Naidoo v State of Queensland[2017] QDC 63

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff was employed at the Gympie Hospital as a doctor in November 2008. He had trained and qualified as a medical practitioner in South Africa. He is also a qualified lawyer admitted to practice as a barrister in South Africa; and he has completed a law degree in Australia.

2. [2]
   As an overseas trained doctor, he was required by the hospital board to be supervised by a Queensland registered practitioner. At the time he commenced employment at Gympie Hospital as a Principal House Officer, (PHO), Dr Terrence Hanelt, who was the Director of Medical Services at the hospital, became his board appointed supervisor.

3. [3]
   The plaintiff became a Senior Medical Officer (SMO) in May 2009. At all material times he worked in the Emergency Department of the Hospital.^[1]

4. [4]
   On 28 January 2008, the second defendant, also an overseas trained doctor, commenced work as a PHO at the hospital predominantly in the Emergency Department. It is common ground that soon after he commenced employment she met the plaintiff at work. They had a cordial and professional relationship and did not socialise outside the workplace.

5. [5]
   On 5 April 2010, the second defendant moved to the Caboolture Hospital where she worked as a PHO until May 2011, when she returned to the Gympie Hospital.

6. [6]
   In or around July/August 2010, as a result of a dispute over an Exercise Stress Test (EST) at the Hospital, Dr Hanelt obtained opinions from the Director of Cardiology at Nambour Hospital, and a cardiologist at Prince Charles Hospital. The nature of this dispute is not relevant except to the extent that the plaintiff (apparently as a result of professional disputes about the results from this test) referred Dr Hanelt and six other doctors to the Australian Health Practitioner Regulation Agency (AHPRA) under the notification provisions of the Health Practitioner Regulation National Law Act 2009 (“the Act”). The notifications were not acted upon by AHPRA.

7. [7]
   In October 2010, the plaintiff suffered a needle stick injury in the course of his employment, as a result of which he was off work at the Hospital on sickness or other leave and/or workers compensation benefits for a lengthy period. He did return to work at Gympie Hospital in the Emergency Department for a number of shifts, but by 24 August 2012 he was no longer employed at the Gympie Hospital, but was working part-time at the Bundaberg Hospital and in a general practice in Gympie.

8. [8]
   When the second defendant returned to work at the Gympie Hospital Emergency Department in May 2011 the plaintiff was no longer there. She made enquiries and was told something about the needle stick injury. She saw him again on a couple of shifts and he was civil to her.

9. [9]
   On 24 August 2012, Mr Peter Thompson, who was then a patient of the plaintiff in his general practice, presented at Gympie Emergency without any referral letter or prior phone call from the plaintiff, and was seen at around 3.38 by the second defendant. Her notes (made at the time or soon after) indicate that she was told by the patient he had been told by his GP “to present to ED for 4 units of blood transfusion as his Hb is 87”.^[2]

10. [10]
    The second defendant accessed the patient’s hospital records, which indicated he suffered from a number of significant pathologies including anaemia. She undertook her own examination and took a current history, and undertook some tests and, by reference to the National Health and Medical Research Council Clinical Practice Guidelines on the Use of Blood Components^[3]then in force, she advised the patient that a blood transfusion was not indicated. At the request of the patient, she contacted the plaintiff by telephone and they had a conversation which is at the heart of these proceedings. After this conversation the second defendant arranged for three other SMOs (Drs Lindeman, Monk and Aung Ne) to review the patient and they confirmed her clinical decision.

11. [11]
    The patient returned to the hospital the following day and was seen by another doctor and admitted and transfused with 1 unit of blood and discharged on 27 August 2012. The patient was seen again on 11 December 2012 at the Emergency Department. The clinical notes^[4]state (relevantly) “initially he demanded he is better off to be transferred to NGH because our big boss does not like his GP (did not name names)”. This doctor (a PHO) spoke with the second defendant.

12. [12]
    On that date she forwarded a Notification to AHPRA^[5]relating to the contact with the plaintiff on 24 August 2012 and the 11 December 2012 visit by Mr Thompson. The plaintiff was made aware of the notification and, on 5 January 2013 issued a Concerns Notice^[6]to the plaintiff pursuant to s 14 of the Defamation Act 2005. A copy of Ex 1-21 is attached to these reasons and forms part of them and is marked “A”.

A brief history of the proceedings

13. [13]
    On 18 January 2013 the plaintiff commenced proceedings in the District Court at Gympie against the second defendant and “Gympie Hospital” for:

“Damages for the negligent and vexatious notification submitted to the (AHPRA), and damages for defamation, iniuria [sic] and insult to personality”.

14. [14]
    At around the same time the plaintiff commenced proceedings against Dr Hanelt and “Gympie Hospital”; generally in relation to the needle stick injury.

15. [15]
    At this time the plaintiff was representing himself.

16. [16]
    On 12 June 2013 the defendants applied (inter alia) for the plaintiff’s Claims and Statements of Claim to be struck out. That application was heard before me on 5 July 2013.^[7]As can be seen from the record of those proceedings the plaintiff acknowledged significant difficulties with his pleadings. As a result both the initial Claim and Statements of Claim in both proceedings were struck out and the plaintiff was given leave to re-plead.

17. [17]
    In relation to these proceedings, the plaintiff did re-plead excluding “injuria and insult to personality”, but adding a claim for “negligent and wrongful conduct and reprisal”. The amended pleading was again challenged by the defendants. On 1 November 2013 I struck out a number of paragraphs of the Amended Statement of Claim, effectively leaving only the claim for damages for defamation. There are also changes to the pleadings to reflect the correct legal entities being sued.

18. [18]
    It is common ground that the plaintiff obtained legal advice from a firm known as Law Essentials in late November 2013. Despite his legal qualifications, on a number of occasions I had encouraged the plaintiff to seek legal advice. On 29 January 2014, that firm filed a Notice of Appointment and an Amended Statement of Claim (ASC). In essence, that remained the plaintiff’s case at trial. The ASC was settled by counsel.

19. [19]
    The defendants had filed a number of defences. The trial proceeded on the basis of the Fourth Amended Defence (FAD) filed 2 February 2017. It raised no new issues except for those pleaded at paragraph 14(i)(A) and (i)(B).

20. [20]
    As can be seen from the court file there were many returns to court after the filing of the ASC to do with challenges by the plaintiff to costs assessments and, on 1 July 2016 an application by the defendants to dispense with the filing of a request for trial date and the plaintiff’s cross-application to amend his pleadings to reinstate the reprisal claim. By then, he was again representing himself having filed a Notice on 21 May 2015. On 1 July 2016 Judge Long, SC dismissed his application, granted the defendants’ application, and subsequently the matter was set down for trial before me for four days to commence on 6 February 2017.

21. [21]
    The parties were notified of the hearing date on 25 October 2016 by the Deputy Registrar. On or about 21 November 2016 the plaintiff paid the setting down fee of $2,938.10.

22. [22]
    On 21 December 2016 the plaintiff requested that subpoenas issue to the second defendant (to produce documents and to give evidence); Fiona Burns (at all material times a solicitor employed by the Sunshine Coast Hospital and Health Service as Legal Counsel) to produce and give evidence; and Dr Hanelt to give evidence. The subpoenas were emailed to the defendants’ solicitors by the plaintiff.

23. [23]
    On 9 January 2017 the plaintiff requested subpoenas be issued to Drs Ne Aung, Dr Frank Le Bacq, Dr Jason Lindeman (all doctors employed at Gympie Hospital Emergency Department between 24 August 2012 and 11 December 2012); and Kevin Hegarty (Chief Executive of the Sunshine Coast Health Service), and Caroline Davey (an Emergency Nurse who was the Triage Nurse on 24 of August 2012 who first saw Mr Thompson).

24. [24]
    On 23 January 2017 the plaintiff requested the issue of subpoenas to give evidence to Drs Croton and Deverill who were employed at Gympie Hospital at various times, but were no longer so employed.

25. [25]
    On 2 February 2017 I reviewed the matter. By then the defendants had made application returnable on 6 February 2017 to set aside a number of the subpoenas issued at the request of the plaintiff. The plaintiff did not appear but was represented by a solicitor from Ferguson Cannon who applied for an adjournment of the trial essentially on the basis of the new paragraphs in the FAD. I refused his application on the basis that the amended pleading did not alter the defendants’ case and did not prejudice the plaintiff.

26. [26]
    At the start of the trial, and after a short opening by the plaintiff, the application to set aside the subpoenas was heard. By then, Drs Croton and Deverill had communicated with the court.^[8]  The defendants made application pursuant to r 416 UCPR to set aside the subpoenas directed to the second defendant, Fiona Burns, Kevin Hegarty, and Drs Le Bacq, Lindeman, Ne Aung, Croton and Deverill. The defendants did not object to Dr Hanelt or Caroline Davey giving evidence and indicated that they would facilitate timetabling.

27. [27]
    Dr Hanelt had taken voluntary redundancy in 2013, and was then working part-time in Western Australia as a locum tenens. The plaintiff later withdrew subpoenas (the second defendant, Fiona Burns, Kevin Hegarty), and I set a number aside on the grounds of irrelevancy/fishing/possible ulterior motive (Drs Ne Aung, Croton and Deverill); and two remained: Dr Le Bacq and Dr Lindeman. Dr Lindeman had not been served. Ultimately the plaintiff did not seek to call either of these people as part of his case. Exhibit 31 is a copy of an email he sent to my associate at 6.31 am on 7 February 2017 which he copied to the solicitors for the defendants in which he advised that he did not intend to proceed with the subpoenas issued to Drs Hanelt and Le Bacq. Ultimately the defendants called Dr Hanelt as part of their case.

The plaintiff’s case as pleaded

28. [28]
    The notification to AHPRA made on 11 December 2012 by the second defendant is alleged to be defamatory of the plaintiff. Paragraph 16 of the ASC is in these terms:

“16.The notification made by the second defendant was defamatory, untrue in numerous respects, including that:

1. (a)
   the Plaintiff had placed the public at risk of harm because he had practised the profession in a way that constituted a significant departure from accepted professional standards;

2. (b)
   the Plaintiff was aggressive;

3. (c)
   the Plaintiff made unprovoked, inappropriate and offensive comments;

4. (d)
   the Plaintiff had engaged in negative discussions with the patient about Gympie Hospital and staff;

5. (e)
   the Plaintiff believed there was a hospital conspiracy to undermine him;

6. (f)
   the Plaintiff believed that patients referred by him would be intentionally mismanaged by the hospital staff;

7. (g)
   suggestions made by the Plaintiff to patients harmed the relationship and trust between hospital staff and patients;

8. (h)
   suggestions made by the Plaintiff to patients hindered their optimal care;

1. (i)
   there was cause for concern about the Plaintiff’s professional conduct;

10. (j)
    that the patient was a personal friend of the Plaintiff;

10. (k)
    the Plaintiff made accusations that were grossly offensive;

10. (l)
    the Plaintiff had implied that the Second Defendant would intentionally withhold treatment from a patient to spite him personally;

10. (m)
    there were serious concerns about the Plaintiff’s safe functioning as a medical practitioner;

10. (n)
    the Plaintiff’s conduct gave rise to a ground for notification.”

29. [29]
    Paragraph 18 of the ASC pleads three defamatory imputations contained in the notification:

“(a)That the Plaintiff is unfit to practice as a doctor.

2. (b)
   That the Plaintiff had placed the public at risk of harm by practising the profession in a way that constituted a significant departure from accepted professional standards.

3. (c)
   That the Plaintiff did not have a professional doctor-patient relationship with the patient concerned, that the plaintiff was a personal friend of the patient and that the plaintiff had made suggestions to the patient that affected the patient’s perception of the care that he was to receive at Gympie Hospital.”

30. [30]
    In his Reply to the Amended Defence and in response to paragraph 14 of that pleading (which except for 14(i)(A) and (i)(B), is in the same terms in the FAD) the plaintiff (at a time when he was legally represented), pleads malice:

“g.States that the Second Defendant was actuated by malice in making the notification as the Second Defendant:

iknew the information contained in the notification was untrue or was reckless as to whether the information contained in the notification was true or false; and

ii.did not have reasonable grounds to publish the notification; and

iii.published the notification with the intention of causing damage to the plaintiff; and

iv.published the notification with an improper motive.”

The defences

31. [31]
    Apart from factual disputes which will be dealt with below, the defendants have always maintained that the notification was not defamatory and did not carry any of the imputations alleged. The second defendant pleads that she had a statutory obligation to notify AHPRA under s 141 of the Act “if she formed a reasonable belief that the Plaintiff had behaved in a way that constituted notifiable conduct”. In her most recent pleading she also relies on s 145 of the Act to which reference will be made later in these reasons.

32. [32]
    She has always relied upon the statutory protection against liability for defamation contained in s 237 of the Act, and the Defences of justification (s 25 of the Defamation Act 2005), and qualified privilege (s 30).

33. [33]
    The plaintiff’s claim against the first defendant is that it is vicariously liable for the conduct of the second defendant as alleged, which has always been denied as a matter of law.

The evidence

34. [34]
    There is no dispute that in June/July 2012 Mr Thompson became a patient of the plaintiff in his general practice. The plaintiff gave evidence that on 23 August 2012 he was informed by the “blood laboratory” that Mr Thompson’s “blood levels had dropped … a significant level”. He spoke to the patient that night, and saw him at his home in Gympie on the morning of 24 August. There are some very brief notes from his clinical records relevant both to his visit on the 24^th and his contact with the second defendant that afternoon. His notes form part of his Concerns Notice in Exhibit 1 behind Tab 13^[9]. He notes that the patient’s haemoglobin level in the morning was 87 Hb. He told me in evidence that he has a very vivid memory of what he observed on the home visit. He said that the patient was “noticeably short of breath”. He recalls that the patient did not want to go to hospital. He demonstrated to Mr Thompson that his ankles were swollen, and impressed on him the need to go to the hospital. He says the patient told him he was getting chest pains. The plaintiff said that the domicillary visit occurred at around 8.00 am.

35. [35]
    The only reference in his clinical notes to the home visit is:

“Did DV this am.

Hb 87.

Referred to GGH.”

36. [36]
    Mr Thompson did not present to the hospital until 3.25 pm. As was the practice, he was assessed initially by a Senior Triage Nurse, Caroline Davey and given a priority Code 4. There is no dispute that the practice was to assign a priority code on presentation in the Emergency Department from 1 (being the most urgent to be seen immediately), to 5 (being least urgent, to be seen within two hours). Ms Davey was the only staff member from the hospital subpoenaed by the plaintiff who actually gave evidence in his case. She was aware of the patient’s anaemia and she noted^[10]he was afebrile, “Nil SOB (Shortness of Breath), and Nil Obvious problems due to Anaemia.”

37. [37]
    The second defendant saw him in the Emergency Department very soon afterwards (at 3.38), and reference is made earlier to the clinical notes.^[11]

38. [38]
    On 4 March 2015, at a time when the plaintiff was represented by Law Essentials, the solicitor for the defendant sent notices to admit facts and documents. The solicitors acknowledged receipt of the documents. There is no dispute that because the plaintiff did not give notice disputing the authenticity of the documents or the facts, he was deemed to admit the documents and facts at trial.^[12]In his affidavit filed 2 February 2017, in relation to the application to set aside some of the subpoenas, the defendants’ solicitor, Mr Kimmins deals with this topic at paragraphs 22-32. On 8 December 2016 he had made it clear to the plaintiff that his clients intended to rely upon those admissions at the trial. In his affidavit in response (filed by leave on 2 February 2017), the plaintiff still does not make any attempt to challenge the admissions, apart from saying (at paragraph 11) “there are several inconsistencies in the documents that have been discovered”.

39. [39]
    It matters little, however the facts deemed to be admitted are as follows:

“1.On 24 August 2012 Mr Peter Thompson presented at Gympie Hospital and was assessed by the second defendant.

2. On 24 August 2012, Mr Peter Thompson informed the second defendant that he had presented at Gympie Hospital on the advice of the plaintiff in order to receive a blood transfusion.

3. On 24 August 2012, Mr Peter Thompson did not provide the second defendant with any form of documented referral from the plaintiff and the plaintiff did not provide any telephone referral to the Emergency Department at Gympie Hospital.

4. At the time of assessment by the second defendant on 24 August 2012, the second defendant did not observe Mr Peter Thompson as having any of the symptoms of severe anaemia, chest pain, shortness of breath or peripheral oedema (swollen feet, ankles and legs).

5. At the time of assessment by the second defendant on 24 August 2012, Mr Peter Thompson did not exhibit any of the symptoms of severe anaemia, chest pain, shortness of breath or peripheral oedema (swollen feet, ankles and legs).

6. On 24 August 2012, the second defendant assessed Mr Peter Thompson as not having met the criteria necessary for a blood transfusion in accordance with the National Health and Medical Research Council (NHMRC)/Australasian Society of Blood Transfusion (ASBT) Clinical Practice Guidelines on the Use of Blood Components (UBC) (red blood cells, platelets, fresh, frozen plasma, cryoprecipitate) (2001).

7. On 24 August 2012, Mr Peter Thompson requested the second defendant to telephone the plaintiff.

8. On 24 August 2012, Mr Peter Thompson was reviewed by three senior medical officers other than the second defendant before being discharged.

9. The three senior medical officers agreed with the assessment of the Second Defendant.

10. The three senior medical officers were Dr Matthew Monk, Dr Aung Ne and Dr Jason Lindeman.

11. On 25 August 2012, Mr Peter Thompson was assessed at the Emergency Department of Gympie Hospital and it was considered appropriate that he receive a blood transfusion.

12. On 11 December 2012, Mr Peter Thompson was assessed at the Emergency Department of Gympie Hospital and it was considered appropriate that he receive a blood transfusion.

13. On or about 3 April 2013 the Notifications Assessment Committee for the Queensland Board of the Medical Board of Australia (QBMBA) decided to take no further action in respect of the Second Defendants notification about the Plaintiff to the Australian Health Practitioner Regulation Agency (AHPRA) as the Committee believed the matter did not relate to a ground for notification.”

40. [40]
    The clinical notes^[13](relevantly) confirm 4 above. I accept the second defendant’s evidence that when she examined Mr Peter Thompson shortly after 3.38, he denied any chest pain, shortness of breath, dizziness or bleeding from the rectum. She noted him to be alert and orientated, chatty, talking in full sentences, afebrile and other signs recorded in the notes.

41. [41]
    There was some time taken up in examination and cross-examination about the use of the blood transfusion guidelines. I accept the second defendant’s evidence that by application of those guidelines, in the light of her clinical findings and observations, it was appropriate that the patient not be transfused.^[14]I also accept her evidence that the patient presented with his son. Her clinical notes record that she was told by the patient that he had been told by his GP to present to the Emergency Department for 4 units of blood transfusion. The plaintiff accepted that he “may” have suggested that to the patient. I am satisfied that he did, as the second defendant said in her evidence, and as is recorded in the clinical note of their conversation^[15]between them that afternoon. Her note of the conversation in the clinical notes is as follows:

“Contacted pt’s GP for further information AS PER PT’S REQUEST: GP appeared frustrated; strongly feels that this pt need admission & 4u blood transfusion. Reasons cited for this : [sic]

1. “The pt has lost 25% of his blood volume in the last week”. This seems based on ‘drop of Hb from 120 to 89’ over the last week.
2. GP also concerned that pt is in acute cardiac failure as a result of his anaemia. Unfortunately, not much further information forthcoming from GP.

42. [42]
    In her evidence (and in the notification) she expanded upon her recollection of what was said, or the effect of what was said, and the plaintiff in cross-examination, apart from a number of issues to which I will turn later, finally did not dispute her recollection of the conversation. She told me that after she spoke to the plaintiff she was rattled and upset and later that evening after her shift finished she prepared a letter to AHPRA in draft form as she was then considering making a notification under the Act. The draft^[16]is in the same terms as the letter attached to the notification, except it does not include her concerns about what the patient said on 11 December 2012, and, as she saw it, the implications of what was said. Her recollection of what was said is recorded in the transcript of her evidence-in-chief.^[17]

43. [43]
    As can be seen from the transcript,^[18]the plaintiff’s recollection of the conversation is not materially different from the second defendant’s recollection except that in evidence-in-chief he did not refer to the “bust my balls” statement, but did so in cross-examination. He alleges that the second defendant was shouting initially but calmed down. She alleges that he was aggressive and dismissive in his tone with her. Her clinical notes refer to his frustration. In the draft letter to AHPRA, she refers to him being abrupt and defensive. In his Concerns Notice to the second defendant (at a time when he agreed that the details of the conversation would have been clearer), he did not refer to her shouting or being aggressive. I readily prefer her evidence as to terms of the conversation and the tone of the conversation or the attitude of the plaintiff. I reject his evidence that she shouted at him.

44. [44]
    The patient was admitted and transfused on 25 August 2012. The second defendant was not on duty on that day. The clinical notes^[19]indicate that on that day he presented at the Emergency Department at 3.20 pm and did complain of persistent headache, episodes of “intermittent chest pain over the last four hours” and “some SOB” (Shortness of Breath). The plaintiff has always maintained that the patient’s admission on that day supported his clinical assessment (at 8.00 am on the previous day), and placed a sinister pall over the second defendant’s decision not to admit him on the previous day. I comfortably accept the evidence of Dr Hanelt and the second defendant that with a patient such as Mr Thompson, his health can change very quickly over a short period of time. Even the plaintiff seemed to accept this self-evident proposition in cross-examination.

Did the second defendant consult with others about the notification?

45. [45]
    This issue is relevant to the defences pleaded and to malice. I have referred earlier to 6(g) of the Reply in which the plaintiff alleges that the second defendant made the notification maliciously. From the outset, he has asserted that she was improperly influenced to make the notification by other doctors and/or employees of the SCHHS as a reprisal against him for raising safety concerns about the hospital (the EST incident) and the complaints about the lack of CT Scanning facilities and understaffing (2009),^[20]and under-reporting of SAC1 and SAC2 events, which he referred to the CMC in 2012.^[21]It is common ground that as well as the CMC, he has made complaints to or instituted proceedings in, the Anti-Discrimination Commission and the Queensland Industrial Relations Commission, and has made a Public Interest Disclosure to Queensland Health in 2012.

46. [46]
    The second defendant, in her evidence in chief, referred to the conversation of 24 August with the plaintiff.^[22]  In accordance with the clinical notes, there was a discussion about the need for a blood transfusion in the Guideline. She said that the plaintiff’s statement that “the patient has lost 25 percent of his blood volume last week” is meaningless when referring to a patient who is not bleeding. As she notes in the clinical record “this seems to be based on drop of HB from 120 to 89 over the last week.”  She said (and I accept) that from the start, the plaintiff was abrupt and defensive. On all the evidence this appears to be, in part, a response to his constant refrain (prior to trial) that the second defendant was a junior doctor who had been promoted to an SMO position after 24 August 2012 and before the notification of 11 December 2012; which he asserted was because she was in a relationship with the Director of the Emergency Department who was then Dr Lindeman. Probably the best example of this in the evidence is in the plaintiff’s timeline.^[23]As at 24 August 2012, he notes that the second defendant was “still a junior doctor rank”; and as at 11 December 2012, he notes“been given SMO rank and in relationship with Director of ED who has to respond to SAC1/2 reportings”.

47. [47]
    He made these very serious allegations on a number of occasions, but at trial, he accepted that these allegations were based only on suspicion and rumour and, in relation to her promotion, he accepts the evidence from the second defendant that she was in fact appointed as an SMO in January 2012.^[24]In various documents prior to trial, he also asserted that she took his job at Gympie which he accepts again is a completely incorrect assumption. As Dr Hanelt explained, there were always SMO positions available at Gympie, and it was difficult to fill them with suitably qualified people.

48. [48]
    As I hope the record reveals, throughout the trial I attempted to have the plaintiff focus on the pleadings and evidence relevant to the pleadings. His cross-examination of the second defendant was very short. At one point,^[25]he told me he had no further questions and I again reminded him that he had the responsibility of proving malice.

49. [49]
    The second defendant’s uncontested evidence is that on 24 August 2012, after the telephone conversation with the plaintiff, she was angry, upset and rattled. She consulted with doctors Lindeman, Monk and Aung Ne, all of whom agreed with her clinical assessment.

50. [50]
    She was asked by Ms McMillan about the process whereby she decided to make the notification on 11 December 2012. She said that she considered make a notification on 24 August 2012, and at the end of the shift and after the end of the shift she had a conversation with Dr Lindeman. She said:

“I needed some sort of clarity as to why someone has just accused me of some sort of conspiracy, it sounded like. And I just did not understand the context behind the conversation. And I needed more information.” 

51. [51]
    She said she had a brief conversation with Dr Lindeman. He told her “Look, it’s complicated. There was something to do with a needle stick; something to do with an EST.” Later she said (in evidence in chief) that she had this conversation “towards the end of the shift” but she was never questioned about this apparent discrepancy.

52. [52]
    She told me that she prepared a draft letter to AHPRA that evening which is Exhibit 1.15. As I have noted, the letter is in the same terms as to the letter attached to the notification except for the last paragraph which related to the events of 11 December 2012. She said she told Dr Lindeman that she had “a good mind to report this to AHPRA”. She was not asked any questions about this in cross-examination. She told me that she did not have the draft when she spoke to Dr Lindeman, because it was prepared after the end of her clinical duties on that day.

53. [53]
    In her evidence in chief, she expanded further on her recollection of the conversation with Dr Lindeman. He told her words to the effect that: “Dr Naidoo has been disgruntled with the health system”. And there was “something to do with needle stick, something to do with EST– we didn’t have much of a detailed conversation of that point.”^[26]She said she had not made up her mind at that point to make a notification.

54. [54]
    She said that “over the next few days” “we did mention the same thing in passing; me expressing my unhappiness about the way the events unfolded on the 24th”. She was there referring to her later discussions (after 24 August) with Dr Lindeman.

55. [55]
    Later on, prior to 11 December 2012, she did discuss the issue with Dr Hanelt. He gave evidence that he was on leave in August/September 2012. He was Director of Medical Services at the Gympie Hospital from 8 October 2006 to 19 May 2013. It seems to be common ground that he was the “big boss” referred to by the patient on 11 December 2012.

56. [56]
    He can recall having a conversation with Dr Lindeman about the 24 August 2012 “events” concerning the patient, but cannot recall talking to the second defendant. I accept her evidence that she did speak to him to inform him that it was her intention to put in a notification. Dr Hanelt says that he was not aware of the details of the notification until he was sued by the plaintiff and served with proceedings in January 2013.^[27]That Statement of Claim was struck out in its entirety on 5 July 2013 at the same time the plaintiff’s pleading in these proceedings was struck out. I accept Dr Hanelt’s evidence.

57. [57]
    As I have noted earlier, the subpoena issued to Dr Lindeman was not served as he was on sick leave from the hospital. In his affidavit filed by leave on 6 February 2017,^[28]the plaintiff asserts that he had a telephone conversation with Dr Lindeman “in or around March 2016”, “who suggested that he had advised Dr Preety George at the relevant time that her complaint lacked substance and that she was advised against making the complaint”. In that paragraph the plaintiff goes on to say that Dr Lindeman (and others) have refused to speak to him since and have referred him to Ms Burns.

58. [58]
    The plaintiff, in many affidavits and submissions, has painted Ms Burns as some sort of Dr Strangelove, on behalf of the first defendant controlling all the professionals involved for improper purposes. Ultimately, at the start of the trial, in relation to the challenge to the subpoena he had caused to be issued to her, it seemed to be conceded by him that he wanted to ask her about the letter she wrote to him on behalf of the second defendant on 1 February 2013^[29]in response to his Concerns Notice. He seemed to accept that any communications between her as legal counsel and the second defendant were protected by legal professional privilege, but I made it clear to him that he could ask the second defendant about what he asserted were differences between the letter and the notification in cross-examination.^[30]Whether or not she claimed privilege would then be a matter for her.

59. [59]
    In her evidence the second defendant denied ever being told by either Dr Lindeman or Dr Le Bacq that there was no substance in her complaint. The plaintiff had asserted in relation to Dr Le Bacq that he has said to him something similar to what he alleges Dr Lindeman told him on this topic.^[31]As I have noted, he did serve his subpoena on Dr Le Bacq but then decided not to call him to give that evidence.^[32] 

60. [60]
    The second defendant also swore that no one encouraged her to make the notification and that it was all her own decision. She told her counsel that she had checked on the AHPRA website and understood that it was her personal responsibility to decide if there was notifiable conduct under the Act.

61. [61]
    As I have noted before, in his cross-examination of the second defendant, the plaintiff indicated to me before he had asked any questions relevant to malice that he had no further questions. When I pointed this out to him, he then asked her a number of questions about a number of topics referred to above. She told him that she did not discuss safety notifications made by the plaintiff with Dr Lindeman at all, and did not know about these issues until after her notification, and even then she only had “some sort of idea of it”. She accepted that she and Dr Lindeman “did start a relationship…at a time” but the plaintiff, in cross-examination, did not in any way attempt to relate this to the period between 24 August 2012 and 11 December 2012. She accepted in cross-examination she was “very, very angry” after her conversation with him on 24 August 2012, but did not accept that that could have clouded her judgment “as to events months later”.

62. [62]
    The plaintiff did not ask her about the letter from Ms Burns and he did not suggest any significant departure from her recollection of the conversation with him. There is not a shred of credible evidence that the second defendant made the notification on 11 December 2012 because she was improperly influenced by others, or because she would benefit herself by so doing e.g. by being promoted to a position that she had held since January 2012; or because she may have then been in a relationship with the then Director of Emergency at the Gympie Hospital.

The conduct of the plaintiff

63. [63]
    It is common ground that the second defendant published the contents of her notification to AHPRA on 11 December 2012 and to no other body or person since. It is common ground that AHPRA advised the plaintiff on 17 April 2013 that it had decided to take no further action on the notification. By then the plaintiff had commenced these proceedings. He told me he felt vindicated and relieved by AHPRA’s decision.

64. [64]
    The plaintiff has, since 11 December 2012, notified many people of the details of the publication. He notified his employers at the time, including the Director of Medical Services at Bundaberg Hospital where he then and still works. Of more significance is a course of conduct by the plaintiff which he commenced in 2016 and continued up to just prior to the trial, evidenced by Exhibits 5, 6, 7, 8, 9, 14 and 15. The plaintiff accepts that he is the author of all these documents which are either emails, Facebook postings or from a GoFundMe website created by him to assist in defraying legal costs associated with these and other proceedings involving allegations by him against Queensland Health.

65. [65]
    First in time is an email to Andre Newell, Michael Kimmins (the associate and partner with responsibility for carriage of the matter on behalf of the defence), Fiona Burns, Mark Grodivich (a lawyer from Crown Law), and Peters Crofts. Attached to the email is a document that purports to be a Directions Order in the Queensland Industrial Relations Commission, relating to proceedings in that jurisdiction between the plaintiff and the second defendant. The plaintiff accepted that the tenor of his email was threatening, and accepted that the second defendant would have felt threatened by it. The email requests all recipients forward the email to the second defendant. In the email^[33]dated 18 April 2016 the plaintiff refers to the attached Directions Order as his “intention to proceed with the course of action attached to this email”. The attachment purports to be an order signed by “Shannon Miller Registry Office For the Industrial Registry” and is dated 18 April 2016, and under the seal of the Queensland Industrial Registry. It was never suggested that this was not an authentic document. If it was not authentic it would potentially involve serious misconduct.

66. [66]
    The plaintiff certainly has not said he acted on the document. It threatens “criminal sanction risk” against the second defendant, and reports to the police and the Legal Practitioners board. It includes this extraordinary statement:

“This ridiculous rorting of tax-payers money to corrupt legal practitioners and Law Firms is disgusting. If this is how you defend medical mishaps– I pray for the population of Queensland that is subject to your evil ways, and this I say as an admitted advocate in South Africa. Your conduct, all of you– Fiona Burns especially, disgust me.” 

It ends, “Bring it on!!!!!!” and is signed “Navin Naidoo MBBCh LLB FACLM”.

67. [67]
    It is common ground that one of the recipients, Peter Crofts, is a mediator. As can be seen from the file,^[34] he was retained by the parties as a mediator on 27 July 2015 and conducted negotiations (throughout August), but the dispute was not resolved. His certificate to this effect was filed 4 September 2015.

68. [68]
    The next in time is Exhibit 8, an email dated 20 April 2016 from the plaintiff to the second defendant and copied to the earlier recipients with the exception of Mr Crofts. Again, the plaintiff accepted that this was threatening, as indeed it is, and the second defendant reasonably felt threatened by it. He threatens to report her to the police because of her refusal to “retract” the notification. He says, in part:

“Further, I warn you not to make any further reprisals against me. I intend reporting safety at Gympie Hospital to the Authorities again.

Give me my apology or retraction and I will leave you out of this personally. You are the one that has caused the current situation. I would prefer not to report you personally, but your intended departure has necessitated steps to prevent causing such damage and then running away after hiding behind bully’s.” [sic]

69. [69]
    The next in time is an email sent from the plaintiff’s iPhone to Mr Kimmins on 30 August 2016 and copied to the second defendant.^[35]Again, he threatens to report her to AHPRA “for investigation”, to “Fair Work Australia, and other statutory bodies.”  In his evidence, he accepted that the email was threatening, and I accept the second defendant’s evidence that she found it to be threatening.

70. [70]
    The email maintains a theme whereby the plaintiff wished to deal directly with the second defendant. She told me that after the 24 August 2012 telephone call, and despite a previously cordial relationship with the plaintiff, she did not want to speak to him again. Once he commenced these proceedings in January 2013 and she was represented by lawyers, he clearly knew as a trained lawyer himself (but would not accept), that he should not contact her directly.

71. [71]
    I infer that as the trial date approached, the plaintiff became increasingly obsessed about the rectitude of his case and more and more frustrated, because he could not deal directly with the second defendant.

72. [72]
    On 2 January 2017 at 12.34,^[36]he posted a lengthy statement on his Facebook page. It commences: 

“The shitstorm that’s just been started by me today------he-he-he. Next week I serve subpoenas on several senior Doctors, the in-house counsel of the Sunshine Coast Hospital and Health Service, and other senior administrators…”

73. [73]
    He calls for people who have “experienced bullying by SCHHS and Gympie Hospital”, to effectively provide a statement and appear at the trial. In the postings, he states:

“I made the statement to a doctor at Gympie Hospital– ‘Why are you busting my balls, the patient admission and a transfusion’ relating to a patient I had referred in as a general practitioner.

This was the basis of the complaint that this junior doctor started fabricating in August 2012, which then sordidly manifested as a mandatory notification in December 2012, when I was on duty as Senior Medical Officer Team Leader at Bundaberg Hospital Emergency Department. The timing was suspicious. I had made a notification to the Crime And Misconduct Commission in or around June 2012. A female junior doctor in the Gympie Hospital gets given a Senior position with great rewards, beyond which I can describe decently– however I have just come back from the Woodford Festival and it’s my birthday – so here goes, starts shagging the Director of the ED, yes– it does sound like a soap opera.” 

74. [74]
    He further states:

“Still doesnt help my nerves knowing I am going up solo against 2 of the biggest law firms in Queensland, one of whom defends paedophile priests. Must have rocks in my head, nahhh just the fact that I hate bullies. Case number is D4 / 13 Gympie District Registry, being heard in Maroochydore.” 

75. [75]
    The plaintiff agreed that some of these statements would have been extremely distressing for the second defendant. He tried to explain away all his publications as some sort of reasonable response. I have no hesitation in rejecting his evidence in that regard. This posting contains highly defamatory accusations directed inferentially at the second defendant. He accepted that his clear imputation that she made the notification to get a senior position was based on nothing more than speculation on his behalf and factually incorrect, which he accepted in his evidence. When he had the chance to question her at the trial about her relationship with Dr Lindeman and its connection with the notification, if any, he failed to do so.

76. [76]
    On 3 January 2017 at 1.20pm,^[37]he sent “a generic email to as many of my doctor, nurse, paramedic (and lawyer) colleagues past and present” in which he states: 

“I find myself in the peculiar position of having to defend my name against malicious administrators for having reported serious safety concerns at a hospital I worked at. Even though this is patently unlawful, I have not been assisted by any of the Australian Government Departments, or the courts. I am taking the State of Queensland to court for one aspect of the bullying, a vexatious notification made by a junior doctor. The vexatious notification was rubbished by AHPRA but the doctor involved, advised by the in-house counsel for the hospital group, continued to persist with this vexatious allegation.

This is a treacherous position for any doctor to be in – and we are all potential targets for this kind of bullshit. I advise you to read through all the information provided in order to possibly better prepare yourself in the event of this kind of crap happening to you.” 

77. [77]
    He accepted that in that email he provided links to his GoFundMe page, all his documents and the whole court file.

78. [78]
    Perversely, he forwarded a copy of the email to the second defendant. He also stated that “this information is distributed with the consent of the patient concerned”.

79. [79]
    Exhibit 6 is a screenshot from the plaintiff’s GoFundMe site, headed up “Fight Queensland Health Bullying”. The shot was taken on 24 January 2017. In it, the plaintiff states (in part):

“Queensland Health, with the assistance of their very expensive lawyers, have not dealt with the safety issues, but orchestrated a contrived and deliberate effort to oust me from the Gympie region. In an effort to fight against this bullying I have had to go head to head as a self represented litigant against Queensland Health, Corrs Chambers Westgarth and Crown Law.

I have sustained damages and costs of many hundreds of thousands of Australian dollars in a bid to fight the systemic bullying and have a court date set down and booked for 06.02.2017 till 09.02.2017 at the Maroochydore District Court where I act as the Plaintiff in a defamation matter against Queensland Health for a vexations [sic] mandatory notification made by Queensland Health.

I still work for Queensland Health as a Senior Medical Officer at Bundaberg Hospital and have continued to be the subject of reprisals.” 

80. [80]
    Finally, on 31 January 2017 at 9.58am,^[38]he emailed a number of the people he had subpoenaed (including Dr Le Bacq who is presently a senior doctor in the Emergency Department) with a large number of documents including the notification and his Concerns Notice and the pleadings. He also attached a copy of a document described as “Affidavit Peter Thompson 6 March 2016”. He refers again to Fiona Burns and inferentially accuses her of criminal conduct by reference to s 323 of the Criminal Code which he reproduces in the email.

81. [81]
    I agree with Ms McMillan’s submission that the plaintiff’s explanations for sending these communications are disingenuous. As a qualified lawyer, he clearly knew that it was not appropriate to communicate with the second defendant directly in the course of the litigation. I am comfortably satisfied that he was using threats and intimidation in an effort to bully her into giving into his demands in circumstances in which no rational person could reasonably have expected such a tactic to work.

The patient

82. [82]
    As I have noted above by reference to Exhibit 15, the plaintiff forwarded to the various recipients of that email an affidavit by Mr Thompson dated 2 March 2016. He refers to a sworn statement from Mr Thompson at paragraph 79 and 80 of his trial affidavit sworn and filed by leave on 2 February 2017.

83. [83]
    Mr Thompson did not give evidence and no adverse inference can be drawn against the plaintiff as a result. The only relevance of the absence of My Thompson is to his state of health when he presented to the Gympie Hospital on 24 August 2012. The plaintiff still seems to think that the patient was in cardiac failure when he saw him that morning. His notes do not refer to this and I accept that it is good medical practice to record such a provisional diagnosis if that is the honest opinion of the treating doctor. The second defendant’s examination of the patient after 3.38 pm on 24 August 2012 accorded with appropriate clinical practice, as did her decision not to transfuse Mr Thompson, a decision confirmed by three senior medical officers on the day.

84. [84]
    At the heart of the plaintiffs’ grievances about the notification (as expressed at the time of his Concerns Notice) was what he perceived to be the challenge to his professional opinion that his patient did need a transfusion that day. The clinical signs and tests at the hospital indicated to the contrary. The next day he was admitted and transfused with 1 unit (not 4 units) of blood and discharged on 27 August. As the second defendant said in her evidence (reasonably in my view), there is nothing remarkable in this as a patient with this history may change from day-to-day or even during a day. The fact that there are no notes to support what the plaintiff now says were clear signs of cardiac failure on the morning of the 24th; the fact that when he presented that afternoon, both to the triage nurse, and to the second defendant, there were no such signs, strongly suggest that either:

1. (a)
   the patient did not have the signs in the morning, and the only concern was the haemoglobin drop; or

2. (b)
   he did, but the signs had ameliorated by the time he reported to hospital after 3.00pm.

85. [85]
    I certainly comfortably conclude that the plaintiff never said anything to the second defendant on 24 August 2012 suggestive of cardiac failure. The important finding for these purposes is the one I have made and that is, the second defendant acted reasonably and in a clinically sound way in her dealings with the patient on 24 August 2012. As Ms McMillan points out, the plaintiff (apparently relying on what he had been told by the patient) maintained in his Concerns Notice that neither the patient nor his son (who was with him at all material times) actually saw the second defendant on 24 August 2012, a fact that he now accepts to be untrue.

The defamatory imputations

86. [86]
    Given that there is now no real dispute about what was said on 24 August 2012 between the plaintiff and the second defendant or that she made the notification on 11 December 2012 in terms set out in Exhibit 1-21, I now turn to the pleaded defamatory imputations.

87. [87]
    In Grattan v Porter [2016] QDC 202 I wrote at [69]: 

“[69]Determination of what is conveyed by words (in this case) admitted to have been said, is not done by reference to the subjective intention of the defendant. The question is whether ‘the ordinary reasonable listener’ would consider that the words used conveyed the imputations as alleged. ‘The ordinary reasonable listener’ is said to be of fair average intelligence, fair minded, not overly suspicious, not ‘avid for scandal’, not naive, not searching for strained or forced meanings, and one who reads the entirety of the publication of which complaint is made: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165. In Queensland Newspapers Pty Ltd v Palmer [2012] 2 Qd R 139, Boddice J, with whom McMurdo P and Muir JA agreed, said of the ‘ordinary reasonable reader’ at [19]-[21]:

‘…In deciding whether a particular imputation is capable of being conveyed in the natural ordinary meaning of the words complained of, the question is whether it is reasonably so capable to the ordinary reasonable reader. The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is inferred from it. However, any strained, or forced, or utterly unreasonable interpretation must be rejected.

[20]The ordinary reasonable reader is a person of fair, average intelligence who is neither perverse nor morbid nor suspicious of mind nor avid of scandal. However, that person does not live in an ivory tower but can, and does, read between the lines in light of that person’s general knowledge and experience of worldly affairs. The ordinary reasonable reader considers the publication as a whole, and tends to strike a balance between the most extreme meaning that the publication could have and the most innocent meaning. That person has regard to the content of the publication. Emphasis given by conspicuous headlines or captions is a legitimate matter the ordinary reasonable reader takes into account.

[21]Whilst the test of reasonableness guides a determination of whether the matter complained of is capable of conveying any of the pleaded imputations, a distinction must be drawn between what the ordinary reasonable reader (drawing on his or her own knowledge and experience of human affairs) could understand from what the defendant has said in the matter complained of, and the conclusion which the reader could reach by taking into account his or her own belief which has been excited by what was said. The approach to be taken must be the former, not the latter.’”

Imputation (a): The plaintiff is unfit to practice as a doctor

88. [88]
    The notification does not assert this and when read as a whole concentrates on what she regarded as offensive and inappropriate comments made to her on 24 August 2012. It also concentrates on the clinical disagreement between them and states:

“Although the disagreement as to the clinical management of the patient was of concern and could arguably be an area of contention, without being a notifiable issue, the fundamental basis of this AHPRA notification relates to inappropriate and offensive comments of Dr Naidoo that raise concern as to his professional practice”.

89. [89]
    The notification then details the “inappropriate and offensive comments”. In it the second defendant states:

“1) He stated that he ‘knows how the system works’ in Gympie Hospital as he has worked here.

2) He stated that I was ‘one of the few people that he likes in that hospital’, but that I was trying to ‘bust his balls’.

3)He further enquired if ‘administration had put me up to this to undermine him’.”

90. [90]
    Applying the appropriate test as set out above, when read as a whole, I am not satisfied on the balance of probabilities that the notification carries the imputation that the plaintiff is unfit to practice as a doctor. Rather the ordinary reasonable reader would construe the notification as being, essentially, a dispute between doctors, one of whom was expressing concerns about the hospital at which the other one worked.

Imputation (b): That the plaintiff had placed the public at risk of harm by practicing the profession in a way that constitutes a significant departure from accepted professional standards.

91. [91]
    The notification itself makes no assertion that the plaintiff has placed the public at risk of harm. The ordinary reasonable reader would regard the words of the notification as being essentially a dispute between doctors one of whom was rather offensively suggesting criticisms and concerns about the hospital at which the other still worked. Whether the imputation is true does not arise at this stage. “Notifiable conduct” as defined in the Act in s 140(d) includes the pleaded imputation, but the test as set out above relates to the ordinary reasonable reader considering the publication as a whole. In my opinion, the meaning contended for the plaintiff, when the notification is read as a whole is “strained or forced”, and I am not satisfied on the balance of probabilities that the ordinary reasonable listener would consider that the publication carried the meaning alleged.

Imputation (c):

92. [92]
    Applying the correct test, part of this imputation is carried namely, that the notification carried the meaning “the plaintiff had made suggestions to the patient that effected the patient’s perception of the care that he was to receive at Gympie Hospital”. The notification does not say this in such terms, but the last paragraph would, in the mind of the ordinary reasonable reader, carry that meaning.

Defences

Section 25: Justification/substantial truth

93. [93]
    Section 25 of the Defamation Act 2005 provides:

“25 Defence of justification

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.”

94. [94]
    “Substantially true” means “true in substance or not materially different from the truth”.

95. [95]
    In relation to para 18(a) and (c) of the ASC, the defendants have proved:

1. (a)
   that the plaintiff used offensive and inappropriate words in an aggressive and defensive manner when he believed unreasonably that his clinical judgment was being challenged when the second defendant telephoned him at the patient’s request on 24 August 2012; and

2. (b)
   in stating to the second defendant on that day that he “knows how the system works” in Gympie Hospital as he has worked there (as the second defendant well knew), and enquiring if “administration had put (her) up to this to undermine him”; and that he “knows about the troubles in the hospital”, and from what the patient said to the effect that he was a friend of the plaintiff, that the plaintiff was suggesting that, as part of the hospital conspiracy to “undermine him” she was intentionally mismanaging the patient;

3. (c)
   the plaintiff had spoken to the patient both before and after 24 August 2012 about his (the plaintiff’s) concerns about safety at the hospital; and

4. (d)
   as a result, at least in some part as a result of what the plaintiff had said to him, the patient said words to a junior doctor on 11 December 2012 namely, “he would rather go straight to Nambour Hospital than be treated in Gympie as he knows that the boss of the hospital does not like him” which implied that the staff of the hospital would not treat him properly for this reason.

96. [96]
    As a result I am satisfied that the information contained in the notification is substantially true and that the second defendant has a complete defence under s 25 of the Defamation Act 2005.

Section 30: Qualified privilege

97. [97]
    The plaintiff accepted that AHPRA at least had an “apparent interest” in the information contained in the notification. There is no issue that the second defendant published the notification to AHPRA in the course of giving the information. In relation to s 30(1)(c) and (3), for reasons given later in relation to s 237 of the Act, I am satisfied that the second defendant acted reasonably in making her notification.

Defences under the Act

98. [98]
    Until the FAD, the second defendant had “by implication” relied only upon s 141 of the Act which relevantly is in these terms:

“141Mandatory Notifications by Health Practitioners

3. (1)
   This section applies to a registered health practitioner (the "first health practitioner") who, in the course of practising the first health practitioner’s profession, forms a reasonable belief that-

1. (a)
   another registered health practitioner (the "second health practitioner") has behaved in a way that constitutes notifiable conduct; …”

99. [99]
    Section 140 of the Act defines “notifiable conduct” relevantly as:

“(c)placed the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment; or

(d)placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.”

100. [100]
     From the outset,^[39]the second defendant’s position was that she was under a mandatory obligation to notify AHPRA if she formed a reasonable belief (which she said she had) that the plaintiff had behaved in a way that constituted notifiable conduct. It was not until the FAD, that the second defendant also sought to rely upon s 145 of the Act which is in these terms:

“145Who may make voluntary notification?

Any entity that believes that a ground on which voluntary notification may be made exists in relation to a registered health practitioner… may notify the national agency.”

101. [101]
     Section 144 of the Act sets out the grounds for voluntary notification and the grounds pleaded are those set out in s 144(1)(a),(b) and (d):

“144Grounds for voluntary notification

3. (1)
   A voluntary notification about a registered health practitioner may be made to the National Agency on any of the following grounds –

1. (a)
   that the practitioner’s professional conduct is, or may be, of a lesser standard than that which might reasonably be expected of the practitioner by the public or the practitioner’s professional peers;

2. (b)
   that the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the practitioner’s first profession is, or may be, below the standard reasonably expected;

…

4. (d)
   that the practitioner has, or may have, any impairment;”

102. [102]
     The plaintiff did not seriously test the second defendants’ stated reasons for making the notification, and he certainly did not explore any distinction in her mind as at 11 December 2012 between a mandatory and a voluntary notification. The way in which this part of the Act is structured, the making of a mandatory notification requires consideration of what may be “notifiable conduct”, and it requires (the second defendant) to form a “reasonable belief” that the (plaintiff’s) behaviour constituted notifiable conduct. This construction is consistent with the protective nature of the scheme of the Act which has as one of its objectives “the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.^[40]

103. [103]
     The second defendant’s evidence at its highest was to the effect that she checked on the AHPRA website when considering making the notification after her interaction with the plaintiff on 24 August 2012. He did not cross-examine her about the letter from Ms Burns dated 1 February 2013 in response to his Concerns Notice.

104. [104]
     Given the factual conclusions above, and in light of the lack of challenge to the second defendant who did impress me as a careful and honest witness, I am satisfied that she had formed a reasonable belief that the plaintiff had behaved in a way towards her that constituted notifiable conduct under s 140(d) of the Act. I accept that she believed then and believes now that the plaintiff had some sort of impairment, but, on the facts then known to her, I do not accept that her belief then was reasonable.

105. [105]
     There was only the one interaction between the plaintiff and the second defendant on 24 August 2012 on the telephone, and prior to that, on the basis of what the plaintiff says she knew, there was no reason for her to believe that he was impaired (in the sense described in s 140(c)). On her own evidence, she knew very little about the plaintiffs’ prior issues with the hospital prior to her making the decision, to make the notification, on the basis of what she was told on 11 December 2012. Apart from this one patient, she accepted that as far as she knew no other patient referred by the plaintiff to the hospital either before or after 24 August 2012 had raised concerns of this kind with the hospital. On this point, the plaintiff says he has referred other patients but there is no evidence of who they were or when they were referred.

106. [106]
     The fact that the second defendant was in a relationship with Dr Lindeman at “a time” is of itself irrelevant. She frankly admitted that there was such a relationship, but nothing in what she says Dr Lindeman said to her suggests anything untoward or any improper motive. As I have noted, the plaintiff, despite his legal qualifications, made no attempt to link the relationship with the notification. He was however, quite prepared to do this out of court when on Facebook.

107. [107]
     The second defendant then pleads that she is not liable for defamation in accordance with s 237 of the Act which is in these terms:

“237Protection from liability for persons making notification or otherwise providing information

3. (1)
   This section applies to a person who, in good faith-

1. (a)
   makes a notification under this Law; or

…

3. (2)
   The person is not liable, civilly, criminally or under an administrative process, for giving the information.

3. (3)
   Without limiting subsection (2)-

1. (a)
   the making of the notification or giving of the information does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct; and

2. (b)
   no liability for defamation is incurred by the person because of the making of the notification or giving of the information.”

108. [108]
     The Act does not define “good faith”, and in the context of defamation proceedings should not be construed as an absence of malice.^[41]In my view, to act in “good faith” is to act honestly. Having observed the second defendant give evidence, I accept that when she made the notification she honestly believed that she was publishing information to AHPRA which was true and that the opinions expressed therein e.g. that the plaintiff implied that she would intentionally withhold treatment from a patient to spite him personally, and to undermine him as part of a larger conspiracy, were opinions honestly held by her. It follows that she is protected from liability for defamation pursuant to s 237(3)(b) of the Act.

Malice

109. [109]
     The plaintiff has the onus of proving malice and will do so if he proves that any defamatory publication was published by the second defendant for a purpose or motive which was other than the purpose or motive for which the privileged occasion was conferred or was actuated by improper motive.^[42]  For the reasons expressed above the plaintiff has not satisfied the onus upon him to prove malice.

Damages

110. [110]
     The ASC claims damages for defamation including aggravated damages in the sum of $200,000 and interest. There is otherwise a complete lack of particulars. The plaintiff did not attempt to prove any loss of income. He did not call any persons who thought less of him because of knowledge of the notification nor could he, because the only people outside AHPRA who knew of the publication had that knowledge from the plaintiff. He is still employed by Queensland Health. As noted earlier, the only publication by the second defendant was to AHPRA on 11 December 2012 which, by April 2013 had been determined in the plaintiff’s favour on the basis that the matter did not relate to a ground for notification. As my reasons disclose, it is the plaintiff, who for quite irrational reasons, has been responsible for re-publishing what he alleges is seriously damaging material to a large number of individuals and entities. The law presumes that a plaintiff has a good reputation and that damage to that reputation would follow from publication of defamatory material, however here it is the plaintiff himself who has published and re-published the information about which he complains. Even if he had proved that he was defamed by the original notification, I would have held that any damage to his reputation resulted from his own actions and not from the notification.

111. [111]
     It is unnecessary for me to consider the issue of vicarious liability in relation to the first defendant. There is no evidence that anyone in authority at the hospital or in Queensland Health encouraged and/or aided the second defendant to make the notification which she did as a result of her own decision. The plaintiff did not address me on the law in relation to when, if ever, an employer can be held vicariously liable for a defamatory publication made by an employee.

112. [112]
     The claim is dismissed and I will hear the parties in relation to costs.