Akbari v State of Queensland[2021] QDC 87

DISTRICT COURT OF QUEENSLAND

Overview

1. [1]
   This is an application by Dr Babak Akbari (the plaintiff), pursuant to s 32A of the Limitation of Actions Act 1974 (Qld), (the Act) for an order extending the limitation period for the filing of claims in defamation against the State of Queensland on behalf of the Mackay Hospital and Health Service (the first defendant) and Dr Paul Henderson (the second defendant).^[2] The claims relate to a publication made by way of a notification by the second defendant to the Office of the Health Ombudsman (the Ombudsman) on 4 April 2019.  The notification was made under s 141 of the Health Practitioner Regulation National Law (Qld) (the National Law)^[3] and subsequently resulted in an investigation by the Australian Health Practitioner Regulation Agency (AHPRA).
2. [2]
   Section 10AA of the Act provides that an action for defamation must not be brought after the end of 1 year from the date of the publication of the matter complained of. The plaintiff filed the defamation proceedings on 7 September 2020, 158 days (or just over five months) past this one year limitation period. The order sought is that the limitation period be extended by 158 days to 8 September 2020 to bring the commencement of the defamation proceedings within time.
3. [3]
   Section 32A of the Act provides the relevant framework for the application as follows:

32A Defamation actions

1. (1)
   A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.
2. (2)
   A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in s 10AA to a period of up to 3 years from the date of the publication.
3. (3)
   A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2).
4. (4)
   An order for the extension of a limitation period, and an application for an order for the extension of a limitation period, may be made under this section even though the limitation period has already ended. [Emphasis added]

4. [4]
   Two questions emerge from this section:

1. (a)
   First: whether it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the date of the publication. This has been described as the not reasonable test.

2. (b)
   Secondly: the length of any extension of the limitation period. This is known as the discretionary test. ^[4]

5. [5]
   The plaintiff submitted that the not reasonable test is satisfied for two main reasons. First, the notification was not made in good faith, so bringing defamation proceedings within the 1-year limitation period from 4 April 2019 to 4 April 2020 would have prejudiced the plaintiff and undermined the ongoing AHPRA investigation. Secondly, the plaintiff received legal advice not to bring defamation proceedings until after the conclusion of the AHPRA investigation. The plaintiff submitted that the outcome of the discretionary test would be to grant an extension to 8 September 2020 to bring the claim within time.
6. [6]
   The defendants opposed the application on the basis that, as a matter of both fact and law, the plaintiff does not satisfy the not reasonable test.  But the defendants otherwise submitted that even if this test is satisfied, the plaintiff does not effectively pass the discretionary test because his claims in defamation are futile. This submission is premised on the contention that the defendants have a defence of absolute privilege at common law, which arises whether or not the notification was made in good faith, and which, they submitted, means that the discretion as to the length of the extension under s 32A(2) of the Act should be exercised so that the limitation is extended to a date earlier than 8 September 2020.  The effect being that the defamation proceedings are statute barred.
7. [7]
   Before turning to answer these questions in the context of the relevant legal principles, it is necessary to set out the relevant background facts and to resolve where necessary the contentious facts as they were ventilated before me. 

Relevant Facts^[5]

8. [8]
   The plaintiff is an experienced non-specialist medical practitioner in the field of psychiatry. He has practised extensively in this area over five states for 12 years. On 4 March 2019 the plaintiff commenced working as a locum at the Mackay Base Hospital. In this role he reported to the second defendant who was the Senior Medical Officer in Psychiatry. On 22 March 2019 the second defendant told the plaintiff that his employment at the Hospital was terminated because of a six-page complaint letter about the plaintiff he had received from junior doctors at the Hospital.
9. [9]
   Shortly after this, on 4 April 2019, the second defendant made the notification to the Ombudsman. The notification was premised on the complaint letter.
10. [10]
    On 21 May 2019 the plaintiff received a “Private and Confidential” letter about the notification from AHPRA. Amongst other things, the AHPRA letter advised the plaintiff that: his performance was to be investigated pursuant to s 160 of the National Law;  he was not to contact the second defendant, or the patients and their medical teams; and he was not to disclose information provided to him in the course of the notification process.^[6]
11. [11]
    On 23 May 2019 James Attenborough from Moray & Agnew was instructed by the plaintiff’s insurer MDA National to act for the plaintiff in the AHPRA investigation. The plaintiff contended that from the outset, he told Mr Attenborough that he wanted to commence defamation proceedings against the defendants, but Mr Attenborough told him to hold off until after the AHPRA investigation was completed. The evidence about this conversation is contentious. My analysis of the relevant evidence and findings are set out under the “analysis of the controversial facts” heading below.
12. [12]
    For reasons not relevant to this application, there were delays in AHPRA progressing and finalising the investigation. The plaintiff became anxious. In late October 2019, for unapparent reasons, Meridian Lawyers were appointed by MDA National to act on behalf of the plaintiff in place of Moray & Agnew.
13. [13]
    Shortly after, on 20 November 2019, the plaintiff lodged a written complaint about the management of the Mackay Mental Health Service to the Ombudsman.  He was subsequently admonished by Daniel Davidson, his new solicitor at Meridian Lawyers for making this complaint. Mr Davidson’s concerns about the plaintiff’s actions in having done so were relevantly stated in an email he sent the plaintiff on 26 November 2019 (“the 26 November email”) as follows:^[7]

“…..Unfortunately, there is a risk that your complaint could be seen to have been made in retaliation to the complaint initiated against you. Under s 44 of the Health Ombudsman Act 2013 (Qld), the Health Ombudsman may decide to take no further action at any stage (including dismissing a complain on receipt), if it reasonably considers the complaint is frivolous, vexatious, trivial or not made in good faith. It would certainly be an unfortunate turn of events if the Health Ombudsman elected to dismiss your complaint without further investigation because the timing of the complaint allowed it to be viewed as retaliatory in nature. Further, under ss 261 and 262 of the Health Ombudsman Act 2013 (Qld), it is an offence for a person to cause, or attempt to conspire to cause, detriment to another person because, or in the belief that, any person has made or may make a health service complaint, which act is known as a ‘reprisal’. In addition, pursuant to s 263 Health Ombudsman Act 2013 (Qld), a person who takes a reprisal is liable in civil damages to any person who suffers a detriment as a result.

That is, if it is considered that your actions in initiating a complaint against Dr Henderson and the Mackay Mental Health Service are in retaliation to the complaints raised against you, there are potential consequences for you. While in my experience, such penalties are very rarely imposed, such considerations ought cause one in your position (i.e. a person under investigation by AHPRA) to be most conservative and cautious prior to initiating a complaint about the notifier and associated medical facility.

Otherwise, if AHPRA become appraised of this development, which is likely, it may be considered that your intervening by way of initiating an OHO complaint could be indicative of lack of insight on your part (i.e. at least where the allegations have not been fully investigated or determined by the Board at this stage). That is, it is generally most helpful in AHPRA investigations to address the issues, and to raise any concerns you may have regarding the motivations of the notification itself, within the confines of that investigation. Like the Health Ombudsman, AHPRA have powers to take no further action if a matter is frivolous, vexatious, misconceived or lacking in substance. Raising legitimate concerns regarding the motivations of a notifier in raising a complaint can be an important tool in responding to an investigation, provided this is done in an appropriate and measured manner within the investigation itself.

Ultimately, while I appreciate your desire to progress your concerns regarding the process as comprehensively as possible, at this time this is most effectively addressed by comprehensive and measured submissions in response to the AHPRA investigation, and not be initiating external processes. I would also observe that some of the outcomes sought by you in your notification likely fall outside the scope of power of the OHO.”

……

[Emphasis added]

14. [14]
    On 13 December 2019 Meridian Lawyers provided AHPRA with the plaintiff’s formal written response to their investigation.
15. [15]
    On 26 June 2020 AHPRA gave written notice to the plaintiff that its investigation was complete, and that no further action would be taken against him. The justification for this decision was articulated as follows:^[8]

“It was evident that no attempt was made by the Hospital or Dr Henderson to independently investigate or substantiate the concerns raised prior to his termination. As the RMO’s written complaint was dated 22 March 2019 and related to numerous patients there was simply insufficient opportunity to appropriately investigate the issues prior to the discussion with, and subsequent termination by Dr Henderson on the afternoon of 22 March 2019.” [Emphasis added]

16. [16]
    A few days later, on 30 June 2020, the plaintiff contacted Nyst Legal about commencing defamation proceedings against the defendants. The plaintiff spoke to his solicitor Mr Nyst on 1 July 2020 at which point he was first made aware of the legislative time limitations relating to the defamation proceedings and that he was potentially outside of time for the filing of proceedings. Shortly afterwards he provided Nyst Legal with the relevant documentation and on 15 July 2020 Nyst legal sent a Concerns Notice to the defendants.
17. [17]
    The defendants responded to the Concerns Notice around 23 July 2020 and subsequently the plaintiff instructed his solicitors to brief counsel and institute proceeding against the defendants. It was around this time (27 July 2020) the plaintiff was advised by Nyst Legal that he would require the court’s leave to extend the limitation period for the filing of such proceedings.   
18. [18]
    Between August and September 2020 various exchanges of correspondence were exchanged between Crown Law (as the solicitors for the defendants) and Nyst legal about the proposed proceedings and the need for the current application. Due to Nyst Legal’s concern about the limitation period having expired, a claim and statement of claim was filed on 7 September 2020 and subsequently an amended claim and statement of claim was filed and served on the defendants solicitors on 21 September 2020.

Relevant Legal Principles

Not reasonable test

19. [19]
    The not reasonable test prescribed by s 32A(2)(ii) of the Act requires the plaintiff  to demonstrate not that it was reasonable to commence the proceeding after the expiry of the limitation period but that it was not reasonable to commence the proceeding during the limitation period.^[9] 
20. [20]
    The onus rests with the plaintiff “to point to circumstances which make it not reasonable to seek to enforce his or her legal rights in the way required by the law.”^[10] The test is an objective one.^[11] The reference to “circumstances” in s 32A(2)(ii) means “the circumstances as they appear objectively to the court and not ‘the circumstances’ which the plaintiff believed, however unreasonably, to exist.”^[12]
21. [21]
    The not reasonable test requires the plaintiff to:

“… satisfy the court that it was not reasonable in the circumstances to have commenced an action within the limitation period. That, obviously, involves the identification of the circumstances which made it unreasonable to commence the action in time.”^[13]

22. [22]
    Parliament has chosen to leave the circumstances which might justify an extension “at large”.^[14] It is not therefore possible to state exhaustively the circumstances in which a plaintiff might establish that it was not reasonable to have commenced defamation proceedings within the one-year limitation period.^[15] Although such circumstances have been described as “relatively unusual”,^[16] “special” and “compelling.”^[17] 
23. [23]
    Ultimately, each case is to be determined on its own facts but bearing in mind  that there is danger in applying cases by example or analogy.^[18]

Discretionary test

24. [24]
    The wording of s 32A(2) obliges the court, where it is satisfied that it was “not reasonable in the circumstances” for the plaintiff to have commenced proceedings within the limitation period (in this case, by 4 April 2020) to grant an extension of time. However, it is now well settled that the use of the words “up to” in the section, allows the making of an order that extends the limitation by any period that is not more than three years from the date of publication.^[19]
25. [25]
    The nature of this discretion, especially in light of the obligatory wording of the rest of s 32A(2), has been the subject of much conjecture and diversion in the authorities. As McHugh J noted when considering that provision in Brisbane South Regional Health Authority v Taylor,^[20] the purpose of the discretion existing in the section:

“is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to [their] view of the justice of the case… [which requires considering] every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.”

26. [26]
    In the recent decision of King v Comiskey Management Services Pty Ltd & Anor^[21], the Queensland Court of Appeal accepted that the wording of the section allowed a court to make an order that extends the limitation period but not so far that it brings the application within time. That is, an order may be made that in effect still prevents the plaintiff from proceeding.^[22]

The Not Reasonable Test:  Was it “not reasonable in the circumstances” for the plaintiff to commence proceedings by 4 April 2020?

27. [27]
    The plaintiff submitted that it was “not reasonable in the circumstances” for the defamation proceedings to have been brought within the 1-year limitation period from 4 April 2019 to 4 April 2020 for two overarching reasons.  First, because of the ongoing AHPRA investigation; and secondly because he received legal advice to the effect that he should not bring proceedings until after the conclusion of the AHPRA investigation.
28. [28]
    Before dealing with these reasons it is relevant at this point to observe that the plaintiff was not aware of the matter complained of (the notification) until 21 May 2019. It follows that I accept the plaintiff’s submission that it was not reasonable for him to have commenced the defamation proceedings before that date.^[23] 

Was it not reasonable to commence proceedings due to the ongoing AHPRA investigation?

29. [29]
    From 21 May 2019, the plaintiff submitted that the evidence established that it was not reasonable for him to have commenced the proceedings within time, on three bases, which are analysed in turn as follows. 
30. [30]
    First: that there was a “complete overlap” between the issues under examination in the AHPRA Investigation and the defamation proceeding, because the matter complained of was the basis of the AHPRA investigation. The plaintiff developed this argument by submitting that if the AHPRA investigation had upheld the notification, then the plaintiff’s prospects in the defamation proceeding would have been minimal.
31. [31]
    I accept that the factual basis for the defamation proceeding related to the notification the subject of the AHPRA investigation. But it does not necessarily follow that the issues and relevant considerations in the investigation and the defamation proceedings are the same. They are not. The AHPRA investigation is conducted under the provisions of the National Law and the statutory threshold upon which the National Board may take action against a health  practitioner who is the subject of the referral is upon it obtaining a “reasonable belief.”^[24] The defamation proceedings are brought under the Defamation Act 2005 (Qld), which requires satisfaction on the balance of probabilities as opposed to the criminal standard of beyond reasonable doubt, which is applicable in a number of cases concerning concurrent criminal investigations and defamation proceedings.^[25]
32. [32]
    I accept that inspectors under the National Law have power to require a person to give information and answer questions if they reasonably believe that an offence has been committed and that such a person may be able to give evidence about such an offence.^[26]  The defendants submitted that there is no suggestion that those powers would or even might be invoked in this case.  In my view, it could equally be said that there is no suggestion that they would not have been.  But overall, given that the AHPRA investigation is not a criminal proceeding, the powers available to the investigators did not make it not reasonable for the plaintiff to pursue a defamation claim within time.
33. [33]
    In my view, the prospects of success in the defamation proceedings, including the existence of any defence, are unaffected by the outcome of the AHPRA investigation. An unfavourable finding against the plaintiff by AHPRA would not be admissible to prove the truth of the defamatory imputations said to arise.  But even if I am wrong, I accept the submission on behalf of the defendants that the plaintiff could have, acting reasonably, commenced the defamation proceeding and then applied for a stay.^[27] I am therefore not satisfied that the concurrent AHPRA investigation is a reasonable explanation for the plaintiff having held off commencing the defamation proceedings. ^[28]
34. [34]
    Secondly: that s 237 of the National Law provided protection for liability to the second defendant (and in turn the first defendant) if the notification was made in good faith. It followed therefore that the outcome of the investigation directly affected that issue because of the ultimate findings of AHPRA (as set out in paragraph 15 of these Reasons).
35. [35]
    I reject this submission. It is premised on the highly unlikely assumption that AHPRA would be able to make a finding that the notification was not made in good faith. But in any event, in my view, a finding of a lack of good faith (if one was made by AHPRA) would not be admissible in the defamation proceedings.
36. [36]
    It is also relevant to observe that no finding of a lack of good faith was made by AHPRA in the present case. As AHPRA’s reasons reveal, the investigation went nowhere because there was no independent investigation by the Hospital or the second defendant, prior the plaintiff’s termination, to substantiate the concerns raised. In other words, the plaintiff was not afforded procedural fairness prior to his termination – and according to AHPRA it was too difficult for it to do so in retrospect. But this conclusion, whilst unsatisfactory in many ways from the plaintiff’s perspective, does not necessarily equate to a finding of a lack of good faith on the part of the second defendant. It is otherwise impossible to determine on this application whether there was a lack of good faith on the part of the second defendant in making the notification.  But as discussed later in these Reasons under the heading “Absolute Privilege”, even assuming a finding of lack of good faith - the law provides a complete defence to the defamation proceedings in this case.   
37. [37]
    Thirdly: that pursuing defamation proceedings may have been viewed as an unlawful reprisal and ultimately used against him in the AHPRA investigation. 
38. [38]
    There is a distinction between the plaintiff pursuing his lawful legal entitlement to commence defamation proceedings against the defendants and making his dispute with the defendants public by going to the media and writing a book. It is understandable, as a matter of common sense, that the latter may inflame and distract those undertaking the AHPRA investigation.  The view of Mr Davidson about the dangers of making any complaint against the defendants whilst the investigation was on foot (as set out in the 26 November email referred to in paragraph 13 of these Reasons) is consistent with this conclusion. But it is instructive that Mr Davidson did not refer to defamation proceedings. As a matter of common sense, it is reasonable to assume as I do, that the commencement of defamation proceedings in a court of competent jurisdiction by the plaintiff would not have been greeted with open arms by the defendants. But it is difficult to see how the commencement of such lawful proceedings under a legislative regime which imposes strict time frames could be viewed by AHPRA as an unlawful reprisal by the plaintiff.
39. [39]
    Overall, I am not satisfied on the evidence as it stands that the pursuit of defamation proceedings by the plaintiff may have been viewed as an unlawful reprisal under s 261 of the Health Ombudsman Act 2013 and ultimately used against the him in the AHPRA investigation.  
40. [40]
    It follows that I reject the plaintiff’s general submission that it was not reasonable to commence legal proceedings because of the ongoing AHPRA investigation. This finding is consistent with the observations of Chesterman JA in Noonan (expressly endorsing the observations of Kingham DCJ in JA Murphy v Lewis [2009] QDC 37) that:^[29]

“a plaintiff who wishes to claim damages for defamation does not act reasonably  (if no more is shown) in delaying the start of proceedings while some investigative or disciplinary proceeding, affecting the parties to, and the subject matter of, the 35 defamation, is undertaken.”

Was it not reasonable to commence proceedings within time if the applicant received legal advice not to do so until after the conclusion of the AHPRA investigation?

41. [41]
    It was submitted on behalf of the plaintiff that the solicitors who were initially engaged to act for the plaintiff on 23 May 2019, in relation to the AHPRA investigation, advised him not to commence a defamation claim until these investigations were completed.^[30]  The written submissions on behalf of the plaintiff described this advice as “hardly controversial.”^[31] But that was not the case before me. The defendants directly challenged the plaintiff’s evidence of what he was told by his solicitor Mr Attenborough. It followed that the plaintiff and Mr Attenborough gave evidence in court before me. The plaintiff in person and Mr Attenborough by telephone.  

Analysis of the controversial facts

42. [42]
    The plaintiff’s evidence in chief (of what he was told by his solicitor about commencing defamation proceedings) is as follows: ^[32]

“16. On or about 23 May 2019, Moray & Agnew were instructed by my insurer, MDA National, to assist with the AHPRA investigation.  I spoke to Mr James Attenborough from Moray & Agnew in relation to the notice around this time.

17. I recall speaking with Mr Attenborough on the telephone about the notification to AHPRA being defamatory and that we should be commencing proceedings against them.  I recall speaking to him about this in the first few weeks after Moray & Agnew were engaged to act for me.  I recall him saying to me words to the effect that “You are under investigation.  Starting a separate legal action against them would certainly jeopardise your defence and undermine AHPRA’s authority”.  I understood the effect of his advice to be that I should not commence a defamation proceeding until AHPRA’s investigation had finished.”

[Emphasis added]

43. [43]
    As to be expected, several telephone conversations took place between Mr Attenborough and the plaintiff during the time that Moray and Agnew were the solicitors on the record for the plaintiff.  But it is reasonable to infer, as I do, that the conversation which the plaintiff relies on to support his case took place on 25 June 2019. A file note of that conversation taken by Mr Attenborough was in evidence and relevantly stated as follows: ^[33] 

“…He asked whether or not we could sue for defamation.  He again became quite agitated and said that all of those ‘liars’ from up north were just a bunch of ‘teenagers’ making lies up.  They need to be punished, they need to be put on trial and they need to be executed.  He feels like he is the one on trial for execution.  I let him finish and then brought him back on point.  I said to him that I was only instructed by MDA with respect to the regulatory investigation.  He interjected and said that he know that MDA has to cover it.  He said he has read a copy of his policy and that it was in there ‘plain as day’.  I said that that might be the case but ultimately it is a matter between himself and MDA.  My role is very limited.  I said to him that I would be happy to raise the issue with MDA and to commence discussions around whether or not cover would be afforded.  He was reluctant but ultimately happy for that to happen.

I noted, in passing, that defamation proceedings are very expensive and very difficult to pursue, particularly in circumstances where the ‘defamation’ has occurred in the context of a notification and that the National Law provides some immunity from suit to notifiers.  The member was not particularly interested and said that he does not care, they need to be sued.

The member also said that he is writing a book, he is going to write articles to SBS and is also going to be in touch with reporters from ABC, Channel 7 and Channel 9.

I spent considerable time counselling him and advising him that pursuing those things now would not be a wise event, as it would only likely inflame the situation with the regulator.  In my view it would be far better to resolve the regulatory proceedings and then give thought to whether not those things are really necessary at the end of the process.  The member eventually and reluctantly agreed.

I concluded the call with the member and said that I would be in touch with him once I had heard back from AHPRA.  He was happy with that.

[Emphasis added]

44. [44]
    This file note was dictated and typed from handwritten notes made by Mr Attenborough at the time. The conversation took 42 minutes. Mr Attenborough could not recall how much time was spent discussing the defamation proceedings but accepted that he had extensive discussions with the plaintiff about this issue. Overall, the plaintiff accepted the file note as an accurate record with the proviso that it did not reflect the entirety of his conversation with Mr Attenborough on 25 June.  As a matter of common sense, given the length of the conversation, it is reasonable to infer as I do that the file note is not an exact recount of all that was said during the telephone conference.^[34] But I accept the file note as an accurate overview of the issues that were discussed. 
45. [45]
    Consistent with his assurance that he would follow up the insurers about covering potential defamation proceedings, Mr Attenborough sent a letter to MDA National on 27 June 2019. The 27 June letter relevantly stated as follows:

9. “We have been in regular contact with the member. He reports that his mental health continues to deteriorate. In our view that deterioration is very obvious.
10. In our discussions of 25 June 2019, the member variously threatened to write a book about the Mackay Hospital Health Service (MHHS), submit articles to the SBS and ABC online, and contended that he had been in touch with journalists from Channels 7 and 9 to discuss his ‘persecution’.
11. The member remains very fixated on the ‘animals in Mackay’ unfairly attacking and defaming him.  He considers that he is on trial, and that it is the notifiers who should both be on trial (as well as executed).
12. Despite the lengthy conference with member, and our specific advice that it would be beneficial to him to return to work, he has declined to do so.  He reports that he could not possibly trust any other colleague, given he has so readily been ‘knifed’ by a number of ‘teenagers’ at the MHHS.
13. The member has demanded that defamation proceedings be instituted on his behalf against the notifiers.  We spent considerable time explaining to the member that our engagement was limited to assisting him with the regulatory investigation.  After some time, agreement was reached that we would raise this issue with MDA, noting that ultimately it would be MDA’s decision as to whether or not defamation proceedings is something that might be contemplated.
14. In passing, we observe that defamation proceedings would be difficult to pursue, in circumstances where the allegedly defamatory imputations have been made in the context of a notification.  As such, it is likely that the protections from civil suit afforded by s237 of the Health Practitioner Regulation National Law (Qld) (“the National Law”) would pose a significant barrier to proceedings of that kind succeeding.
15. The member eventually (after an extensive discussion) agreed to let MDA consider its position with respect to the defamation proceedings he wishes to pursue.
16. We will provide a further update once we have heard from the AHPRA Investigators with respect to our request that the issues for investigation be properly scoped.

[Emphasis added]

46. [46]
    There is no response from MDA Insurance in evidence before me. The relevant files of both the solicitors who acted for the plaintiff in the AHPRA investigation were subpoenaed by the solicitors for the defendants and were in evidence. Nowhere in this material is there any evidence of a response in relation to cover being extended to the defamation proceedings. There was no evidence about what happened or what the plaintiff was told about this issue. The material produced from Meridian Lawyers included the file note and the 27 June letter. So, it is fair to assume, as I do, that they too knew that the plaintiff was keen to commence defamation proceedings against the defendants. It is reasonable to assume, as I do, that neither the plaintiff nor either of the solicitors acting for the plaintiff at the relevant time, followed up MDA Insurance about this issue.
47. [47]
    Under cross examination by counsel for the defendants, the plaintiff was a difficult witness. He was clearly frustrated and confused by the legal process and jargon.  On occasions, he was obviously agitated, and unnecessarily belligerent. But overall, I did not form the opinion that the plaintiff was a dishonest witness or that his uncorroborated evidence should not be accepted at all.  In my view, he was telling the truth as he saw it. His recollection was often distorted, having been altered by self-introspection, feelings of being persecuted and a loss of perspective together with “unconscious bias or wishful thinking or by overmuch discussion of it with others.”^[35] For example, the plaintiff refused, under cross examination, to accept that he was “agitated” when he spoke to Mr Attenborough on 25 June.  He wanted the word defined.  But ultimately, he accepted he was “disappointed” and very “anxious and stressed.”^[36] The plaintiff also candidly accepted under cross examination, that at the time, he was distressed and that his mental health was deteriorating because of the notification and AHPRA investigation.  I accept this evidence. It is consistent with Mr Attenborough’s observations at the time. In my view, the concerns documented by Mr Attenborough both in his file note and the 27 June letter were well founded and supported too by the highly emotive and provocative statements made by the plaintiff at the time, including references to the need for “punishment’ and “execution”.
48. [48]
    There is not a great deal of difference between the plaintiff’s and Mr Attenborough’s evidence of what was said over the phone on 25 June. The real point of distinction is that the plaintiff contended that Mr Attenborough counselled him to wait for AHPRA’s investigation to come to an end before he tried to take any legal action against the Hospital. Mr Attenborough denied that he advised the plaintiff not to commence a defamation claim until the AHPRA investigations were completed. His evidence was that the reference in the file note to having spent a “considerable time counselling him (the plaintiff) and advising him that pursuing those things now” would not be wise, was a reference to writing a book and going to the media.  
49. [49]
    I prefer and accept Mr Attenborough’s evidence that he did not tell the plaintiff to wait for the AHPRA investigation to finish before commencing defamation proceedings, for three main reasons. First: Mr Attenborough was not engaged to act for the plaintiff in any defamation proceedings. But he was faced with a distressed and agitated client who was obviously wanting to progress such a claim. Quite reasonably and as the file note reflects, Mr Attenborough told the plaintiff it was a matter between the insurers and the plaintiff but that he would raise the issue of cover with MDA Insurance. True to his word, Mr Attenborough did this in the 27 June letter. Secondly: The plaintiff was distressed and agitated during (and after) the phone call and it is reasonable to infer as I do, that the plaintiff was not listening carefully to what Mr Attenborough was saying. Thirdly, the fact that Mr Attenborough expressed a general cursory view that defamation proceedings would be difficult to pursue because the National Law potentially offered some or complete immunity from suit, must be considered in the context that he was not engaged to act for the plaintiff in relation to any such proceedings. Fourthly, Mr Attenborough’s evidence is consistent with his file note and the 27 June letter.
50. [50]
    This finding does not mean that I reject the plaintiff’s evidence on this issue. It is reasonable to infer, as I do, that the plaintiff honestly but mistakenly understood the effect of his conversation with Mr Attenborough on 25 June to mean that he should not commence a defamation claim until the AHPRA investigation was finalised. This finding is consistent with what in fact happened. That is, as soon as he was notified that the AHPRA investigation was finalised (on 27 June 2020) the plaintiff took steps (on 30 June 2020) towards commencing the defamation proceedings.^[37] 
51. [51]
    But the objective test is not satisfied by the plaintiff showing that he believed  he had good reason not to sue until this time.^[38]  This test also precludes reliance on circumstances that the plaintiff  “may mistakenly and unreasonably believe to exist but which do not exist as a matter of objective fact.”^[39] 
52. [52]
    The question is whether objectively it was not reasonable for the plaintiff to have  commenced defamation proceedings before 20 April 2020. 
53. [53]
    The objective (and largely uncontroversial) facts concerning the 25 June phone conversation between the plaintiff and Mr Attenborough are, I find, as follows:

    1. (a)
       Mr Attenborough tried to talk to the plaintiff about the AHPRA investigation but the plaintiff was more interested in talking about the defamation proceedings.^[40] The plaintiff told Mr Attenborough that he should send a very strong letter objecting to the actions of the Hospital and that it was basically a “defamation claim” as there were a “lot of lies and fabrication” by the Hospital;^[41]
    2. (b)
       The plaintiff was both anxious and concerned to commence defamation proceedings against the defendants and he demanded Mr Attenborough commence such proceedings;
    3. (c)
       Mr Attenborough was not engaged to act for the plaintiff in any defamation proceedings and he told the plaintiff this. He also  told the plaintiff that he would follow up the insurer about whether cover would be afforded to cover the proceedings;
    4. (d)
       Mt Attenborough told the plaintiff that defamation proceedings would be very expensive and may be difficult to pursue because the National Law provided some immunity from suit to notifiers;
    5. (e)
       The plaintiff told Mr Attenborough that he was writing a book, he was going to write articles for SBS, and he was also going to be in touch with reporters from ABC, Channel 7 and Channel 9. Mr Attenborough counselled the plaintiff that: to pursue “those things” would not be wise and would only likely inflame the situation with the regulator; and it would be far better to resolve the regulatory proceedings and then give thought to whether or not those things were really necessary at the end of the process.  The plaintiff agreed to this approach; and
    6. (f)
       The plaintiff was a highly emotional, agitated and distressed non-lawyer, inflicted by obvious deteriorating mental health issues, who was fixated by the notification and concerned about vindication.
54. [54]
    I find that the plaintiff was mistaken about the advice he understood he had been given by Mr Attenborough namely that he should not commence defamation proceedings until after the AHPRA investigation. I also find that he mistakenly relied upon this advice. But upon an objective consideration of all of the facts as outlined in the preceding paragraph, I am satisfied that the plaintiff’s mistake about and reliance on the (mistaken) advice was not an unreasonable one in the circumstances.

Is legal advice a relevant circumstance?

55. [55]
    The defendants identified conflicting authority on the issue of whether the receipt of legal advice is a relevant circumstance within the meaning of s 32A(2) of the Act.^[42]  But submitted the better view is that it is not.

Barr v Farrell 

56. [56]
    In submitting that the better view is that legal advice is not a relevant circumstance within 32A(2), the defendants relied on the decision of the Western Australian Court of Appeal in Barr v Farrell [2013] 45 WAR 530. 
57. [57]
    In Barr, the appellant allegedly suffered a severe injury at birth because of the negligence of the doctor who delivered her and that of the hospital. Her father was her guardian. As guardian, he sought legal advice (within time) about the taking of legal action. Because of incorrect legal advice about the expiry of the limitation period, the guardian did not sue within the statutory limitation. The appeal against the primary judge’s refusal to allow an extension of time raised a “short question” of construction of s 41(3) of the Limitation Act 2005 (WA).
58. [58]
    The provision under consideration in Barr was different to the present case. It required the applicant to satisfy the court that it was unreasonable for “a guardian” not to commence the action within the limitation period. But despite this distinction, the case is relevant. Whilst recognising that the test applied in Noonan was that the court must be satisfied that it was not reasonable in the circumstances for “the plaintiff” to have commenced an action within one year, the majority in Barr expressly adopted the reasoning of Keane JA in Noonan. That is that the circumstances meant “the circumstances as they appear objectively to the court and not ‘the circumstances’ which the plaintiff believed, however unreasonably, to exist.”^[43]
59. [59]
    In Barr, Pullin JA found that the circumstances  relevant to determining whether it was unreasonable for “a” guardian not to commence the action within the limitation period were “all the circumstances relating to whether  there was a cause of action worth pursuing.”^[44] These were said to include the evidence about how the injury happened and the medical opinion available. In Barr, Pullin JA also found that advice from solicitors about the limitation period was not a relevant circumstance because the limitation period is a matter of law and the lawyer’s wrong view of the law was not relevant notwithstanding that it produced a belief in the appellant’s guardian that the limitation period would not expire when, in fact it was about to expire.^[45] 

Spedding v Dailymail.com Australia

60. [60]
    The defendants identified the decision of Spedding as authority to the contrary.
61. [61]
    In Spedding, McCallum J took an entirely different view to that espoused by the majority in Barr on the issue of whether legal advice is a relevant circumstance.  In Spedding, the plaintiff commenced a claim in defamation (out of time) against the defendant newspaper for a publication imputing that he was a convicted paedophile. At the time the plaintiff was facing criminal charges for sexual offences against children. He obtained advice from senior and junior counsel that he had a reasonably strong case to recover damages from the defendant newspaper for defamation but he was “strongly” advised not to bring that case until after the resolution of the criminal proceedings, even though that would mean the limitation period would lapse.
62. [62]
    It was argued by counsel for the defendant newspaper that whatever advice was given, the objective test requires the Court to undertake its own assessment of the reasonableness of commencing an action within one year after the date of publication. It was also submitted that, as the plaintiff was not a convicted paedophile at the time of publication, he had a strong claim in defamation at that time and that, on an objective assessment, he had no reason not to commence proceedings immediately, regardless of the criminal proceedings.
63. [63]
    McCallum J rejected this submission and observed that whilst “[r]reasonable minds might differ as to the wisdom or appropriateness of a person facing charges for child sexual offences commencing defamation proceedings suing on an imputation of paedophilia,” that ultimately “the fact of the advice received by Mr Spedding (whether sound or not) is clearly a relevant factor.”^[46]

Conclusion

64. [64]
    In my view the decision in Barr is distinguishable from the present case because that case did not concern a consideration of the relevant circumstances in the context of defamation proceedings and the legislative provision under consideration was different to that under consideration in this instance.
65. [65]
    In my respectful view, McCallum J’s finding that the fact of obtaining legal advice was a relevant circumstance in Spedding is supported by the decision of Noonan.
66. [66]
    In Noonan, the Court of Appeal did not attempt to confine the “circumstances” but instead expressly observed that it was not possible to provide an exhaustive list and that the circumstances which might justify an extension are “at large”.^[47]  Further, Keane JA relevantly found that a failure to take legal advice was a relevant circumstance (although in that case not in the plaintiff’s favour), as follows:^[48]

“There is no suggestion that after October 2007 Mr Noonan took steps to inform himself of the law relating to the action which, in February 2008, he actually decided to bring. He did not seek legal advice about the action he proposed to bring: his evident assumption that he did not need to do so was not a reasonable one, at least in the absence of any attempt on his part to inform himself of the law relating to his proposed action.” [Emphasis added]

67. [67]
    Also in Noonan, it is instructive to observe that Keane JA found a relevant circumstance was that the plaintiff was “under no disadvantage which might have impeded his ability to ascertain, and comply with, the applicable time limit in this case.”^[49]
68. [68]
    Implicit in this reasoning, in my respectful view, is that the Court of Appeal was not excluding the possibility that the fact of the obtaining of legal advice may be a relevant circumstance. 
69. [69]
    It follows that I prefer and follow the reasoning in Spedding which is supported by Noonan as relevant and applicable to the present case. 
70. [70]
    Each case will, of course, depend on the facts but I am satisfied that the better view is that the receipt of legal advice may be a relevant circumstance within s 32A(2) of the Act.
71. [71]
    Considering the combination of factors outlined in paragraph 53 and 54 of these Reasons objectively, I am satisfied that it was not reasonable for the plaintiff to have commenced proceedings within time.
72. [72]
    It follows that I must extend the limitation period.

The Discretionary Test: how does the availability or not of a defence of common law absolute privilege affect the date to which the limitation period should be extended?

73. [73]
    The defendants  submitted that even if I am satisfied that s 32A(2) is enlivened, it is open to me to extend the limitation period to a date earlier than 7 September 2020 to avoid allowing “a claim to proceed which has no reasonable prospects of success.”^[50]
74. [74]
    I must therefore determine whether the common law defence of absolute privilege provides such a complete defence to the defendants.
75. [75]
    The defendants submitted that common law absolute privilege is available to them notwithstanding that the plaintiff pleads malice or bad faith in relation to the publication. The defence at common law emerges from a recognition that certain parliamentary and judicial proceedings should be protected from defamation actions without qualification^[51]. As Brennan CJ, Dawson, Toohey and Gaudron JJ observed in Mann v O'Neill^[52], in such situations:

“Were civil liability to attach or be capable of attaching, it would impede inquiry as to the truth and justice of the matter and jeopardise the ‘safe administration of justice’”.

76. [76]
    The availability of absolute privilege as a defence in the current case hinges on two points. Firstly, whether, as the defendants submitted, the common law defence is available even in situations where malice or bad faith is pleaded. Secondly, whether it is appropriate to extend the defence to include the notification made in the circumstances of the complaint mechanism established under the National Law.

Is the common law defence available even where malice or bad faith is pleaded?

77. [77]
    I accept the defendants’ contention in relation to this first point. It is well supported by the authorities
78. [78]
    The absolute privilege defence has been recognised to target the “occasion” of the potentially defamatory statement, rather than the statement itself ^[53]. In Gibbons v Duffell (1932) 47 CLR 520 at 528, Gavan Duffy CJ, Rich and Dixon JJ observed:

“The reason [for the breadth of the absolute privilege defence] is that there are certain relations in life in which it is so important that persons engaged in them should be able to speak freely that the law takes the risk of their abusing the occasion and speaking maliciously as well as untruly, and in order that their duties may be carried on freely and without fear of any action being brought against them, it says, 'We will treat as absolutely privileged any statement made in the performance of those duties.”^[54] [Emphasis added]

79. [79]
    It is therefore not a bar to the availability of the defence of absolute privilege to the defendants that the plaintiff pleads bad faith or malice^[55].

Does the defence of absolute privilege extend to the notification process established under the National Law?

80. [80]
    It then remains for me to determine whether, as the defendants’ submitted, the reporting mechanism that was the occasion of the notification in this case is one to which the absolute privilege defence extends. The plaintiff was self-represented at the second hearing date before me. He did not specifically address this legal issue. But the overall effect of his submission is that it is unfair for the defence of absolute privilege to extend to the notification.^[56]
81. [81]
    It is instructive to note at this point that ss 237(1) and (2) of the National Law provide inter alia that a person who makes a notification in good faith is not liable civilly, criminally or under any administrative process for giving the information (the subject of the notification); and s 237(3) provides (without limiting s 237(2)) that no liability for defamation is incurred by the maker of the notification. This would tend to show, in my view, a parliamentary intention that this is the type of proceeding to which absolute privilege would attach.
82. [82]
    In Gibbons, the High Court identified that the absolute privilege defence emerged at common law out of a recognition that the efficacy of certain proceedings, initially judicial and parliamentary proceedings, required complete protection from the threat of defamation litigation.^[57] This defence operates in addition to the statutory defence of absolute privilege.^[58]
83. [83]
    The privilege is described as absolute because it cannot be defeated, even if the published statement was untrue or was published maliciously. As Kenneth Martin J relevantly opined in Norris v Gittos [2011] WASC 295:^[59]

“…absolute means exactly that – absolute. There are no exceptions. Even showing malice or bad faith in a defendant will not undermine a properly invoked defence of absolute privilege. That is the law”.

84. [84]
    In Mann the High Court usefully identified the types of proceedings to which the defence may be extended, as follows:^[60]

“It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating processes, in pleadings, or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any document published on an “occasion properly incidental [to judicial proceedings], and necessary for [them]”.

It is also settled law that absolute privilege attaches to statements made in the course of quasi-judicial proceedings, ie proceedings of tribunals recognised by law and which act “in a manner similar to that in which a Court of justice acts”. Various considerations are relevant to the question of whether proceedings are quasi-judicial. However, the overriding consideration is “whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern”. The privilege extends to members of tribunals and to “advocates, litigants and witnesses”. And its scope is not less extensive in other respects than the case of statements made in the course of judicial proceedings.”

[Emphasis added]

85. [85]
    In Mann, the High Court also observed that “… the extension of the defence should be resisted, unless its necessity is demonstrated.”^[61] It follows that the true crux of any extension of the occasions to which absolute privilege attaches is the necessity in the occasion, rather than the mere existence of public interest or general analogy to judicial proceedings.
86. [86]
    In Nyoni v Pharmacy Board of Australia (No 6),^[62] the court held that the proceedings of the notification committee of the National Board under s 178(2) of the Health Practitioner Regulation National Law, as applied in Western Australia by the Health Practitioner Regulation National Law (WA) Act 2010 (WA), were “quasi-judicial” with the consequence that statements made by the notification committee of the National Board were covered by absolute privilege at common law.
87. [87]
    In Clarke v Fenn [2018] NSWDC 336 (15 November 2018), Gibson DCJ considered a publication made by a practitioner to the Nursing and Midwifery Council of New South Wales over the telephone in the course of the Council’s investigation of a notification, exercising the powers and functions invoked under the National Law. Her honour described the defendant’s role as “analogous to that of a witness in quasi-judicial proceedings and, as such, is protected… pursuant to the principles of immunity from suit at common law.”^[63] It followed that the publication was protected by common law absolute privilege. 
88. [88]
    The defendants submitted that in the present case the notification, the Health Ombudsman referral and the AHPRA investigation formed part of a quasi-judicial process.  I accept this submission for several reasons.
89. [89]
    First, the Notification to Ombudsman formed part of an established procedure required to set in motion the AHPRA investigation.^[64] The notification was the document initiating the investigation. Secondly, under s 14 of the Health Ombudsman Act, the Ombudsman has power to investigate and either suspend or impose conditions or restrictions on the plaintiff’s right to practice. Thirdly, AHPRA also has the power to impose conditions on the plaintiff’s registration.  Fourthly, documents of this type have been recognised as being covered by the privileged occasion.^[65]
90. [90]
    I therefore find that the defence of absolute privilege provides a complete bar to each of the defendants in the plaintiff’s claim for damages for defamation against them.

To what date should the limitation be extended?

91. [91]
    The question then becomes to what date I should order the mandatory extension of time.
92. [92]
    In King, Fraser JA, with whom McMurdo JA and Jackson J agreed set out the factors that may be taken into consideration in exercising the discretion:^[66]

“Whilst in a case of this kind a court is obliged to extend the limitation period if it was not reasonable in the circumstances for the applicant to have commenced an action within one year from the date of publication, s 32A(2) confers upon that court a discretion as to the appropriate length of such an extension up to a maximum of three years. The object of the discretion about the length of the extension “‘is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to [the officer’s] view of the justice of the case’ … [including] look[ing] at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.”2 Factors that may be taken into account as support for an extension of sufficient length to allow the prosecution of a claim include that it was not reasonable for the applicant to have commenced an action within the limitation period of one year and any other circumstance indicating that the applicant may suffer injustice if the necessary extension is not granted. Factors that may be taken into account in opposition to an extension of the necessary length include the public interest in the prompt determination of defamation actions and that, the limitation period having expired, any extension of that period will impose a new legal liability on the respondent to the application. It is for the judge considering the appropriate length of an extension of time to decide upon the weight to be given to the relevant factors in the particular circumstances of the case as revealed by the evidence.”^[67] [Emphasis added]

93. [93]
    With these factors in mind, granting an order for an extension to a date that sees the plaintiff’s defamation proceedings remain alive in respect of a claim that is ultimately futile would be an inappropriate exercise of my discretion in the circumstances of this case. It is clearly not in the plaintiff’s interests or “the public interest in the prompt determination of defamation actions.”^[68]
94. [94]
    It follows that the justice of this case warrants me granting the extension of time to a date prior to 7 September 2020. I have nominally chosen the date of 1^st  August 2020 as this is one month after the plaintiff was first told by his then solicitor Mr Nyst that time limitations applied to defamation claims.^[69] The effect of this order is that the plaintiff’s defamation claim is statute barred.
95. [95]
    Making an impotent order under s 32A(2) on the basis that the plaintiff’s claim is futile is analogous to ordering summary judgment^[70]. As a result, I am conscious of “the great caution which the courts exercise when determining whether or not to summarily shut a plaintiff or applicant out of the pursuit of lawful remedies.”^[71] But I am satisfied that the issue is suitable for summary determination in the present case.^[72] 

Orders

96. [96]
    The effect of the plaintiff’s application was for an extension of the limitation period until 8 September 2020.^[73] The plaintiff has been unsuccessful in obtaining such an order.
97. [97]
    I therefore order that the plaintiff’s application filed 7 September 2020 is dismissed.

Costs

98. [98]
    The plaintiff has been unsuccessful in obtaining the order sought. Ordinarily, costs follow the event. It follows that the appropriate order as to costs in this case is that the plaintiff pay the defendants’ costs of the application to be assessed if not agreed. But I will allow the parties the opportunity to make submissions as to why another order as to costs is appropriate in this case. To that end, I direct that any submissions in respect of costs (no longer than 2 pages), or alternatively a proposed draft order if the parties are agreed, be exchanged, and emailed to my Associate by 4.00pm Monday 31st May Friday 4^th June 2021. Otherwise the costs order foreshadowed will be made.