Akbari v State of Queensland & Anor [2022] QCA 74 (2022) 10 QR 613; (2022) 405 ALR 384

SUPREME COURT OF QUEENSLAND CITATION: Akbari v State of Queensland & Anor [2022] QCA 74 PARTIES: BABAK AKBARI (applicant/appellant) v STATE OF QUEENSLAND (MACKAY HOSPITAL AND HEALTH SERVICES) (first respondent) PAUL HENDERSON (second respondent) FILE NO/S: Appeal No 7175 of 2021 Appeal No 7696 of 2021 DC No 2538 of 2020 DIVISION: Court of Appeal PROCEEDING: Application for Extension of Time/General Civil Appeal ORIGINATING COURT: District Court at Brisbane – [2021] QDC 87 (Muir DCJ) DELIVERED ON: 10 May 2022 DELIVERED AT: Brisbane HEARING DATE: 17 November 2021 JUDGES: McMurdo and Mullins JJA and Callaghan J ORDERS: 1. Grant leave to appeal. 2. Allow the appeal. 3. Set aside the orders made in the District Court on 26 May 2021 and 19 July 2021. 4. Order that pursuant to s 32A of the Limitation of Actions Act 1974 (Qld), the limitation period in respect of the appellant’s cause of action for defamation against the respondents be extended, so as to expire on 8 September 2020. 5. Dismiss the cross-application for leave to appeal filed on 7 July 2021. 6. Order the respondents to pay the appellant’s costs of the proceedings in this Court. 7. Order that there be no order as to costs of the application in the District Court. CATCHWORDS: LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – OTHER -- 1 of 19 -- 2 CAUSES OF ACTIONS AND MATTERS – where the second respondent made a notification about the appellant to the Office of the Health Ombudsman under s 141 of the Health Practitioner Regulation National Law (Qld) (“the National Law”) – where the Australian Health Practitioner Regulation Agency (“AHPRA”) commenced an investigation into the appellant as a result of the notification – where the appellant discussed commencing defamation proceedings against the first and second respondents with his then solicitor – where the appellant understood that solicitor’s advice to be that he should wait to commence defamation proceedings until after the finalisation of the AHPRA investigation – where, after the finalisation of the AHPRA investigation, the appellant sought to commence defamation proceedings – where the appellant was time-barred from commencing defamation proceedings by the operation of s 10AA of the Limitation of Actions Act 1974 (Qld), which provides that an action for defamation must not be brought after the end of one year from the date of publication of the material complained of – where the appellant applied under s 32A of the Limitation of Actions Act 1974 (Qld) to extend the limitation period – whether in the terms of s 32A(2) of the Limitation of Actions Act 1974 (Qld) it was reasonable in the circumstances for the appellant to have commenced an action in defamation within one year from the date of publication – whether the limitation period should be extended DEFAMATION – PRIVILEGE – ABSOLUTE PRIVILEGE – STATEMENTS MADE IN JUDICIAL PROCEEDINGS – where the second respondent made a notification about the appellant to the Office of the Health Ombudsman under s 141 of the National Law – where an absolute privilege attaches to all statements made in the course of judicial proceedings and quasi-judicial proceedings – where a notification to the Office of the Health Ombudsman can be characterised as part of a quasi-judicial proceeding – where an absolute privilege only attaches to statements in quasi-judicial proceedings when it is indispensable to the effective performance of official functions – where s 237 of the National Law provides a qualified privilege to a person who, in good faith, makes a notification under the National Law – whether an absolute privilege is demonstrably necessary for the operation of the regime created by the National Law – whether the notification made by the second respondent is protected by an absolute privilege Health Ombudsman Act 2013 (Qld) Health Practitioner Regulation National Law (Qld), s 237 Limitation of Actions Act 1974 (Qld), s 10AA, s 32A Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176, considered Clarke v Fenn [2018] NSWDC 336, cited -- 2 of 19 -- 3 Joukhador v Network Ten Pty Ltd (2021) 283 FCR 1; [2021] FCAFC 37, applied Lucire v Parmegiani & Anor [2012] NSWCA 86, considered Mann v O’Neill (1997) 191 CLR 204; [1997] HCA 28, applied Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50, considered Nyoni v Pharmacy Board of Australia (No 6) [2018] FCA 526, considered Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175, considered Spedding v Dailymail.com Australia Pty Ltd [2018] NSWSC 1963, cited COUNSEL: P J McCafferty QC, with H Clift, for the applicant/appellant H L Blattman, with M A Windsor, for the first and second respondents SOLICITORS: Stone Group Lawyers for the applicant/appellant Crown Law for the first and second respondents [1] McMURDO JA: The applicant, Dr Akbari, commenced employment as a locum psychiatrist at Mackay Base Hospital in early March 2019. He reported to the second respondent, Dr Henderson, who was the hospital Senior Medical Officer in Psychiatry. Soon afterwards, on 22 March 2019, Dr Henderson told Dr Akbari that his employment at the hospital was terminated in consequence of a letter of complaint from junior doctors at the hospital about Dr Akbari’s performance. [2] On 4 April 2019, Dr Henderson made a notification to the Health Ombudsman, pursuant to s 141 of the Health Practitioner Regulation National Law (Qld) (the National Law). This resulted in an investigation by the Australian Health Practitioner Regulation Agency (AHPRA). Dr Akbari was informed of the investigation in May 2019, by a letter from AHPRA which told him that he was not to contact Dr Henderson, or the relevant patients and their medical teams, and that he was not to disclose information which had been provided to him in the course of the notification process. [3] As soon as this letter was received from AHPRA, Dr Akbari’s insurer, MDA National, instructed a solicitor to act on his behalf in the investigation. That solicitor, Mr Attenborough, acted until late October 2019, when for reasons which are not apparent, he was replaced by another solicitor, Mr Davidson. Mr Davidson’s firm provided AHPRA with Dr Akbari’s written response to the AHPRA investigation. [4] It was not until 26 June 2020 that AHPRA told Dr Akbari that its investigation was complete, and that AHPRA would take no further action against him. AHPRA said that it was evident that no attempt had been made by the hospital or Dr Henderson to independently investigate or substantiate the concerns which had been raised prior to Dr Akbari’s dismissal. [5] A few days later, on 30 June 2020, Dr Akbari consulted another firm of solicitors about commencing defamation proceedings against the hospital and Dr Henderson. It was then that Dr Akbari became aware that there was a limitation period of one year, running from the date of the publication of which complaint was to be made, which was the notification by Dr Henderson to the Health Ombudsman made on 4 April 2019. -- 3 of 19 -- 4 [6] On 15 July 2020, a Concerns Notice was sent, to which there was a response on about 23 July 2020. A claim and statement of claim were filed on 7 September 2020, and an application to extend the limitation period was filed on the same date. [7] The application was heard by Muir DCJ over two days. In a reserved judgment, her Honour dismissed the application.1 This is an application for leave to appeal against that judgment. [8] The application to extend the limitation period was made under the then terms of s 32A of the Limitation of Actions Act 1974 (Qld). In the terms of s 32A(2), the primary judge was satisfied that it was not reasonable in the circumstances for Dr Akbari to have commenced an action in relation to the matter complained of within one year from the date of the publication, and her Honour therefore extended the limitation period. However she decided that the period should be extended only to a date which preceded the commencement of the proceeding, upon the basis that the claim was bound to fail because under the common law the respondents enjoyed an absolute privilege in relation to the publication. [9] Dr Akbari argues that the judge erred in law in holding that there was an absolute privilege. The respondents argue that her Honour was correct in that respect, and further contend that Dr Akbari’s application should have failed for the further reason that the judge was wrong to be satisfied on the threshold question under s 32A(2). [10] For the reasons that follow, in my respectful opinion the judge was correct in her conclusion under s 32A(2), but was wrong to hold that there was an absolute privilege. The limitation period should have been extended to the date on which the proceeding was commenced. The threshold question under s 32A [11] This application had to be decided under the terms of s 32A, as it was prior to its amendment last year by the Defamation (Model Provisions) and Other Legislation Amendment Act 2021 (Qld). Section 32A provided: “32A Defamation actions (1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action. (2) A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in s 10AA to a period of up to 3 years from the date of the publication. (3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2). (4) An order for the extension of a limitation period, and an application for an order for the extension of a limitation period, may be made 1 Akbari v State of Queensland & Anor [2021] QDC 87 (Judgment). -- 4 of 19 -- 5 under this section even though the limitation period has already ended.” (Emphasis added.) [12] The case for Dr Akbari was that it was not reasonable for him to have commenced an action within the limitation period, because he had received advice from his then solicitor, Mr Attenborough, that he should not commence defamation proceedings against the respondents until after the AHPRA investigation was completed. Dr Akbari’s evidence included the following: “I recall speaking with Mr Attenborough on the telephone about the notification to AHPRA being defamatory and that we should be commencing proceedings against them. I recall speaking to him about this in the first few weeks after Moray & Agnew were engaged to act for me. I recall him saying to me words to the effect that “You are under investigation. Starting a separate legal action against them would certainly jeopardise your defence and undermine AHPRA’s authority”. I understood the effect of his advice to be that I should not commence a defamation proceeding until AHPRA’s investigation had finished.” [13] However that evidence was contested. The respondents relied upon evidence from Mr Attenborough, which was supported by his file note of what seems to have been the relevant consultation. The file note was extracted by the judge in the Judgment. It recorded that Dr Akbari asked Mr Attenborough whether he could sue for defamation, and that Mr Attenborough told him that he was instructed by Dr Akbari’s insurer only in respect of the AHPRA investigation. He noted that Dr Akbari considered that “MDA has to cover it”, to which Mr Attenborough had said that he would raise the issue with MDA. Mr Attenborough’s note included the following: “I noted, in passing, that defamation proceedings are very expensive and very difficult to pursue, particularly in circumstances where the ‘defamation’ has occurred in the context of a notification and that the National Law provides some immunity from suit to notifiers. The member was not particularly interested and said that he does not care, they need to be sued. The member also said that he is writing a book, he is going to write articles to SBS and is also going to be in touch with reporters from ABC, Channel 7 and Channel 9. I spent considerable time counselling him and advising him that pursuing those things now would not be a wise event, as it would only likely inflame the situation with the regulator. In my view it would be far better to resolve the regulatory proceedings and then give thought to whether not those things are really necessary at the end of the process. The member eventually and reluctantly agreed.” [14] The primary judge noted Mr Attenborough’s concession in his evidence that he had had “extensive discussions” with Dr Akbari about the possibility of a defamation claim. [15] As the judge noted, Mr Attenborough promptly wrote to MDA National, raising the question of whether it would fund Mr Attenborough’s firm to act in the defamation -- 5 of 19 -- 6 proceedings which Dr Akbari wished to commence. Her Honour noted that there was no evidence of a response from the insurer. [16] Her Honour’s relevant findings were as follows: “[48] There is not a great deal of difference between the plaintiff’s and Mr Attenborough’s evidence of what was said over the phone on 25 June. The real point of distinction is that the plaintiff contended that Mr Attenborough counselled him to wait for AHPRA’s investigation to come to an end before he tried to take any legal action against the Hospital. Mr Attenborough denied that he advised the plaintiff not to commence a defamation claim until the AHPRA investigations were completed. His evidence was that the reference in the file note to having spent a “considerable time counselling him (the plaintiff) and advising him that pursuing those things now” would not be wise, was a reference to writing a book and going to the media. [49] I prefer and accept Mr Attenborough’s evidence that he did not tell the plaintiff to wait for the AHPRA investigation to finish before commencing defamation proceedings, for three main reasons. First: Mr Attenborough was not engaged to act for the plaintiff in any defamation proceedings. But he was faced with a distressed and agitated client who was obviously wanting to progress such a claim. Quite reasonably and as the file note reflects, Mr Attenborough told the plaintiff it was a matter between the insurers and the plaintiff but that he would raise the issue of cover with MDA Insurance. True to his word, Mr Attenborough did this in the 27 June letter. Secondly: The plaintiff was distressed and agitated during (and after) the phone call and it is reasonable to infer as I do, that the plaintiff was not listening carefully to what Mr Attenborough was saying. Thirdly, the fact that Mr Attenborough expressed a general cursory view that defamation proceedings would be difficult to pursue because the National Law potentially offered some or complete immunity from suit, must be considered in the context that he was not engaged to act for the plaintiff in relation to any such proceedings. Fourthly, Mr Attenborough’s evidence is consistent with his file note and the 27 June letter. [50] This finding does not mean that I reject the plaintiff’s evidence on this issue. It is reasonable to infer, as I do, that the plaintiff honestly but mistakenly understood the effect of his conversation with Mr Attenborough on 25 June to mean that he should not commence a defamation claim until the AHPRA investigation was finalised. This finding is consistent with what in fact happened. That is, as soon as he was notified that the AHPRA investigation was finalised (on 27 June 2020) the plaintiff took steps (on 30 June 2020) towards commencing the defamation proceedings. (Footnote omitted.) … -- 6 of 19 -- 7 [53] The objective (and largely uncontroversial) facts concerning the 25 June phone conversation between the plaintiff and Mr Attenborough are, I find, as follows: (a) Mr Attenborough tried to talk to the plaintiff about the AHPRA investigation but the plaintiff was more interested in talking about the defamation proceedings. The plaintiff told Mr Attenborough that he should send a very strong letter objecting to the actions of the Hospital and that it was basically a “defamation claim” as there were a “lot of lies and fabrication” by the Hospital; (b) The plaintiff was both anxious and concerned to commence defamation proceedings against the defendants and he demanded Mr Attenborough commence such proceedings; (c) Mr Attenborough was not engaged to act for the plaintiff in any defamation proceedings and he told the plaintiff this. He also told the plaintiff that he would follow up the insurer about whether cover would be afforded to cover the proceedings; (d) Mt Attenborough told the plaintiff that defamation proceedings would be very expensive and may be difficult to pursue because the National Law provided some immunity from suit to notifiers; (e) The plaintiff told Mr Attenborough that he was writing a book, he was going to write articles for SBS, and he was also going to be in touch with reporters from ABC, Channel 7 and Channel 9. Mr Attenborough counselled the plaintiff that: to pursue “those things” would not be wise and would only likely inflame the situation with the regulator; and it would be far better to resolve the regulatory proceedings and then give thought to whether or not those things were really necessary at the end of the process. The plaintiff agreed to this approach; and (f) The plaintiff was a highly emotional, agitated and distressed non-lawyer, inflicted by obvious deteriorating mental health issues, who was fixated by the notification and concerned about vindication. [54] I find that the plaintiff was mistaken about the advice he understood he had been given by Mr Attenborough namely that he should not commence defamation proceedings until after the AHPRA investigation. I also find that he mistakenly relied upon this advice. But upon an objective consideration of all of the facts as outlined in the preceding paragraph, I am satisfied that the plaintiff’s mistake about and reliance on the (mistaken) advice was not an unreasonable one in the circumstances.” (Footnotes omitted. Emphasis added.) -- 7 of 19 -- 8 [17] The respondents do not challenge those findings.2 Upon those findings, her Honour was satisfied that it was not reasonable for Dr Akbari to have commenced proceedings within time.3 [18] It is submitted for the respondents that her Honour erred by applying a subjective test rather than the objective test which was required by s 32A(2). They do not challenge the judge’s conclusion that the receipt of legal advice may be a relevant circumstance, acknowledging that this is supported by the judgment of McCallum J (as she then was) in Spedding v Dailymail.com Australia Pty Ltd.4 The applicant in that case was advised by counsel not to commence proceedings for defamation until after the conclusion of related criminal proceedings. Justice McCallum rejected a submission that the objective test under the equivalent provision in New South Wales, required the Court to undertake its own assessment of the reasonableness of commencing an action in that circumstance, and that the advice which the applicant had received was irrelevant to the Court’s assessment. Her Honour said that “the fact of the advice received by Mr Spedding (whether sound or not) is clearly a relevant factor”, and that he “was entitled to act on the advice received and it would not have been reasonable to do otherwise.” [19] As the respondents submit, the present case is different, in that Dr Akbari did not act upon the advice which had been given by the solicitor, but rather upon the advice which he understood to have been given. The respondents acknowledge that the fact and content of the advice was a relevant circumstance under s 32A(2), but it was a circumstance which was adverse to Dr Akbari’s application. It is submitted that there is no authority for the proposition that a mistaken understanding, that certain legal advice has been given, could justify a failure to bring proceedings within time. [20] The respondents’ argument, however, overlooks the judge’s finding that Dr Akbari’s mistake was not an unreasonable one.5 The correctness of that finding is not in issue. The necessary effect of that finding is that Mr Attenborough’s advice was ambiguous, because it was capable of bearing the interpretation which Dr Akbari attributed to it. [21] The relevant facts were that Dr Akbari had been given advice which was open to the interpretation that Dr Akbari should not sue for defamation until the AHPRA investigation had run its course. It was that last finding which distinguished this case from a case of the kind described by Keane JA (as he then was) in Noonan v MacLennan,6 in saying: “The test posed by s 32A(2) is an objective one. When s 32A(2) refers to “the circumstances”, it means the circumstances as they appear objectively to the court and not “the circumstances which the plaintiff believed, however unreasonably, to exist”.” (Emphasis added.) Referring to that passage in Pingel v Toowoomba Newspapers Pty Ltd,7 Applegarth J said: “I do not interpret the judgment of Keane JA as supporting the proposition contended for by the appellant in this case, namely that the reasons why 2 Respondents’ submissions filed 10 September 2021, paragraphs 22 and 25. 3 Judgment [71]. 4 [2018] NSWSC 1963 at [36]-[37]. 5 Judgment [54]. 6 [2010] 2 Qd R 537; [2010] QCA 50 at [20]. 7 [2010] QCA 175 at [115]. -- 8 of 19 -- 9 the applicant did not commence proceedings are not relevant in determining whether it was not reasonable in the circumstances for the plaintiff to have commenced an action within time. The passage in the judgment of Keane JA upon which the appellant relies precludes reliance upon circumstances which an applicant may mistakenly and unreasonably believe to exist but which do not exist as a matter of objective fact. It does not preclude reference to an applicant’s reasons or to objective circumstances that informed those reasons.” (Emphasis added.) [22] Had Mr Attenborough’s advice been unambiguous, Dr Akbari’s interpretation of it could not have assisted him to prove his case under this provision. But that was not the position on the judge’s findings. [23] Most recently, in Joukhador v Network Ten Pty Ltd,8 the Full Federal Court (Rares, Wigney and Bromwich JJ) said of the equivalent New South Wales provision: “Relevantly, the claimant has the burden of proof under s 56A(2) to satisfy the court that, objectively, it was not reasonable in the circumstances for him or her to have commenced proceedings for defamation within one year of the publication: Noonan [2010] 2 Qd R 537 at [15]. That factual issue requires the court to examine “the circumstances” as they appear, objectively, to it, not as the claimant may have believed them to be. And, the consideration of what is reasonable in this context requires the court to have regard to the legislative intention that ss 14B and 56A express; namely, that unless it is not reasonable for the claimant to have commenced a defamation action within the one year limitation period, he or she will not be able to maintain the cause of action: Noonan [2010] 2 Qd R 537 at [20], [22]–[23]. A consideration of “the circumstances” includes the objective situation of the claimant. The question of what is not reasonable in the circumstances requires the court to evaluate all of the objective circumstances as a whole, not piecemeal. In the end, that evaluation is a question of fact, but the assessment proceeds by reference to the claimant’s position and whether, objectively, it would not have been reasonable for him or her, in light of all of the circumstances, to commence the proceeding within one year of the publication complained of.” The passage is emphasised in the respondents’ argument, apparently for its descriptions of “the objective situation of the claimant” and “the objective circumstances as a whole.” [24] Dr Akbari’s reasons for not commencing proceedings within time are relevant under s 32A(3). In Carey v Australian Broadcasting Corporation,9 Beazley JA (as she then was, and with whom McColl JA and Sackville AJA agreed) said: “Her Honour, at [45], construed s 56A as imposing an onus on a plaintiff to satisfy the court that it was not reasonable in the circumstances for him or her to bring proceedings within the limitation period. Her Honour 8 (2021) 283 FCR 1 at 11-12; [2021] FCAFC 37. 9 (2012) 84 NSWLR 90 at 100; [2012] NSWCA 176 at [55]-[57]. -- 9 of 19 -- 10 considered that s 56A did not involve the consideration of any prejudice to a defendant. Her Honour also held that s 56A did not confer a discretion. Rather, if the court was satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced the action within one year, the court was required to extend the period of time in which to bring proceedings: see Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676. The same construction has been given to equivalent provisions in other jurisdictions: see Murphy v Lewis [2009] QDC 37 at [11]-[14]; Noonan v MacLennan [2010] QCA 50; (2010) 2 Qd R 537 at [15]-[18] per Keane JA; at [30] per Holmes JA and at [48] and [58] per Chesterman JA; Rayney v State of Western Australia (No 3) [2010] WASC 83 at [41] per Martin CJ. I agree with this construction of s 56A. The statutory test does not direct attention to whether it was reasonable not to have commenced proceedings. It requires the court to be satisfied it was not reasonable to have commenced an action within one year from the date of publication of the defamatory matter. This view is consistent with the preferred view given to the section in Noonan v MacLennan. Her Honour rejected an argument advanced by the appellant that the test under s 56A was wholly objective and did not permit consideration of the plaintiff's motivations or thought processes during the one-year period. In support of this submission, the appellant had relied upon the statement of Keane JA in Noonan v MacLennan, at [20], that: “[20] … The test posed by s 32A(2) is an objective one. When s 32A(2) refers to ‘the circumstances’, it means the circumstances as they appear objectively to the court and not ‘the circumstances which the plaintiff believed, however unreasonably, to exist’.” Her Honour, at [48], did not accept that this passage supported the appellant's argument. Rather, her Honour considered that the phrase in s 56A: “not reasonable in the circumstances”, invited inquiry into the plaintiff's reasons for not commencing proceedings within the limitation period. Her Honour accepted that to describe the test as objective meant that a person could not bring themselves “within the test by proving only a subjective belief that it was not reasonable to bring the proceedings”. I consider that this is the correct approach to s 56A.” [25] I respectfully agree with the analysis which is consistent with the authorities in this Court. [26] Section 32A(2), by its then terms, required the application of a standard of reasonableness. Clearly, that was an objective question, in that it was for the Court to assess what was not reasonable, rather than the Court acting upon what an applicant believed was reasonable. The Court was to make that judgment upon the relevant circumstances. Whether a circumstance existed was a factual question for the Court. Again, it was for the Court to find the facts, rather than the facts as the applicant believed them to have been. That is what the Court in Joukhador v Network Ten Pty Ltd meant by the “objective circumstances”. -- 10 of 19 -- 11 [27] In this case, the judge’s findings as to the circumstances are not challenged. They included the fact that the legal advice, objectively viewed, was capable of the interpretation that Dr Akbari should not sue whilst the AHPRA investigation was ongoing. [28] Once those findings are properly understood and considered together, it can be seen that the judge’s assessment on the threshold question under this provision was open and involved no error of principle. The respondents’ argument, which was formally raised by a cross-appeal, is in truth a contention that the judgment should stand for a different reason. It proceeds on an incomplete statement of the circumstances and must be rejected. An absolute privilege? [29] An absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. The privilege extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings.10 [30] An absolute privilege also attaches to statements made in the course of quasi-judicial proceedings, i.e. proceedings of tribunals recognised by law and which act in a manner similar to that in which a Court of justice acts.11 The privilege extends to members of tribunals and to advocates, litigants and witnesses, and is “no less extensive in other respects than in the case of statements made in the course of judicial proceedings.”12 [31] In Mann v O’Neill, the plurality (Brennan CJ, Dawson, Toohey and Gaudron JJ) explained the basis of the absolute privilege that applies to quasi-judicial proceedings, which is that it exists for reasons of necessity.13 Their Honours applied the statement by Gavin Duffy CJ, Rich and Dixon JJ in Gibbons v Duffell14 that absolute privilege attaches because it is “indispensable to the effective performance of … official functions.”15 In Mann v O’Neill, the plurality said:16 “Thus, it has been said that absolute parliamentary privilege arises from “inherent necessity”. And absolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process. It is necessary that persons involved in judicial proceedings, whether judge, jury, parties, witnesses or legal representatives, be able to discharge their duties freely and without fear of civil action for anything said by them in the course of the proceedings. Were civil liability to attach or be capable of attaching, it would impede inquiry as to the truth and justice of the matter and jeopardise the “safe administration of justice”. It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public 10 Mann v O’Neill (1997) 191 CLR 204 at 211-212 (Brennan CJ, Dawson, Toohey and Gaudron JJ). 11 Mann v O’Neill at 212. 12 Mann v O’Neill at 212. 13 Mann v O’Neill at 213. 14 (1932) 47 CLR 520 at 528. 15 Quoted in Mann v O’Neill at 213. 16 Ibid. -- 11 of 19 -- 12 policy. Whether or not that is so, the general rule is that the extension of absolute privilege is “viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated”. Certainly, absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged.” [32] The judge was persuaded that Dr Henderson’s notification to the Health Ombudsman was the commencement of a quasi-judicial process for which it was necessary that his publication be protected by absolute privilege, thereby providing a complete bar to Dr Akbari’s claim.17 [33] I disagree with her Honour’s conclusion essentially for the reason that the regime which is created by the National Law, operating in Queensland with the Health Ombudsman Act 2013 (Qld) is not one for which there is a demonstrated necessity of the kind that dictates that judicial proceedings are absolutely privileged.18 The absence of that necessity is demonstrated by s 237 of the National Law, which provides a privilege to a person who, in good faith, makes a notification under the Law. [34] The National Law establishes a national registration and accreditation scheme for the regulation of health practitioners.19 One of the stated objectives of the scheme is to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.20 The scheme is to be administered according to certain principles, which include that the scheme is to operate in a transparent, accountable, efficient, effective and fair way,21 and the main principle for administering the scheme is that the health and safety of the public are paramount.22 [35] Section 31 of the National Law requires provision to be made for a National Health Practitioner Board for each health profession. The functions of a National Board include the registration of suitably qualified and competent persons in that profession23 and the determination of requirements for registration,24 according to standards, codes and guidelines to be developed or approved by the Board.25 A Board is to oversee the assessment and investigation of matters referred to it by the so called National Agency,26 and to establish panels to conduct hearings about health and performance and professional standards matters.27 A further function of a Board is to refer matters about health practitioners who are or were registered under the National Law to responsible tribunals for participating jurisdictions or to the Health Ombudsman.28 17 Judgment [88]-[90]. 18 Mann v O’Neill at 213-214. 19 s 3(1)(a). 20 s 3(2)(a). 21 s 3(3)(a). 22 s 3A. 23 s 35(1)(a). 24 s 35(1)(b). 25 s 35(1)(c). 26 s 35(1)(g). 27 s 35(1)(h). 28 s 35(1)(i). -- 12 of 19 -- 13 [36] In Queensland the responsible tribunal is the Queensland Civil and Administrative Tribunal and the Health Ombudsman is the person occupying that office under the Health Ombudsman Act. The National Agency means AHPRA, which is established by s 23 of the National Law.29 The functions of the National Agency are prescribed by s 25 to include the provision of administrative assistance and support to the National Boards.30 [37] Section 141 of the National Law falls within Part 8, which is headed Health, performance and conduct. Section 141 relevantly provides: “141 Mandatory notifications by health practitioners (1) This section applies to a registered health practitioner (the first health practitioner) who, in the course of practising the first health practitioner’s profession, forms a reasonable belief that— (a) another registered health practitioner (the second health practitioner) has behaved in a way that constitutes notifiable conduct; or… … (2) The first health practitioner must, as soon as practicable after forming the reasonable belief, notify the health ombudsman of the second health practitioner’s notifiable conduct or the student’s impairment. Note. See section 237 which provides protection from civil, criminal and administrative liability for persons who, in good faith, make a notification under this Law. Section 237(3) provides that the making of a notification does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct and nor is any liability for defamation incurred. Editor’s note— This subsection is an amended Queensland provision.” [38] Section 140 defines “notifiable conduct”, in relation to a registered health practitioner, to include that the practitioner has placed the public at risk of harm by practising in a way that constitutes a significant departure from accepted professional standards. [39] By s 146(1) of the National Law, the Health Ombudsman Act applies to a notification under (amongst other provisions) s 141, as if references in that Act to a complaint or complainant were references to a notification or notifier. By s 146(2) the Health Ombudsman must deal with a notification as if it were a complaint made under part 3, division 2 of that Act. 29 Definition of National Agency: s 5. 30 s 25(a). -- 13 of 19 -- 14 [40] By s 10 of the Health Ombudsman Act, the Act is to be read in conjunction with the National Law. The Ombudsman is responsible for receiving and dealing with health service complaints (and thereby, notifications).31 By s 14 of the Act, the Ombudsman may assess a complaint (or notification) to decide the most appropriate action to take. If satisfied that there is a risk to persons and it is necessary to protect a public health or safety, the Ombudsman may take immediate action to deal with the matter by suspending or imposing conditions on the practitioner’s registration.32 The Ombudsman may investigate a matter, using the investigation powers under that Act, and prepare a report on the investigation.33 [41] The Ombudsman may refer a matter to the so called director of proceedings for a decision about whether proceedings should be taken against a health practitioner before QCAT.34 The Ombudsman may conduct an inquiry into a complaint or other matter, using the inquiry powers under the Health Ombudsman Act, and prepare a report on the inquiry.35 And the Ombudsman may refer a complaint (or notification) concerning a registered health practitioner to AHPRA,36 as occurred in this case. [42] An inquiry conducted by the Health Ombudsman is governed by part 12 of the Health Ombudsman Act. The inquiry is to be conducted according to the rules of natural justice,37 and be conducted in public except in special circumstances.38 Section 158 of that Act provides that an inquiry member has, in the performance of the inquiry member’s duties relating to the inquiry, the same protection and immunity as a judge of the Supreme Court.39 It also provides that a lawyer or other person appearing at the hearing has the same protection and immunity as a lawyer appearing for a party in a proceeding in the Court, and witnesses have the same protection as witnesses in a proceeding in the Court.40 [43] Returning to the National Law, part 8 division 5 applies to matters referred to AHPRA by the Ombudsman. Where a matter is so referred, AHPRA must immediately refer the matter to the National Board established for the health practitioner’s profession.41 The National Board must conduct a preliminary assessment of the referred matter.42 The National Board may decide to take no further action in one or more the circumstances set out in s 151(1). [44] The Board may take immediate action, such as by suspending the practitioner’s registration, in one or more of the circumstances set out in s 156. Before doing so, the Board must give the practitioner notice of the proposed immediate action and invite the practitioner to make a submission to the Board.43 31 Health Ombudsman Act 2013 s 11(1). 32 Health Ombudsman Act 2013 s 14(3). 33 Health Ombudsman Act 2013 s 14(4). 34 Health Ombudsman Act 2013 s 14(5). 35 Health Ombudsman Act 2013 s 14(8). 36 Health Ombudsman Act 2013 s 14(6). 37 Health Ombudsman Act 2013 s 154(1)(a). 38 Health Ombudsman Act 2013 s 156(1). 39 Health Ombudsman Act 2013 s 158(1). 40 Health Ombudsman Act 2013 s 158(2), (3) and (4). 41 National Law s 149. 42 National Law s 150(1). 43 National Law s 157(1). -- 14 of 19 -- 15 [45] The Board may investigate a registered health practitioner, having received a referred matter about the practitioner.44 After considering the report of an investigator, the Board must decide either to take no further action in relation to the matter, or to take action as the Board considers necessary, including, for example, referring it to a health complaints entity, for investigation or other action.45 [46] Section 236 of the National Law provides a protection from personal liability for certain persons exercising a function under the National Law. It protects them from personal liability for anything done or omitted to be done in good faith in the exercise of a function under the Law, or in the reasonable belief that the act or omission was the exercise of a function under the Law. By s 236(2), any liability resulting from an act or omission that would, but for sub-section (1), attach to a protected person attaches instead to the National Agency. [47] Section 237 should be set out in full: “237 Protection from liability for persons making notification or otherwise providing information (1) This section applies to a person who, in good faith— (a) makes a notification under this Law; or (b) gives information in the course of an investigation or for another purpose under this Law to a person exercising functions under this Law. (2) The person is not liable, civilly, criminally or under an administrative process, for giving the information. (3) Without limiting subsection (2)— (a) the making of the notification or giving of the information 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 by the person because of the making of the notification or giving of the information. (4) The protection given to the person by this section extends to— (a) a person who, in good faith, provided the person with any information on the basis of which the notification was made or the information was given; and (b) a person who, in good faith, was otherwise concerned in the making of the notification or giving of the information.” [48] The primary judge accepted that an absolute privilege would protect a person who had acted in bad faith or with malice.46 She referred to the statements in Mann v O’Neill, before saying, correctly, that “[i]t follows that the true crux of any extension of the 44 National Law s 160(1). 45 National Law s 167. 46 Judgment [77]-[79]. -- 15 of 19 -- 16 occasions to which absolute privilege attaches is the necessity in the occasion, rather than the mere existence of public interest or general analogy to judicial proceedings”.47 [49] The judge referred to Nyoni v Pharmacy Board of Australia (No 6),48 where it was held that the proceedings of the notification committee of a National Board under s 178(2) of the National Law (as it applies in Western Australia) were quasi-judicial, with the consequence that statements made by a committee of that Board were protected by absolute privilege at common law.49 A National Board is given power under s 178, if it considers the professional conduct of a practitioner is or may be unsatisfactory, to impose sanctions.50 As Siopis J there discussed, proceedings before a Board under s 178 of the National Law fall within the description of proceedings from which will emerge a “determination the truth and justice of which is a matter of public concern”.51 Further, under s 179 of the National Law, the practitioner whose conduct is to be considered by the Board, and in respect of which a sanction may be imposed under s 178, is to be given an opportunity to make a written or verbal submission in respect of the proposed action, which the Board is required to consider.52 [50] Her Honour also referred to a decision of Gibson DCJ in Clarke v Fenn,53 where the plaintiff had been employed at a hospital as a registered nurse. Shortly after her employment was terminated, the acting director of operations of the hospital signed a notification which was referred to the Nursing and Midwifery Council of New South Wales. The Council proceeded to collect information for the purpose of dealing with the complaint, and in that context, a representative of the Council had a telephone conversation with the defendant, by which the plaintiff claimed to have been defamed. Gibson DCJ regarded the Council’s investigation as being a proceeding of a quasi- judicial nature, analogous to a proceeding under the provisions considered in Nyoni.54 [51] The primary judge accepted the respondents’ submission that in the present case, the notification, the Health Ombudsman referral and AHPRA investigation each formed part of a quasi-judicial process.55 Her Honour gave these reasons for her conclusion: “[89] First, the Notification to Ombudsman formed part of an established procedure required to set in motion the AHPRA investigation. The notification was the document initiating the investigation. Secondly, under s14 of the Health Ombudsman Act, the Ombudsman has power to investigate and either suspend or impose conditions or restrictions on the plaintiff’s right to practice. Thirdly, AHPRA also has the power to impose conditions on the plaintiff’s registration. Fourthly, documents of this type have been recognised as being covered by the privileged occasion.” (Footnotes omitted.) 47 Judgment [85]. 48 [2018] FCA 526. 49 [2018] FCA 526 [219]. 50 [2018] FCA 526 at [221]. 51 [2018] FCA 526 at [222]. 52 [2018] FCA 526 at [227]. 53 [2018] NSWDC 336. 54 [2018] NSWDC 336 at [36]. 55 Judgment [88]. -- 16 of 19 -- 17 [52] The primary judge, it seems, was not referred to the judgment of the New South Wales Court of Appeal in Lucire v Parmegiani & Anor,56 which is now emphasised in Dr Akbari’s argument.57 [53] In Lucire, the publication which was the subject of the plaintiff’s claim was a letter written about her by another practitioner, the first respondent, to the New South Wales Medical Board. A judge of the District Court had summarily dismissed the claim on the ground that the matter complained of was published on an occasion of absolute privilege, the basis of which was s 27(2)(d) Sch 1, cl 15(1)(a) of the Defamation Act 2005 (NSW). The defence pleaded the privilege by reference to item 15 of schedule 1 to that Act, as being a publication to the New South Wales Medical Board “for the purpose of assessment or referral of a complaint or other matter or the holding of any inquiry, performance review, investigation or appeal under the Medical Practice Act 1992 (NSW)”.58 Alternatively, it was pleaded, in the terms of s 27(2)(b), that the matter complained of was published “in the course of the proceedings of an Australian tribunal”.59 The primary judge in that case had held that it was a publication made for the purpose specified in cl 15(1)(a), and therefore held that the statutory defence of absolute privilege applied. However, that judge had also held that the common law provided only a defence of qualified privilege for a publication which initiated a process of complaints.60 [54] Under the then Medical Practice Act 1992 (NSW), any person could make a complaint to the Medical Board. By s 47(1)(b) of that Act, a person who made a complaint and did so in good faith, could incur no liability for defamation because of the complaint. By s 50 of that Act, the Board might respond to a complaint in several ways, including by deciding to take no further action. [55] The principal judgment was given by Nicholas J, who described the Board’s function as one of administration, acting as a clearing house for complaints made against medical practitioners.61 He noted that unlike the then Health Care Complaints Commission in New South Wales, that Board had no powers of investigation and exercised no quasi- judicial function.62 He held that there was a clear distinction between the publication of matter for the purpose of the assessment or referral of a complaint, and the publication constituted by the complaint itself. Consequently, he held that the publication was not within cl 15(1)(a) of schedule 1 to the Defamation Act 2005 (NSW).63 The alternative statutory defence, namely an absolute privilege under s 27(2)(b)(i) of the Defamation Act, was also rejected, as was the argument that there was an absolute privilege at common law. It was held that the Medical Tribunal of New South Wales, under the Medical Practice Act 1992, was a quasi-judicial tribunal, but that the jurisdiction of the Tribunal would be enlivened only if and when the Medical Board, in the exercise of its discretion, referred a complaint to it.64 56 [2012] NSWCA 86. 57 Her Honour recorded that when this question of privilege was argued before her, Dr Akbari was without legal representation: Judgment [80]. 58 [2012] NSWCA 86 [7]. 59 Ibid. 60 [2012] NSWCA 86 at [14]. 61 [2012] NSWCA 86 at [28]. 62 Ibid. 63 [2012] NSWCA 86 at [35]. 64 [2012] NSWCA 86 at [50]. -- 17 of 19 -- 18 [56] The Medical Practice Act 1992 is different from that which applied to Dr Akbari’s case. As I have discussed,65 upon receipt of a complaint (or notification) the Health Ombudsman may itself assess the complaint and decide the most appropriate action to take. There is support in a passage from the joint judgment in Mann v O’Neill for the view that in a disciplinary regime such as the National Law, an initial complaint can be characterised as “part of an established procedure which must be set in motion if it is to result in disciplinary proceedings, [such that] the complaint is properly regarded as a step in those proceedings even if disciplinary proceedings will not necessarily eventuate.”66 [57] That view, however, is not the end of the matter. The procedure in this case is that created by the National Law, operating in conjunction with the Health Ombudsman Act. The parliament has seen fit to provide a protection from liability for persons making a notification under the National Law, by enacting s 237. That is a qualified protection only, limited to persons acting in good faith. A complaint under s 141 may be properly regarded as a step in a process from which disciplinary proceedings might eventuate. But the regime under the National Law is one for which the statute by which it is created effectively provides that an absolute privilege for a notification under s 141 is unnecessary. The qualified protection provided by s 237 can be seen to be intended to strike a balance between the interests involved, as Gummow J said in Mann v O’Neill.67 [58] It is submitted that by the principle of legality, it is to be presumed that it is highly improbable that parliament meant to abrogate a common law defence of absolute privilege without expressing its intention with “irresistible clearness”, citing Saeed v Minister for Immigration and Citizenship.68 That argument cannot be accepted. Again, a common law defence of absolute privilege could not exist here without that being an indispensable attribute of the particular process created by the National Law. That is a process which the National Law has defined by, amongst other provisions, s 237. [59] The respondents also point to the statutory defence of absolute privilege under s 27 of the Defamation Act 2005, and to s 24 of that Act which expressly confirms that a statutory defence is additional to any other defence available to a defendant apart from the Act. They submit that this express statutory confirmation of the continuing operation of common law defences makes it unlikely that s 237 of the National Law “impliedly abrogates” that common law defence. Again, the common law defence does not have a demonstrable necessity for the operation of the scheme of which s 237 is an element. It should also be noted that there is no argument that s 27 itself provides the absolute privilege for which the respondents contend. [60] Her Honour did note s 237. But in her view s 237 tended to show “a parliamentary intention that this is the type of proceeding to which absolute privilege would attach.”69 As should appear, in my view that cannot be accepted. Conclusions and orders [61] The judge was correct to conclude that the limitation period had to be extended under s 32A(2). The judge was incorrect to conclude that it should be extended to a date which 65 At [39]-[41] above. 66 Mann v O’Neill at 215 citing Hercules v Phease [1994] 2 VR 411. 67 Mann v O’Neill at 249. 68 (2010) 241 CLR 252, 259 [15] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. 69 Judgment [81]. -- 18 of 19 -- 19 was before the date of the commencement of this proceeding. Her Honour did so only because she considered that the proceeding was bound to fail by the respondents having an absolute privilege at common law. [62] I would order as follows: 1. Grant leave to appeal. 2. Allow the appeal. 3. Set aside the orders made in the District Court on 26 May 2021 and 19 July 2021. 4. Order that pursuant to s 32A of the Limitation of Actions Act 1974 (Qld), the limitation period in respect of the appellant’s cause of action for defamation against the respondents be extended, so as to expire on 8 September 2020. 5. Dismiss the cross-application for leave to appeal filed on 7 July 2021. 6. Order the respondents to pay the appellant’s costs of the proceedings in this Court. 7. Order that there be no order as to costs of the application in the District Court.70 [63] MULLINS JA: I agree with McMurdo JA. [64] CALLAGHAN J: I agree with the reasons of and orders proposed by McMurdo JA. [65] His Honour has explained the form of the Health Practitioner Regulation National Law (Qld) (the National Law) and points71 to the inclusion in it of a qualified privilege. That tells against the existence of absolute privilege which, if it existed, would mean that s 237(3)(b) of the National Law was otiose. It follows that the appellant should succeed, so long as it was reasonable in the circumstances for him not to have commenced an action. [66] The learned trial judge reached that conclusion, but this has been challenged by way of a cross-appeal. This Court should, however, reach the same conclusion as her Honour. It was, with respect, the correct determination in circumstances where the appellant had in fact taken steps to vindicate his rights and engaged legal representatives to do that for him. 70 That being the outcome on costs sought by the appellant in the District Court. 71 At [57] – [60] of his Honour’s reasons. -- 19 of 19 --