UPDATED NEWS STORY Court confirms that complaints made “in good faith” are protected against claims of defamation

04 Jul 2012

In a 2010 NSW District Court case Lucire v Parmigiani, the legal protection against defamation claims for people making a complaint about a medical practitioner was tested.

The case involved a medical practitioner who had complained to the then Medical Board about another medical practitioner. The complaint arose when both practitioners were engaged as expert witnesses in a personal injury matter – one for the plaintiff and the other for the defendant. 

In a letter to the Medical Board, one of the practitioners complained about the conduct of the other practitioner whilst giving expert evidence in court. The other practitioner claimed the complaint was defamatory and brought the matter before the District Court.

In her decision of 28 May 2010, Justice Gibson found that the complaint to the then Medical Board was protected by absolute legal privilege, as provided by section 27 of the Defamation Act 2005 and section 47 of the now repealed Medical Practice Act 1987.

The decision was appealed, and the Court of Appeal (Lucire v Parmegiani & Anor of 20 April 2012) set aside Justice Gibson’s orders. 

It found that the defence of absolute privilege did not apply to the making of a complaint, although it did apply to any publications by the Board or other parties such as the Health Care Complaints Commission, in the process of dealing with the complaint once it had been made.

The Court of Appeal affirmed that the statutory defence against defamation for making a complaint, such as that contained in section 96 of the Health Care Complaints Act 1993, applies where the complaint is made “in good faith”.

The statutory protection against defamation for complaints made “in good faith” shields complainants against actions for defamation.

Further Information

The full decision is available on the NSW District Court’s website.

The full decision of the Court of Appeal is available on the Department of Attorney General and Justice’s website.