District Court New South Wales Medium Neutral Citation: Clarke v Nursing and Midwifery Council of New South Wales [2020] NSWDC 641 Hearing dates: 12-16 October 2020 Date of orders: 23 October 2020 Decision date: 23 October 2020 Jurisdiction: Civil Before: Scotting DCJ Decision: 1 The Amended Statement of Claim is dismissed. 2 The plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis. 3 I will hear the parties on an alternate costs order or as to the making of a gross sum costs order, if an application is made for such a costs order within 7 days, by notifying the other party and my Associate. Catchwords: DEFAMATION – publication - imputations – damage to reputation – hurt to feelings – statutory defence of provision of information in good faith Legislation Cited: Defamation Act 2005 Evidence Act 1995 Health Practitioner Regulation National Law (NSW) No 86a Cases Cited: Armargas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd's Rep 1 Bankstown City Council v Alamado Holdings Pty Ltd (2005) 223 CLR 660 Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 Briginshaw v Briginshaw (1938) 60 CLR 336 Bristow v Adams [2012] NSWCA 166 Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1722 Coote v Kelly [2016] NSWSC 1447 Fox v Percy (2003) 214 CLR 118 Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 Hughes v Barbara Mines Ltd (No 4) [2010] WASC 160 Jones v Dunkel (1959) 101 CLR 298 Jones v Gordon (1877) 2 App Cas 616 Lindsay v Medical Board [2008] NSWSC 40 Lithgow City Council v Jackson (2011) 244 CLR 352 Lucas v Dicker (180) 6 QBD 84 Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Onassis v Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 Palmer v Dolman [2005] NSWCA 361 Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 3) (2010) 267 ALR 494 Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126 Slayter v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 Smith v Morrison [1974] 1 WLR 659 Spiliotopoulos v National Australia Bank Ltd [2017] NSWSC 971 Sungravure Pty Ltd v Middle East Airlines Airliban SA (1975) 134 CLR 1 Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 Category: Principal judgment Parties: Sharmain Daisy Clarke (Plaintiff) Nursing and Midwifery Council of New South Wales (Defendant) Representation: In person (Plaintiff) Counsel: D Sibtain (Defendant) Solicitors: Hicksons Lawyers (Defendant) File Number(s): 2018/113261 Publication restriction: None Judgment Introduction 1. Sharmain Daisy Clarke (the plaintiff) sues the Nursing and Midwifery Council of New South Wales (the Council) for defamation in respect of two publications. 2. The first publication is an email from Kim Bryant, the Deputy Executive Officer of the Council to Chris Glasheen, the Renewals and Compliance Co-ordinator (NSW) of the Australian Health Practitioner Regulation Agency (APHRA) dated 25 July 2017. The email was sent in response to a request from AHPRA for any information that should be taken into account in renewing the plaintiff's registration as a health practitioner. The issues relating to the first publication are: 1. What was the extent of the publication of the email? 2. Do the imputations pleaded at [11] of the Amended Statement of Claim arise? 3. Has the plaintiff established damage to her reputation flowing from the first publication? 4. Can the Council rely on the defence provided for by s 237 Health Practitioner Regulation National Law (NSW) No 86a (the National Law)? 1. The second publication is disputed. The plaintiff alleges that on or about 24 April 2018 that the Council sent to Dr Andrew Adams, the plaintiff's general practitioner, an extract of the conditions on the plaintiff's registration recorded on the National Register. The only issue raised on the second publication is the fact of publication. 2. The Court must also assess damages if the plaintiff establishes that she has been defamed by either of the matters complained of. 3. The plaintiff represented herself at the hearing. It was apparent that the plaintiff is aggrieved by her dismissal from employment that occurred on 5 May 2015 and the various decisions of the Council to impose conditions on her registration as a nurse and its dealings with her generally thereafter. I am aware that from about 2017 to the present that she has and continues to prosecute a number of proceedings in different jurisdictions, seeking relief relating to her dismissal and the Council's actions. These proceedings only relate to the latter. However, in these defamation proceedings the merits of the Council's decisions, the conduct of the various committees appointed by the Council or whether or not the plaintiff was afforded procedural fairness when those decisions were made, are not matters that are in issue. It is clear from the way that the plaintiff presented her case that she did not understand that. Evidence 1. The evidence in the case was largely documentary and mainly consisted of contemporaneous correspondence between the Council and the plaintiff. 2. The plaintiff gave oral evidence in her own case and was cross-examined. 3. The defendant called: 1. Ms Bryant; 2. Debra Mudyara, a Program Officer employed by the Council; 3. Peter Bate, the Information Technology Systems Manager of the Health Practitioners Councils Authority (HPCA) that provides IT services to the Council; and 4. Margaret Cooke, the Executive Officer of the Council. 1. Each of the witnesses called by the Council, with the exception of Ms Cooke, were cross-examined by the plaintiff. Findings of fact The relevant law 1. In making findings of fact based on the evidence I have had regard to the following principles. 2. A party must establish its case on the balance of probabilities taking into account factors including; the nature of the cause of action or defence, the subject matter of the proceedings and the gravity of the matters alleged: s 140 Evidence Act 1995. 3. Where the law requires the proof of any fact, the Court must feel an actual level of persuasion of its occurrence before it can be found. It cannot be found as a result of the pure mechanical comparison of probabilities independent of any belief in its reality. It is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Court. Reasonable satisfaction is not a state of mind that is established independently of the nature and consequence of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity or consequences flowing from a particular finding are considerations which must affect the answer to the question, whether an issue has been proved to the reasonable satisfaction of the Court: Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 360-361. 4. Some of the factual issues raised in the case may require findings of dishonesty and/or fraud and a finding on the balance of probabilities of such matters should not be made lightly: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-1 per Mason CJ, Brennan, Deane and Gaudron JJ. 5. "[D]ishonesty is usually a matter of inference from primary facts": Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at [186] per Lord Millet cited with approval in Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 3) (2010) 267 ALR 494 at [69] per Flick J, Spiliotopoulos v National Australia Bank Ltd [2017] NSWSC 971 at [33] per Harrison J and Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126 at [110] per Kenny J. 6. The relevant principles were considered in Palmer v Dolman [2005] NSWCA 361 at [33]-[47] by Ipp JA (Tobias and Basten JJA agreeing) and can be summarised as follows: 1. it is sufficient in a civil case that the circumstances raise a more probable inference in favour of what is alleged; 2. the court must consider the weight which is to be given to the united force of all the circumstances put together. The onus of proof is only to be applied at the final stage of the reasoning process. It is erroneous to divide the process into stages and, at each stage, apply some particular standard of proof. To do so destroys the integrity of a circumstantial case; 3. the inference drawn from the proved facts must be weighed against realistic possibilities as distinct from possibilities that might be regarded as fanciful; 4. where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved; and 5. the inquiry is simply, taking due account of what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, has the allegation been proved on a balance of probabilities. 1. While a more probable inference may fall short of certainty, it must be more than an inference of equal degree of probability with other inferences, so as to avoid guess or conjecture. In establishing an inference of a greater degree of likelihood, it is only necessary to demonstrate that a competing inference is less likely, not that it is inherently improbable: Lithgow City Council v Jackson (2011) 244 CLR 352 at [94] (Crennan J). 2. In Coote v Kelly [2016] NSWSC 1447 at [100] - [102] Davies J collected a number of appellate and/or persuasive authorities that provide assistance on the assessment of credit and the fallibility of human memory. From his Honour's collection which I gratefully adopt, the following salient points are useful to deciding those issues in this case: 1. Memory can be affected by faulty storage of the event and this can be impacted by unconscious bias, wishful thinking or extensive discussion with others. "Witnesses, especially those who are emotional, who think that they are morally in the right, tend to very easily and unconsciously conjure up a legal right that did not exist." This can lead to a witness, however honest, trying to convince a court that their present recollection of an event is superior to the contemporaneous note of it: Onassis v Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 at 413 (Lord Pearce). 2. The process of civil litigation subjects the memories of witnesses to powerful biases, particularly where the witness has a stake in the outcome of the case. It is difficult for witnesses to distinguish between recollection and reconstruction because the processes underlying the difference are largely unconscious and the strength of a belief or memory is not a reliable measure of its truth. The preferable course for a judge is to base factual findings on inferences drawn from contemporaneous documents or known or probable facts, but that is not to say that oral testimony serves no useful purpose: Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 at [15]-[22]. 3. The observation of the demeanour of witnesses is a crude and inaccurate methodology and its defects have been exposed on numerous occasions: Fox v Percy (2003) 214 CLR 118 at [30]-[31]. 4. The credibility of a witness and his or her veracity can be tested by reference to the objective facts particularly those provided in contemporaneous documents, his or her motive and the overall probabilities: Armargas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd's Rep 1 at 57 (Lord Goff). 5. A court considering historical events will usually prefer to rely on the content of contemporaneous or near contemporaneous documents, because they are likely to be more accurate than flawed attempts of recollection of the facts. Such documents are usually a safer repository of reliable fact, particularly where they are prepared by a person with no reason to misstate the facts in them: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247] (Jagot J) and Hughes v Barbara Mines Ltd (No 4) [2010] WASC 160 at [157] (K Martin J). 1. The unexplained failure of a party to give evidence or to call a witness may lead to an inference that the uncalled evidence would not have assisted the party's case: Jones v Dunkel (1959) 101 CLR 298. Findings of fact based on the contemporaneous documents 1. The facts set out in [20] to [101] below are established on the contemporaneous documents or proven objective facts and I make the findings set out in those paragraphs. Background 1. The plaintiff is a registered nurse. 2. The Council is a body corporate set up by s 41B of the National Law. The functions of the Council include: 1. the registration of suitably qualified persons as nurses, midwives and student nurses (practitioners) and to impose conditions on the registration of practitioners; and 2. to conduct hearings into the conduct of practitioners. 1. The Council is a co-regulator with AHPRA and the Health Care Complaints Commission (HCCC). A complaint about a health practitioner can be made to any of the co-regulators. Once a complaint is received the co-regulators are required to consult and determine which of them is best suited to deal with the complaint. The Council may take action pursuant to s 150 of the National Law in conjunction with any other action taken by a co-regulator. 2. Section 150 of the National Law provides: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest— (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens— (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. (3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must— (a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and (b) refer the matter to the Tribunal as a complaint. (4) A Council for a health profession may take action under this section— (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. (5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. (7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who— (a) is not a registered health practitioner or student in the health profession for which the Council is established; and (b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act. 1. The Council's primary function is to ensure the protection of the health and safety of any person or persons and to protect the public interest, by suspending a practitioner's registration or imposing conditions on it, if the allegations made in a complaint suggest that there is a risk to the health and safety of any person, which are most likely to be patients or potential patients. The Council usually imposes conditions on a practitioner's registration to manage their health, competency or less serious forms of misconduct. [1] The Council must exercise its power, if it is satisfied that it is appropriate to do so to protect the health and safety or any person or persons. 2. The Council's power to deal with complaints is limited. The Council does not have the power to investigate if the matters alleged in a complaint are true and its role is not to determine if a complaint has merit: Lindsay v Medical Board [2008] NSWSC 40 at [79]. 3. A practitioner could be placed on a health path if they suffered from a medical condition that could adversely affect their ability to perform their duties safely. This could include the Council imposing conditions requiring the practitioner to undergo a health assessment and to comply with reasonable directions for treatment of a medical condition to ensure that it does not interfere with their ability to perform their duties without risk to the health or safety of any person. 4. A practitioner could be placed on a competency path if the practitioner was alleged to be unsatisfactorily performing the duties of a practitioner. This could include the imposition of conditions that a practitioner work under supervision and/or requiring a practitioner to undertake a performance assessment. A performance assessment can be either, the observation and assessment of the practitioner in their workplace, or the observation and assessment of the practitioner in a simulated environment. 5. The statutory powers and functions of the Council to deal with complaints are exercised by delegates in committee. Each committee consists of two registered practitioners and one registered health practitioner from another discipline, i.e. not a nurse or a midwife. 6. As at 2015, the Council convened four s 150 committees each month to deal with urgent applications. Delegates were appointed to a s 150 committee on a roster basis. Complaints were allocated to a s 150 committee randomly, depending on how urgently the complaint needed to be dealt with by reference to the seriousness of the allegations made against a practitioner and the potential risk to public safety. 7. When a complaint was received by the Council it was examined by a Professional Officer employed by the Council to determine if a s 150 hearing was required. In undertaking that task, Professional Officers could seek the advice of the delegates of the s 150 Committee rostered for that week. 8. In addition to s 150 committees, the Council had a Notifications Committee again constituted by delegates. The Notifications Committee was responsible for managing active complaints and would make decisions relevant to the progress of a complaint through the system. For example, if a practitioner refused to attend a health assessment the matter would be referred to the Notifications Committee to decide on how the matter would be progressed. 9. The Council's staff are employed by the HPCA. The HPCA provides administrative support to the Councils created by the National Law including, IT systems, human resources and accounting services. The Council's staff provide administrative support for the Council's functions under the National Law, but do not themselves exercise the powers or functions of the Council. Those powers and functions are delegated to the members of the committees. 10. Ms Bryant was employed by the Council as the Deputy Executive Officer from March 2014. In that role, Ms Bryant supervised all of the Council's staff dealing with complaints against practitioners. The complaint against Ms Clarke 1. On 5 May 2015 the plaintiff was terminated from her employment with the South Eastern Sydney Local Health District (the LHD). 2. Later in May 2015, the plaintiff advised AHPRA, when applying to renew her registration as a health practitioner that she was suffering from a medical condition. 3. On 22 June 2015 the plaintiff was employed by Primary Health Care at the Warringah Day Surgery in Brookvale as a registered nurse. On 12 August 2015 she was promoted to Assistant Director of Nursing (ADON) at that facility. 4. On 3 September 2015 the Board of AHPRA in considering the plaintiff's request to renew her registration as a health practitioner resolved to request the plaintiff to attend a health assessment with Dr Anthony Samuels, psychiatrist, on 22 October 2015 and to provide all relevant information relating to her dismissal from the LHD. 5. On 8 September 2015 a complaint was lodged on behalf of the LHD with AHPRA. The LHD alleged that concerns had been raised with the plaintiff's performance in April 2013 and since that date the LHD had implemented learning plans, supervision and imposed duty restrictions on the plaintiff to manage her performance. The LHD undertook three formal performance assessments, two of which were internal and the third was conducted by an external assessor. The LHD formed the view that the plaintiff's practice was at high risk, that she was unable to carry out her duties safely even with direct supervision and that her clinical practice did not meet the requirements of the National Competency Standards for Registered Nurses. 6. On 9 September 2015 the LHD's complaint was received by the Council. The Council staff began conducting a risk assessment based on the complaint to determine if urgent action was required pursuant to s 150 of the National Law. The s 150 hearing 1. The plaintiff's complaint was originally allocated to the s 150 Committee that was convened for 28 September 2015. After consultation with the duty delegates, the plaintiff's complaint was listed to be dealt with by the s 150 Committee to be convened on 21 September 2015. The plaintiff was advised by email that the hearing was to be brought forward. 2. On 18 September 2015, an employee of the Council prepared a "background document", from a template in accordance with the Council's usual practice. The background document consisted of a summary of background information, a statement of the purpose of the s 150 proceedings, a list of possible outcomes, the issues to be considered, a summary of the information available about the issues, information about the plaintiff's opportunity to make submissions and a list of relevant documents (exhibits) that were attached to the background document. Appendix C to the background document was an extract of the relevant provisions of the National Law. 3. The Council had in place a document management system known as TRIM. Each document received or sent by the Council was allocated a unique reference number and was stored electronically in a file relating to each practitioner (the TRIM file). Documents generated by the Council were stored in the TRIM file when they were created and documents received by the Council were scanned on receipt and stored in the TRIM file. Access to and actions on the documents stored in the TRIM file were recorded by the system, such that any dealing with a document could be traced by examining the audit events relating to that document. 4. On 21 September 2015 the s 150 hearing took place. The plaintiff attended the hearing on that date with a representative from the New South Wales Nursing and Midwives Association. The plaintiff presented evidence on her own behalf and submissions were made to the s 150 committee by her representative. The committee exercising the power of the Council resolved to impose the following conditions on the plaintiff's registration as a nurse: The following conditions have been placed on the public register 1. The registrant must practice under the indirect or direct supervision of a registered nurse (Division 1) who does not have any conditions on his/her practice. The supervisor must be: a. on-site and working in close proximity within a ward or unit with the registrant; and b. able to oversee and provide advice about the registrant's practice when necessary. 2. The registrant must commence being supervised by a nurse manager (or equivalent) approved by the Nursing and Midwifery Council of New South Wales who has agreed to oversee supervision and designate supervisors. The registrant must: a. provide the Nursing and Midwifery council of New South Wales with the name, contact details and resume of the nominated nurse manager within two weeks of commencing work; b. authorise the nurse manager to (i) Notify the Nursing and Midwifery Council of New South Wales of any breach of the conditions or unsafe practice; and (ii) Exchange information with the Council related to compliance with the conditions and (iii) Provide the Council with a copy of the conditions signed by the registrant and by the nominated nurse manager indicating awareness of the conditions and authorisation; c. authorise the nurse manager to provide a written report about the registrant's performance against the competency standards for a registered nurse (Division 1) approved by the Nursing and Midwifery Board of Australia at monthly intervals. 3. The registrant must: a. inform all current nursing employers (including nurse managers at agency placements) off the conditions immediately and provide the Nursing and Midwifery Council of New South wales with each employer's name and contact details; b. inform all future nursing employers (including nurse managers at agency placements) of the conditions, and provide the Nursing and Midwifery Council of New South Wales with the name and contact details of each employer, before commencing work/employment as a registered nurse. 4. The registrant must only be employed as a nurse in circumstances where the employer has agreed to notify the Nursing and Midwifery Council of New South Wales of any breach of the conditions or unsafe practice and exchange information with the Council related to compliance with the conditions. The following conditions are private, not placed on the public register 5. The registrant must complete a performance assessment by performance assessors/s approved by the Nursing and Midwifery Council of New South Wales. The cost of the assessment is to be met by the Nursing and Midwifery Council of New South Wales. 1. On 24 September 2015 the Council sent a letter to the plaintiff enclosing a written document engrossing the conditions imposed on her registration. 2. On 22 October 2015 the plaintiff attended a health assessment with Dr Samuels arranged by AHPRA. Dr Samuels sent a report to AHPRA concluding that the plaintiff was not suffering from a medical condition that would impact on her competence as a nurse. 3. On 30 November 2015 the Council sent to the plaintiff a copy of the s 150 Committee's reasons for its decision on 21 September 2015. The performance assessment 1. On 2 December 2015 the plaintiff attended a performance assessment at the University of Notre Dame but failed to complete it. The plaintiff refused to complete the performance assessment because she alleged that what she was being asked to do was outside her area of competency as a peri- operative nurse. 2. On 15 December 2015 the assessors of the performance assessment provided a report to the Council, as required by s 155B of the National Law to the effect that the performance assessment of the plaintiff was incomplete. 3. On 15 January 2016 the Notifications Committee exercising the powers of the Council resolved that the plaintiff was to undertake a further performance assessment in an operating theatre environment or a simulated operating theatres environment. 4. On 3 February 2016 the Council sent a letter to the plaintiff informing her of the decision of the Notifications Committee, with the details of the arrangements for the performance assessment to follow. 5. On 9 March 2016 the plaintiff sent an email to the Council stating that she was wrongfully dismissed by the LHD and stating that she had no intention of participating in a performance assessment "until I have progressed my matter before a hearing, in which all documents that the [LHD] relied on to terminate my employment as 'highly incompetent RN that posed a huge safety risk to patient care' is tested in a court of law". 6. On 8 April 2016 the Notifications Committee exercising the powers of the Council resolved to write to the plaintiff advising her that the Council would require her to participate in a performance assessment to be arranged in accordance with the conditions imposed on her registration and that she was obliged by the National Law to undertake the performance assessment. 7. On 29 April 2016 the Council sent a letter to the plaintiff advising her of the resolutions of the Notifications Committee. 8. On 9 May 2016 the plaintiff provided the Council with a medical certificate stating that she was not fit for work from 2 May 2016 to 2 August 2016 as a result of work related depression and anxiety that had first occurred on 23 July 2014. 9. On 10 June 2016 the Notifications Committee exercising the powers of the Council considered the plaintiff's medical certificate and resolved to write to the plaintiff noting that the plaintiff was unfit for work until August 2016 and advising her that the performance assessment would be postponed until after that date. 10. On 29 June 2016 the Council sent a letter to the plaintiff advising her of the resolution of the Notifications Committee and inviting her to inform the Council if she felt well enough before August 2016 to complete the performance assessment. 11. On 1 August 2016 the plaintiff telephoned the Council and spoke to Robyn Weller, a Professional Officer employed by the Council. The plaintiff advised that she was now well enough to undertake the performance assessment and that she was looking for work. The plaintiff told Ms Weller that she wanted the Council to reconsider her matter because she had been bullied, harassed and unfairly dismissed by the LHD. 12. On 2 August 2016 the plaintiff attended the Council's offices and spoke to Ms Weller. The plaintiff outlined her complaints about how she had been dealt with. Ms Weller suggested that the plaintiff write to the Council seeking a review of her case and providing any new information in support of that application. Ms Weller and the plaintiff discussed the arrangements for the proposed performance assessment. 13. On 3 August 2016 the plaintiff sent an email to the Council requesting review of her case and emphasising that she wanted to get back to practise urgently for financial reasons. 14. On 5 December 2016 the Council sent a letter to the plaintiff advising her that the performance assessment was scheduled at the University of Technology Sydney on 17 January 2017. 15. On or about 11 January 2017 the plaintiff sent a series of emails to the Council stating that she was having difficulty accessing the online materials provided by the Council to prepare for the performance assessment. Later that day a staff member of the Council provided the necessary login details to access the online materials. 16. On 16 January 2017 the plaintiff sent an email to the Council enclosing two medical certificates and asking for the performance assessment to be deferred. The first medical certificate was dated 6 January 2017 and prepared by the plaintiff's general practitioner Dr Adams. It stated: I am the GP of Ms Sharmain Clarke (Previously known as Sharmain Naicker). She and her family have been consulting me for about 15 years. She is a trained Registered Nurse. She had been in full-time employment. Following her dismissal from hospital in May 2015 she has consulted me several times with symptoms of severe anxiety and depression. These symptoms seem to be directly related to her dismissal from work. 1. The second medical certificate, also provided by Dr Adams, was dated 15 January 2017. It stated: On 15th January 2017 I examined Ms Sharmain Clarke. In my opinion she is suffering from acute anxiety related to her upcoming assessment. Please consider deferring the assessment for two weeks. 1. The performance assessment scheduled for 17 January 2017 did not proceed. Referral of the plaintiff for a health assessment 1. On 27 January 2017 the Notifications Committee exercising the powers of the Council resolved to refer the plaintiff for a health assessment pursuant to s 145E of the National Law, with a psychiatrist Dr Atsumi Fukui. 2. On 17 February 2017 the Council sent a letter to the plaintiff advising her of the decision to refer her for a health assessment and providing details of an appointment with Dr Fukui on 2 March 2017. 3. On 22 February 2017 the plaintiff sent an email to the Council advising that she was prepared to attend the health assessment with Dr Fukui. 4. On 23 February 2017 the plaintiff sent an email to the Council. The plaintiff alleged that the Council had sent false information to Dr Fukui and that the Council had failed to inform Dr Fukui of the background of the injustices that she had been subjected to. 5. On 26 February 2017 the plaintiff sent an email to the Council requesting that the appointment with Dr Fukui be rescheduled because she was required to attend Waverley Local Court on 2 March 2017 relating to a police matter. 6. On 2 March 2017 the Council sent an email to the plaintiff advising her that the health assessment with Dr Fukui had been rescheduled to 9 March 2017 and seeking the plaintiff's confirmation that she could attend. The plaintiff denied receiving this email or notice of the rescheduling of the health assessment with Dr Fukui. The plaintiff did not attend the rescheduled health assessment. 7. On 15 March 2017 at 5.52pm the Council sent an email to the plaintiff seeking an explanation for her failure to attend the health assessment with Dr Fukui. At 8.13pm the plaintiff responded to Ms Bryant's email stating that she was unaware of the rescheduling of the health assessment with Dr Fukui. 8. On 5 April 2017 the Council sent a letter to the plaintiff advising that the health assessment with Dr Fukui was now rescheduled for 2 June 2017. 9. On 18 April 2017 the Council sent an email to the plaintiff seeking confirmation that she was attending the health assessment with Dr Fukui. 10. On 20 April 2017 the plaintiff responded to the Council's email advising that she had been to the District Court on that day and that she was told by Judge Gibson that she was not required to attend any health assessment or other assessment unless the party who wanted such an assessment appeared before the District Court and obtained an order from the Court to that effect. 11. On 25 April 2017 the plaintiff sent an email to the Council addressed to Ms Bryant. The plaintiff reiterated her position relating to Judge Gibson's comments. She advised that she had been referred for pro bono legal assistance and that her legal representatives would advise the Council of her position on attending the health assessment a week before it was scheduled. 12. On 30 May 2017 the plaintiff sent an email to the Council requesting that the health assessment be "placed on a hold", because she had injured her left upper forearm, she was running her matters before the courts, she had been advised her legal representatives not to attend and reiterating Judge Gibson's alleged directive. The email attached a medical certificate given by Dr Belinda Sheary dated 3 May 2017 that provided the that the plaintiff was unfit for work from 3 May 2017 to 3 June 2017, because she was suffering left shoulder pain and restricted movement which first occurred on 24 March 2017. 13. On 31 May 2017 the plaintiff sent an email to the Council, addressed to Ms Bryant. The plaintiff stated that she did not intend to attend the health assessment. The s 150C hearing 1. On 9 June 2017 the Notifications Committee exercising the powers of the Council resolved that the plaintiff be reviewed by a s 150 committee of pursuant to s 150C of the National Law. 2. On 5 July 2017 Ms Bryant prepared a background document for the s 150C proceedings listed for hearing on 13 July 2017. Ms Bryant prepared the background document by going through the plaintiff's file and preparing a summary of the relevant events and exhibiting copies of the documents referred to at [48], [54], [60], [62]-[63], [66]-[72] and [74]-[77]. 3. On 6 July 2017 the Council sent a letter to the plaintiff advising her of the s 150C hearing that was listed for 13 July 2017, enclosing the background document dated 5 July 2017. 4. On 13 July 2017, the plaintiff attended the s 150C hearing. The committee exercising the powers of the Council resolved pursuant to s 150C of the National Law to alter the conditions on the plaintiff's registration, by deleting the 21 September 2015 conditions and imposing new conditions. On 13 July 2017 the Council sent the plaintiff an email that the following conditions were imposed on her registration on 13 July 2017: The following conditions have been placed on the public register The registrant must not work as a registered nurse until reviewed by the Nursing and Midwifery Council of New South Wales and this condition is removed. The following conditions do not appear on the public register The registrant must attend for a health assessment by a Psychiatrist appointed by the Nursing and Midwifery Council of New South Wales. The cost of this assessment will be at the Council's expense. 1. On 17 July 2017 the Council sent a letter to the plaintiff advising her of the conditions imposed on her registration on 13 July 2017. The first matter complained of 1. On 17 July 2017 Mrs Glasheen of AHPRA sent an email to the Council regarding the plaintiff in the following terms: Dear Colleague I am currently assessing a renewal application for the above name [health practitioner]. I note that conditions not to practise have been recently imposed by the Council. Could you please advise if you have any reason her renewal application should not be renewed? Thanks 1. Mrs Glasheen's email was allocated to Ms Bryant for a response because she had recently compiled the background document dated 5 July 2017. 2. On 25 July 2017 at 4.17pm Ms Bryant replied to Mrs Glasheen's email by asking her to telephone her. Later that day, Mrs Glasheen telephoned Ms Bryant and they had a conversation. 3. Ms Bryant's evidence was that she confirmed what she had told Mrs Glasheen over the telephone by sending her an email at 6.43pm on that day, in the following terms: Dear Chris Thank you for speaking with me this afternoon about Ms Clarke's application for renewal of registration. As advised over the phone, in summary 1. In September 2015, the Council received a complaint from South Eastern Sydney Local Health District (SESLHD) reporting serious concerns about Ms Clarke's performance. It was reported that Ms Clarke's employment at Royal Hospital for Women was terminated on 5 May 2015. 2. On 21 September 2015 the Council took urgent interim action and imposed conditions on Ms Clarke's registration as a nurse. 3. The Council has been managing the matter regarding Ms Clarke since taking urgent interim action in September 2015. Both performance assessment and health assessment have not been completed to date. 4. In relation to the condition requiring performance assessment Performance Assessment on 2 December 2015 Ms Clarke attended for performance assessment Ms Clarke discontinued her participation during the assessment The assessors provided a report of the incomplete performance assessment On 9 May 2016 Ms Clarke provided a medical certificate stating she was not fit to work from April – August 2016 Performance Assessment on 17 January 2017 One day prior to the assessment (16 January 2017) Ms Clarke provide two medical certificates and requesting the assessment be deferred The performance assessment did not proceed as scheduled on 17 January 2017 5. On 27 January 2017 the Council decided to require Ms Clarke to attend for health assessment a. Health assessment scheduled on 2 March 2017 On 23 February 2017 Ms Clarke requested that her assessment be re-scheduled because she was required to attend a court matter b. Health assessment was re-scheduled for 9 March 2017 Ms Clarke did not attend the appointment When required to explain non-attendance Ms Clarke submitted she did not receive notice of the appointment from the Council c. Health assessment was re-scheduled for 2 June 2017 Ms Clarke corresponded with the Council about this appointment on a number of occasions On 31 May 2017 Ms Clarke provided a medical certificate confirming shoulder injury Ms Clarke did not attend the appointment As you are aware the Council took further action under s150C amending the conditions of her registration on 13 July 2017. Ms Clarke has a condition that she not practise nursing and another that she attend for health assessment. The Council has scheduled an appointment for Ms Clarke to attend a health assessment. Details are: Name: Miss Sharmain Clarke Date: Tuesday, 5 September 2017 Time: 12.00pm Psychiatrist: Dr Susan Messner Ms Clarke has not yet been advised of the appointment details. Please feel free to contact me directly if you have any queries about this information. Kind regards 1. On 26 July 2017 the Council advised the plaintiff of the health assessment with Dr Messner scheduled for 5 September 2017. 2. On 31 July 2017 the plaintiff commenced proceedings to review the decision of the s 150C Committee in the New South Wales Civil and Administrative Tribunal (NCAT) (the review appeal). 3. On 16 August 2017 the Council sent to the plaintiff a copy of the s 150C Committee's reasons for its decision of 13 July 2017. 4. On 11 September 2017 AHPRA sent a letter to the plaintiff in response to a Freedom of Information Act request made by her. One of the documents provided by AHPRA to the plaintiff on that occasion was Ms Bryant's email to Mrs Glasheen dated 25 July 2017. 5. On 4 October 2017 the review appeal was heard by NCAT. 6. On 15 November 2017 the review appeal was dismissed by NCAT. The second matter complained of 1. On 29 March 2018 the plaintiff consulted Dr Anthony Samuels for a health assessment arranged by AHPRA. A copy of Dr Samuels' report was sent to the Council by AHPRA. 2. On 13 April 2018 the Notifications Committee exercising the functions of the Council resolved to provide a copy of Dr Samuels' report to the plaintiff through her general practitioner, so that its contents could be explained to her. 3. On 19 April 2018 the Council sent the plaintiff an email seeking her consent to send Dr Samuels' report to her general practitioner. The plaintiff replied to that email later that day advising the Council of the contact details for Dr Adams. 4. On 20 April 2018 the Council sent a letter to the plaintiff by email and Express Post requesting her to make an appointment with Dr Adams in the next 5 days for the purpose of receiving Dr Samuels' report. The letter was sent by email to the plaintiff at 11.30am. 5. On 20 April 2018 the Council sent a letter to Dr Adams by email and Express Post. The letter was sent by email at 11.27am. The Council asked Dr Adams to provide Dr Samuels' report to her and to answer any questions she may have on it. The Council expressed concerns for the plaintiff's health and stated that the process was intended to minimise any distress the report may cause her. The letter enclosed 3 documents: 1. A document entitled "CAP Report –Appointment Scheduled – Treating Health Practitioner – Miss Sharmain Daisy Clarke" (the appointment scheduled form); 2. A document entitled "CAP Report – Appointment Completed – Health Practitioner – Miss Sharmain Daisy Clarke" (the blank completed appointment form); and 3. Dr Samuels' report dated 29 March 2018. 1. On 20 April 2018 at 1.56pm the plaintiff sent an email to the Council stating that Dr Adams was in New Zealand and that he would be away until Tuesday 24 April 2018, at which time she hoped to be able to respond more appropriately to the email in [95] above. [2] 2. On 27 April 2018 the Council received the document referred to in [95(2)] above, that had been filled in by Dr Adams (the completed appointment form). The document that was signed by Dr Adams stated that he had seen the plaintiff for the purpose of providing her with Dr Samuels' report on 24 April 2018 at 6.00pm. It was date stamped as having been received by the Council on 27 April 2018. This document was scanned and entered into the plaintiff's file in TRIM and allocated the reference number HP18/5459. 3. On 17 May 2018 Annemaree Nicholls an employee of the Council prepared a background document for the Impaired Registrant's Panel (IRP) listed for 22 May 2018 (the IRP bundle). The completed appointment form as filled in by Dr Adams was exhibit "6" to the IRP bundle. The copy of the document exhibited to the IRP bundle had a handwritten numeral "6" on the bottom right hand corner. At 8.08am on that day, Ms Nicholls created a report of the conditions imposed on the plaintiff's registration that was held on the Monitoring and Compliance System (MaCS) (the orders and conditions report), which she attached to the IRP bundle as exhibit 7. The precise time when the orders and conditions report was generated was recorded on the report was "17/05/2018 at 8.08:27 AM". As soon as the orders and conditions report was generated it was transferred into the plaintiff's file in TRIM and given the reference number 25625/18 and thereafter any dealing with the document was recorded by the system. The orders and conditions report exhibited to the IRP bundle had a handwritten numeral "7", using the European or Latin American style, on the bottom right hand corner of the document if it was viewed in the portrait orientation. 4. On 17 May 2018 the Council sent a letter to the plaintiff enclosing the IRP bundle for the IRP to be held on 22 May 2018. The plaintiff's case 1. The plaintiff gave oral evidence and tendered 64 documentary exhibits. I also examined a large volume of documents sought to be tendered by the plaintiff that were rejected because they were not relevant to a fact in issue in the proceedings. 2. The plaintiff's evidence can be summarised as follows. I will not repeat the matters on which I have already made findings of fact. 3. The plaintiff was born on 19 September 1970 in South Africa. She obtained a Diploma in General Nursing from Pretoria University in 1994. She was first registered as a nurse in Australia on 27 February 2003. 4. In 2005 the plaintiff obtained a Post Graduate Certificate in Clinical Nursing from the Australian Catholic University. 5. The plaintiff was employed as a full-time peri-operative nurse at the Prince of Wales Hospital in Randwick from 7 April 2003 until 13 March 2008. 6. The plaintiff was employed by the LHD as a registered nurse in the operating theatre at the Royal Hospital for Women (RHW) on 17 October 2011. She was transferred to the recovery unit at RHW on 8 May 2013. 7. In 2014 the plaintiff commenced a Masters degree in Public Health at the Torrens University. 8. The plaintiff was initially notified on or about Friday 18 September 2015 that the s 150 hearing would occur on 28 September 2015. She was told later that day that the s 150 hearing had been brought forward to Monday 21 September 2015. The plaintiff believed that the decision to bring the hearing forward was procedurally unfair to her. 9. After the Council had contact with her employer Primary Health Care in September 2015, she was demoted and then terminated. At all times after September 2015, the plaintiff has been very eager to get back to work as a registered nurse. 10. On 13 July 2017 when the plaintiff attended the Council she thought that she was attending a performance assessment. 11. It was on or about 11 September 2017, when she received the FOI response from AHPRA, that the plaintiff first saw a copy of the email from Ms Bryant to Mrs Glasheen. The plaintiff described seeing the email as "a very severe traumatic experience". She became unwell and her general practitioner prescribed psychiatric medications because she could not cope. [3] She believed that she had suffered damage to her reputation and financial loss. She felt embarrassed and very hurt, "like they took a child away from me". She felt attacked, like she was hopeless as a nurse, undermined and "beyond devastated". She described the impact as like having her whole world come crashing down and that it was "huge". 12. The plaintiff saw the orders and conditions report when it was given to her by Dr Adams. She usually saw Dr Adams in the morning in the course of her daily run and could not remember the precise date when he gave it to her. The plaintiff usually saw Dr Adams about once per fortnight. The completed appointment form was given to her by Dr Adams at the same time. The two documents were given to her as a single page double-sided document, which became Exhibit 1. 13. The plaintiff recalled being asked to give her consent for Dr Samuels' report to be provided to Dr Adams so that she could be given a copy of it. She said that she originally gave consent for the Council to send the report to Dr Adams but withdrew that consent when she found out that Dr Adams was in New Zealand and would not be in his surgery for "at least a week". The plaintiff withdrew her consent because there was a possibility that someone other than Dr Adams would get access to it and read it. The plaintiff thought that Exhibit 1 was given to her by Dr Adams about a week or so before the IRP set down for 22 May 2018. 14. The receipt of Exhibit 1 from Dr Adams made the plaintiff very upset. She had known Dr Adams for a long time and she thought that she had been defamed. It was very painful, it shook her confidence and she felt undermined, unworthy, rejected, alienated, hopeless and isolated for a long time. 15. The plaintiff accepted that she received the IRP bundle prior to the IRP on 22 May 2018. 16. The plaintiff alleged that Ms Bryant was not acting in good faith when she sent the 25 July 2017 email for the following reasons: 1. the content of the email was not a fair summary of the events before the Council; 2. Ms Bryant had prior dealings with the plaintiff and knew from those dealings that the plaintiff was not cognitively impaired or a "mad hat". Ms Bryant knew that the plaintiff was a highly functioning registered nurse and had been working in leadership positions; 3. the information in the email was "highly dishonest and false"; 4. Ms Bryant did not forward a copy of the email to the plaintiff; 5. the content of the email became available on the National Register; 6. Ms Bryant knew that the plaintiff had made complaints about three co-workers at the LHD to the effect that they had conspired against her to have her dismissed and the Council's failure to investigate those matters demonstrated its prejudice and bias against her; 7. AHPRA already knew that the Council had imposed conditions on the plaintiff's registration and it did not need to know the matters set out in the email; 8. the Council unreasonably delayed the arrangement of the performance assessment and the health assessment when s 150 of the National Law authorised "interim" or temporary action only; 9. the performance assessment of 2 December 2015 was arranged in bad faith because the Council should have known that what the plaintiff was asked to do fell outside of her experience as a peri-operative nurse; 10. the statement that the plaintiff requested a deferral of the performance assessment scheduled for 17 January 2017 was false. 1. In 2015 Dr Samuels opined that the plaintiff did not have a medical condition but changed his mind after the health assessment on 29 March 2018. 2. Overall, the plaintiff believes that she has been unfairly persecuted by the Council and that the Council has acted maliciously and without regard for the National Law. The plaintiff believes that the Council has been untruthful and acted in breach of her trust. In particular, the plaintiff disputes that the Council had the power to delete the 21 September 2015 conditions and replace them with the 13 July 2017 conditions. The plaintiff alleged in her evidence that the Council's conduct involved "undue influence, unconscionable conduct, fraudulent conduct and negligent misrepresentation" about her. 3. In cross-examination, the plaintiff was taken through the chronology of events recorded in the contemporaneous documents and rejected the content of most of the documents or disagreed with their ordinary meaning. 4. For example, the plaintiff did not accept the medical certificate of 9 May 2016 prepared by Dr Mervyn Garber obtained by her and sent to the Council as being reliable. Later in her cross-examination she denied ever having suffered from anxiety or depression. 5. The plaintiff accepted that on 16 January 2017 that she asked for the performance assessment to be deferred for two weeks in accordance with the medical certificate from Dr Adams. The plaintiff agreed that she provided a medical certificate dated 15 January 2017 and that she may have provided a medical certificate dated 6 January 2017, both of which were from Dr Adams. The plaintiff agreed that in Dr Adams' opinion that she was presenting with the symptoms of "acute anxiety", but she does not now accept his opinion and accordingly has taken action against Dr Adams for medical negligence. Later in her cross-examination, the plaintiff denied that the medical certificates produced by the Council were the ones supplied by her on 16 January 2017. The plaintiff gave evidence that she sought to defer the performance assessment because she was suffering from pruritus, which at one point she described as being the result of the stress the Council was putting her through. 6. The plaintiff denied that the words she attributed to Judge Gibson were untrue. 7. The plaintiff maintained a position in cross-examination that the Council did not have any proper basis to refer her for a health assessment. Further, she did not think that she should have been required to attend a health assessment while she had a shoulder injury, where it had not been requested by AHPRA and while she was "aggressively agitating" her matters through the courts. 8. The plaintiff accepted that she did not attend any health assessments after making contact with AHPRA, commencing matters before the courts and obtaining legal representation. 9. The plaintiff stated that the shoulder injury that she suffered in 2017 would not have prevented her from attending a health assessment or from completing a performance assessment. 10. The plaintiff rejected that Exhibit 3 was a current print out of what was publicly available on the National Register. 11. The plaintiff accepted that she may have seen Dr Adams at 6.00pm on 24 April 2018, but she denied that Dr Adams had Dr Samuels' report in his possession at that time. The plaintiff said that she took the two copies of the report to Dr Adams because she had received the letter in the mail that was meant for him. Dr Adams allegedly said to the plaintiff, "This is what I received and this is not for me". 12. The plaintiff accepted that she received the email enclosing the IRP bundle. She did not recall accessing the documents in it, but she may have. She gave evidence that she recently wrote to the Council alleging that the IRP bundle was in disarray when she got it. 13. The plaintiff did not accept the proposition that Dr Adams could not have given her the orders and conditions report on 24 April 2018 because it was not generated until 17 May 2018. The plaintiff did not accept as fact that the orders and conditions report was generated on 17 May 2018 at 8.08am. 14. The plaintiff accepted that she saw Dr Adams on 24 April 2018 at 6.00pm if that was what he recorded in the completed appointment form. 15. The plaintiff did not accept the proposition that she had used the documents provided to her in the IRP bundle to create Schedule B to the Amended Statement of Claim. 16. The plaintiff accepted that she suffered hurt to her feelings as a result of the following events: 1. the complaint made by the LHD; 2. the outcome of the s 150 proceedings on 21 September 2015; and 3. her treatment by the Council since 21 September 2015. 1. The plaintiff did not accept that the damage to her reputation had been caused by the imposition of conditions on her registration as a nurse. 2. In re-examination, the plaintiff stated that the copy of Schedule B (or Exhibit 1) that she received from Dr Adams always had the handwritten numbers "6" and "7" on it. The plaintiff reiterated that her shoulder injury the subject of the medical certificate dated 31 May 2017 would not have prevented her from attending a health assessment with a psychiatrist or undertaking a performance assessment that allowed for any resulting physical impairment. Credit 1. The plaintiff gave evidence that was significantly inconsistent with the contemporaneous documents and on occasions it was internally inconsistent even to the extent that on occasions she disavowed her own email correspondence. Large tracts of the plaintiff's evidence were garrulous. Most of the plaintiff's evidence about the Council's actions consisted of allegations of misconduct that were unsupported by the facts or a reasonable interpretation of the National Law. Having regard to all of the evidence, I do not accept the plaintiff's evidence unless it was corroborated or given against her own interest. The Council's case Ms Bryant's evidence 1. Ms Bryant's evidence can be summarised as follows. The Council is a co-regulatory authority as defined in s 5 of the National Law, with the HCCC that has powers to investigate complaints and AHPRA which is established as the National Agency by s 23 of the National Law. 2. The Council in New South Wales is a State Board and has been delegated the powers of the National Board relating to registration of nurses and midwives and the imposition of conditions on those registrations. 3. The Council is required to co-operate with AHPRA by s 27 of the National Law. AHPRA may ask the Council for information that it requires to exercise any of its functions and use the information to do so. 4. Ms Bryant described the decision to refer a practitioner to a s 150 hearing an exercise in risk assessment, based on the allegations made in a complaint and does not involve an inquiry into the truth of the allegations in a complaint. 5. Ms Bryant was taken through the contemporaneous documents and gave evidence that the events described in them coincided with her recollection and I will not repeat matters that I have already made findings on. 6. Ms Bryant thought that the plaintiff's complaint about the 2 December 2015 performance assessment not being appropriate for her competencies was a reasonable one. Ms Bryant's evidence was that the Notifications Committee also accepted this criticism and resolved in January 2016 to arrange for the plaintiff to undertake a further performance assessment. 7. The medical certificates provided by the plaintiff on various dates were scanned and entered into TRIM at the time that they were received and allocated by the system to the TRIM file. 8. Ms Bryant recalled that there was some delay in arranging the next performance assessment because the plaintiff had a medical certificate declaring her unfit to work for some of the time and then special arrangements had to be made because the plaintiff requested that the performance assessment to be recorded on video. The plaintiff's request was referred for legal advice and once it was approved by the Council, logistical arrangements had to be put in place. These arrangements included finding appropriate service providers, seeking legal advice on the request and obtaining consent to be filmed from the performance assessors and the plaintiff. The fact that the medical certificates provided by the plaintiff referred to her suffering from the symptoms of anxiety and depression was significant to the Council because it was expected that the performance assessment would put the plaintiff under pressure. It was important that the plaintiff was able to perform at her best and participating in the performance assessment did not exacerbate her condition 9. Ms Bryant accepted that it was possible that the plaintiff did not receive the email rescheduling the appointment with Dr Fukui for 9 March 2017. 10. Ms Bryant sought clarification through correspondence with the plaintiff about her contention that the Council needed to get the approval of the District Court to require her to attend a health assessment and/or a performance assessment because in her experience that was very unusual. 11. On 9 June 2017 after the plaintiff failed to attend the health assessment arranged for 2 June 2017, the Notifications Committee referred the plaintiff to a s 150C hearing. Ms Bryant prepared the background document for the s 150C hearing on 13 July 2017, by working chronologically through the TRIM file. 12. After the conditions were imposed by the s 150C Committee on 13 July 2017, they were engrossed into a Notice of Information and sent by email to AHPRA (Exhibit 5 tab 10). AHPRA then entered the conditions on the National Register. Public conditions can be viewed by any member of the public on AHPRA's website but private conditions entered on the National Register, cannot be seen by the public. Ms Bryant's evidence was that Exhibit 3 was an extract of the information available about the plaintiff's registration on the public register as at April 2016. 13. Ms Bryant described Mrs Glasheen's email of 17 July 2017 as a common request for information about a practitioner. AHPRA was responsible for renewal of the plaintiff's registration and was seeking information relevant to the decision to renew it. Ms Bryant did not believe that it was her role, or any other Council employee's role, to express an opinion as to what decision AHPRA should make about renewal of a practitioner's registration, but merely to provide information that may assist AHPRA to exercise its function. 14. By sending the 25 July 2017 email, Ms Bryant intended to confirm what she told Mrs Glasheen in the course of their telephone conversation in accordance with her usual practice. The task of responding to Mrs Glasheen's email was allocated to Ms Bryant because she had the most recent experience in the matter. Ms Bryant based the content of her discussion with Mrs Glasheen and her email on the content of the background document that she had prepared on 5 July 2017. In the email, Ms Bryant attempted to set out a chronological version of the events before the Council, including the s 150 hearing, the management of the complaint thereafter and the plaintiff's failure to complete a performance assessment or to attend a health assessment. 15. After the dismissal of the NCAT appeal, the Council arranged with AHPRA to refer the plaintiff for a health assessment with Dr Samuels, which the plaintiff attended on 29 March 2018. 16. In cross-examination, Ms Bryant denied taking any action against the plaintiff's registration, pointing out that the Council's powers were exercised by the delegates in committee and not the employees of the Council. 17. Ms Bryant stated that she sent the email in good faith, intending to set out a chronology of events during the management of the complaint by the Council. Ms Bryant did not believe that the matters that she set out were known to AHPRA, but she did not know one way or the other. Ms Bryant agreed that AHPRA would have known about the imposition of the conditions on 21 September 2015 and 13 July 2017. 18. Ms Bryant did not accept that her email was "excessive", irrelevant or that it contained false statements. Ms Bryant denied that by sending the email that she had engaged in "titillating gossip". Ms Bryant said that she believed her email to be factual. Ms Bryant did not agree that she had prepared the email without care or recklessly. Ms Bryant believed that she acted responsibly in compiling the email. 19. Ms Bryant did not accept that the content of the email was entered onto the National Register. 20. Ms Bryant accepted that the Council acted based on the allegations in the complaint and that she did not know if those allegations were factual. 21. Ms Bryant did not agree that she had contact with the plaintiff once per fortnight during 2016, or that she knew by March 2016 that the plaintiff was "struggling from an emotional perspective". Ms Bryant stated that she did not form a view about the plaintiff's emotional state and had not concluded that the plaintiff was seeking to evade undertaking either assessment. 22. Ms Bryant said that the Council was prompted to require a health assessment based on the medical certificates that the plaintiff provided in support of her request to defer the performance assessment and the plaintiff's previous self-notification to AHPRA in 2015. 23. Ms Bryant placed a header on the top of the documents included as exhibits in the background document that she prepared for the s 150C hearing. Credit 1. Ms Bryant was an exceptional witness. Her memory of relevant events was excellent and her evidence was consistent with the contemporaneous documents. Ms Bryant made appropriate concessions that assisted the plaintiff's arguments on the suitability of the 2 December 2015 performance assessment and the rescheduling of the health assessment with Dr Fukui. Ms Bryant impressed me as being thoroughly familiar with the National Law, the powers and functions of the Council and the case files under her supervision. Her attention to detail was reflected in her preparation of the background document for the s 150C hearing. I am satisfied that she was a witness trying her best to tell the truth and that her evidence should be accepted. Ms Mudyara's evidence 1. Ms Mudyara's evidence can be summarised as follows. 2. In about March 2018, Ms Mudyara was an acting team leader with responsibility for managing the complaint concerning the plaintiff and for checking correspondence before it was sent. 3. Ms Mudyara was responsible for sending the letters to Dr Adams and the plaintiff on 20 April 2018, providing a copy of Dr Samuels' report to Dr Adams to be provided to the plaintiff. Ms Mudyara confirmed in her evidence that the content of the letters was in accordance with the Council's file copy of them. 4. Ms Mudyara sent the letters in accordance with the Council's usual practice to send them by email and Express Post. In the course of that process, Ms Mudyara manually recorded the Express Post tracking numbers in the TRIM record relating to the letters. 5. In cross-examination, Ms Mudyara stated that the orders and conditions report was a system generated document and that the date and time stated on it were generated by the system at the time it was created. 6. Ms Mudyara did not recall the plaintiff withdrawing her consent to send Dr Samuels' report to Dr Adams. Ms Mudyara denied sending Exhibit 1 to Dr Adams. Ms Mudyara denied when sending the letters by post that the letter intended for Dr Adams went to the plaintiff in error, and vice versa. Ms Mudyara stated that the plaintiff had not made such a complaint to her at the time or subsequently. 7. Ms Mudyara stated that she could not have sent the orders and conditions report to Dr Adams on 20 April 2018 because the document did not exist at that time. The completed appointment form was received by the Council in the mail and stamped as received on 27 April 2018. Credit 1. Ms Mudyara gave simple and straight forward evidence that was supported by the contemporaneous records, including metadata from the computerised systems in place at the time. Ms Mudyara impressed me as a careful and truthful witness and I am satisfied that her evidence should be accepted. Mr Bate's evidence 1. Mr Bate has been responsible for the IT systems provided to the Council by the HPCA since December 2018 and his evidence can be summarised as follows. 2. Mr Bate was asked to conduct a search of the Council's email server for any email containing the word "Adams" and the term "ipn.com.au" sent or received in the period 1 April 2018 to 31 May 2018. This search was intended to find any emails sent by the Council to Dr Adams or received by the Council from Dr Adams in that period. The only email that was sent by the Council to Dr Adams in that period was the email dated 20 April 2018. 3. Mr Bate performed the same search in TRIM and located one additional document being the completed appointment form that was scanned and entered into TRIM on receipt by the Council on 27 April 2018. 4. The Council also operates the MaCS database to track and record the actions and outcomes of complaints. Mr Bate's evidence was that the orders and conditions report was generated by the system on the date and at the precise time recorded on it being, 17 May 2018 at 8.08:27am and that prior to that time the report did not exist. When such a report is generated it saves directly into the TRIM file. 5. Mr Bate examined the audit files for both the completed appointment form and the orders and conditions report by using their unique reference numbers in the TRIM file. That examination demonstrated that neither of those documents were sent to Dr Adams or anyone else after they were created. 6. In cross-examination, Mr Bate did not agree that the management of the IT system by a person before he was employed at the HPCA in December 2018 was significant because the records were created by the system and there was no human involvement in the system. The balance of Mr Bate's cross-examination produced a very patient and thorough explanation of the records that served to bolster his evidence and failed to challenge it, effectively or at all. Credit 1. Mr Bate demonstrated a masterful understanding of the content of his evidence and I am satisfied that his evidence was entirely accurate and should be accepted. Findings on the disputed facts 1. I will set out the necessary findings of fact on the issues in dispute under the issues they are relevant to. consideration The first matter complained of Extent of publication of the 25 July 2017 email 1. A preliminary issue to be determined is the extent of the publication of the first matter complained of. 2. The Council admitted that the email was published to one person, Mrs Glasheen. The plaintiff alleged that the email formed part of the information available on the National Register and was able to be viewed by persons having access to it. 3. Simply put, there was no evidence that the email formed part of the information recorded on the National Register or that it was accessible by persons accessing the National Register. Exhibit 3 was a print out of the information that was publicly available on the National Register and it did not contain the information set out in the email. 4. It is likely that the plaintiff was mistaken or confused on this point because she was provided with a copy of the email in response to her freedom of information request to AHPRA together with a print out of the public and private conditions recorded on the National Register. 5. Further, there was no evidence that the email was seen by any person other than Mrs Glasheen. 6. I am satisfied on the balance of probabilities that the first matter complained of was published to Mrs Glasheen only. Do the imputations pleaded at [11] of the Amended Statement of Claim arise from the first matter complained of? 1. The plaintiff pleaded that Mrs Glasheen knew that the plaintiff had appeared before a s 150C Committee on 13 July 2017 and that the conditions set out in [81] above had been imposed by the Council on that date. Further the plaintiff pleaded that the 2017 conditions were imposed arising from the conditions imposed by the s 150 committee on 21 September 2015, set out at [43] above. 2. The plaintiff pleaded that the following imputations arose from the first matter complained of: 1. The plaintiff is not a fit and proper person to practice as a registered nurse. 2. The plaintiff is not a fit and proper person to practice as a registered nurse by reason of psychiatric illness. 3. The plaintiff is not a fit and proper person to practice as a registered nurse by reason of her practical incompetence. 1. The plaintiff must establish as an essential element of the tort that one of these imputations arose from the publication of the first matter complained of. 2. Words are defamatory if they assert or attribute an act of condition to the plaintiff that would cause an ordinary reasonable reader to think less of the plaintiff. The sting of a defamation is the accusation of an act or condition that hurts the plaintiff's feelings and has the tendency to, or does in fact damage the plaintiff's reputation: Sungravure Pty Ltd v Middle East Airlines Airliban SA (1975) 134 CLR 1. 3. The published matter is interpreted objectively, as understood in its natural and ordinary meaning by the ordinary reasonable person with general knowledge and experience of worldly affairs: Slayter v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7. 4. The first matter complained of was published to Mrs Glasheen only. As a Renewal and Compliance Officer of AHPRA, she would have had particular knowledge of the National Law and the powers and functions of the Council and AHPRA as co-regulators. The plaintiff pleaded and the evidence demonstrated that AHPRA and Mrs Glasheen had actual knowledge of the imposition of conditions on the plaintiff's registration on 21 September 2015 and 13 July 2017. 5. The email sets out a chronology of events that occurred between the imposition of conditions on the plaintiff's registration between 21 September 2015 and 13 July 2017 and can be understood by the reader as setting out a basis for the Council taking further action pursuant to s 150C on the latter date. The email does not convey that the plaintiff was in fact incompetent or that she had a psychiatric condition that would impair her ability to practise as a nurse. The email does not convey that the plaintiff was seeking to avoid a performance assessment or a health assessment, but does convey that the plaintiff had not completed either as at the date of the email. 6. Not every statement about a person imputes guilt. In Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1722 at [45] Brooke LJ stated (Rix LJ and Keene LJ agreeing): The sting of libel may be capable of meaning that a claimant has in fact committed some serious act, such as murder. Alternatively it may be suggested that the words mean that there are reasonable grounds to suspect that he/she has committed such an act. A third possibility is that they may mean that there are grounds for investigating whether he/she has been responsible for such an act. 1. What is clear from the first matter complained of in the pleaded context is that the mental health of the plaintiff and/or her practical competency, have not yet been assessed, by the completion of either a performance assessment or a health assessment. The ordinary reasonable reader in the position of an officer of AHPRA would understand the first matter complained of to convey that there were genuine concerns about the plaintiff's mental health and/or practical competency that required investigation. 2. The first matter complained of does not convey any of the pleaded imputations because the judgement of the ordinary reasonable reader in the position of an employee of AHPRA is suspended as to the sting of the imputations that the plaintiff was not a fit and proper person to be a registered nurse, by reference to the outcome of the health and/or performance assessment. The ordinary reasonable reader in the position of an employee of AHPRA would have understood that if the health assessment did not conclude that the plaintiff was suffering from a medical condition that could adversely affect her ability to perform her duties as a nurse, or that she successfully completed a performance assessment, that the Council applying the National Law would have been obliged to remove the conditions on the plaintiff's registration as a nurse. 3. I am not satisfied on the balance of probabilities that the plaintiff has established that any of the pleaded imputations arise from the first matter complained of. This is fatal to her claim based on the first matter complained of. Has the plaintiff suffered any damage to her reputation from the first matter complained of? 1. Damage to a plaintiff's reputation is presumed on proof of publication: Bristow v Adams [2012] NSWCA 166 at [20]-[28]. The three purposes of an award of damages are: 1. consolation for hurt to feelings; 2. recompense for damage to reputation (including business reputation); 3. vindication of the plaintiff's reputation. 1. The Council contended that the publication of the email did not contribute significantly to the plaintiff's hurt to feelings and/or add to the damage to her reputation that had already been caused by her dismissal by the LHD, the complaint by the LHD, the imposition of the conditions by the Council on 21 September 2015, the Council's management of her matter and the imposition of new conditions on 13 July 2017. 2. The plaintiff accepted in cross-examination that she suffered significant hurt to feelings from a number of events relating to her dismissal from the LHD, the complaint and the actions of the Council prior to 25 July 2017. 3. If the pleaded imputations were conveyed by the email, which I have found they were not, then they were also conveyed by publication of the earlier events for which the plaintiff does not bring an action. In those circumstances, the plaintiff would only be entitled to nominal compensation, which I would assess at $1,000. Can the Council rely on the defence provided for by s 237 of the National Law? The relevant law 1. Section 3 of the National Law provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for— (a) the regulation of health practitioners; and (b) the registration of students undertaking— (i) programs of study that provide a qualification for registration in a health profession; or (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are— (a) to provide for 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; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. (3) The guiding principles of the national registration and accreditation scheme are as follows— (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 1. Section 3A of the National Law, is an additional guiding principle to be applied in New South Wales, and it provides: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. Note— This section is an additional New South Wales provision. 1. Section 27 of the National Law provides: 27 Co-operation with participating jurisdictions and Commonwealth (1) The National Agency may exercise any of its functions in co-operation with or with the assistance of a participating jurisdiction or the Commonwealth, including in co-operation with or with the assistance of any of the following— (a) a government agency of a participating jurisdiction or of the Commonwealth; (b) a local registration authority; (c) a co-regulatory authority; (d) a health complaints entity; (e) an educational body or other body established by or under a law of a participating jurisdiction or the Commonwealth. (2) In particular, the National Agency may— (a) ask an entity referred to in subsection (1) for information that the Agency requires to exercise its functions under this Law; and (b) use the information to exercise its functions under this Law. (3) An entity referred to in subsection (1) that receives a request for information from the National Agency is authorised to give the information to the National Agency. 1. Section 234 of the National Law provides: 234 General duties of persons exercising functions under this Law (1) A person exercising functions under this Law must, when exercising the functions, act honestly and with integrity. (2) A person exercising functions under this Law must exercise the person's functions under this Law— (a) in good faith; and (b) in a financially responsible manner; and (c) with a reasonable degree of care, diligence and skill. (3) A person exercising functions under this Law must not make improper use of the person's position or of information that comes to the person's knowledge in the course of, or because of, the person's exercise of the functions— (a) to gain an advantage for himself or herself or another person; or (b) to cause a detriment to the development, implementation or operation of the national registration and accreditation scheme. 1. Section 237 of the National Law provides: 237 Protection from liability for persons making notification or otherwise providing information (1) This section applies to a person who, in good faith— (a) makes a notification under this Law; or (b) gives information in the course of an investigation or for another purpose under this Law to a person exercising functions under this Law. (2) The person is not liable, civilly, criminally or under an administrative process, for giving the information. (3) Without limiting subsection (2)— (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 (b) no liability for defamation is incurred by the person because of the making of the notification or giving of the information. (4) The protection given to the person by this section extends to— (a) a person who, in good faith, provided the person with any information on the basis of which the notification was made or the information was given; and (b) a person who, in good faith, was otherwise concerned in the making of the notification or giving of the information. 1. Examples of "good faith" in different statutory contexts were set out by the Full Federal Court in Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290 at 298-300, which included: 1. good faith can identify an actual state of mind, irrespective of the quality or character of its inducing causes, so that something can be done or omitted to be done in good faith if the party was honest but careless: Smith v Morrison [1974] 1 WLR 659. Wilful shutting of the eyes may be a circumstance from which dishonesty can be inferred: Jones v Gordon (1877) 2 App Cas 616 at 625. 2. good faith may require the exercise of caution and diligence to be expected of an honest person of ordinary prudence: Mid Density at 298. 3. good faith may go beyond personal honesty and the absence of malice to require some other quality of the state of mind or knowledge of the relevant actor, such as the failure to make enquiries when there was a duty to do so: Lucas v Dicker (1880) 6 QBD 84 at 88. 4. an administrative decision could be unreasonable in the Wednesbury sense without being mala fides. 1. In Mid Density, the case related to the council's system for responding to enquiries when issuing certificates relating to the permitted use of land. The statutory provision provided protection to the council for anything done or omitted to be done in good faith. The council failed to supply information by recourse to its records and had no system in place for doing so. The council officer responding to the query consciously ignored the records that could have supplied the relevant information. The Full Court concluded that the defence was not available to the council. 2. In Bankstown City Council v Alamado Holdings Pty Ltd (2005) 223 CLR 660 at 674, the plurality referred to the examples provided in Mid Density and said of the particular statutory provision considered: …given the range of advice, acts and omissions to which s 733(1) may apply, what is required for something to be done or omitted in good faith may vary from one case to the next. That makes it unwise, if not impossible, to place a definitive gloss upon the words of the statute. 1. The content of the good faith requirement is informed by the objectives of the National Law including s 3A in New South Wales, the stated or implied purpose for the request for information and the requirements of a person exercising a function under the Act provided for in s 234. It is also important to recognise that the system set up by the National Law involves co-regulation by 3 agencies. The National Law provides for consultation between the co-regulators and this would be unworkable without providing for the responsible and appropriate sharing of information between them. The submissions of the parties 1. The Council contended that Ms Bryant was responding to a request from AHPRA for information relevant to the plaintiff's renewal of registration, that s 27 of the National Law empowered it to make and that the Council was obliged to provide. The Council's case was that Ms Bryant did no more than provide a factual chronology of events that had occurred during the time that the complaint was being managed by the Council, based on the content of the contemporaneous documents. 2. The plaintiff contended that Ms Bryant was not acting in good faith for the reasons set out in [115], which were refined or expanded, to some extent by the matters put to Ms Bryant in cross-examination. Discussion 1. I will deal with each of the plaintiff's contentions on the good faith issue. 2. I am satisfied that Ms Bryant's email was a fair summary of the events that had occurred during the time that the plaintiff's complaint was before the Council. Ms Bryant made two minor errors in compiling the email which were also in the background document dated 5 July 2017, but those errors do not detract from the overall accuracy of the content of the email. The first error was that at line 16, the medical certificate dated 9 May 2016 certified the plaintiff unfit to work from 2 May 2016 to 2 August 2016, rather than April – August 2016. The second error was that at line 22 the reference to the date 23 February 2017 should have read 26 February 2017. 3. The plaintiff failed to demonstrate that Ms Bryant had sufficient or significant personal knowledge about the plaintiff's abilities as a nurse to render what she wrote in the email untrue. There was no evidence that what Ms Bryant wrote in the email was dishonest or false. [4] 4. The fact that Ms Bryant did not forward a copy of the email to the plaintiff is insufficient reason to find that it was not sent in good faith. 5. There is no evidence that the email became part of the material recorded on the National Register. 6. I accept Ms Bryant's evidence that the plaintiff's complaint about the three co-workers from the LHD who are alleged to have conspired to have the plaintiff dismissed from the LHD, were dealt with by the HCCC and not the Council. I am satisfied that the Council did not have the power to investigate those complaints and accordingly its failure to act on them does not demonstrate any ill-will towards the plaintiff. Even if it did, this is an allegation about the conduct of the Council rather than Ms Bryant. 7. I am satisfied that AHPRA did not know the details of the management of the plaintiff's complaint before the Council and that the matters set out in the email were relevant to an exercise of AHPRA's functions under the National Law. 8. I am not satisfied that the Council unreasonably delayed the arrangement of the second performance assessment or the health assessment. The contemporaneous documents support the conclusion that there were good reasons for the delays complained about by the plaintiff, most of which were attributable to her own actions. 9. The plaintiff's complaint about the first performance assessment at [117(i)] is an allegation about the conduct of the Council rather than the conduct of Ms Bryant. 10. The plaintiff's contention that she did not request a deferral of the performance assessment scheduled for 17 January 2017 is demonstrably false by reference to the contemporaneous documents that she supplied to the Council. 11. I accept Ms Bryant's evidence that she did not believe that her email was excessive, irrelevant, contained false statements or amounted to gossip. I also accept her evidence that the email was based on the background document that she prepared on 5 July 2017 and that she had carefully reviewed the TRIM file to prepare that document. Conclusions on the application of s 237 1. Based on all of the evidence I am satisfied of the following matters: 1. Mrs Glasheen's email stated that the information was required for AHPRA to exercise a function under the National Law, namely whether or not to renew the plaintiff's registration as a health practitioner; 2. Ms Bryant's email provided a factual chronology of the events that occurred during the Council's management of the complaint against the plaintiff, the details of which would not have been known to AHPRA and were relevant to the exercise its stated function under the National Law; 3. Ms Bryant gathered the information provided in email by carefully examining the contents of the TRIM file; 4. Ms Bryant acted honestly and with integrity and with a reasonable degree of skill care and diligence; 5. Ms Bryant acted without malice or ill-will towards the plaintiff; and 6. in all of the circumstances, Ms Bryant acted in good faith by providing the information to AHPRA in the email. 1. I am satisfied on the balance of probabilities that the Council has established the elements of the defence provided for by s 237 of the National Law and this also has the effect of defeating the plaintiff's claim in relation to the first matter complained of. The second matter complained of Publication 1. The plaintiff alleged that the second publication at Schedule B of the Amended Statement of Claim (Exhibit 1) was given to her as a double-sided document by Dr Adams at the consultation where he provided her with a copy of Dr Samuels' report and discussed it with her. She gave evidence that the consultation with Dr Adams occurred "on or around 24 April 2018". 2. Exhibit 1, on one side, is a copy of the completed appointment form. That document was received by the Council on 27 April 2018. The other side of Exhibit 1 is a copy of the orders and conditions report that was generated on 17 May 2018. The plaintiff's evidence was that Exhibit 1 was an exact copy of what Dr Adams gave to her. It is clear that this evidence is not reliable because on its face Exhibit 1 contains a number of markings that were clearly made at about the time that the Amended Statement of Claim was filed on 29 November 2018. 3. The completed appointment form is direct evidence of the fact that the consultation between the plaintiff and Dr Adams to discuss Dr Samuels' report took place at 6.00pm on 24 April 2018. 4. The plaintiff alleged that Dr Adams was sent the letter of 20 April 2018 that was addressed to her and that she was sent the letter of 20 April 2018 that was addressed to Dr Adams. The plaintiff contended that the orders and conditions report was sent to Dr Adams with that letter. I do not accept this contention for the following reasons: 1. the letters to Dr Adams and the plaintiff were sent by email on 20 April 2018 at about 11.30am and the originals, by way of confirmation, were sent by Express Post later on that day. The only documents that could have been sent to Dr Adams were the documents that existed at the time that the emails were sent; 2. the plaintiff did not produce the original of the letter sent to Dr Adams that she says was sent to her in error by the Council; 3. the plaintiff did not call Dr Adams to give evidence. The plaintiff subpoenaed Dr Adams to attend and give evidence at the trial, but indicated on the first day that she did not intend to call him and accordingly he was excused from complying with the subpoena; 4. the evidence of Ms Mudyara was that the only correspondence that she sent to Dr Adams was the letter of 20 April 2018. Ms Mudyara gave evidence, which I accept, that she did not put the letters to Dr Adams and the plaintiff in the wrong envelopes when sending them out; 5. the completed appointment form as it appeared on Exhibit 1 did not exist in that form until 27 April 2018. The metadata in TRIM demonstrated that the document was not sent to anyone after it was received by the Council; 6. the evidence of Mr Bate was that the orders and conditions report was only created on 17 May 2018 at 8.08am, by Ms Nicholls of the Council and that it could not have been printed or sent electronically before that precise time. 1. The metadata in MaCS and in TRIM indicated that the orders and conditions report had not been sent to anyone electronically after 17 May 2018. In those circumstances, the plaintiff's evidence even qualified as "on or about 24 April 2018" cannot be accepted. Further, the search of the email server performed by Mr Bate for the period of 1 April 2018 to 31 May 2018 did not find any email sent to Dr Adams, other than the email sent on 20 April 2018. In other words there was no data in the computerised systems to support the allegation that the orders and conditions report was sent to Dr Adams by email after it was created on 17 May 2018 or before 31 May 2018. 2. The various copies of the completed appointment form relied on by the plaintiff each have a handwritten number "6" at the bottom right hand corner of the page. [5] The completed appointment form received by the Council from Dr Adams on 27 April 2020 does not have the handwritten number 6 on it. 3. The various copies of the orders and conditions report relied on by the plaintiff each contain a handwritten number "7" on the bottom right hand corner of the page if it was in portrait orientation. 4. The completed appointment form and the orders and conditions report were included by Ms Nicholls in the IRP bundle prepared for the IRP to be held on 22 May 2018. The IRP bundle was sent to the plaintiff on 17 May 2018. 5. The completed appointment form and the orders and conditions report were recorded in the IRP bundle as being exhibits 6 and 7 respectively. In the IRP bundle, the completed appointment form had the handwritten number 6 on it and the orders and conditions report had the handwritten number 7 on it, in precisely the same place as the copies of the documents relied on by the plaintiff and from my examination of the documents, in the same handwriting. I infer that the completed appointment form had the number 6 handwritten on it to designate that it was the Exhibit 6 referred to in the IRP bundle. I infer that the orders and conditions report had the number 7 handwritten on it to designate that it was the Exhibit 7 referred to in the IRP bundle. I infer that Ms Nicholls or another employee of the Council hand wrote the numbers on these two documents in the course of preparing the IRP bundle. 6. I am satisfied that the copies of the completed appointment form and the orders and conditions report were sent to the plaintiff as part of the IRP bundle, and that is how each of the documents came into her possession. 7. I reject the plaintiff's contention that she was given the completed appointment form and the orders and conditions report as a single page double-sided document by Dr Adams on or about 24 April 2018, or at all. 8. On all of the evidence, I am not satisfied on the balance of probabilities that the defendant published the second matter complained of to Dr Adams and accordingly the plaintiff's case on the second publication must fail. Orders 1. The Amended Statement of Claim is dismissed. 2. The plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis. 3. I will hear the parties on an alternate costs order or as to the making of a gross sum costs order, if an application is made for such a costs order within 7 days by notifying the other party and my Associate. ********** Endnotes 1. The conduct path is not relevant for the purposes of these proceedings. 2. This email became Exhibit 4. 3. Later in her evidence she alleged that Dr Adams had negligently prescribed these medications. 4. With the exception of the minor errors referred to at [210]. 5. Schedule B, Exhibit 1 and Exhibit 11. Amendments 28 October 2020 - Paragraph 94 amended to read "13 April 2018" 30 October 2020 - HCPA in paragraph 8(c) changed to HPCA [208] in endnote 4 changed to read [210] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2020