CITATION: Lucire v Parmegiani [2010] NSWDC 115 HEARING DATE(S): 15 December 2009; 14 April 2010
JUDGMENT DATE:
28 May 2010JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: (1) Plaintiff’s claim for defamation in paragraph 2 to 3 of the Statement of Claim dismissed.
(2) Defendant’s application for summary judgment concerning the injurious falsehood claim in paragraph 4 and the Fair Trading Act claim in paragraph 5 of the Statement of Claim dismissed.
(3) Defendant’s application to set aside costs order of 15 December 2009 dismissed.
(4) Defendant pay 2/3 of the plaintiff’s costs of these proceedings other than the 15 December 2009 costs.
(5) Matter stood over for further directions to Friday 11 June 2010 at 9:00am.CATCHWORDS: TORT - medical practitioner brings proceedings for defamation, injurious falsehood and misleading or deceptive conduct - application for summary judgment - NSW Medical Board seeks leave to intervene - whether publication made on an occasion protected by absolute privilege - whether claims for injurious falsehood and misleading or deceptive conduct should be struck out LEGISLATION CITED: Defamation Act 1974 (NSW), ss 17-19
Defamation Act 2005 (NSW), s 27 and Schedule 1, clause 15
Defamation (Medical Practitioners) Amendment Act 1987 (NSW)
Fair Trading Act 1987 (NSW), s 42
Health Care Complaints Act 1993 (NSW)
Health Legislation Amendment (Complaints) Act 2004 (NSW), Schedule 1, clause 37
Interpretation Act 1987 (NSW), ss 33 and 34
Legal Aid Commission Act 1979 (NSW)
Medical Practice Act 1987 (NSW), s 47
Medical Practice Act 1992 (NSW), ss 36, 39, 43, 189 and 196
Medical Practice Amendment Act
Medical Practice Amendment Act 2008 (NSW), Schedule 1, clause 4 and 18
Medical Practitioners Act 1938 (NSW), s 50
Trade Practices Act 1975 (Cth), s 52CASES CITED: Agusta Pty Limited v Provident Capital Limited [2008] NSWCA 234
Ballina Shire Council v Ringland (1994) 33 NSWLR 680
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238
CAL (No 14) Pty Ltd (t/as Tandara Motor Inn v Motor Accidents Insurance Board and Scott [2009] HCA 47
Cabassi v Vila (1940) 64 CLR 130
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Cretazzo v Lombardi (1975) 13 SASR 4
Cumberland v Clark (1996) 39 NSWLR 514
Darker v Chief Constable of The West Midlands Police [2000] UKHL 44; [2001] 1 AC 435; [2000] 4 All ER 193; [2000] 3 WLR 747
Derbyshire County Council v Times Newspapers Ltd [1993] AC 534
Foley v Radford [2008] NSWDC 167
Ford v Nagle [2004] NSWCA 3
Griffith v Australian Broadcasting Corporation (No 1) [2007] NSWSC 711
Griffiths v Ballard [2005] NSWSC 1530
Jones v Kaney [2010] EWHC 61 (QB); [2010] All E R (D) 131 (Jan)
Joyce v Sengupta [1993] 1 All E R 897
Kaplan v Go Daddy Group Inc [2005] NSWSC 636
Kowalczuk v Accom Finance (2008) 252 ALR 55; [2008] NSWCA 343
Kwang Suk Ra v Nationwide News Pty Ltd [2009] FCA…
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Details
- AGLC
- Lucire v Parmegiani [2010] NSWDC 115
- Case
- [2010] NSWDC 115
- Decision Date
CaseChat Overview and Summary
In the case of Lucire v Parmegiani, the plaintiff, a medical practitioner, initiated legal proceedings against the defendant, Parmegiani, asserting claims of defamation, injurious falsehood, and misleading or deceptive conduct under the Australian Consumer Law. The proceedings were brought before the Supreme Court of New South Wales. The plaintiff argued that the defendant's publications about him were defamatory, injurious to his professional reputation, and constituted misleading or deceptive conduct. The defendant applied for summary judgment on the injurious falsehood and Fair Trading Act claims, and sought to have the defamation claim dismissed. Additionally, the New South Wales Medical Board sought to intervene in the case to defend the defendant’s position on the absolute privilege of the publication.
The court had to determine whether the defendant's publications were made on an occasion protected by absolute privilege, and if not, whether the plaintiff's claims for injurious falsehood and misleading or deceptive conduct should be struck out. The court examined whether the circumstances surrounding the publication qualified for absolute privilege, considering the context and purpose of the communication. In reaching its decision, the court considered whether the publication was made in a context where absolute privilege applied, such as in judicial proceedings, legislative proceedings, or in the course of a statutory duty. The court also evaluated the merits of the plaintiff's claims for injurious falsehood and misleading or deceptive conduct, assessing the nature and impact of the defendant's publications on the plaintiff's professional reputation.
The court dismissed the plaintiff’s claim for defamation, finding that the statements were made on an occasion protected by absolute privilege. However, the court denied the defendant’s application for summary judgment on the injurious falsehood and Fair Trading Act claims, ruling that there were sufficient grounds for these claims to proceed to trial. The court also rejected the defendant's application to set aside a previous costs order. The court ordered that the defendant pay two-thirds of the plaintiff's costs for these proceedings, excluding the costs from the previous order. The matter was stood over for further directions, to be reconvened on a specified date.
The final orders of the court included dismissing the plaintiff’s defamation claim, denying the defendant's application for summary judgment on the injurious falsehood and Fair Trading Act claims, rejecting the defendant's application to set aside the costs order, and directing the defendant to pay two-thirds of the plaintiff's costs. The matter was stood over for further directions to be determined at a later date.
The court had to determine whether the defendant's publications were made on an occasion protected by absolute privilege, and if not, whether the plaintiff's claims for injurious falsehood and misleading or deceptive conduct should be struck out. The court examined whether the circumstances surrounding the publication qualified for absolute privilege, considering the context and purpose of the communication. In reaching its decision, the court considered whether the publication was made in a context where absolute privilege applied, such as in judicial proceedings, legislative proceedings, or in the course of a statutory duty. The court also evaluated the merits of the plaintiff's claims for injurious falsehood and misleading or deceptive conduct, assessing the nature and impact of the defendant's publications on the plaintiff's professional reputation.
The court dismissed the plaintiff’s claim for defamation, finding that the statements were made on an occasion protected by absolute privilege. However, the court denied the defendant’s application for summary judgment on the injurious falsehood and Fair Trading Act claims, ruling that there were sufficient grounds for these claims to proceed to trial. The court also rejected the defendant's application to set aside a previous costs order. The court ordered that the defendant pay two-thirds of the plaintiff's costs for these proceedings, excluding the costs from the previous order. The matter was stood over for further directions, to be reconvened on a specified date.
The final orders of the court included dismissing the plaintiff’s defamation claim, denying the defendant's application for summary judgment on the injurious falsehood and Fair Trading Act claims, rejecting the defendant's application to set aside the costs order, and directing the defendant to pay two-thirds of the plaintiff's costs. The matter was stood over for further directions to be determined at a later date.
Orders
Orders of the court
(1) Plaintiff’s claim for defamation in paragraph 2 to 3 of the Statement of Claim dismissed.
(2) Defendant’s application for summary judgment concerning the injurious falsehood claim in paragraph 4 and the Fair Trading Act claim in paragraph 5 of the Statement of Claim dismissed.
(3) Defendant’s application to set aside costs order of 15 December 2009 dismissed.
(4) Defendant pay 2/3 of the plaintiff’s costs of these proceedings other than the 15 December 2009 costs.
(5) Matter stood over for further directions to Friday 11 June 2010 at 9:00am.
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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