No absolute privilege for doctor complaint: Lucire v Parmegiani [2012] NSWCA 86

A personal injury claim was heard in the District Court of NSW in July 2008.

Dr Yolande Lucire, a psychiatrist, gave evidence for the plaintiff while the Crown’s expert, Dr Julian Parmegiani sat and listened. On hearing her evidence Dr Parmegiani became concerned. So concerned that a couple of weeks later, he wrote a letter to the NSW Medical Board. He wrote this:

“I understand that it is now an obligation of medical practitioners in NSW to report flagrant breaches of standards of professional practice or competence….. I was retained by the Crown Solicitor’s Office as an expert witness in a personal injury matter. The plaintiff’s solicitors engaged Dr Yolande Lucire, specialist psyhiatrist, to prepare an expert opinion. The matter was Mohammed Bohsali v State of NSW.

The hearing was held in the NSW District Court on 14 July 2008. I was called to give evidence at 2pm….. I arrived at the requested time and sat in the court while that Dr Lucire finished giving her sworn evidence. Her opinion was based on her unusual beliefs about side effects of psychotropic medication. While I am concerned about Dr Lucire’s professional standards, and unnecessary costs to society as an expert witness, her behaviour in court was of greater concern.

Dr Lucire was asked on repeated occasions whether the NSW Medical Board had placed conditions on her registration. Each time Dr Lucire denied it. In essence, Dr Lucire not only displayed a disregard for the NSW Medical Board, but she committed perjury, a criminal offence.”

Ultimately, the letter was not referred by the Medical Board to the Medical Tribunal and although the Health Care Complaints Commission investigated it, that investigation was terminated around 1 month later. Dr Lucire sued Dr Parmegiani for defamation, injurious falsehood and misleading or deceptive conduct in trade or commerce. In legal parlance, this is called “the hamburger with the lot”.

The defendant (Dr Parmegiani) asserted defences that included absolute privilege, under s.27 of the Defamation Act, claiming that the letter came within one of the bases for absolute privilege, in that it was published in the course of proceedings before an Australian tribunal or on an occasion specified in Item 15 to Schedule 1 of the Act. That occasion had to be:

“… namely to the NSW Medical Board for the purpose of assessment or referral of a complaint or other matter or the holding of any inquiry….”

The question was this: is a letter of complaint one that is published to the NSW Medical Board “ for the purpose of assessment or referral of a complaint”? The District Court judge said yes, it was. Absolute privilege applied to the letter. Defamation claim dismissed. Simple. Not so….

The plaintiff (Dr Lucire) appealed. At the Appeal, the Medical Council of NSW got leave to intervene and the appeal was heard before 5 judges. Justice Nicholas wrote the main judgment (to which all of the judges agreed) and allowed the appeal. The problems for the defendant were essentially these:

  • the Medical Practice Act provided that the Board was only to act as a clearing house for complaints. It could basically refer the complaint to the Medical Tribunal or the Health Care Complaints Commission for investigation. That was all. It had no power to investigate and had no quasi-judicial function.
  • the law is very restricted in the circumstances where absolute privilege ought to be allowed;
  • the Act distinguished between processes within an investigation that had commenced and the letter of complaint, at which time no assessment or referral had commenced; and
  • in any event the relevant legislation gave qualified privilege to the person who wrote the letter of complaint. The author simply needed to act in good faith (s.47 Medical Practice Act, s.96 Health Care Commission Act) and then the author had a defence to any defamation claim.

Justice McCallum also added that Item 15 said nothing about the making of a complaint, but only covered the publications once the investigation or referral had started. No absolute privilege under the Defamation Act or at common law.

So the plaintiff is able to run her claim, but no doubt that the defendant will seek to rely on qualified privilege once the trial comes around.