Akbari v State of Queensland & Anor

In this case, the appellant appealed against the primary judge’s decision to dismiss an application to extend the limitation period for commencing a defamation claim. The primary judge accepted that it was not reasonable for the appellant to have commenced an action within the limitation period because he had “honestly” misunderstood the effect of advice from his previous solicitors. But the primary judge also found that absolute privilege attaches to a notification made to the Health Ombudsman under s 141 Health Practitioner Regulation National Law and therefore operated as a complete bar to the appellant’s claim. The Court of Appeal found the primary judge was correct to have extended the limitation period but that she was not correct in finding the notification was one to which absolute privilege attached.

McMurdo and Mullins JJA and Callaghan J

10 May 2022

Background

The appellant, Dr Akbari, was employed as a psychiatrist at Mackay Base Hospital in 2019. Shortly afterwards, his employment was terminated as a result of a letter of complaint from junior doctors about his performance. [1]. Subsequently, the hospital’s Senior Medical Officer in Psychiatry, Dr Henderson, made a notification about Dr Akbari to the Health Ombudsman pursuant to s 141 of the Health Practitioner Regulation National Law (the National Law). [2].

Dr Akbari’s insurer instructed a solicitor to act for him in a resulting investigation. [2]–[3]. As part of discussions with this solicitor, Dr Akbari indicated that he wished to sue Dr Henderson and the hospital for defamation. [13]. However, for reasons which will be explained below, Dr Akbari did not commence proceedings at that time. In June 2020, following the conclusion of the investigation, Dr Akbari consulted another firm of solicitors about commencing defamation proceedings, and at that stage became aware that there was a limitation period of one year that would prima facie prevent him from doing so. [5].

At first instance, Dr Akbari sought an extension of the limitation period under s 32A Limitation of Actions Act 1974. [8]. The primary judge permitted an extension, but “only to a date which preceded the commencement of the proceeding” on the basis that the claim was “bound to fail because under the common law the respondents enjoyed an absolute privilege”. [8]. On appeal, the appellant contended that the primary judge had erred in concluding that the respondents enjoyed an absolute privilege. The respondents cross-appealed against the primary judge’s conclusion that the limitation period could be extended. [9].

In the result, the Court of Appeal found that the primary judge had been correct to extend the limitation period, but wrong to conclude that the respondents enjoyed an absolute privilege. The appeal was allowed, and the appellant granted a longer extension of the limitation period (such that his proceeding had been commenced in time). [61]–[62]. Reasons were given by McMurdo JA, with whom Mullins JA and Callaghan J agreed. [63]–[64].

Why the limitation period was extended

At the relevant time (prior to amendment), s 32A(2) Limitation of Actions Act 1974 provided that:

“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”.

The primary judge found that, in his discussions with the first solicitor, Dr Akbari had “mistakenly understood the effect” of the conversation to “mean that he should not commence a defamation claim” until an investigation by the Australian Health Practitioner Regulation Agency had been finalised. [16]. As a consequence, the primary judge had concluded that it was not reasonable for Dr Akbari to have commenced proceedings within time – thus enabling an extension of the limitation period, pursuant to s 32A(2). [17].

On appeal, the respondents contended that the phrase “not reasonable in the circumstances” had to be determined objectively, and not subjectively from Dr Akbari’s perspective. It contended that the primary judge had erred in this respect. [18]. However, the Court of Appeal emphasised that, while the inquiry is objective, the assessment is made upon the relevant circumstances – which included the fact that “the legal advice, objectively viewed, was capable of the interpretation that Dr Akbari should not sue whilst the AHPRA investigation was ongoing”. [27]. As the Full Federal Court said in Joukhador v Network Ten Pty Ltd (2021) 283 FCR 1 (extracted at [23]):

“the assessment proceeds by reference to the claimant’s position and whether, objectively, it would not have been reasonable for him or her, in light of all of the circumstances, to commence the proceeding within one year of the publication complained of.”

Accordingly, there had been no error by the primary judge in concluding that Dr Akbari should be granted an extension under s 32A(2). [28].

Why there is no absolute privilege for a notification made to the Health Ombudsman

The Court noted that there is an “absolute privilege” which attaches “to all statements made in the course of judicial proceedings”. [29]. Further, this privilege also attaches “to statements made in the course of quasi-judicial proceedings”. [30]. The basis of the absolute privilege “is that it exists for reasons of necessity” – namely, that it is necessary that persons involved in such proceedings “be able to discharge their duties freely and without fear of civil action for anything said by them in the course of the proceedings” (quoting Mann v O’Neill (1932) 47 CLR 520). [31].

The primary judge had been persuaded that Dr Henderson’s notification to the Health Ombudsman had been the “commencement of a quasi-judicial proceeding for which it was necessary that this publication be protected by absolute privilege”. [32]. However, the Court of Appeal disagreed that an absolute privilege existed, because there was no demonstrated necessity for such a privilege in the circumstances. [33]. In particular, because s 237 of the National Law provided that a person who “in good faith” made a notification under the law was “not liable, civilly, criminally or under an administrative process, for giving the information”. [47].

Accordingly, the primary judge had erred in finding that there was an absolute privilege, and for only extending the limitation period to a time before the commencement of the claim as a consequence. [61]. The Court of Appeal allowed the appeal and permitted an extension of time up until 8 September 2020 (the day after the appellant’s claim and statement of claim were filed). [6], [62].

W Isdale