Mathews v Health Insurance Commission

BACKGROUND TO APPLICATION FOR DISCOVERY 4 On 15 July 2005, there was also filed on behalf of the respondents an affidavit of Ms Anne Mary Selvidge sworn the same date. In that affidavit Ms Selvidge deposes that she is the Manager of the Committees Unit within the Office of the second respondent (the Director). She further deposes that she has reviewed the file of the third respondents (the Committee) and she goes on to make certain statements in consequence of her review of that file. 5 Initially, counsel for the applicant put his application for discovery in terms of a notice to produce dated 15 July 2005 which was called on at the hearing on 19 July 2005 and in response to which three documents were produced. I granted the applicant access to those documents. 6 The notice to produce called for the production of the following documents: (1) All files, documents, memoranda, computer software and other documents of whatsoever nature relating to sampling in this matter including but not limited to all requests for the preparation of a preliminary random sample of services and exploratory random sample and all samples produced in relation thereto; (2) All material qualifying Professor Nicholls and any communications between he and the solicitors for the respondents relating to these proceedings. 7 Subsequently, the application for discovery was recast in terms of examining the same files to which Ms Selvidge had access for the purpose of swearing her affidavit. This was put, by counsel for the applicant, as being the file of the Committee, the file or files of the Director and the file or files of the first respondent (the Commission). 8 But it is clear in my view that, contrary to the submissions of counsel for the applicant, Ms Selvidge does not say she reviewed the file of anyone other than the Committee. The reference in paragraph 7 of her affidavit: 'From my examination of the file …' is a reference back to the Committee's file in paragraph 4. No other file is mentioned. 9 For this reason alone, the applicant's application that the Commission and the Director discover their respective files is rejected. Apart from anything else, as was submitted by counsel for the respondents, the Commission and the Director have, as a result of the abandonment of grounds 1 and 2 in the applicant's further amended application, effectively become non-parties in the judicial review action. This provides a further reason why the application for discovery by the Commission and the Director in the terms sought should be rejected. 10 This leaves the application for discovery by the Committee of its file. The genesis of this application is said to be the affidavit of Ms Selvidge and the fact that she had access to inspect the Committee's file and draw from it selected documents. But the documents she drew from it had been previously made available to the applicant - (i) the lists annexed 'B' - as Attachment C to adjudicative referral 223 (see paragraph 6 of adjudicative referral 223); and (ii) photocopies of the medical records of the first 40 item 23 services, the first 40 item 24 services, and the first 40 item 193 services from the preliminary random samples for those items - part of Attachment C to adjudicative referral 223 (see paragraph 6 of adjudicative referral 223). 11 It may be that she had access to other documents in the Committee's file, but if she did, she does not draw or rely on them. 12 Moreover, it is clear from the final report that the exploratory samples for items 23, 24 and 193 services that were examined by the Committee were, in the case of each item, drawn from the 40 services for which the Director supplied medical records. This was not something first disclosed by Ms Selvidge's affidavit. 13 Furthermore, the terms of paragraph 8 of the applicant's further amended application do not raise any sampling issue other than non-compliance with Health Insurance (Professional Services Review - Sampling Methodology) Determination 2000 (No.1) and the determination of the alleged errors - the 1st to the 5th inclusive - can be undertaken without recourse to the Committee's decision making process. 14 That would be enough to reject the application for discovery of the Committee's file, however, as the respondent's counsel submitted, having regard to the terms of sub-s106F(1) of the Act which provides: "A Committee member has, in the performance of his or her duties, the same protection and immunity as a Justice of the High Court". and the reasons for judgment of Gaudron J in Herijanto v Refugee Review Tribunal (No.2); Muin v Refugee Review Tribunal (No.2); Lie v Refugee Review Tribunal (No.2) (2000) 170 ALR 575 in considering an application for further discovery of various documents relating to the computer system of the Refugee Review Tribunal, and its computer records, in the context of the provisions of sub-s435(1) of the Migration Act 1955 (Cth) which, save for the substitution of the words 'Administrative Appeals Tribunal' for 'High Court' is in the same terms as sub-s106F(1) of the Act, the applicant's application for further discovery in terms of access to the Committee's file must be rejected. Her Honour said: "[9] …The protection afforded to individual members of the Tribunal by s435(1) of the Act would be illusory if, although they could not be compelled to disclose their decision-making processes, those processes could be revealed by analysis of computer records. [10] In my view, the protection and privilege conferred by s435(1) of the Act extends not merely to disclosure by the individual member concerned, but the revelation, by whatever means, of any aspect of his or her decision-making process. … [11] Whether or not the privilege conferred by s435(1) of the Act extends to the revelation, by whatever means, of the decision-making processes of individual members of the Tribunal, it would not be right, in my view, to order discovery to enable the plaintiffs to do indirectly what they cannot do directly. Accordingly, in each case, the application for further discovery is dismissed with costs." 15 At this stage, I make no order as to the costs of the applicant's motion. I will hear the parties' arguments on that issue during the substantive hearing now fixed for Monday, 22 August 2005. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.