A party who concedes at trial that defamatory complaints lacked bona fides cannot raise a good faith defence for the first time on appeal. The evidentiary burden of establishing good faith under s 96(2) of the Health Care Complaints Act 1993 (NSW) falls on the party claiming the protection, not on the opposing party to disprove it. The scope of absolute privilege under cl 27 of Schedule 1 of the Defamation Act 2005 (NSW) for complaints to the HCCC remains not finally determined, but the Court indicated it may not extend to the making of the complaint itself. Defamatory publications to statutory bodies responsible for a practitioner's registration are not trivial merely because the recipients are bound by confidentiality, particularly where the practitioner is obliged to disclose the publications to professional associations and insurers.
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