Dr Babak Akbari wins appeal to file defamation claim against Mackay Hospital

A psychiatrist sacked just weeks into a hospital contract, after junior doctors filed a complaint about his performance, has secured more time to sue the health service for defamation.

A doctor sacked less than three weeks after starting work as a locum psychiatrist at Mackay Base Hospital has secured more time to sue the hospital and a senior medical officer for defamation.

Dr Babak Akbari was hired as a locum psychiatrist at the hospital in early March, 2019.

But he was fired just weeks later after junior doctors complained about Dr Akbari’s performance and filed a letter with the hospital’s Senior Medical Officer in Psychiatry, Dr Paul Henderson, who notified the National Law on April 4 of that year.

That in turn triggered the Australian Health Practitioner Regulation Agency to investigate which on June 26, 2020, told Dr Akbari it would take no further action against him, court documents state.

Dr Babak Akbari was hired in March 2019, and dismissed about three weeks later after junior doctors complained about his performance at Mackay Base Hospital. Picture: Tony Martin

Dr Akbari then on June 30 that year sought legal advice about commencing defamation proceedings against the hospital and Dr Henderson.

“It was then that Dr Akbari became aware that there was a limitation period of one year, running from the date of the publication of which complaint was to be made, which was the notification by Dr Henderson to the Health Ombudsman made on 4 April 2019,” documents state.

Defamation proceedings must be launched within a year of the date of publication, and Dr Akbari had filed his case on September 7, 2020, which was 158 days past the one-year limitation period that had cut off on April 4, 2020.

He also, on September 7 that year, filed an application to extend the limitation period for the defamation action.

Judge Catherine Muir dismissed the application for the extension.

Dr Akbari successfully appealed that dismissal in a decision handed down on May 10, 2022, arguing Judge Muir “erred in law holding that there was an absolute privilege”.

Dr Babak Akbari appealed the decision to not grant the extension for his defamation claim against Mackay Hospital and Health Service and a senior doctor. Picture: Stock image

Dr Akbari said he understood advice from his initial solicitor, engaged through his insurer MDA National, that he should not begin defamation proceedings until AHPRA’s investigation had finished.

“I recall speaking to him about this in the first few weeks after Moray and Agnew were engaged to act for me,” documents state.

“I recall him saying to me words to the effect that, ‘you are under investigation. Starting a separate legal action against them would certainly jeopardise your defence and undermine AHPRA’s authority’.

“I understood the effect of his advice to be that I should not commence a defamation proceeding until AHPRA’s investigation had finished.”

However, that was contested with the solicitor and his file notes stating Dr Akbari had asked if he could sue for defamation and that the solicitor was instructed by the insurer to act for the doctor in relation to the investigation only.

Dr Babak Akbari was hired as a locum psychiatrist at Mackay Base Hospital. Picture: stock image

“I noted, in passing, that defamation proceedings are very expensive and very difficult to pursue, particularly in circumstances where the ‘defamation’ has occurred in the context of a notification and that the National Law provides some immunity from suit to notifiers.

“The member was not particularly interested and said that he does not care, they need to be sued.

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

“I spent considerable time counselling him and advising him that pursuing those things now would not be a wise event, as it would only likely inflame the situation with the regulator.

“In my view it would be far better to resolve the regulatory proceedings and then give thought to whether or not those things are really necessary at the end of the process.

“The member eventually and reluctantly agreed.”

Judge Muir accepted the solicitor’s evidence he did not tell Dr Akbari to wait for the AHPRA investigation to finish before starting defamation proceedings, accepting he had not been engaged to act in any defamation proceedings and it was fair to infer Dr Akbari – who was “distressed and agitated during (and after) the phone call” – was not listening carefully to the advice.

The unanimous Court of Appeal decision granted Dr Babak Akbari an extension on the limitation for commencing defamation action against Mackay Hospital and Health Service.

She said the solicitor’s “general cursory view that defamation proceedings would be difficult to pursue because the National Law potentially offered some or complete immunity from suit” should be considered.

“I find that (Dr Akbari) was mistaken about the advice he understood he had been given … namely that he should not commence defamation proceedings until after the AHPRA investigation,” she said.

Dr Akbari submitted the judge erred by “applying a subjective test rather than the objective test” required by S32A(2).

“The relevant facts were that Dr Akbari had been given advice which was open to the interpretation that Dr Akbari should not sue for defamation until the AHPRA investigation had run its course,” court documents state.

“Had (the solicitor’s) advice been unambiguous, Dr Akbari’s interpretation of it could

not have assisted him to prove his case under this provision.

“But that was not the position on the judge’s findings.

“The judge was persuaded that Dr Henderson’s notification to the Health Ombudsman was the commencement of a quasi-judicial process for which it was necessary that his publication be protected by absolute privilege, thereby providing a complete bar to Dr Akbari’s claim.

“I disagree with her Honour’s conclusion essentially for the reason that the regime which is created by the National Law, operating in Queensland with the Health Ombudsman Act 2013 (Qld) is not one for which there is a demonstrated necessity of the kind that dictates that judicial proceedings are absolutely privileged.”

In a unanimous decision, Court of Appeal Justices Philip McMurdo, Debra Mullins and Peter Callaghan granted the appeal and extended the limitation period for Dr Akbari’s defamation action against the hospital service and Dr Henderson to expire on September 8, 2020.

The court dismissed a cross-application for leave to appeal filed in July 2021, and ordered MHHS and Dr Henderson pay Dr Akbari’s Court of Appeal costs.

No order was made in relation to the district court proceedings.

Originally published as Dr Babak Akbari wins appeal to file defamation claim against Mackay Hospital