Ian Clare v Health Insurance Commission [2003] FCA 1279 (11 November 2003)

Last Updated: 11 November 2003

FEDERAL COURT OF AUSTRALIA

Ian Clare v Health Insurance Commission [2003] FCA 1279

PRACTICE AND PROCEDURE - application for discovery in judicial review proceedings regarding a decision denying "eligible equipment" status and Medicare benefits - claims including a reasonable apprehension of bias and improper purpose on the respondent's part - application identifying classes of discoverable documents - whether application oppressive or fishing

Health Insurance Commission Act 1973 (Cth)

Health Insurance Act 1973 (Cth)

Health Insurance (Diagnostic Imaging Services Table) Regulations 2000 (Cth)

Health Insurance (1998-99) Diagnostic Imaging Services Table) Regulations 1998 (Cth)

Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408 referred to

Re Federal Commissioner of Taxation; Ex parte Swiss Aluminium Australia Ltd (1987)

72 ALR 247 followed

Australian Securities Commission v Somerville (1994) 51 FCR 38 applied

Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp [1997] 578 FCA (unreported, Beaumont, Burchett and Emmett JJ, 30 June 1997) applied

Minister for Immigration and Multicultural and Indigenous Affairs v Wong [2002] FCAFC 327 applied

WA Pines Ltd v Bannerman (1980) 41 FLR 175 applied

Commonwealth v Northern Land Council (1991) 30 FCR 1 applied

Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4) (1995) 58 FCR 426 followed

Bertran v Vanstone [1999] FCA 1753 referred to

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 referred to

IAN CLARE v HEALTH INSURANCE COMMISSION

V 878 of 2002

KENNY J

MELBOURNE

11 NOVEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V878 OF 2002

BETWEEN:	IAN CLARE APPLICANT
AND:	HEALTH INSURANCE COMMISSION RESPONDENT
JUDGE:	KENNY J
DATE OF ORDER:	11 NOVEMBER 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. On or before 15 December 2003, the respondent give discovery of the documents described in pars 1, 3, 4, 5,7, 8, 9, and 10 of the schedule of documents attached to the applicant's notice of motion dated 21 February 2003.

2. The respondent pay the applicant's costs of the motion.

3. The matter be fixed for directions on Friday 6 February 2004.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V878 OF 2002

BETWEEN:	IAN CLARE APPLICANT
AND:	HEALTH INSURANCE COMMISSION RESPONDENT

JUDGE:	KENNY J
DATE:	11 NOVEMBER 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE NATURE OF THE APPLICATION

1 This is an application, by way of a notice of motion dated 21 February 2003, for orders for discovery and inspection. Pursuant to O 15 of the Federal Court Rules ("the Rules"), the applicant, Dr Ian Clare, seeks, amongst other things, an order that the respondent, the Health Insurance Commission ("the Commission"), give discovery of the following classes of documents:

"1. All documents relating to the circumstances in which the documents referred to at paragraph C3(a)(i) and (ii) of the Application and/or the information contained therein were first obtained by the Respondent.

2. All documents recording or evidencing a view as to whether the Equipment is Eligible Equipment (other than the documents referred to in paragraph C3(c)(i)(A) - (N) inclusive of the Application).

3. All documents recording, evidencing or concerning the cessation of Mr Douglas Hall's involvement in the Decision-Making Process.

4. All documents concerning the authority of Mr Douglas Marshall (the Decision-Maker) to make the Decision pursuant to s8H of the HIC Act or otherwise, including, without limitation, any instrument of delegation.

5. All documents recording, evidencing or concerning the selection and/or engagement of Mr Marshall as the Decision-Maker.

6. All documents recording or evidencing a conversation dated 18 October 2002 between Mr Condon and Mr Paul Fenton-Menzies (referred to at paragraph C4(a) of the Application.

7. All documents relating to the provision to the Respondent by Mr Peter Condon of the documents referred to in paragraph 3(a) of the Decision.

8. All documents sent to, received or created by the Decision-Maker:

(a) in the course of the Decision-Making Process; and/or

(b) relating to whether the Equipment was Eligible Equipment.

9. All documents sent to, received or created by Mr Hall:

(a) in the course of the Decision-Making Process; and/or

(b) relating to whether the Equipment was Eligible Equipment.

10. All documents sent to, received or created by Mr Fenton-Menzies:

(a) in the course of the Decision-Making Process; and/or

(b) relating to whether the Equipment was Eligible Equipment.

11. All document constituting the Post-Review Decisions.

12. All drafts of the Decision and the statement of reasons included therewith.

13. All documents which the Respondent may seek to rely upon at trial.

14. All documents which may be injurious to the Applicant or the Respondent."

2 The motion was supported by two affidavits, both affirmed by Mr Darren James, the applicant's solicitor. In opposition, the respondent relied on an affidavit, sworn on 28 February 2003, by Mr Alexander Norman Holcombe, the solicitor for the Commission.

3 The outcome of this application depends very much on the nature of the proceeding in which it is made and the nature of the applicant's case. In the proceeding, the applicant seeks judicial review of a decision, which was made on 9 December 2002, that Medicare benefits were not payable in respect of Magnetic Resonance Imaging ("MRI") services provided by him because the MRI scanner used by him in providing these services was not "eligible equipment" within the meaning of Rule 31 of the Health Insurance (Diagnostic Imaging Services Table) Regulations 2000. The applicant invokes the jurisdiction conferred on this Court by the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth).

BACKGROUND

4 According to the affidavits of Mr James, the circumstances that led Dr Clare to institute this proceeding are as follows.

* On 29 September 1998, Dr Clare prepared a statutory declaration, which he sent to the Commission in support of an application for approval as an eligible provider of MRI services upon an MRI scanner ("the MRI scanner") used in his radiology practice at Bundoora. GEC Australia Limited had earlier provided a quotation for the sale of the MRI scanner, which was dated 30 October 1996 ("the quotation"). A copy of the quotation accompanied Dr Clare's statutory declaration.

* On 4 October 1998, Dr Clare received a letter dated 2 October 1998 from the Commission, informing him that "as of 1 September 1998 you are eligible under Provider Number 061601GX to perform MRI services that have been referred from either Specialists or Consultant Physicians".

* After the receipt of this letter, Dr Clare provided MRI services to patients by means of the MRI scanner in exchange for an assignment of Medicare benefit and made claims in respect of these services.

* On 24 December 1999, Dr Clare received a facsimile from the Commission, informing him that, as a result of the Commission's investigations, the Commission had evidence that the quotation was signed after 12 May 1998. In consequence, the MRI scanner was not "eligible equipment" within the definition of the Health Insurance (1998-1999 Diagnostic Imaging Services Table) Regulations and Medicare benefits were not payable for the services provided by its use. The Commission further informed Dr Clare that it "will cease paying Medicare benefits for MRI services ... with effect from 14 January 2000". The Commission advised Dr Clare that he was "free to make any written submissions, before that date, on why the Commission should not cease the payment of MRI benefits, from that date".

* Dr Clare consulted solicitors, who entered into correspondence with the Commission on his behalf. On 11 February 2000, Mr James, who by this time was acting for Dr Clare, received a letter from the Commission stating, amongst other things, that:

No decision has been made to reject payments outright. No decision has been made that Dr Clare is no longer an eligible provider. ... Consequently, and as originally advised, any claims for MRI services from Bundoora Radiology will be pended, until you have made written submissions and then this matter will be further considered in the light of those submissions. ...

* On 12 May 2000, Mr James applied to the Commission for access to documents under Freedom of Information Act 1982 (Cth) ("the FOI Act").

* On 20 September 2000, the Commission faxed to Mr James a document purporting to be a "Notice of Decision under section 26 of the Freedom of Information Act 1982".

* On 27 September 2000, the Commission published a media release, which stated amongst other things:

The Director of Public Prosecutions has advised the Health Insurance Commission (HIC) with regard to the MRI investigations that there is insufficient evidence to meet the test in the Prosecution Policy of the Commonwealth that there be a prima facie case with reasonable prospects of conviction for a prosecution to proceed. This decision has been made in respect of all of the briefs submitted by the HIC in relation to the Magnetic Resonance Imaging investigation.

...

Now that the DPP's position in relation to criminal matters is known to the HIC, it has considered whether any of the eight cases referred to in the HIC report of December 1999 as being possible civil cases, should be the subject of civil proceedings.

In this connection all but six of the uninstalled machines lost their entitlement to claim Medicare rebates by reason of the Government's decision to render ineligible those metropolitan machines that were ordered in the period of 10 February to 12 May 1998 (three ordered to 10 February and the other were rural). The HIC is pending claims on two providers who continue lodging claims and in respect of which there is believed to be no entitlement.

As at 14 August 2002, 28 October 2002 and 16 December 2002, a search of the respondent's website permitted access to this media release.

* On 20 April 2001, Mr James received a letter from the Commission, which was signed by Mr Doug Hall, the Commission's Secretary, constituting his decision, on internal review, of Dr Clare's FOI application. Pursuant to this decision, Mr Hall released additional documents.

* After Dr Clare filed, in the Administrative Appeals Tribunal, an application challenging the Commission's FOI decision, the Commission released further documents to him.

* On 26 September 2001, the Senate disallowed the Health Insurance (Diagnostic Imaging Services Table) Amendment Regulations 2001. If these regulations had been effective, Dr Clare's MRI scanner would have ceased to be "eligible equipment" and Dr Clare would have ceased to be an "eligible provider" of MRI services.

* On 28 January 2002, Mr James received a letter from the Commission, which was dated 24 January 2002. It stated in part that:

The HIC has obtained independent legal advice from Senior Counsel in relation to the eligibility of the MRI scanner operated by Bundoora Radiology. On the basis of this advice, the HIC does not consider that the scanner satisfies the regulations and has therefore deemed the scanner ineligible equipment.

...

The HIC however invites Bundoora Radiology to make submissions of all materials that it wishes to be taken into consideration for the purpose of determining scanner eligibility. ...

* On 21 February 2002, Mr James sent the Commission the applicant's submissions and a number of witness statements concerning Dr Clare's status as an "eligible provider".

* On 27 May 2002, Mr James received a facsimile from the Commission, signed by Mr Hall, requesting additional information. The facsimile indicated that he would be the decision-maker and that, for the purpose of making the decision, he was considering contacting Mr Condon (who was a signatory to the quotation). Amongst other things, Mr Hall stated that:

I have not reviewed any relevant material obtained by HIC under section 8P ... of the Health Insurance Commission Act 1973. I do not propose to review such material in the course of making my decision. Until I reviewed your submissions, I was not familiar with the detail of this matter.

In a schedule that accompanied this letter, Mr Hall asked many questions. Some of these questions reflected a view that was adverse to Dr Clare, at least on a preliminary basis.

* On 1 July 2002, Mr James received an email from Mr Paul Fenton-Menzies, the Commission's General Counsel, enquiring when the Commission might receive a response to Mr Hall's letter. Mr James provided such a response by letter dated 4 July 2002.

* On 11 September 2002, Mr James received a facsimile from Mr Hall, informing him that the Commission proposed to contact Mr Condon.

* On 20 September 2002, Mr James wrote to Mr Hall, noting that he had decided the matter of Dr Clare's FOI Act application. The letter further stated:

As a competent FOI Officer, we presume that you read and considered the contents of, amongst other things, materials obtained by the Commission under section 8P of the Health Insurance Act. You will recall that our clients sought access to such documents in the FOI Applications.

In light of these matters, we fail to understand, how you could suggest, as you did in your letter of 27 May 2000, that you `[have] not reviewed any relevant material obtained by the [Commission] under section 8P of the Health Insurance Commission Act 1973' and that, until you reviewed the submissions we forwarded to the Commission on 21 February 2002 you were `not familiar with the details of this matter'.

* On 27 September 2002, Mr Fenton-Menzies, advised Mr James that "another senior HIC manager will now make a decision".

* On 1 November 2002, Mr Fenton-Menzies advised Mr James that the new decision-maker had "considered relevant material and ... formed [a] preliminary view about this matter that is adverse to your client's position"; and that a draft decision would be forwarded to Mr James for his comment as soon as possible.

* On 7 November 2002, Mr Doug Marshall informed Mr James, by letter of the same date, that he was providing Mr James with his draft decision (which was adverse to Dr Clare) and draft reasons and inviting comment on them.

* On 21 November 2002, Mr James provided a response to Mr Marshall.

* By letter dated 9 December 2002, Mr Marshall advised Mr James that he had made a decision relating to "the accounts for MRI services delivered to the HIC by Bundoora Radiology from 25 December 1999". Amongst other things, Mr Marshall stated:

After Mr Condon had voluntary given copies of the information that he provided to the HIC pursuant to section 8P to Mr Paul Fenton-Menzies, I saw that information. I have not seen any other information that was provided to HIC pursuant to section 8P, nor any material related to the investigation other than that set out in the submission of Freehills dated 21 November 2002. I do not consider that I, as decision-maker, [am] biased or [am] prejudiced against Bundoora Radiology nor do I consider that there could be a reasonable perception that I would be biased or prejudiced against your client.

Mr Marshall stated that he had decided that:

... the claims for Medicare rebates resulting from the provision of services using [the scanner were] not payable under the Health Insurance Act because the scanner was not `eligible equipment' within the meaning of Rule 31 of the Health Insurance (Diagnostic Imaging Services Table) Regulations 2000, as there was no contract in writing ... before 10 February 1998, and the MRI equipment had not been installed in a medical practice or hospital in Australia before 12 May 1998.

* On 17 December 2002, an officer of the Commission advised Mr James that Mr Fenton-Menzies, as the Commissioner's delegate, had determined to release further documents under the FOI Act on two occasions after Dr Clare had made application to the AAT. Amongst the documents released was a copy of an email from an officer of the Commission to a Mr Hirakawa dated 12 May 2000, in which the Commission's officer introduced himself as an investigator for the respondent in Australia and stated that the information supplied by Mr Hirakawa a few weeks earlier was considered important in relation to ongoing investigations.

THE JUDICIAL REVIEW APPLICATION

5 There is no statement of claim filed in the proceeding. Instead, the judicial review application contains numerous allegations, each of which are particularised. Further, as will be seen, the two affidavits of Mr James set out the background circumstances in some detail.

6 In his application for judicial review dated 19 December 2002, Dr Clare made the following allegations:

(1) The Commission did not have jurisdiction, and its delegate did not have authority to make the decision, because:

(a) there was no lawful basis upon which the Commission could "revisit and alter" the determination communicated by the letter of 2 October 1998 ("the original decision");

(b) the Commission was estopped from revisiting the "eligible equipment" status of the MRI scanner; and

(c) there was no proper instrument of delegation pursuant to which Mr Marshall could have made the decision under s 8H of the Health Insurance Commission Act 1973 (Cth) ("the HIC Act").

(2) The decision was an improper exercise of the power because:

(a) the decision-maker took into account irrelevant considerations, namely, the material obtained in consequence of the coercive power conferred by the HIC Act (i.e., Mr Condon's statements dated 20 January 2000 and 27 April 2000 and notes of an interview with him on 14 October 1999 and on 17 December 1999 and Mr Hirakawa's emails of 16 April 2000 and 9 June 2000);

(b) the decision-maker failed to have regard to relevant considerations (i.e., statements by Mr Condon on 29 April 1999 and 24 August 1999);

(c) the power was exercised "for the purpose of confirming a predetermined adverse view as to Dr Clare's status as an eligible provider ..., which view was already held by a number of officers (including those at senior management level) employed by the respondent."

In this regard, the applicant referred to numerous documents and to the asserted facts that:

(i) "The respondent chose as its `new' decision-maker a Mr Marshall who was based at central office and was insufficiently insulated from the widely Predetermined View";

(ii) "The respondent sought to circumvent the rules concerning the impermissible use of material ... by relying upon selective materials purportedly or allegedly `provided by Mr Condon' notwithstanding that such materials were obtained pursuant to or as a consequence of the exercise of coercive powers and should not thereby be relied upon";

(iii) "The respondent did not provide Mr Marshall with earlier statements of Condon which were inconsistent with his later statements and also inconsistent with the Predetermined View of the respondent."

(d) the exercise of power was unreasonable.

(3) There was a breach of the rules of natural justice in making the decision.

(4) The decision gave rise "to a reasonable apprehension of bias by prejudgment on the part of the respondent in that there existed a reasonable apprehension that decision-makers of the respondent in the central office, including Mr Marshall, might not bring a fair and unprejudiced mind to the decision." In this regard, the applicant referred to:

(a) the Predetermined View;

(b) "the central involvement of the respondent's Secretary, Mr Douglas Hall, in the decision-making up until September 2002 notwithstanding that Mr Hall had had a direct exposure to documents which detailed the Predetermined View by reason of:

(A) his consideration of a decision upon an internal review application dated 19 February 2001 lodged by the applicant under the Freedom of Information Act 1982 (Cth); and

(B) his duties as Secretary of the respondent";

(c) "the central involvement of the respondent's Legal Counsel, Mr Paul Fenton-Menzies, in the decision-making notwithstanding that Mr Fenton-Menzies had had a direct exposure to documents which detailed the Predetermined View by reason of:

(A) his appointment as a delegate of the respondent for the purpose of making decisions to grant and/or refuse the applicant access to documents under the [FOI Act];

(B) the decisions made to grant and/or refuse the applicant access to documents in pursuance of his appointment on or about 25 October 2002 and 18 December 2002".

(5) The decision involved an error of law. This ground was also particularised.

7 Since the hearing of the applicant's motion for discovery, the applicant has twice amended his application for judicial review, i.e., on 6 May 2003 and on 5 August 2003. Save for the affidavit of Mr Holcombe filed in opposition to the applicant's motion for discovery, the respondent has filed nothing by way of defence. Counsel for the Commission made it clear, however, that the Commission denied the applicant's allegations concerning the impugned decision.

SOME RELEVANT LEGISLATION

8 The case for the applicant begins with the proposition that the decision, which was communicated to him in October 1998, was made under regs 19 and 20 of the Health Insurance (1998-99) Diagnostic Imaging Services Table) Regulations 1998. They read as follows:

19 MRI and MRA services - eligible provider

(1) For rule 18, an eligible provider is a specialist in diagnostic radiology who satisfies the Commission that:

(a) he or she is a participant in the Royal Australasian College of Radiologists' Quality and Accreditation Program; and

(b) the equipment he or she proposes to use for providing services of the kind mentioned in group I5 in the diagnostic imaging services table (the proposed equipment) is eligible equipment for rule 20.

(2) The specialist must give the Commission a statutory declaration:

(a) stating the matters mentioned in paragraphs (1) (a) and (b); and

(b) specifying the location of the proposed equipment; and

(c) specifying the kinds of diagnostic imaging procedures offered at

that location; and

(d) if the proposed equipment has been installed at that location - stating the date that it was installed (the installation date); and

(e) if the installation date was 12 May 1998 - stating the time at which the equipment was installed.

(3) If the equipment had not been installed before 7.30 pm on 12 May 1998, Eastern Standard Time, the specialist must give the Commission, with the statutory declaration, a copy of the contract for the purchase or lease of the equipment.

(4) The Commission may request a specialist to:

(a) give the Commission documents to support statements made in the statutory declaration; and

(b) answer questions put to the specialist by the Commission about those statements.

Note  The documents may include the contract for purchase or lease of the proposed equipment, if not already given to the Commission under subrule (3).

20 MRI and MRA services - eligible equipment

(1) For rule 16, eligible equipment is equipment that complies with this rule.

(2) The equipment must be located in a medical practice, or the radiology department of a hospital, that offers a comprehensive range of diagnostic imaging procedures.

(3) The equipment must:

(a) have been installed in a medical practice or hospital before 7.30 pm on 12 May 1998, Eastern Standard Time; or

(b) although uninstalled, have been purchased or leased before that time on that day under a contract, in writing, that did not contain an option to cancel the contract; or

(c) be replacement equipment for equipment mentioned in paragraph (a) or (b).

Note  Equipment can be relocated to a new location without affecting its compliance with subrule (3). However, to continue to be eligible equipment, the equipment would have to continue to comply with subrule (2). (Emphasis added)

(4) Equipment mentioned in paragraph (3) (a) or (b) ceases to be eligible equipment when replaced by other equipment.

(4A) A statutory declaration under subrules 19(2) or (3) in relation to the equipment has been given to the Commission on or before 11 October 1999.

(5) For this rule:

comprehensive, in relation to a range of diagnostic imaging procedures, means that the range includes x-ray, ultrasound and computerised tomography (CT) procedures.

medical practice means a practice conducted by a sole practitioner, a practice conducted by a group of practitioners within the meaning of subsection 16A (9) or (10) of the Act or a practice conducted by a medical entrepreneur.

9 The applicant's case was that this decision could not be "unmade"; and that s 129AC of the Health Insurance Act 1973 (Cth) ("the HI Act") governed the position in the circumstances that the Commission said existed. Subsection 129AC(1) provides for the recovery of amounts paid as a benefit as a result of false statements. It reads as follows:

Where, as a result of the making of a false or misleading statement, an amount paid, purportedly by way of benefit or payment under this Act, exceeds the amount (if any) that should have been paid, the amount of the excess is recoverable as a debt due to the Commonwealth from the person by or on behalf of whom the statement was made, or from the estate of that person, whether or not the amount was paid to that person, and whether or not any person has been convicted of an offence in relation to the making of the statement.

The applicant also submitted that, in view of s 8H of the HIC Act (concerning the delegation of statutory power) the impugned decision had been made without authority. Further, since the Commission had apparently obtained information pursuant to s 8P of the HIC Act, other issues also arose concerning the use of this information. In this connection, the applicant referred to the decision in Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408 ("Johns"), at 423-424 per Brennan J.

10 The respondent contended that the applicant had misconceived the nature of the challenged decision. According to it, the decision was made under s 10 of the HI Act and was to the effect that no Medicare benefit was payable. According to the Commission, no issue of delegation arose.

THE PARTIES' SUBMISSIONS

11 The respondent opposed the application for discovery chiefly upon the basis that it sought irrelevant material, and was fishing and oppressive. The respondent's counsel referred to the fact that, in his affidavit of 28 February 2003, the respondent's solicitor deposed that the Commission had already released "well over 600 documents" to Dr Clare following on his FOI Act application. In written submissions, the respondent submitted that:

Had the documents produced pursuant to the Freedom of Information Act request revealed identified documents which had not been produced, and which were relevant to the issues raised in the application, the applicant could have sought them specifically. The fact he has not fortifies the conclusion that this is an impermissible fishing exercise.

The respondent submitted that the applicant's allegations concerning the impugned decision were unsubstantiated.

12 The applicant contended that the documents sought by it relevantly related to the issues in the case; and that his application was not properly categorised as fishing or oppressive.

CONSIDERATION OF THE MOTION

13 The Court may make orders for discovery and inspection in judicial review proceedings in accordance with the principles usually applicable in civil proceedings: see, e.g., Re Federal Commissioner of Taxation; Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247, at 249 per Beaumont J; Australian Securities Commission v Somerville (1994) 51 FCR 38 ("Somerville"), at 52 per Black CJ, Ryan and Olney JJ; Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp [1997] 578 FCA ("Canwest") (unreported, Beaumont, Burchett and Emmett JJ, 30 June 1997); and Minister for Immigration and Multicultural and Indigenous Affairs v Wong [2002] FCAFC 327 ("Wong"), at [23] per Hill, Moore and Branson JJ. Whether a court will make an order for discovery depends, in part, upon the nature of the case and the stage of the proceedings at which discovery is sought: see Somerville, at 54, citing WA Pines Ltd v Bannerman (1980) 41 FLR 175 ("Bannerman"), at 181 per Brennan J.

14 Order 15 of the Rules permits the Court to make orders for discovery and inspection. Pursuant to O 15 r 15, however, the Court "shall not make an order ... for the filing or service of any list of documents or affidavit or other document or for the production of any document unless satisfied that the order is necessary at the time when the order is made". In Commonwealth v Northern Land Council (1991) 30 FCR 1, a Full Court, consisting of Black CJ, Gummow and French JJ, said, at 24-25, that:

The same criterion of `necessity' governs orders for the filing or service of lists of documents as governs orders for their production. It is a reflection of the policy of judicial case management that underlies the Federal Court Rules generally. It is a broad criterion which requires consideration of the interests of justice in the particular case as well as its economic and efficient disposition.

15 In Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4) (1995) 58 FCR 426 ("CC"), Lindgren J observed, at 436-437:

Under O 15, r 15 the applicant for an order for discovery bears the onus of satisfying the Court that the order is "necessary". What is the significance of the word "necessary" in the rule ... ? The answer must depend upon the purpose properly served by the procedure of discovery of documents.

What must be discovered are `documents relating to any matter in question ...' in these proceedings: see O 15,rr 2(2)(a) and 8. The "matters in question" in these proceedings are the issues as revealed by the pleadings. It is well established that it is not necessary in order for a document to "relate" to such a matter that it be admissible in evidence in relation to that matter, and that it suffices that the document may lead to a train of inquiry which may advance the case of one party or damage that of his adversary: see, for example, Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 at 60, 62-64; Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341 at 345; Commonwealth of Australia v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 at 632.

In my opinion, O 15, r 15 requires that the court be satisfied that an order of the kind referred to in that rule is, at the time when the order is made, necessary "in the interests of a fair trial": Percy v General Motors-Holden's Pty Ltd [1975] 1 NSWLR 289 at 292E, F. ...

...

The notion of the `interests of a fair trial' and of the `fair disposition of a case' encompasses, in my view, the opening up of a train of inquiry of the kind referred to above which is part of the proper function of discovery.

In a case such as this, where one party and not the other is likely to have documents relating to a matter in question, it seems to me to be prima facie "necessary" in the sense referred to that discovery be ordered. But this general position is subject to the well established exception that discovery should not be ordered to enable a mere `fishing expedition' ...

...

A particular advantage of discovery is that the party required to give it must search for documents by reference to a judgment which that party is required to make and is in a position to make. This process is apt to bring to light documents the existence of which will often be beyond the other party's knowledge. The Commission is not in a position to know what documents are in the respondents' possession, custody or power.

Subject to what I say below in relation to discretion, I am satisfied that it is necessary in the interests of fair disposition of the proceedings that discovery be ordered. (Emphasis added.)

16 The Court will not, however, make an order for discovery at the outset of a judicial review proceeding in the absence of any evidence to support an applicant's allegations. In Wong, the Full Court commented, at [30], that:

It can be said, generally, that the test of Brennan J in Bannerman has usually been adopted as the appropriate test in determining whether discovery should be granted in matters of judicial review.

17 Earlier, in Canwest, the Full Court referred to Brennan J's test in Bannerman as "[a] modern statement of the principle". In Bannerman, at 181-182, Brennan J said as follows:

Though the power to require discovery be acknowledged, how should it be exercised? It depends upon the nature of the case and the stage of the proceedings at which the discovery is sought. In the present case, discovery is sought before there is a tittle of evidence to suggest that the Chairman did not have the requisite cause to believe which ... the statement of claim would put in issue. Some assistance was sought to be derived from cases where discovery had been given to a party before he was required to give particulars of his claim ... but in cases of that kind there is either an anterior relationship between the parties which entitles one to obtain information from the other, or sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery. This is not such a case. This is a case where a bare allegation is made by ... the statement claim and, the paragraph being denied, the applicant seeks to interrogate the Chairman and ransack his documents in the hope of making a case. That is mere fishing. As Smithers J said in Melbourne Home of Ford Pty Ltd v Trade Practices Commission and Bannerman: `In the absence of such evidence the proceeding is essentially speculative in nature. In such circumstances for the court to assist the applicants by making available to them the processes of interrogatories and discovery would be to assist them in an essentially fishing exercise and from this the court on established principles should refrain'.

18 As Lindgren J said in CC (in the passage quoted at [15] above), in a case such as this, where one party and not the other is likely to have documents relating to the matters in question, it is prima facie "necessary" in the relevant sense that discovery be ordered. But is this application for discovery "fishing"? In this event, the order will not be made. A fishing expedition in this context is a discovery application that is made to ascertain whether the applicant has a case, as opposed to strengthening a case that is already supported by some evidence: see, e.g., Bannerman, at 181; Somerville, at 52-53; and Bertran v Vanstone [1999] FCA 1753, at [22] - [23].

19 In conformity with Practice Note 14, the applicant in this case seeks discovery only in relation to particular issues or defined categories of documents. The application falls to be considered by reference to these categories. I discuss these categories in the order presented by the applicant.

20 Categories 8, 9 and 10 are described as "[a]ll documents sent to, received or created by" Mr Marshall (Category 8), Mr Hall (Category 9) and Mr Fenton-Menzies (Category 10) "in the course of the Decision-Making Process; and/or ... relating to whether the Equipment was Eligible Equipment".

21 In written submissions, the respondent said:

Category 8: The documents on which the decision was based were recited and have been provided. Anything else is irrelevant, fishing and oppressive.

Category 9: Mr Hall did not make the decision. This category is irrelevant to the issues raised in the application.

Category 10: Mr Fenton-Menzies did not make the decision. This category is irrelevant to the issues raised in the application.

22 In order to evaluate the parties' submissions, it is necessary to consider how the applicant seeks to make out his case. The applicant has submitted that these categories (and categories 2, 11 and 12) relate to his allegation that "there was a reasonable apprehension of bias by pre-judgment as set out in paragraph C4(b) of the Application". The applicant contended that a fair-minded lay observer, or properly informed lay person, might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the question of the eligibility of the MRI scanner: see, in this regard, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425, at 434-435 per Gleeson CJ, Gaudron and Gummow JJ. In written submissions, the applicant stated that:

The essence of the allegation is that by reason of a number of matters, taken cumulatively, such a reasonable apprehension existed. These matters included:

(a) the widely held, predetermined view, generated largely from the Central Office of the Commission and apparently arrived at during and as a result of the investigation process, to the effect that the equipment was not eligible (see C4(b)(i));

(b) the central involvement in the decision-making process of two officers who had examined prejudicial material generated for or as a result of the investigation, by reason of their role in the FOI process (see C4(b)(ii) and (iii)).

The applicant further submitted that, bearing these matters in mind, "the details of the actual circumstances surrounding the decision-making process are relevant in assessing what the hypothetical reaction of a fair-minded observer would be". The applicant also supported these categories (2, 8, 9, 10, 11 and 12) by reference to the improper purpose ground: see below.

23 In his judicial review application, the applicant referred to a number of documents, which, so he said, particularised his allegation that, well before the Commission made the impugned decision, the Commission had formed a view adverse to him about the status of the MRI scanner. At the hearing of this application for discovery, the applicant's counsel specifically referred to a number of matters, including the media release first published by the Commission on 27 September 2000, as well as the other communications between the Commission and the applicant or his lawyers. Many of these are referred to in [4] above.

24 Also in his judicial review application, the applicant referred, by way of particulars of his bias claim, to the involvement of Messrs Hall and Fenton-Menzies in the decision-making process. As already noted, Mr Hall conducted and determined an internal review of Dr Clare's FOI application. Acting in this capacity, the applicant's counsel submitted (and, for present purposes, I accept) that Mr Hall had cause to examine material gathered in the course of the Commission's investigation, which included material adverse to Dr Clare's interests. Counsel also drew attention to the fact that Mr Hall's involvement in the decision-making process was manifest in Mr Hall's facsimile of 27 May 2002, the schedule to which set out a series of questions, some of which reflected a view hostile to Dr Clare. I interpolate here that, for present purposes, I do not accept the respondent's submission that Mr Hall's questions were "neutral". Rather, these questions tended to indicate that, at least tentatively, Mr Hall was inclined to reject at least some of Dr Clare's account. As counsel also noted, the 27 May 2002 facsimile contained at least one assertion of perhaps doubtful validity. I note, too, that it was apparently Mr Hall's decision that Mr Condon (whose credibility the applicant challenged) was contacted in connection with the impugned decision. As the applicant also noted, when Mr Hall stood aside as decision-maker, Mr Marshall did not start the process afresh but continued the process put in train by Mr Hall.

25 Mr Fenton-Menzies was involved in the disposition of a part of Dr Clare's FOI application to the AAT. On at least two occasions after Dr Clare had instituted his AAT appeal, Mr Fenton-Menzies determined to release documents to Dr Clare. For present purposes, I accept, as the applicant submitted, that he too considered the nature of the information gathered in the course of the Commission's investigation, including information that was adverse to Dr Clare. Further, like Mr Hall, Mr Fenton-Menzies was also involved in the process that led to the impugned decision. In particular, it seems that it was he who interviewed Mr Condon on 18 October 2002 and that his notes of interview were subsequently given to Mr Marshall, the ultimate decision-maker.

26 These notes show that Mr Fenton-Menzies and Mr Condon discussed the circumstances surrounding the purchase of the MRI scanner in some detail. The tenor of the notes and the degree of detail recorded in them tends to indicate that Mr Fenton-Menzies had prior knowledge about the transaction before this interview. As the applicant would have it, Mr Fenton-Menzies acquired this knowledge from adverse information obtained, pursuant to statutory compulsion, for the purpose of the earlier investigation. According to the applicant, in the circumstances, his participation in the decision-making process contributed to a reasonable apprehension of bias.

27 In relation to Mr Hall, counsel for the applicant submitted, at the hearing of the discovery application, that:

It's obviously going to be a question of degree and the extent to which that person becomes in any way involved. The applicant has always alleged that the decision-making process should be absolutely separate given the strength of the views that are found in the investigating material, that the person should be absolutely separate from that and our case is essentially that when one looks at what happened in 2002, one cannot be sure of that separation. It's really a very unusual ... sort of ADJR case to have this kind of view being expressed this openly time and time again by the ultimate decision-maker, which is the Commission.

28 In relation to Mr Fenton-Menzies, she further submitted that:

... again we have this problem that we have Mr Fenton-Menzies, who is clearly involved here in the decision-making process at the same time dipping into the investigation material that is so highly prejudicial to the applicant. This is at exactly the same time that he is attempting to interview a crucial witness. To suggest that, therefore, there's some voluntary provision of the statements, when all of those statements are available to Mr Fenton-Menzies as an FOI officer, really smacks of a certain degree of artificiality.

The applicant submitted that there was evidence that Mr Fenton-Menzies's role in the decision-making process extended beyond that of a mere legal adviser in providing legal advice.

29 In light of the foregoing, I reject the respondent's submission that categories 8, 9 and 10 are irrelevant to the issues raised in the application. As the applicant puts his case, it is beside the point that neither Mr Hall nor Mr Fenton-Menzies made the ultimate decision. The applicant's case is that, in the circumstances, on account of their participation in the decision-making process, there was a reasonable apprehension of bias. I would not regard this part of the applicant's discovery application as fishing. There is enough material before the Court to satisfy the test stated by Brennan J in Bannerman. Further, as the applicant noted, the relevant timeframe for Mr Hall and Mr Fenton-Menzies is not large, since their involvement apparently commenced, in Mr Hall's case, around May 2002 and, in Mr Fenton-Menzies' case, around July 2002, and the ultimate decision was made in December 2002. Moreover, since the Commission set a cut-off date of 18 June 2001 (when Dr Clare filed his application in the AAT) for the release of documents under the FOI Act, there was likely to be relatively little overlap between the documents released as a consequence of the FOI Act and those made available pursuant to discovery.

30 I also accept that, in this case, the applicant is entitled to the discovery of documents received or created by the decision-maker in the course of the decision-making process that relate to the decision, whether or not the decision-maker considered that he actually relied on them. As the respondent has outlined its position, this category will not yield many documents. Of course, whether or not the applicant will make out his case at trial remains to be seen. In relation to categories 8, 9 and 10, I would make the orders sought.

31 As already noted, the applicant supported categories 2, 11 and 12 on much the same basis as categories 8, 9 and 10. Category 2 was "[a]ll documents recording or evidencing a view as to whether the Equipment is Eligible Equipment (other than the documents referred to in paragraph C3(c)(1)(A)-(N) inclusive of the Application)". Category 11 was described as "[a]ll documents constituting the Post-Review Decisions". Category 12 was described as "[a]ll drafts of the Decision and the statement of reasons included therewith".

32 In relation to category 2, the applicant said, in written submissions, that:

Documents that generally express a view as to the eligibility of the equipment relate to the bias claim even if not sent, received or created by a decision-maker. Thus, the press release would be within this class and the Applicant is entitled to discovery of any other documents within this category for a fair hearing of its bias claim.

33 In connection with category 2, the respondent's submitted, in written submissions, that:

Mr Marshall recites the documents on which he relied to make the decision ... . As his covering letter to the decision makes clear, he saw no other material, apart from that referred to in the letter dated 21 November 2001 from Freehills in response to the draft decision ... . Thus, any other documents are irrelevant. The Respondent has already provided substantial material in response to the Freedom of Information Act request, some of which was relied upon for Particulars C3(c)(i)A-N. Any further discovery would be oppressive. ...

34 The applicant's case is that there was a reasonable apprehension of bias. Where there is no basis for a reasonable apprehension that a document (or the information contained in it) has touched or entered into the decision-making process, the document cannot be said to relate to a matter in question. As things stand, I would not order discovery of documents described by reference to category 2.

35 In connection with categories 11 and 12, the respondent submitted that:

Category 11: This category is irrelevant, and amounts to a collateral attack on the Freedom of Information Act proceedings.

Category 12: No issue is raised in the application which would make any draft of the decision or reasons, other than that provided to the applicant for comment, and which the applicant has, relevant.

36 In relation to category 11, the applicant submitted that:

The extent of the involvement of Fenton-Menzies in the FOI process relates to the bias claim (see Application C4(b)(iii)). Although the applicant is aware that certain of the FOI review decisions made in October and December 2002 were made by Fenton-Menzies, it is not clear whether he has been otherwise involved in the FOI review process. The Applicant has attempted to elicit this information through the FOI process but has been advised that copies of the instruments of delegation and records of decision would "have to be requested separately under the FOI Act". Accordingly, discovery of the post-review FOI decisions which would give the identity of such persons is necessary.

The applicant's reference to "Post-Review Decisions" is a reference to the Commission's decisions "made after the AAT Application was lodged on 18 June 2001, to release documents to the Applicant falling within the FOI Application". The applicant propounded no further matter in support of category 12.

37 Counsel for the applicant submitted that documents in this category were relevant because, if there were any, they would indicate the extent of Mr Fenton-Menzies's exposure to the prejudicial material collected in the investigation. Counsel added that "[a]ll we want to know is the identity of the person who made those post-review decisions". In argument, counsel for the applicant indicated that what the applicant wanted was all the documents constituting the post-review decisions that were made by Mr Fenton-Menzies or by Mr Marshall.

38 I would not order discovery in the case of categories 11 and 12. On the applicant's own case, he is aware of Mr Fenton-Menzies' participation in two FOI decisions. There is nothing to indicate his participation in other decisions. The information that the applicant seeks is not appropriately sought by discovery. Nothing is shown to justify an order for discovery in the particular terms of category 12. Discovery of documents falling within category 8 may disclose documents that would also fall within category 12.

39 The applicant supported categories 1 and 7 by reference to the irrelevant considerations ground (paragraph C3(a) of the application). The applicant alleged that the documents obtained by using coercive powers for the purposes of an investigation should not be taken into account for the different purpose of deciding whether the applicant was an eligible provider. Category 1 concerned "[a]ll documents relating to the circumstances in which the documents referred to at paragraph C3(a)(i) and (ii) of the Application and/or the information contained therein were first obtained by the Respondent". The specific documents referred to in the application were the statements of Mr Condon dated 20 January 2000 and 27 April 2000 and transcripts of interviews dated 14 October 1999 and 17 October 1999, as well as two emails from Mr Hirakawa dated 16 April 2000 and 9 June 2000. Category 7 concerned "[a]ll documents relating to the provision to the Respondent by Mr Peter Condon of the documents referred to in paragraph 3(a) of the Decision".

40 An exhibit to Mr Holcombe's affidavit of 28 February 2003 showed that, by a letter of the same date, the respondent's solicitors provided the applicant with a copy of the notes of the conversation between Mr Condon and Mr Fenton-Menzies on 18 October 2002 and a copy of Mr Condon's covering letter of 18 October 2002 (forwarding to Mr Fenton-Menzies the statements made by Mr Condon on 28 January 2000 and 27 April 2000 and the transcripts of interview of 14 October 1999 and 17 December 1999). In this covering letter, Mr Condon said that he was "voluntarily providing these documents to the Health Insurance Commission". He added that he agreed that the Commission "can use the information in these documents to assist it to carry out any of its functions, including determining the eligibility for Medicare benefits under the Health Insurance Act 1973". Other material before the Court indicated that Mr Hirakawa's emails were obtained at the time the Commission's investigation was on foot.

41 In written submissions, the applicant contended that:

The documents appear to have been obtained while the investigation was extant. Further, the first interview of Condon of 14 October 1999 is on its face an examination "pursuant to s 8P". However, the Respondent is in a far better position to provide documentation concerning both the full circumstances in which this material was originally obtained (category 1) and the circumstances in which the material has subsequently been provided (category 7).

42 Counsel for the applicant submitted at the hearing of the discovery application that the material already in the applicant's possession showed that there had been more than one interview with Mr Condon and more than one statement obtained from him. She submitted that, on its face, at least one of these statements was made pursuant to s 8P of the HIC Act. She said further that, amongst the statements that Mr Condon had made, some were favourable to Dr Clare, although none of these had been provided to the decision-maker. Only the statements that were adverse to Dr Clare had been given to him. She submitted that since Mr Hirakawa's emails were obtained during the course of the investigation, the same point arose with regard to them as the case of the material from Mr Condon. She submitted that, in the circumstances of the case, the applicant was entitled to discovery of documents that disclosed the circumstances in which the Commission first obtained the material from Mr Condon and Mr Hirakawa and the circumstances in which Mr Condon subsequently provided material to the decision-maker.

43 In written submissions, the respondent said:

The application raises an issue as to the entitlement of Mr Marshall to rely upon statements alleged to be obtained under s 8P (Ground 3(a)). At issue in this ground is whether the statements were obtained under s 8P or not, and whether, if obtained under s 8P, the decision maker was entitled to rely upon them. The information provided to Mr Marshall and relied upon by him for the purpose of making is made clear in Mr Marshall's letter of 21 November 2002, and the decision (Ex DJ 42). The Respondent has already disclosed to the Applicant the covering letter under which the specified statements were provided to the Respondent. To the extent that category 1 purports to seek a broader class of documents, any such documents are not relevant to the issues raised by Ground 3(a).

44 The respondent also said in written submissions that:

Category 7: This category is irrelevant. The respondent adopts the submissions in relation to category 1.

The respondent's counsel submitted that the applicant had not established any basis upon which an order for discovery in the terms of categories 1 or 7 could be made. She submitted: [54]

... if this is a Johns argument, as the applicant has said, then the circumstances are entirely irrelevant, no matter how curious one might be and no matter how much it might add fuel to a feeling of persecution, it doesn't actually become relevant as a matter of law to this ADJR proceeding.

45 In my opinion, this misses the point being made by the applicant. His case is that the decision-maker erred by taking into account material obtained under s 8P of the HIC Act. There is enough shown for him to pass the test stated by Brennan J in Bannerman. Doubtless, the applicant wishes to establish definitively that the material in question was not merely obtained in the course of the prior investigation but also that it was obtained under s 8P; and that Mr Condon's letter of 18 October 2002 provides no answer to the case the applicant seeks to make. Whether or not he will make out his case remains to be seen. I would, however, grant discovery in respect of categories 1 and 7.

46 The applicant supported categories 3 and 5 (as well as categories 2, 7, 8, 9, 10, 11 and 12, discussed above) by reference to the ground of improper purpose (paragraph C3(c) of the Application). Under this ground, the applicant alleged that "the exercise of the power was for a purpose other than for a purpose for which the power was conferred", namely to confirm a "predetermined adverse view as to Dr Clare's status as an eligible provider". The documents in category 3 were "[a]ll documents recording, evidencing or concerning the cessation of Mr Douglas Hall's involvement in the Decision-Making Process". The documents in category 5 were "[a]ll documents recording, evidencing or concerning the selection and/or engagement of Mr Marshall as the Decision-Maker".

47 I shall not discuss categories 7, 8, 9 and 10 further in view of my conclusion with respect to them. My observations about categories 2, 11, and 12 (set out above) also apply in relation to this ground.

48 The respondent submitted that category 3 was irrelevant to the issues raised in the application, since Mr Hall did not make the decision. In relation to category 5, the respondent submitted, in written submissions, that:

This is fishing. Mr Marshall set out the materials he relied upon. The applicant cannot point to anything, despite the extensive material provided following the Freedom of Information Act request to suggest he relied upon anything else.

49 The applicant maintained that documents relating to the cessation of Mr Hall's, and the commencement of Mr Marshall's, involvement in the decision-making process were relevant to the case he sought to make. He also submitted that the character of the letter of 18 October 2002, under cover of which Mr Condon had provided statements and transcripts of interview to the Commission, was "suggestive of the existence of other communications". There was, so the applicant contended, evidence for its allegation of improper purpose as pleaded in its judicial review application. This evidence included:

(a) the artificiality of the process through which the [Commission] obtained the adverse Condon statements "voluntarily" after being put on notice that any use was circumscribed;

(b) the choice of the delegate as being in Central Office and thereby being insufficiently insulated from the predetermined view documents;

(c) the fact that no attempt appears to have been made to provide other statements of Condon which support the Applicant's eligibility.

50 At the hearing of the discovery application, the applicant submitted that:

... the somewhat artificial way the Commission has gone about obtaining these documents voluntarily after being told that the use was circumscribed, demonstrates a desire to achieve an adverse result and that's particularly said, given that the Commission seems to have not endeavoured to, at the same time, put earlier statements of Mr Condon that favoured Dr [Clare].

51 The character of Mr Condon's letter of 18 October 2002 may lend further support to this submission. In substance, the applicant's case, at least in regard to improper purpose, is "that somebody has been brought in to ensure a result".

52 The applicant has established, for present purposes, that the documents described in categories 3 and 5 are related to a matter in issue. Documents in these categories are relevant, adjectivally, to the question whether the ultimate decision-maker was chosen in order to facilitate a result adverse to the applicant, as the applicant alleges. There is, in this case, some material that supports the proposition that Mr Hall's position as decision-maker might have been compromised in the course of the decision-making process. As already noted, when Mr Hall stood aside as decision-maker, Mr Marshall did not start the process afresh but continued the process put in train by Mr Hall. Bearing in mind the circumstances of the case (see [4] above), there is sufficient material before the Court to satisfy Brennan J's test in Bannerman in connection with categories 3 and 5. I would order discovery of documents in categories 3 and 5. Again, whether or not the applicant will make out his case at trial remains to be seen.

53 The applicant supported his claims to documents in category 4 by reference to the grounds in paragraph C(1)(c) (no instrument of delegation) and C(2) (no authority) of its judicial review application. Category 4 was "[a]ll documents concerning the authority of Mr Douglas Marshall ... to make the Decision pursuant to s 8H of the HIC Act or otherwise, including without limitation, any instrument of delegation".

54 The respondent submitted that this category was misconceived. In his written submissions, the applicant acknowledged that the respondent had admitted that there was no instrument of delegation, noting the respondent's position was that no such instrument was necessary since the decision was made under s 10 of the HIC Act. Whilst the applicant sought to refute this analysis, he also submitted that whatever the true position was:

... the question of authority is raised and any documents concerning authority - even beyond an instrument - should be discoverable in the interests of a proper hearing.

I accept that the applicant has raised the question of authority and, in the circumstances of the case, in the interests of a fair trial, discovery of any documents in category 4 should be given.

55 Categories 13 and 14 were "[a]ll documents which the respondent may seek to rely upon at trial" and "[a]ll documents which may be injurious to the Applicant or the Respondent". The applicant submitted that these categories were contemplated by O 15 r 2(3) and Practice Direction 14. The respondent replied that:

General discovery is not warranted in applications brought under the Administrative Decisions (Judicial Review) Act 1977.

56 In conformity with Practice Note 14, the applicant has chosen to seek discovery of documents by reference to categories, formulated by reference to the case he seeks to make. Having properly pursued this course, there is no warrant for discovery in terms of categories 13 and 14. In such a case as this, it appears unlikely that the respondent would seek to rely on a document, the existence of which is unknown to Dr Clare. If this were to occur, however, it would be for the judge at the trial to deal with the matter.

57 The applicant did not pursue category 6, because the respondent had since provided the documents sought.

SUMMARY

58 For the reasons stated, I would order discovery of the documents falling within pars 1, 3 to 5 (inclusive), and 7 to 10 (inclusive) of the schedule of documents attached to the applicant's notice of motion dated 21 February 2003. The respondent did not challenge the description of the classes of documents identified in these paragraphs; and, in any event, discovery should be given in conformity with these reasons. Since the applicant has, in substance, succeeded in its discovery application, the respondent should pay his costs of the motion.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:

Dated: 11 November 2003

Counsel for the Applicant:	Ms M E Kennedy SC
Solicitor for the Applicant:	Freehhills
Counsel for the Respondent:	Ms F P Hampel SC and Mr C Horan
Solicitor for the Respondent:	Minter Ellison
Date of Hearing:	18 March 2003
Date of Judgment:	11 November 2003