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Written by Peter Carter

May 28, 2015

A former Brisbane airport baggage inspector who contested his dismissal by the Australian Quarantine Inspection Service, has sued a forensic psychiatrist whose medical report was relied on by the employer in defending harassment allegations associated with his employment.
Dominic Burke also applied for statutory workers compensation benefits through a federal tribunal in which the report from Brisbane psychiatrist Greg Apel was relied on to deny his claim.

As a result, Burke filed a lawsuit against Apel in February 2015 in the state District Court alleging the doctor “ignored appropriate medical practices and was motivated by greed, bad faith, ill will and malice”.

He also asserted the report contained “false and malicious accusations and omitted factors in his favour” and that Dr Apel’s professional negligence was “as clear as day”.

Burke further contended the psychiatrist’s disclosure of his medical history was “a breach of confidence and contrary to legislation and the psychologist code” and was defamatory.

Judge David Reid declined to deal with the defamation allegations as the claim was filed well beyond the applicable one year limitation period for an action of that type.

As to the other allegations, the pleading was “prolix and vexatious,” in the judge’s view. The Statement of Claim – which could not possibly allow the defendant to be “properly informed as to the case he has to meet” – must be struck out.
Leave was given for the filing of a further amended statement of claim within three months on condition that if not filed, the claim will automatically be dismissed.

Burke was “not a novice litigator,” observed the judge pointing to two other District Court strike out judgments relating to claims made against his employer in which he was – as was the case on this occasion – self-represented.

In a similar scenario – this time arising from family court proceedings – a party has sued his former partner and her parents for allegedly defamatory statements made in a “family report” about his personality, behaviour and relationships.

Barry Harvey alleged Sandra Henzell’s statements and those of her family members to Emma Rzoska – the psychologist who compiled the report – caused the court and others to form negative opinions of him and to impact on his legal standing.

Judge Nicholas Samios in Brisbane’s district court struck out the claim on the grounds that the statements were protected by “absolute privilege” in that they were made “in the course of the proceedings of an Australian court” as provided for in Defamation Act section 27.

Mr Harvey’s application for leave to appeal against the decision was rejected as it “had no prospects of success”.

Likewise, Mr Burke’s appeal was disposed of in the same manner.

Burke v Apel [2015] QDC 112 Reid DCJ 06/05/2015

Harvey v Henzell & Ors [2015] QDC 132 Samios DCJ published 28/05/2015

Categories: Personal Injury , Litigation & Law Practice , Civil procedure

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