More on absolute privilege and lawyers and clients: Hercules v Phease

In “Whistleblowers and the Law of Defamation: Time for Statutory Privilege?” [2005] 3 Web JCLI, David Lewis cites More v Weaver [1928] 2KB 520 as authority for the general proposition that lawyer-client communications are absolutely privileged, that is, that they may not be sued upon in defamation. I have not read the case to check out that assertion, but someone else has noted the proposition was doubted by Lord Atkin in Minter v Priest [1930] AC 588.
The leading case on absolute privilege and lawyers and clients in Victoria is Hercules v Phease [1994] 2 VR 411, a decision of the Full Court of the Supreme Court of Victoria. In the latest High Court case on absolute privilege, Mann v O’Neill (1997) 191 CLR 204, Gummow J obligingly provided a little case note:

‘The plaintiff in Hercules v Phease sued his former clients for defamation in respect of statements in complaints they made against him to the Secretary of the Law Institute of Victoria. The complaints were made pursuant to a statutory provision which empowered the Secretary to investigate such complaints and refer the matter to a hearing before the Solicitors’ Board, the institution by statute primarily responsible for hearing complaints against solicitors in respect of professional misconduct. The legislation laid down detailed procedures for the conduct of hearings and for the bringing of appeals to the Supreme Court of Victoria where the practising certificate of a solicitor was cancelled, suspended or refused.

The Appeal Division of the Supreme Court held that the complaints were absolutely privileged. Fullagar and Ormiston JJ did so on the footing that the complaints were properly to be characterised as the initiating process for proceedings in a quasi-judicial tribunal, the complaint being an essential step in setting a motion in process which could end in the Supreme Court itself. …

The third member of the Appeal Division in Hercules v Phease, Marks J, reached the same result but on a somewhat different footing to Fullagar and Ormiston JJ. His Honour emphasised that the elaborate procedure prescribed by the legislation for dealing with complaints appeared to ensure that they would fairly be considered from the point of view of complainant and solicitor [at 423]. He also stressed what was identified in a number of United States decisions as the public interest in encouraging those with knowledge of dishonest or unethical conduct on the part of lawyers to come forward to the body charged with investigation of such complaints [at 416-418]. In Wiener v Weintraub [239 NE 2d 540 at 541 (1968)], the Chief Judge of the New York Court of Appeals (Fuld CJ) said:

“If a complainant were to be subject to a libel action by the accused attorney, the effect in many instances might well be to deter the filing of legitimate charges.”‘

In Mann v O’Neill, Brennan CJ, Dawson, Toohey, and Gaudron JJ observed:

‘it was held in Addis v Crocker [[1961] 1 QB 11] that absolute privilege attached to proceedings of the disciplinary committee of the Law Society of England and Wales. More recently, it was accepted in Hercules v Phease that proceedings of the disciplinary committee of the Law Institute of Victoria are absolutely privileged. So, too, it was accepted in Lincoln v Daniels [[1962] 1 QB 237] that disciplinary inquiries by the Benchers of the Inns of Court are absolutely privileged, notwithstanding that they are not authorised by statute [[1962] 1 QB 237 at 249-250, 253-255, 269] and that their procedures differ in material respects from those of a court [at 250].

Lincoln v Daniels is significant in another respect. It was held in that case that privilege did not attach to a letter of complaint forwarded to the Bar Council, for the letter did not initiate proceedings before the Benchers. Indeed, it was pointed out by Danckwerts LJ that the Bar Council and the Benchers of the Inns of Court were distinct 1962] 1 QB 237 at 269-270], the Bar Council being “no more than an investigating body, without … any judicial or quasi-judicial functions or any disciplinary powers”. However, the Bar Council functioned “as a clearing house for complaints against members of the Bar”, and, apparently for that reason, Devlin LJ expressed the view [at 257] that “as a practical matter, it would be much more convenient if the same degree of privilege were extended to the investigatory proceedings of the Bar Council as to those of the [Benchers].” This notwithstanding, necessity did not require that course and, thus, it was held that absolute privilege did not attach to the complaint in question.

Many professions now have complaint procedures to ensure observance of professional standards, with complaints leading to or, at least, having the potential to lead to disciplinary proceedings. Often, the procedures provide for the complaint to be referred for investigation and allow the person or body charged with investigation to determine whether or not disciplinary proceedings will result. Assuming for present purposes that such proceedings are quasi-judicial, two questions arise. The first is whether a particular communication is a complaint for the purpose of those proceedings, a question which arose in Teletax Consultants Ltd v Williams [[1989] 1 NZLR 698]. The second is whether, given that disciplinary proceedings will not automatically follow, the complaint is a step in those proceedings. That was the question in Hercules v Phease.

Where, as in Hercules v Phease, the complaint is part of an established procedure which must be set in motion if it is to result in disciplinary proceedings, the complaint is properly regarded as a step in those proceedings even if disciplinary proceedings will not necessarily eventuate. In that situation, the complaint is “incidental [to the proceedings], and necessary for [them]” [Gatley on Libel and Slander, 8th ed (1981), par 412].’

Note: footnotes omitted and substituted, sometimes abbreviated, with parenthesised text.

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