Arthur William Reilly v Patrick Lamanna [1987] ACTSC 3 (16 February 1987)

SUPREME COURT OF THE ACT

ARTHUR WILLIAM REILLY v. PATRICK LAMANNA
S.C. No. 729-743 of 1985
Appeal by Way of Order to Review

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Appeal by Way of Order to Review - Respondent given receipts for payment of medical services rendered by use of cheques not met on presentation - Receipts evidencing not only payment but right to obtain appropriate refunds from Medicare - Whether receipts "valuable securities" within meaning of s.4, Crimes Act 1900 (N.S.W.) in its application to Australian Capital Territory - Whether offences against s. 178B (1) of that Act.

Crimes Act 1900 (N.S.W.) in its application to the Australian Capital Territory

Attorney-General of Hong Kong v. Pat Chiuk-Wah (1971) AC 835.

HEARING

CANBERRA
16:2:1987

ORDER

The appeals be allowed.

The matter be remitted to the Magistrates Court to be dealt with in accordance with this judgment.

The appellant pay the respondent's costs of and incidental to the appeals.

DECISION

These are appeals by way of order to review from decisions of the Court of Petty Sessions (as it then was) whereby the learned presiding Magistrate dismissed 15 charges preferred against the respondent by the appellant. Each charge alleged that the respondent, on a named date, obtained a valuable security, namely, a receipt issued by a named medical practitioner or, in one case, the Capital Territory Health Commission, by passing a cheque which was not met on presentation. The total amount for which the cheques were passed was $458.80.

2. His counsel conceded before the learned Magistrate that the respondent had presented various valueless cheques to the several practitioners concerned and to the Capital Territory Health Commission and had thereby obtained receipts. He conceded further that the respondent knew that the cheques would not be met on presentation and that the receipts would be essential for the purposes of any claims to be made either on Medicare or on a health fund. Counsel for the appellant stated that the respondent could not have obtained refunds from the Health Insurance Commission without presentation of the receipts together with claim forms and counsel for the respondent agreed that that was so.

3. At the relevant time the expression "valuable security" was defined by s.4 of the Crimes Act 1900 of the State of New South Wales in its application to the Territory (the Act) to include -

"every order or other security whatsoever

entitling or evidencing the title of any
person to any share or interest in any public
stock or fund, whether of any part of the
British dominions or of any Foreign State, or
in any fund of any body corporate, company,
or society, whether within or without the
British dominions, or to any deposit in any
bank; and every debenture, deed, bond, bill,
note, cheque, warrant, order, or security
whatsoever for money, or for payment of
money, whether current in any part of the
British dominions or in any Foreign State,
and every document of title to land or goods,
as herein defined."

4. The charges were laid under s.178B(1) of the Act, the relevant part of which read:-

"A person who -

(a) obtains any . . . valuable security; . . .

by passing a cheque that is not paid on
presentation is guilty of an offence
punishable, on conviction, by a fine not
exceeding $2,000 or by imprisonment for a
term not exceeding 12 months."

5. The definition of "valuable security" set out above was omitted from the Act and s.178B was repealed by s.5 of the Crimes (Amendment) Ordinance (No.4) 1985.

6. Before the learned Magistrate counsel for the appellant submitted that the receipts which were obtained were valuable securities within the meaning of the Act. Counsel for the respondent submitted that they were not. This was the only issue between the parties.

7. The learned Magistrate held that the receipts in question were not valuable securities. He gave no reason for so holding and one assumes, therefore, that he accepted the submission made by counsel for the respondent which may be summarised as follows. Valuable securities within the meaning of the Act are documents which have been held to be either documents evidencing title or orders to pay money. A receipt was merely an acknowledgment of payment of money, not in any way a promise or order to pay money and not a document of title to real or personal property. If at a later stage it might be combined with some other document for the purpose of imposing on, in this instance, the Commonwealth, it did not automatically become a valuable security even at that stage.

8. The learned Magistrate remarked that it might be valuable but not a valuable security.

9. At the relevant time s.10 of the Health Insurance Act 1973 provided that where on or after 1 February 1984 medical expenses were incurred in respect of a professional service rendered in Australia to an eligible person medicare benefit was payable at a level calculated in accordance with that section. Section 20B of that Act provided that a claim for a medicare benefit in respect of the relevant professional service should be made in accordance with the approved form and lodged with the Health Insurance Commission, a commission established by the Health Insurance Commission Act 1973 as a body corporate (ss.4 and 9(1) of that Act).

10. For the purposes of the provisions in which the expression occurs an approved form is one approved by the Minister by writing signed by him. (Health Insurance Act 1973, s.3(1).) There was no evidence before the learned Magistrate as to the form of the "approved form". Earlier legislation and regulations had provided for a claim form, form 1B. It included the words "I claim the medical benefits payable in respect of the professional services specified in the attached accounts. Where a receipt is not attached in respect of a professional service, the account has not been paid and I request a cheque payable to the practitioner in respect of that service." It is plain, therefore, that if a claimant wished to receive directly a refund in respect of fees paid for professional medical services he was under the earlier legislation required to produce a receipt for those fees.

11. As a matter of commonsense and ordinary business practice it would, I think, be absurd to think that a refund for Medicare benefits would be paid except on production of the appropriate or what appeared to be the appropriate receipt. In my opinion, the receipts obtained by the respondent had a double character. So far as the medical practitioners were concerned they evidenced payment in respect of the fees charged for the professional services rendered. Once the receipts were issued they could be used to obtain the appropriate refunds under the legislation. They thus had a second purpose and characteristic. They constituted apparent proof that the respondent had paid the amounts referred to in the receipts and that on the basis of that proof was entitled to shares to the appropriate level in the funds of the body corporate, the Health Insurance Commission. They thus became, in my opinion, securities evidencing the title of the respondent to those shares and so fell within the definition of valuable securities in s.4 of the Act. It mattered nothing, in my opinion, that claim forms might have to be filled out as well in respect of the applications for refund. The additional procedural step neither added to nor took away from the receipts their character as securities evidencing the title of the respondent to part of the fund from which medicare benefits were paid by the Health Insurance Commission.

12. This view seems to accord with that expressed obiter by the Privy Council in Attorney-General of Hong Kong v. Pat Chiuk-Wah (1971) AC 835 when considering insurance stamps issued pursuant to regulations made under the National Insurance Act 1965 of the United Kingdom. It was there dealing with a definition of "valuable security" which had much in common with that which I am considering but which contained, also, a more extended definition in part. In its advice the Judicial Committee relied upon the more extended definition in holding that the insurance stamps were valuable securities but their Lordships indicated, at p.840, that they inclined to the view that a national insurance stamp fell within the ordinary meaning of a valuable security.

13. I am of opinion, therefore, that the learned Magistrate was incorrect in his ruling that the receipts did not constitute valuable securities and the appeals must accordingly be allowed. The matters are remitted to the Magistrates Court to be dealt with in accordance with this judgment.