Readers, to ‘chuck a Hercules’ is to follow in the footsteps of Keith Hercules, solicitor, of Melbourne whose suit for defamation against the complainant in respect of the complainant’s publication of a disciplinary complaint to the Law Institute is the subject of Hercules v Phease  2 VR 411, which I noted here. (Compare Lincoln v Daniels  1 QB 237, Rajski v Carson (1988) 15 NSWLR 84, Lansley v Gaynon  NSWSC 695, and Foley v Radford  NSWDC 167.) Now one psychiatrist has has sued another for defamation, injurious falsehood, and misleading and deceptive conduct over his complaint to the Medical Board. The case is Lucire v Parmegiani  NSWDC 115. You can read the letter below, and find out about NSW’s mandatory reporting regime which requires doctors to dob each other in on pain of disciplinary sanction if they don’t.
The defamation claim was dismissed summarily by reference to a statutory absolute privilege defence. Judge Gibson suggested in dicta that the common law equivalent was of only qualified privilege, a finding which was said to be consistent with Mann v O’Neill (1997) 191 CLR 204, but apparently inconsistent with the Full Court of the Supreme Court of Victoria’s decision in Hercules v Phease, which said that the publication of a complaint about a lawyer is an occasion of absolute privilege. Mind you, the District Court’s attention does not seem to have been drawn to Hercules v Phease. The injurious falsehood claim was not summarily dismissed, because the statutory protection did not apply, and likewise the misleading and deceptive conduct claim. Judge Gibson was not even prepared to find, at this early stage of the proceedings, that the writing of the letter was not an activity in ‘trade or commerce’, suggesting that ‘the bringing of complaints has long been regarded as conduct being capable of giving rise to a cause of action under s 52 Trade Practices Act 1975 (Cth): Merman Pty Ltd v Cockburn Concrete Ltd (1988) 84 ALR 521.’
The controversial letter read as follows:
‘I understand it is now an obligation of medical practitioners in New South Wales 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 [the subject of the complaint], specialist psychiatrist, to prepare an expert opinion. …. I was called to give evidence at 2 pm … I arrived at the requested time, and sat in the court while [the subject of the complaint] finished giving her sworn evidence. Her opinion was based on her unusual beliefs about side effects of psychotropic medication. While I am concerned about [her] professional standards, and unnecessary costs to society as an expert witness, her behaviour in court was of greater concern. [She] was asked on repeated occasions whether the New South Wales Medical Board had placed conditions on her registration. Each time [she] denied it. In essence, [she] not only displayed a disregard for the NSW Medical Board, but she committed perjury, a criminal offence.’
Incidentally, the compulsory reporting procedure is to be found in s. 71A of the Medical Practice Act, 1992 which says:
‘(2) A registered medical practitioner who believes, or ought reasonably to believe, that some other registered medical practitioner has committed reportable misconduct must, as soon as practicable, report the conduct to the Board.’
‘Reportable misconduct’ is where a doctor
(a) practises medicine while intoxicated by drugs (whether lawfully or unlawfully administered) or alcohol,
(b) practises medicine in a manner that constitutes a flagrant departure from accepted standards of professional practice or competence and risks harm to some other person,
(c) engages in sexual misconduct in connection with the practice of medicine.
- More on absolute privilege and lawyers and clients: Hercules v Phease
- Special responsibilities of lawyers as litigants
- Application by appellant to remove respondent’s trial counsel from appeal dismissed
- Breach of undertakings leads to 12 month suspension for doctor
- Law Society’s conduct in Goldberg v Ng