Lucire v Parmegiani

Case [2012] NSWCA 86

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Lucire v Parmegiani & Anor [2012] NSWCA 86
Hearing dates:22.08.11, 16.11.11
Decision date: 20 April 2012
Before: Bathurst CJ at 1
Allsop P at 2
Beazley JA at 3
Nicholas J at 4
McCallum J at 55
Decision:

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: DEFAMATION - absolute privilege - letter of complaint to the New South Wales Medical Board - whether letter published on an occasion of common law or statutory absolute privilege - whether publication made by the making of a complaint is a publication for the purpose of assessment or referral of a complaint - whether letter originated absolutely privileged proceedings of the Medical Tribunal
Legislation Cited: Defamation Act 2005
Fair Trading Act 1987
Health Care Complaints Act 1993
Medical Practice Act 1992 (repealed)
Uniform Civil Procedure Rules 2005
Cases Cited: Gibbons v Duffell [1932] HCA 26; (1932) 47 CLR 520;
Mann v O'Neill [1997] HCA 28; (1996-1997) 191 CLR 204
Rajski v Carson (1988) 15 NSWLR 84
Category:Principal judgment
Parties: Dr Yolande Lucire - appellant
Dr Julian Parmegiani - first respondent
Medical Council of NSW - second respondent
Representation: Counsel:
G O'L Reynolds SC/S Burchett - applicant
B R McClintock SC/A T S Dawson - first respondent
K P Smark SC/S T Chrysanthou - second respondent
Solicitors:
Levitt Robinson - applicant
Holman Webb - first respondent
Crown Solicitor's Office - second respondent
File Number(s):10/159275
Publication restriction:
 Decision under appeal 
Citation:
[2010] NSWDC 115
Date of Decision:
2010-05-28 00:00:00
Before:
Gibson DCJ
File Number(s):
10/159275

Judgment

  1. BATHURST CJ: I agree with the orders proposed by Nicholas J for the reasons given by him. I also agree with the additional reasons of McCallum J.

  1. ALLSOP P: I agree with the orders proposed by Nicholas J, for the reasons his Honour gives; and I also agree with the additional comments of McCallum J.

  1. BEAZLEY JA: I agree with Nicholas J and with the additional comments of McCallum J.

  1. NICHOLAS J: This is an appeal from the judgment and orders of a judge of the District Court of New South Wales (Gibson DCJ) by which the appellant's claim for defamation was summarily dismissed on the ground that the matter complained of was published on an occasion of absolute privilege pursuant to s 27(2)(d) Sch 1, cl 15(1)(a) of the Defamation Act 2005 (the Act).

Introduction

  1. The appellant's claim arose from the publication by the first respondent on 4 August 2008 of a letter to the New South Wales Medical Board (the Board) in the following terms:

"Thank you for your letter…

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Lucire v Parmegiani [2012] NSWCA 86
Case
[2012] NSWCA 86
Decision Date

CaseChat Overview and Summary

In *Lucire v Parmegiani*, the plaintiff, Dr Lucire, sued the defendant, Mr Parmegiani, for defamation. The alleged defamation arose from a letter of complaint sent by Mr Parmegiani to the Medical Board of New South Wales concerning Dr Lucire's professional conduct. The central question before the Court of Appeal of New South Wales was whether this letter of complaint was protected by absolute privilege, thereby precluding Dr Lucire's defamation claim.

The Court was required to determine whether the occasion of the complaint to the Medical Board was one of common law or statutory absolute privilege. Specifically, the Court considered whether the publication of the letter, by way of making a complaint, was a publication for the purpose of the assessment or referral of that complaint. Furthermore, the Court examined whether the letter originated absolutely privileged proceedings of the Medical Tribunal.

The Court held that the occasion of making a complaint to the Medical Board was not one of absolute privilege at common law. While acknowledging the importance of allowing complaints to be made freely, the Court found that the common law protection of absolute privilege did not extend to the initial stage of lodging a complaint with the Board. The Court also considered the relevant statutory provisions, but ultimately concluded that they did not confer absolute privilege on the communication in question. The reasoning focused on the nature of the communication as an initial complaint rather than a part of formal tribunal proceedings.

The appeal was dismissed, with the Court of Appeal upholding the primary judge's decision that the letter of complaint was not protected by absolute privilege.

Orders

Orders of the court

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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