted the same privilege.

113. 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.

116. For these reasons, I am of the view that his Honour was correct to conclude that the defence asserted in paragraph 48 was unarguable, and accordingly I reject this ground of appeal.

121. In contrast to the view which I have formed about his Honour's ruling in respect of absolute privilege, I am persuaded that his ruling, made in November 1998, in which he concluded that the defendants' claim of qualified privilege was "palpably unarguable", is erroneous.

124. As with the issue of absolute privilege, the argument below and in this Court with respect to qualified privilege focussed on the Smith-Bailey letter, it being accepted that if that letter was published upon an occasion of limited privilege, then the other impugned publications must attract the same privilege.

127. It was not in contest between the parties, and his Honour found, that the Smith-Bailey letter was published in pursuit of the Board's duty and a "common interest" which existed between the Board on the one hand and the complainant, Bailey, on the other. The Board had a relevant duty or interest to advise Bailey that it was not proposing to further investigate his complaint; and Bailey had an interest in receiving the Board's advice to that effect. However, it was his Honour's view that the limited privilege which the law would attach to a communication written and received in these circumstances was defeated because the privileged occasion did not extend to the making of comments derogatory of Mann which, in his Honour's view, were entirely irrelevant to the privileged occasion. The matters contained in the letter which were said to be irrelevant were the following:

(a) "The Board believes that you had valid reason to feel aggrieved at the conduct of Dr. Mann particularly in regard to the intemperate language used in various exchanges of correspondence with you";

(b) "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 the payment of his fees, whilst justifiably irritating, was at worst in all the circumstances an impudent act on the doctor's part"; (It is said by the appellants, although it is of no present concern, that the word "impudent" was a mis-typing of the word "imprudent".)

(c) "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 paragraphs (a) or (b) ...";

(d) "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 his correspondence with you did nothing for the reputation of the profession. However the Board determined that, while you had valid grounds for being aggrieved by it, it stops short of amounting to unprofessional conduct ...";

(e) "Dr. Mann, however, was advised not to use such language in professional correspondence in the future."

133. His Honour said, in the course of his ruling, that the letter should have "confine(d) itself to the limited matters authorized by s.25" of the Act - namely advising Bailey that the preliminary investigation had not revealed any "unprofessional conduct". He referred to and incorporated into his reasons certain statements which he had made in his earlier ruling; namely that there was "no statutory mandate" either for advising Mann to desist from using particular language or for "telling Bailey that Mann had been so advised"; or for "making any comment about [Mann's] language other than that it did not constitute unprofessional conduct". His Honour went on to state that the Board was obliged to inform a complainant of its decision "in a manner consistent with the Act and without reference to those matters" and that "its decision to include those matters was beyond its statutory powers and functions". In conformity with this view that the limits of the privileged occasion were to be equated with a proper interpretation of the Board's statutory powers, his Honour concluded that the Smith-Bailey letter - and Stewart's recommendation to the Board - "consist partly of matters relevant to the privileged occasion and partly of matters that are not germane or relevant to it and which are unnecessary (sic) extraneous and not reasonably appropriate to the privileged occasion and not authorized by the [Act]".

136. In the course of his ruling, his Honour referred to the apparent differences of view which exist in the authorities, as to whether the qualified privilege, which would otherwise attach to an occasion, is defeated (wholly or partly) by the introduction of irrelevant and defamatory material[14]; or whether the introduction of such irrelevant and defamatory material is merely evidence from which an inference may be drawn that the defendant was actuated by express malice.[15] It has been said that, if the privilege can be defeated too readily by an over zealous analysis of the relevance of the impugned words, then the grant of privilege to such occasions will quickly become illusory[16]. In truth, however, there is no difference of view between the authorities on this issue. Rather, the courts have construed the test of relevance in a liberal fashion and have taken the view that where the statement has any reference to the subject matter of the privilege, or is "in any way pertinent or germane" to the occasion giving rise to the privilege, defamatory excesses in the publication will only be evidence of malice.[17] In Nevill v. Fine Arts and General Insurance Company Ltd[18], Lord Esher, M.R. put the matter in this way (at 170):

"But when there is only an excessive statement, having reference to the privileged occasion and which, therefore, comes within it, then the only way in which the excess is material is as being evidence of malice. In none of the cases on the subject, so far as I know, has it been held that the privilege is taken away when there has been such an excessive statement, unless the jury has found that there was malice."[19]

Thus, a defamatory statement will only be "irrelevant" so as to fall outside the scope of the privilege, if it is "not fairly warranted by any reasonable occasion or exigency"[20], or is "not in any reasonable sense germane to the subject matter of the occasion" in the sense of being "foreign and totally unconnected matter"[21]; or is "unconnected with the theme" of the occasion.[22] In Guise v. Kouvalis[23], Dixon, J. put the matter thus:

"If [an occasion of privilege arises] then unless the words complained of were so foreign to the occasion that they must be held extraneous or irrelevant, the rest is all matter for the jury."

It was against the background of these authorities that Lord Diplock made his observation in Horrocks v. Lowe[24] that:

"the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could be shown to be irrelevant to the fulfilment of the duty or the protection of the right upon which the privilege was founded." (my emphasis)

144. Applying the principles to which reference has been made, the appellants submitted that the judge was in error in concluding that the defence of qualified privilege was "palpably unarguable" and that it was "not necessary in reaching this conclusion to await evidence at the trial". In support of his submission, counsel contended that the ultimate resolution upon the question of the scope of the privileged occasion was one of mixed fact and law which was not suited to a "strike-out" application but should abide the consideration of evidence in respect of the factual sub-stratum on which the privilege is said to be based. In any event, counsel submitted, his Honour's conclusion that the alleged defamatory matters were so extraneous and foreign to the occasion as to defeat the privilege was manifestly erroneous and based on incorrect principles.

147. On the other hand, the respondent contended that this Court should not interfere with his Honour's conclusion. He submitted that it was so manifestly clear that Bailey's complaint did not raise an issue as to his professional conduct that the Board had no "jurisdiction" to investigate it and that, even if it did, it was beyond the scope of the Board's privilege to inform Bailey of matters which were defamatory of him [Mann], to the point of telling Bailey that he [Mann] was "almost guilty", of unprofessional conduct. The respondent submitted that the scope of any privileged occasion which existed between the Board and Bailey was limited to advising Bailey that the Board did not propose to further investigate the complaint because it was not satisfied that the conduct complained of amounted to "unprofessional conduct" within the meaning given to those words by the Act.

150. For my own part, I agree with the appellants' counsel that the judge was wrong, in the circumstances, to strike out the defence of qualified privilege on the grounds that it was "palpably unarguable". There was nothing about the plea of qualified privilege that suggested that it was "palpably unarguable" or that it was an abuse of the court's process.[25] On the contrary it seems to me that it was a plea which, in the circumstances of this case, was clearly arguable both as to fact and law. It has often been said that the width of the principles governing qualified privilege for defamation makes it necessary, in deciding whether and how they apply in a particular case, to make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relation of those concerned and of the events leading up to and surrounding the publication.[26] In this case, where it was not in dispute that an occasion of qualified privilege arose in respect of the Board's advice to Bailey, a determination of the scope of that privilege may well be influenced by evidence concerning the practices of the Board, and the expectations of the public and medical practitioners alike which have contributed to those practices. But, whether this is so or not, it seems to me that it was premature and wrong for the judge to strike out the appellants' defence of qualified privilege on a preliminary application; and to have done so on the basis that there was no need to "await evidence at trial". It was a matter which should have been left to the trial judge to determine after all the evidence was in.

153. 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.

156. Accordingly, I am of the view that his Honour was wrong to have struck out paragraph 49 of the appellants' defence. In conformity with these reasons, I would dismiss the appeal against his Honour's order striking out the defence of absolute privilege; and allow the appeal against his order striking out the defence of qualified privilege.

161. In my opinion the appeal against the order striking out the defence of absolute privilege should be dismissed and the appeal striking out the defence of qualified privilege should be allowed for the reasons stated by the President.

166. I have had the advantage of reading the draft judgment of the learned President and I agree that, for the reasons there given, the appeal should be disposed of in the manner proposed by his Honour.

[1] [1917] A.C. 309, especially at 318, per Lord Finlay, L.C.; at 320-1 per Earl Loreburn; at 329 per Lord Dunedin; and at 334 per Lord Atkinson.

[2] Dey v. Victorian Railway Commissioners [1949] HCA 1; (1949) 78 C.L.R. 62 at 91-2, per Dixon, J.

[3] Mann v. O'Neill [1997] HCA 28; (1997) 191 C.L.R. 204 at 211 per Brennan, C.J., Dawson, Toohey and Gaudron, JJ.).

[4] O'Connor v. Waldron [1935] A.C. 76 at 81 per Lord Atkin.

[5] Addis v. Crocker [1961] 1 Q.B. 11.

[6] Hercules v. Phease and Anor.[1994] 2 V.R. 411.

[7] Lincoln v. Daniels [1962] 1 Q.B. 237.

[8] Bretherton v. Kaye & Winneke [1971] VicRp 12; [1971] V.R. 111.

[10] Gibbons v. Duffell [1932] HCA 26; (1932) 47 C.L.R. 520 at 528, per Gavan Duffy, C.J., Rich and Dixon, JJ., and 534, per Evatt, J.; Mann v. O'Neill at 213.

[11] See and compare Allbutt v. General Council of Medical Education & Registration (1889) 23 Q.B.D. 400 at 409-10, per Lopes, L.J.; Lincoln v. Daniels per Devlin, L.J. at 255-6.

[13] [1905] UKHL 1; [1905] A.C. 480.

[14] cf. Adam v. Ward [1917] A.C. 309 at 318, per Lord Finlay, L.C.; at 320-1 per Earl Loreburn; at 339-40 per Lord Atkinson; Dunford Publicity Studios Ltd. v. News Media etc. Ltd. [1971] N.Z.L.R. 961 at 968.

[15] Horrocks v. Lowe [1975] A.C. 135 at 151 per Lord Diplock; Gatley on Libel & Slander, 9th Ed. (1998) at para 14.59; Fleming on Torts, 8th Ed. at 576-7.

[16] Horrocks v. Lowe, per Lord Diplock at 151; Cooke & Anor. v. Wood, Court of Appeal, unreported, 11 December 1997, per Charles, J.A. at 11-12.

[18] [1895] 2 Q.B. 156.

[19] See also Davies v. Snead (1870) 5 L.R.Q.B. 608 at 611, per Blackburn, J.

[20] Toogood v. Spyring, [1834] EngR 363; 1 C.M.& R. 181 at 193-4 per Parke, B.

[21] Adam v. Ward at 348, per Lord Shaw of Dunfermline.

[22] Watts v. Times Newspapers Ltd [1997] Q.B. 650 at 671 per Hirst, L.J.

[23] [1947] HCA 13; (1947) 74 C.L.R. 102 at 118.

[25] Dey v. Victorian Railway Commissioners at 91-2, per Dixon, J.

[26] Guise v. Kambelis at 116, per Dixon, J.; London Association for Protection of Trade v. Greenlands Ltd [1916] 2 A.C. 15 at 23, 26 per Lord Buckmaster, L.C.