Have a complaint made that was dismissed by the regulator ?
This was considered in part: Akbari v State of Queensland & Anor [2022] QCA 74
Many health practitioners ask about actions against notifiers. This decision answers some questions.
A mandatory notification was made by a health practitioner about another health practitioner and the decision in the Court of appeal deals with qualified privilege and defamation and extension of time.
The Court found:
At [33] – “I disagree with her Honour’s conclusion essentially for the reason that the regime which is created by the National Law, operating in Queensland with the Health Ombudsman Act 2013 (Qld) is not one for which there is a demonstrated necessity of the kind that dictates that judicial proceedings are absolutely privileged.The absence of that necessity is demonstrated by s 237 of the National Law, which provides a privilege to a person who, in good faith, makes a notification under the Law. “
In essence this means that notifications if made in good faith may be subject to not absolute but qualified privilege. The issue will be whether the notification was made in good faith.
Callaghan J agreed with the decision of McMurdo JA and went on to say:
“[65] His Honour has explained the form of the Health Practitioner Regulation National Law (Qld) (the National Law) and points to the inclusion in it of a qualified privilege. That tells against the existence of absolute privilege which, if it existed, would mean that s 237(3)(b) of the National Law was otiose. It follows that the appellant should succeed, so long as it was reasonable in the circumstances for him not to have commenced an action.[66] The learned trial judge reached that conclusion, but this has been challenged by way of a cross-appeal. This Court should, however, reach the same conclusion as her Honour. It was, with respect, the correct determination in circumstances where the appellant had in fact taken steps to vindicate his rights and engaged legal representatives to do that for him. “
It will be interesting to see how and if the defamation matter progresses.
The decision can be found here:
