A recent Court of Appeal decision in a defamation claim has considered the defence of absolute privilege under section 27(2)(d) and Schedule 1, clause 15 of the Defamation Act 2005 (NSW), and the good faith protections for complainants under the Health Care Complaints Act 1993 (NSW) and the former Medical Practice Act 1992 (NSW).

Facts

Mr Scott Hunter and Dr Benjamin Hanson were neighbours and the relationship was not amicable. The antagonism stemmed from a long-running dispute involving the use of a Crown Road running through Mr Hunter’s property. Dr Hanson and his partner were entitled to and did use the road to access their property.12 The catalyst for the defamation proceedings were two letters dated 5 February 2010 and 28 March 2010 (the letters) which Mr Hunter wrote and sent to the former NSW Medical Board (Board) and the NSW Health Care Complaints Commission (HCCC) concerning Dr Hanson.

It was common ground at the trial that the two letters conveyed defamatory imputations and that those imputations were false. Among the imputations conveyed in the first letter were that Dr Hanson was “so unprofessional that he breached standards of professional practice, that he was so unethical that he deliberately misused and exaggerated a patient’s medical condition for his own gain, that he was so mentally unstable that he was not competent to practice medicine, that he had committed perjury, a criminal offence, made false complaints to the police and was so delusional that he had a mental illness and/or a manic disorder”.13 The second letter conveyed imputations that Dr Hanson was “so vindictive that, in retaliation for the first letter he had made a false complaint to the NSW Police and that he was so unethical and unprofessional that he used his medical status to make a false diagnosis of [Mr Hunter].”14

Primary defamation proceedings

Dr Hanson commenced defamation proceedings against Mr Hunter. At the District Court trial, Mr Hunter did not plead any positive defence and the only issue at trial was whether by virtue of the nature of the publications to the HCCC and the Board, Dr Hanson could not have suffered any loss or damage. Mr Hunter argued the HCCC and the Board were legally bound under statute to keep the letters confidential, and in any case the letters were not believed or given any credence by those bodies.

During the trial Mr Hunter obtained leave to plead a defence of triviality under section 33 of the Defamation Act 2005 (NSW) (Defamation Act). In making out the defence of triviality, it was submitted on behalf of Mr Hunter that it was clear the complaints to the HCCC and the Board lacked bona fides, and there was no objective factual support for the complaints. The majority of the matters complained about had “nothing whatsoever” to do with Dr Hanson’s practice as a medical practitioner. The complaints were characterised as “a self-evident case of abuse by a disgruntled neighbour about a dispute over access to neighbouring land…” and “…a vexatious complaint devoid of any substance in fact made by a disgruntled neighbour”.15 The HCCC had dismissed the complaints within three months of them being made.

The defence of triviality was rejected and the trial judge awarded $50,000 damages plus aggravated damages in the sum of $10,000, and interest in the amount of $8,000. The total damages award was $68,000. In awarding aggravated damages, the trial judge said “there can be no other view open to the Court except that [Mr Hunter’s] conduct was lacking in bona fides, was improper and is unjustifiable”.16

Mr Hunter appealed. An application for leave to appeal was required because the damages were under $100,000.

Court of Appeal

In the Court of Appeal Mr Hunter attempted to raise two further defences to the defamation claim, that of absolute privilege under section 27 and Schedule 1, clause 15 of the Defamation Act, and the defence of good faith under section 47 of the Medical Practice Act 1992 (NSW).

The Court of Appeal dismissed Mr Hunter’s application for leave to appeal. The Court of Appeal refused to permit Mr Hunter to raise defences of absolute privilege or good faith on appeal, when these defences had not been raised at the trial. The Court of Appeal nevertheless made comment on each of the defences.

Absolute privilege defence

In Lucire v Parmegiani17 the Court of Appeal held that the defence of absolute privilege under the Defamation Act, so far as it concerned complaints to the former Board, was confined to communications made for the purpose of dealing with a complaint once made, but not the complaint itself. The Court of Appeal decided that Mr Hunter should not be able to rely on the protection of absolute privilege under section 27 and Schedule 1 of the Defamation Act for the first time on appeal. The Court of Appeal then expressed the view that neither of the complaint letters would be protected by absolute privilege, based on the decision of Lucire v Parmegiani. A further, more pragmatic reason not to allow the absolute privilege defence to be raised, was that the matters in the letters largely were not within the remit of the HCCC. In large measure, the complaints related to the road issue rather than the professional conduct of Dr Hunter. The line as to what was or what was not within the remit of the HCCC was not a matter that should be addressed on appeal for the first time.

Good faith defence

The proposed good faith defences were also raised for the first time on appeal.18 This was diametrically opposed as to how the trial was run by Mr Hunter, and inconsistent with the findings made by the trial judge. In support of the defence of triviality at the trial, Mr Hunter had submitted that his letters lacked any bona fides and his complaints had little to do with Dr Hanson’s practice as a medical practitioner, were vexatious, and included false allegations.

Mr Hunter’s counsel in the Court of Appeal submitted that honesty of purpose, or good faith is presumed and it was for Dr Hanson to displace that presumption. The Court of Appeal was not attracted by that submission. Though it was not necessary to decide the matter, the Court of Appeal said that Mr Hunter would bear the evidentiary burden to establish he had acted in good faith when making the complaints to the Board and to the HCCC, in order to attract the immunity. This had not been done at the trial, in fact, the opposite had been argued, to support the defence of triviality.

Damages

With respect to the damages awarded, the Court of Appeal considered that they were not manifestly excessive. The trial judge was dealing with implications which attacked Dr Hanson at the core of his professional and personal reputation. Further, although the publication of the letters was limited, they were conveyed to persons responsible for Dr Hanson’s future as a medical practitioner, and additionally Dr Hanson had had to disclose the letters to his professional association and possibly to his insurer.

Comment

The case is a clear illustration of a vexatious complaint which should never attract the good faith protections under section 96 of the Health Care Complaints Act 1993 (NSW), or the current section 237 of the Health Practitioner Regulation National Law 2010 (NSW). It provides clear guidance of the type of complaint which can easily be characterised as not made in good faith. The case also affirms previous authority of Lucire v Parmegiani that there is no defence of absolute privilege under the Defamation Act for individuals who make complaints to the Board. This principal is likely to apply to complaints made to the HCCC and to the NSW Medical Council.

Dr Hanson was successful in bringing his defamation suit. The complaint made against him was not made in good faith. It can be expected that other examples of complaints that are dismissed by the HCCC may arise. Such complaints may well be made in good faith, but the complainant may nevertheless be subjected to a defamation suit. The complainant will bear the onus of proving they acted in good faith, as it will not be presumed.

12 Hunter v Hanson [2014] NSWCA 263 at [1]
13 Hunter v Hanson [2017] NSWCA 164 at [14]
14 Ibid at [15]
15 Ibid at [18]
16 Ibid at [19]
17 [2012] NSWCA 86
18 Those defences are contained in section 96 of the Health Care Complaints Act 1993 (NSW), and section 47 of the former Medical Practice Act 1992 (NSW) (repealed).  The good faith protection previously in the Medical Practice Act 1992 (NSW) is preserved in section 237 of the Health Practitioner National Law 2010 (NSW).