Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited) (No 4)
[2013] FCA 436
FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited) (No 4) [2013] FCA 436
| Citation: | Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited) (No 4) [2013] FCA 436 | |
| Parties: | AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ACN 117 372 915 PTY LIMITED (IN LIQUIDATION) (FORMERLY ADVANCED MEDICAL INSTITUTE PTY LIMITED), ACN 095 238 645 PTY LTD (IN LIQUIDATION) (FORMERLY AMI AUSTRALIA HOLDINGS PTY LTD), JACOV VAISMAN, BRIAN LONERGAN, NRM CORPORATION PTY LTD (ACN 151 468 601) and NRM TRADING PTY LTD (ACN 151 469 493) | |
| File number: | VID 1113 of 2010 | |
| Judge: | NORTH J | |
| Date of judgment: | 5 April 2013 | |
| Legislation: | Evidence Act 1995 (Cth), s 128 Evidence Act 1995 (NSW), s 128 Health Care Complaints Act 1993 (NSW), s 39(1)(e) Health Practitioner Regulation National Law 2009 (NSW), ss 145D, 149B, 149C(1), Schedule 5D Trade Practices Act 1974 (Cth), s 155 | |
| Date of hearing: | 3, 4 and 5 April 2013 | |
| Place: | Sydney | |
| Division: | GENERAL DIVISION | |
| Category: | No catchwords | |
| Number of paragraphs: | 21 | |
| Solicitor for Dr Vandeleur: | Ms L Mullins from William Roberts Lawyers | |
| Counsel for the Applicant: | Mr J Burnside QC with Ms L Nichols | |
| Solicitor for the Applicant: | Corrs Chambers Westgarth | |
| Counsel for the First and Second Respondents: | No appearance | |
| Counsel for the Third, Sixth and Seventh Respondents: | Mr M Green with Dr E M Peden | |
| Solicitor for the Third, Sixth and Seventh Respondents: | Bruce & Stewart Lawyers | |
| Counsel for the Fourth Respondent: | No appearance | |
| IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | |
| GENERAL DIVISION | VID 1113 of 2010 |
| BETWEEN: | AUSTRALIAN COMPETITION AND CONSUMER COMMISSION |
| AND: | ACN 117 372 915 PTY LIMITED (IN LIQUIDATION) (FORMERLY ADVANCED MEDICAL INSTITUTE PTY LIMITED) ACN 095 238 645 PTY LTD (IN LIQUIDATION) (FORMERLY AMI AUSTRALIA HOLDINGS PTY LTD) JACOV VAISMAN BRIAN LONERGAN NRM CORPORATION PTY LTD (ACN 151 468 601) NRM TRADING PTY LTD (ACN 151 469 493) |
JUDGE: | NORTH J |
DATE OF ORDER: | 5 APRIL 2013 |
WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
A certificate be granted to Dr James Patrick Vandeleur under s 128 of the Evidence Act 1995 (Cth) and s 128 of the Evidence Act 1995 (NSW).
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | |
| GENERAL DIVISION | VID 1113 of 2010 |
| BETWEEN: | AUSTRALIAN COMPETITION AND CONSUMER COMMISSION |
| AND: | ACN 117 372 915 PTY LIMITED (IN LIQUIDATION) (FORMERLY ADVANCED MEDICAL INSTITUTE PTY LIMITED) ACN 095 238 645 PTY LTD (IN LIQUIDATION) (FORMERLY AMI AUSTRALIA HOLDINGS PTY LTD) JACOV VAISMAN BRIAN LONERGAN NRM CORPORATION PTY LTD (ACN 151 468 601) NRM TRADING PTY LTD (ACN 151 469 493) |
JUDGE: | NORTH J |
DATE: | 5 APRIL 2013 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
Before the Court is an application by Dr James Patrick Vandeleur for a certificate under s 128 of the Evidence Act1995 (Cth) (the Act) and s 128 of the Evidence Act 1995 (NSW) (the NSW Act).
Section 128 of the Act provides as follows:
(1)This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:
…
(b) is liable to a civil penalty.
(2)The court must determine whether or not there are reasonable grounds for the objection.
…
(4)The court may require the witness to give the evidence if the court is satisfied that:
(a)the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
(b) the interests of justice require that the witness give the evidence.
(5)If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.
Section 128(1), (2), (4) and (5) of the NSW Act are identical to the Act.
There is a difference between s 128(7) of the Act and the NSW Act as to the hearing bodies in which the certificate will operate.
Section 128(7) of the Act provides:
(7) In any proceeding in an Australian court:
(a)evidence given by a person in respect of which a certificate under this section has been given; and
(b)evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence;
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
(Emphasis added).Section 128(7) of the NSW Act provides:
(7) In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence:
(a)evidence given by a person in respect of which a certificate under this section has been given, and
(b)evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence,
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
(Emphasis added).Dr Vandeleur was called by the applicant, the Australian Competition and Consumer Commission (ACCC) to give evidence in support of its application. Dr Vandeleur is a medical practitioner who used to work with the first respondent, formerly the Advanced Medical Institute Pty Limited (AMI). Ms Mullins, who appeared on behalf of Dr Vandeleur, sought a certificate on the ground that Dr Vandeleur’s evidence on particular matters may tend to prove that he is liable to a civil penalty in the form of disciplinary action as a health practitioner.
Dr Vandeleur filed two affidavits on behalf of the ACCC. Ms Mullins relied on three areas of his evidence which could give rise to a reasonable prospect that Dr Vandeleur might be liable to a civil penalty. Those areas are:
·The subject matter in paragraphs 31 to 39 of his affidavit filed on 27 October 2011 which suggested that Dr Vandeleur prescribed medication to patients seeking treatment for erectile dysfunction which he would not have prescribed if he had considered only the interests of the patients, rather than succumbed to pressure from AMI;
·The subject matter in paragraphs 40 to 47 of the same affidavit which in summary suggested that Dr Vandeleur recommended treatment for fixed, long term periods where the medical diagnosis did not justify a fixed term contract of such duration. Dr Vandeleur said that he recommended treatment for 12 or 18 months as a result of the preference expressed by AMI; and
·The subject matter in paragraph 70 of the same affidavit which sought to explain the discrepancy between the explanation of his consulting methodology given to the ACCC, in response to a notice served on him under s 155 of the Trade Practices Act 1974 (Cth), and the transcripts of recordings of the actual consultations with patients.
Ms Mullins indicated that Dr Vandeleur is content to give the evidence willingly provided that he has the protection of a certificate given under s 128(5) of the Act and the NSW Act.
Where a witness objects to giving evidence on a particular matter, on the ground that it might tend to prove that the witness is liable to a civil penalty, the Court is required to consider first whether there are reasonable grounds for the objection under s 128(2) of the Act and the NSW Act.
Ms Mullins contended that there were reasonable grounds for the objection. She submitted that under s 145D of the Health Practitioner Regulation National Law 2009 (NSW), the Health Care Complaints Commission of NSW (the Commission) is under a duty to refer a complaint to the Medical Tribunal of New South Wales (the Tribunal) if it forms the opinion that a complaint, if substantiated, provides grounds for the suspension or cancellation of a registered health practitioner’s registration.
On 22 November 2011, the Commission wrote to Dr Vandeleur and said that a complaint had been received from the New South Wales Medical Council concerning the care and treatment of patients whilst Dr Vandeleur was working with AMI. The letter went on to say that:
This complaint was based on the Application and Statement of Claim filed by the Australian Competition and Consumer Commission (ACCC) [in this proceeding]…
The letter then enumerated a number of matters which were the subject of the complaint. The Commission said in the letter that it had assessed the complaint as warranting investigation because it “raises significant questions about your conduct and care and treatment of AMI patients”.
On 30 March 2012, the ACCC wrote to Dr Vandeleur indicating that it had received a request from the Commission to disclose some of the information held by it as a result of the execution of search warrants in this case. The Commission sought electronic recordings and transcripts of consultations between NSW based callers to AMI and Dr Vandeleur and copies of any patient records that may have been created as a result of those consultations. The ACCC sought Dr Vandeleur’s views on whether it should release the information sought. The ACCC determined not to release the information to the Commission.
Then, on 16 November 2012, the Commission wrote to the lawyers representing Dr Vandeleur indicating that the investigation was to be terminated under s 39(1)(e) of the Health Care Complaints Act 1993 (NSW) “…as there is insufficient evidence available at this time to support the complaint allegations.”
The objection taken by Dr Vandeleur relates to evidence which could require the Commission to refer a complaint to the Tribunal. The Tribunal is empowered under the Health Practitioner Regulation National Law 2009 (NSW) to fine a health practitioner (see s 149B) or to suspend a health practitioner’s registration if the practitioner is not competent or guilty of professional misconduct (see s 149C(1)). Those consequences amount to a civil penalty. There are thus reasonable grounds within the meaning of s 128(2) of the Act and the NSW Act for the objection taken by Dr Vandeleur.
Under s 128(5) of the Act and the NSW Act, once it is established that there are reasonable grounds for the objection, the Court must cause the witness to be given a certificate in respect of the particular evidence if the witness willingly gives the evidence without being required to do so. In this case, Dr Vandeleur has indicated that he will give the evidence willingly. The Court has no discretion in these circumstances to refuse to grant a certificate.
Mr Green, who appeared as counsel for the third, sixth and seventh respondents, submitted that a certificate should not be granted under the Act or the NSW Act. No issue was taken as to whether the third, sixth and seventh respondents had standing to make submissions on the application for a certificate.
They submitted that the Tribunal is not an “Australian court” or a “NSW court” and consequently a certificate would provide no protection to Dr Vandeleur. Thus, it was futile to grant a certificate. “Australian court” and “NSW court” are both defined as bodies “required to apply the laws of evidence”. Section 2 of Schedule 5D of the Health Practitioner Regulation National Law2009 (NSW) provides that the “Tribunal is not bound to observe the rules of law governing the admission of evidence”.
These submissions do not take into account that there is a further definition of “Australian court” in paragraph (e) of the definition in the Act, which provides that an “Australian court” is “a body authorised by an Australian law … to hear, receive and examine evidence”. Further, s 128(7) of the NSW Act provides that evidence in respect of which a certificate has been given cannot be used against a person in any proceeding in a NSW court or a “body authorised by a law of [NSW] … to hear, receive and examine evidence”. Sections 3 to 5 of Schedule 5D of the Health Practitioner Regulation National Law 2009 (NSW) give the Tribunal the power to hear, receive and examine evidence. The Tribunal therefore falls within both definitions and a certificate would operate to protect Dr Vandeleur in proceedings before the Tribunal.
Whether the Act or the NSW Act would apply to proceedings before the Tribunal may involve questions of some difficulty. To ensure that Dr Vandeleur achieves the protection provided by the legislation, a certificate under both s 128 of the Act and the NSW Act will be granted.
| I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. |
Associate:
Dated: 10 May 2013
0
0
0