Ghebretensae Haile v Elwyn Syphers [1996] ACTSC 69 (25 June 1996)

SUPREME COURT OF THE ACT

GHEBRETENSAE HAILE v. ELWYN SYPHERS
No. SC547 of 1993
Number of pages - 4
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER T. CONNOLLY

CATCHWORDS

Practice and Procedure - Subpoena - Whether Issue of Subpoena to Health Insurance Commission to Examine Plaintiff's Medicare Records Prohibited by s.130 Health Insurance Act 1973 (Cth) - Issue of Certificates - Health and Other Services (Compensation) Act 1995 (Cth).

Health Insurance Act 1973 (Cth), s.130

Supreme Court Rules, O.39 r.6A
Health and Other Services (Compensation) Act 1995 (Cth)
Income Tax Assessment Act 1936 (Cth), s.16(3)

Federal Commissioner of Taxation v Nestle Australia Ltd (1986) Aust.

Tax Cases 4.760

Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; (1952) 86 CLR 1
Re Fortex (1986) Aust. Tax Cases 4.351
Mann v Board of Health of the Australian Capital Territory,

(unreported, Supreme Court of the ACT, Spender J, 23 May 1995)

HEARING

CANBERRA, 21 June 1996
25:6:1996

Counsel for the Plaintiff: Mr B. Meagher

Instructing Solicitors: Scott Sheils and Glover

Counsel for the Respondent: Mr C. Erskin

Instructing Solicitors: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. The time for service of the Plaintiff's Notice of Motion dated 19 June 1996 be abridged.
2. The Proper Officer of the Health Insurance Commission produce at 9.00 am on 28 June 1996 at the office of the respondent all documents and records listed in subparagraphs (a) to (e) inclusive of paragraph 2 in the plaintiff's Notice of Motion dated 19 June 1996.
3. The plaintiff is granted leave to file, have issued and serve a Subpoena for Production including a Schedule in the same terms as subparagraphs (a) to (e) inclusive of paragraph 2 in the plaintiff's Notice of Motion dated 19 June 1996, to be served upon the Health Insurance Commission.
4. The question of costs is reserved, with liberty granted to apply in respect of costs on 2 days' notice.

DECISION

MASTER T. CONNOLLY This matter requires me to consider whether s.130 of the Health Insurance Act 1973 (Cth) prevents solicitors acting for a plaintiff in a personal injury action from obtaining certain information relating to the plaintiff's Medicare claims history from the Health Insurance Commission.

2. The matter originally came before me by way of a Notice of Motion filed by the Health Insurance Commission to set aside a subpoena issued at the behest of the plaintiff. At the hearing Counsel for the plaintiff conceded that the original form of the subpoena was cast too widely. A further Notice of Motion was filed by the plaintiff seeking a subpoena in more precise terms and, alternatively, discovery of the same material pursuant to O.39 r.6A of the Supreme Court Rules

3. The basis of this application, from affidavit material before me, was the stated need for the plaintiff to be able to identify those occasions when he has utilised medical services, in order to properly quantify a claim for out of pocket expenses in the context of a personal injuries claim. It is apparent, however, that behind this application lies dissatisfaction at what are perceived to be undue delays by the Health Insurance Commission in issuing Certificates pursuant to the Health and Other Services (Compensation) Act 1995 (Cth).

4. It was suggested to me that the real purpose of the plaintiff in obtaining the material sought was, in effect, to secure in advance of the trial the material necessary to compile the certificate which, pursuant to the Health and Other Services (Compensation) Act 1995, must issue before a successful plaintiff can recover the proceeds of a personal injuries damages verdict. It was argued that if this was the motive, it would amount to an abuse of process.

5. It is unnecessary for me to decide whether or not this is the underlying motive of the plaintiff. I am, however, of the view that it is not an abuse of process for a plaintiff, or a solicitor acting on behalf of a plaintiff, to do whatever is lawful pursuant to the Rules in order to secure a more timely payment of any award that may be made.

6. The Notice of Motion seeks both third party discovery pursuant to O.39 r.6A and a subpoena. Order 39 r.6A provides in s.(2) that a party may apply for inspection of documents in the possession of a party, pursuant to the rule if such documents are documents that the third party "...could be required to produce at trial."

7. I accept that this means, in effect, that O.36 r.6A is available where such documents could be subject to subpoena. The question for determination then is, can a plaintiff subpoena their own Medicare claims history from the Health Insurance Commission.

8. Counsel for the Health Insurance Commission says that s.130(2) of the Health Insurance Act 1973 sets up a complete bar to such a claim. This section says: "(2) A person who is, or has been, an officer shall not, except for the purposes of this Act, be required: (a) to produce in Court any documents that has come into his possession or under his control in the performance of his duties or functions under this Act; or (b) to divulge or communicate to a Court any matter or thing that has come under his notice in the performance of any such duties or functions."

9. Counsel for the plaintiff argued that I should look for guidance as to the effect of s.130(2) to the provisions, in very similar terms, found in the Income Tax Assessment Act 1936 (Cth), in particular s.16(3). The Full Court of the Federal Court of Australia in Federal Commissioner of Taxation v Nestle Australia Ltd (1986) Aust. Tax Cases 4.760 held that the equivalent provision in the Income Tax Assessment Act 1936 did not preclude a taxpayer from obtaining discovery of their own tax records.

10. That section provides that an officer shall not be required to produce in Court any material, "...except where it is necessary to do so for the purposes of carrying into effect the provisions of this Act."

11. The Full Court in Nestle held that the exception "...for the purposes of carrying into effect the provisions of this Act", should be broadly construed, so that "...it includes the occasions on which (the officer) is required by the judicial process to produce documents or give evidence in courts" (at 4.764). This reasoning was based on the decision of Dixon CJ in Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; (1952) 86 CLR 1 where, in relation to a secrecy provision prohibiting disclosure to a court other than in accordance with an officer's "duty", Dixon CJ held that in this context the word "duty" "...is not, I think, used in a sense that is confined to a legal obligation, but really would be better represented by the word 'function'. The exception governs all that is incidental to the carrying out of what is commonly called 'the duties of the officer's employment', that is to say, the functions and proper actions which his employment authorises. In a case of this description I should think that did include the making of an affidavit in this Court."

12. This reasoning has been followed in a number of authorities. In Re Fortex (1986) Aust. Tax Cases 4.351 Enderby J said of s.16(3) of the Income Tax Assessment Act, "I am also of the opinion that the subsection does not prevent the Court ordering that, in the interests of justice and the proper fair hearing of an appeal, a litigant such as the applicant should have inspection of the documents if the Court considers them relevant and necessary" (at 4.357).

13. In Mann v Board of Health of the Australian Capital Territory, a decision of this Court (Spender J, unreported, 23 May 1995) it was held simply that in secrecy provisions a prohibition of divulging information to "any person" could not apply to a Court.

14. I see no reason in principal why I should not follow these decisions and hold that a Medicare levy payer and recipient of services from the Health Insurance Commission is not by reason of s.130(2) of the Health Insurance Act 1973 precluded from availing themselves of the processes of this Court to obtain discovery of, or to issue a subpoena in relation to, their own Medicare claims files.

15. Counsel for the Health Insurance Commission argued that, if such discovery was permitted, plaintiffs or solicitors acting on their behalf, could flood the Commission with such requests in the hope of "jumping the queue" in relation to the issue of certificates pursuant to s.24 or s.25 of the Health and Other Services (Compensation) Act 1995. If this be so, it would go to the question of exercise of discretion, rather than the power of this Court to issue a subpoena or make an order for discovery.

16. Perhaps the best answer to such concerns would be to avoid the need by ensuring timely issue of certificates.

17. I make the order in the terms sought in paragraphs 1, 2 and 3 in the plaintiff's Notice of Motion dated 19 June 1996 save that the date for discovery be amended to read 28 June 1996. I reserve the question of costs, with liberty granted to apply in respect of costs on 2 days' notice.