Gribbles Pathology Pty Ltd & Anor v The Hon Brian Howe

[1990] HCATrans 282

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-!..) AUSTRALIA &	J.>>.>,..~~~««<(.l.:

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A26 of 1990

B e t w e e n -

GRIBBLES PATHOLOGY PTY LTD

and GRIBBLES PATHOLOGY (VIC)

PTY LTD

Applicants

and

THE HONOURABLE BRIAN HOWE,

THE FEDERAL MINISTER FOR

COMMUNITY SERVICES AND HEALTH

and THE SECRETARY OF THE

DEPARTMENT OF COMMUNITY

SERVICES AND HEALTH

First Respondents

and

NORRIS GEORGE CARTER

Second Respondent

Application for special

leave to appeal

MASON CJ
GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 NOVEMBER 1990, AT 10.42 AM

Copyright in the High Court of Australia

Gribbles 1 16/11/90

MR B.J. SHAW, QC: If the Court pleases, I appear with my	learned friend, MR S.H. WARD, for the applicants.
(instructed by Piper Alderman)
MR M.E.J. BLACK, QC:	If the Court pleases, I appear with my

learned friend, MR A.J. BESANKO, for the respondent

Minister and the respondent Department.

(instructed by the Australian Government Solicitor)

MR T. GRAY, QC:  May it please the Court, I appear with my

learned friend, MR J. WELLS, for the second

respondent. (instructed by Andersons)

MASON CJ: Yes, Mr Shaw.

MR SHAW:  If the Court pleases, this matter arose in this

way: the pleadings ~~~~h, I think, :re not in the

application book, sho:, that in 1987 .!Lr Carter was

conducting a pathology business. I am not going to

go into all the details. They are rather more

complicated than I shall outline. For present

purposes, that description of what was happening is

accurate enough. And he sold it to Gribbles

Pathology for some $30-odd million and the sale

agreement contained a restrictive covenant on

Mr Carter's subsequent activities and also provided

a restrictive covenant.

for·him to enter into a service agreement with contained

Gribbles Pathology then commenced to carry on

the business and after some time Mr Carter - I have

called him Mr Carter, perhaps I should be calling

him Dr Carter - was dismissed and he commenced an action in which he claimed, on the one hand, that

the restrictive covenants were not enforceable

because they were unreasonable or for various other

reasons and, secondly, that he had been wrongfully

dismissed.

The answer made was, first of all, that the

restrictive covenants were not unreasonable and

were enforceable and, secondly, that the dismissal

was justified on the grounds of what Dr Carter had

been doing and what he was doing is referred to in

Mr Robertson's affidavit which is in the

application book commencing at page 28, and the

reasons that are advanced by the defendants in
support of their allegation and contention that the

dismissal was a proper one appear at page 30.

MASON CJ: It is suggested, is it not, that he provided

information to this committee, of which he was a

member, the end result of which was to result in

the prescription of fee levels that had an adverse

impact on the practice?

Gribbles	2	16/11/90
MR SHAW:	Yes, Your Honour.	Now, that committee is a

committee which was set up pursuant to the Health

Insurance Act 1973. The relevant reasons have now

been repealed but they are in Division 2A of Part V

and commence at section 78A, and that provides for

the committee to be set up under the Act.

What happened was that there were then

interlocutory proceedings of various kinds and in

the course of those proceedings what happened was

that Dr Carter was asked to make discovery and he

said that he could not make discovery of some

matters because of the effect of section 130 of the

Health Insurance Act and then an application for

what might be called loosely "third party"

discovery was made in respect of the Minister and
the Secretary of the Department of Community

Services and Health, the Minister being charged

with the administration of the Health Insurance

Act.

The reason for their selection as the

appropriate persons to seek the discovery from lay

in the fact that the administration of the Act was,

in fact, committed to the Minister and the

Department had, in fact, written to the solicitors

delegate of the Minister to, first of all, discover

for Dr Carter saying that the only way in which

what the documents were and then to form a view

that their release was in accordance with public

interest.

The matter came on before the master in the

Supreme .Court of South Australia and the master

made an· order; the order being an order which was

limited to providing, in effect, an affidavit of

documents and not going to disclosing the documents

themselves and that order appears in the

application book at page 1. There was no material

put forward by the Minister or the Secretary in

order to resist the order. There was then an

appeal taken to a single judge who upheld the

master's order. There was then a further appeal by	leave to the Full Court which upheld the appeal and
vacated the order and the way in which the
Full Court reached that order was to conclude that
in the circumstances the Minister and the Secretary of the Department were prohibited from producing the affidavit of documents by the terms of
section 130(2)(b) of the Health Insurance Act and
in order to do that the Full Court had to come to
the conclusion that the Minister and the Secretary
were officers - which is a conclusion which is easy
enough to come to - in the circumstances in view of the definition. There is a special definition in section 130(14). That:

Gribbles 16/11/90

means a person performing duties, or

exercising powers or functions, under, or in

relation to, this Act.

And it was necessary, further, to come to the

conclusion that to provide the affidavit or list of

documents was for the Minister to divulge or

communicate to a court a matter or thing that has

come under his notice in the performance of - and I

alter the words slightly in order to explain the

word "such" - in the performance of his duties or

functions under the Act and that the disclosure

would not be for the purposes of the Act.

Now, that form of secrecy provision, if it is

right to call it that, is very common in

Commonwealth legislation and we have prepared a book

of some of the comparable legislation which we will

hand up to the Court and it shows, for example, at

page 1 in section 41 of the Homes Savings Grant Act, section 41(3), similar provisions; at page 3 in the

National Health Act, section 82ZF(2), similar

provisions; at page 6 in the Social Security Act,

section 19, similar provisions; at page 11 in
section 16(3), not precisely similar provisions but

very similar provisions. The difference is that it is not "except for the purposes of the Act", it is:

except when it is necessary to do so for the

purpose of carrying into effect the provisions

of this Act or of any -

but substantially similar provisions. If one goes,

for example, to page 26, one finds in section 10(5)

of the Sales Tax Assessment Act (No 1), again,
substantially similar provisions and at page 28 in

the States Receipts Duties (Administration) Act in

section 21(3), substantially similar provisions;

and at page 29, in section 10 of the Stevedoring

Industry Charge Assessment Act and so on. There

are a whole lot of other provisions which are in

either identical terms or substantially similar

terms.

So, the question which is raised by the

Health
provisions of section 130(2) of the themselves of sufficient public importance, if they

were the only Act in which such provisions were

found, to say that the matter was a matter of

general public importance. But in view of the

general adoption in Commonwealth legislation of

like secrecy provisions, it is admitted that the

question which arises is obviously a question of

substantial importance.

Gribbles 16/11/90

It is then submitted that when one looks at

what the Full Court said, one can see that - we

would say they were plainly wrong but at any rate

it is plainly arguable that they have made a

mistake of principle. At page 17 of the

application book at line 36 in the judgment of

Mr Justice Duggan which the other members of the

court agreed in, His Honour said, the last words in

the line:

it is also clear that neither the disclosure

nor production of the relevant documents could

be considered as being for the purposes of the

Act or in the performance of any duties,

powers or functions under the Act.

And then at page 18, His Honour says, at line 2:

The principal argument relied upon by

Mr Lander QC for the appellants was that

s.130(2)(b) of the Act provided them with a

protection against compulsory disclosure of

the documents in their possession.

Now, of course, section 130(2)(b) does not deal
with documents in anybody's possession at all.

What it deals with is the divulging or

communication to courts of matters or things which

have come under the notice of an officer in the

performance of duties or functions under the Act.

Then at page 19, at line - - -

MASON CJ: First of all, on page 18, the passage you

identified, that is not an error on the part of the

court, is it? All the sentence does is to

attribute an argument to counsel.

MR SHAW:  Yes, that is certainly so, Your Honour. Then at

page 19, at line 5, His Honour says:

It is indisputable that a list of

documents of the type which were the subject

of the application in the present case would,

of itself, convey information concerning the

existence of those documents and the fact that

they were in the possession of the relevant

officers.

And then he goes on to say various other matters
would be revealed and he says at line 39:

Does information of the type which I have

been discussing come within the description of
"a matter or thing" which has come under the

notice of an officer in the performance of his

duties? I have no doubt that it does.

Gribbles 16/11/90

And he then goes on to talk about what "any matter

or thing" might mean. Then, at page 20, at

line 15, His Honour says:

In order to qualify for the exemption the

documents or information must have been

acquired in the performance of the particular

officer's duties under the Act.

Now, what one had here, it is submitted, was

this situation: one had this committee established

under the Act or pursuant to the provisions of the

Act. That committee had, obviously, a separate

existence from the Department itself. The

committee no longer being in existence, the

provisions for its existence having been repealed,

the argument proceeded on the basis that the

committee's documents have come into the possession

of the Department simply because it has

administration of the Act and the Minister has

administration of the Act.

Now, that being so - and this point, indeed,

is highlighted by the fact that there has, in fact, been a change in the Minister. It is no longer the Minister against whom the attempt to get discovery

was commenced, that is Dr Blewett. It is now

Mr Howe. There has been a change made in the

particular minister who is being sued. So, the
very facts highlight the factual situation, namely,
that the Minister and the Secretary simply have
these documents in their custody or control because
they hold the particular offices which they do and

if they are to have a look at these documents and

discover what they will do, it will be very likely

for the first time they hear about these documents

and they give them any consideration.

Now, that means that their knowledge of what

the documents are or say will arise because they

seek to take action in pursuance of the court's

order.	And I should perhaps pause to observe here
on making information and documents available. In	that, in fact, there is no an absolute prohibition
fact, as is provided under section 130(3), the Minister can, if he wishes, certify -

that it is necessary in the public interest -

for various things to be divulged and, if he does,

then the prohibition no longer applies. But the

Minister has not taken any step in relation to

that. So that here we have a Minister who could,

if he wished, examine the documents and come to a

conclusion on the public interest point, having the

documents simply because he holds office, saying

that it is in those circumstances contrary to the

Gribbles 6 16/11/90

provisions of section 130(2) "for me to be required

to divulge the existence of those documents and

what they are because the fact that they exist are
a matter or thing that have come under my notice in
the performance of my duties and functions under

the Act.

Now, there are two possibilities: either that

is true and it is not. By "true or it is not" I

mean either those words are satisfied or they are

not and one can look at the matter, so far as we

are concerned, it is submitted, equally well in

either way. One can say on the one hand if what

the Minister is doing is simply obeying the court's

order to make discovery of these documents, then the documents are not coming under his notice in the performance of his duties or functions under

the Act. There would be, in our submission, a good

deal to be said for that suggestion because if one
looks at the Act there simply is not anything in

the Act which suggests that that is a function or

duty which is imposed on the Minister in relation

to the Act. It simply arises because the Minister

is charged with the administration of the Act

pursuant to an administration order.

So that on the one hand one might say, "Well,

it's. not shown that these documents did come or

might come under the notice of the Minister or the

Secretary in the performance of their duties or functions under the Act" and if that is the correct

view of the situation - and one has to remember

that nothing has been put to the court to establish

it - then the provisions of section 130(2)(b)

simply do not operate. On the other hand, one

might say, "Well, yes, because the Minister is the

Minister and because he is charged, it is true, not

under the Act itself but by reason of

administration order with the administration of the

Act, he is performing his duties and functions

under the Act when he obeys the court's order and
searches around and seeks to find out whether or

not there are any documents of the type which he is

asked to put in the affidavit", but if one takes

that step, namely, that it is performing the duties

and functions of the Minister under the Act to seek

to obey the court's order then, in our submission,

it is impossible or nigh impossible to deny the

proposition that if the searches for the
performance is made in the performance of duties or

functions under the Act, their divulgence or

communication would be for the purposes of the Act.

MASON CJ:  Was this argument put to the Full Court, that is,

this argument that depends very much on the

difference between the members of the committee and

the Minister and the Secretary?

Gribbles	7	16/11/90
MR SHAW:	Your Honour, I was not there.	My learned friend's

junior says, "No", and my junior says, "Not

precisely like that."

MASON CJ:  I think that is another word for saying, "No", is

it not?

MR SHAW:  I thought, Your Honour, that my junior, when he

meant "No" said "No" but certainly, Your Honour, it

is plain that the question to which I am addressing
these submissions was a question which necessarily

arose and the court - - -

MASON CJ: It does produce a somewhat odd result, does it

not? It means, if this be the only ground on which the Full Court was wrong, that had the

documents been in the possession of the committee

at the time production was sought, there would have

been an answer. But because the documents go over

to the Minister and the Secretary, there is no

answer.

MR SHAW:  Your Honour, it is submitted not, and this really

goes to the second point. Subsection (2) has two

parts: one deals with the production of documents

and the second part deals with the divulging or
communication of matters or things. It is

sub~itted that when one looks at the two parts of

the section, one is dealing with the production of

documents and, it is submitted, only that and the

second part is dealing with the communication of

matters or things that officers have discovered in

the course of carrying out their duties and

typically, presumably, it would be the sort of

thing which is dealt with in subsection (1).

McHUGH J: But you read the words "under his notice" as

meaning having read the material or obtained the

information in the performance of his duties.	But
having regard to the broad object of section 130, why do not the words "under his notice" cover the case of "constructive notice"? Information comes
under his notice when he is in possession of the

documents which contain that information.

MR SHAW:  It is submitted, Your Honour, that it cannot mean

that because one cannot divulge or communicate

something which, ex hypothesi, one does not know

about but one is deemed, as it were, because of the

existence of some circumstances to have

notice - - -

McHUGH J: It does not have to be a contemporaneous

relationship between the divulging and the matter

corning under your notice.

MR SHAW:  No, it does not.

Gribbles 8 16/11/90

McHUGH J:	The words "under his notice" are adjectival.
MR SHAW:	Yes.

McHUGH J: If your argument is correct, it would mean that

if letters were sent to an officer and he had read

the whole of it or part of it, then he could not be

- refusedd to divulge what he had seen or what he

had read but that part of the letter that he had
not read, he could be required to divulge.

MR SHAW:  It is submitted he could not until he had read it.

It is submitted that when one looks at it, the two

parts of subsection (2) are really dealing with

different matters: one is, as it were, giving

evidence, that is (b), and (a) is something else

and it is submitted that what is being spoken of in

(b) - at least, the principal object of (b) is to

deal with actually giving evidence and what it is

saying is, "If you're asked in examination or

cross-examination a question about something which

you discovered in performing your duties, well

then, you mustn't answer except for the purposes of

the Act." That is really what it is directed to.

And it is submitted it has been interpreted in a
way so that (a), which is the part which it is

submitted deals with documents, is not the only

part of the section which deals with documents; (b)

does too because, according to the Full Court, it

is divulging a matter or thing to say, "Well, I

have possession of this document" and, although one

might in other circumstances have come to that

conclusion, it is submitted it is an odd conclusion

to come to in the collocation of (a) and (b). If
the interpretation, which is the interpretation

adopted by the Full Court, is correct, (a) is just

otiose.

McHUGH J: No, it is not, is it, because (a) protects the

production of the very document itself?

MR SHAW: Yes. Well, so it does but - - -

McHUGH J: As so interpreted (b) protects the description of

the document.

MR SHAW:  Yes, but if one was forbidden to communicate to a

court "anything that has come under your notice in

the performance of your functions or duties", and

that is to be read in the wide way which the

Full Court has suggested, then merely producing in court a document which you have got in the

performance of your duties would be divulging a

matter or thing that has come under your notice in

the performance of your duties under the Act, so

that there is simply no point in (a) on that view

of (b) because (b) covers the whole ground. And it

Gribbles 9 16/11/90

is submitted that for those two reasons the

approach by the Full Court is flawed. Its view of

subsection (2)(b) is, it is submitted, far too
wide.

GAUDRON J: But, Mr Shaw, even if it has not previously come under notice, does it not have to come under notice

more particularly by virtue of the ministerial

position before you can divulge it?

MR SHAW: That is certainly so, we would say, Your Honour,

yes. You cannot divulge something you do not know.

GAUDRON J: That is right, so that by the time you come to

(2)(b) it has satisfied itself?

MR SHAW:  Well then, Your Honour, there are two questions:

have you discovered it, or has it come under your
notice, in the performance of your duties or

functions under the Act? One view would be that

you had not because simply to obey the order of the

court is not to perform the duties and functions

under the Act, in which case (2) does not operate

at all. On the other hand, one might take the view

that it is in the performance of your duties or

functions - - -

GAUDRON J: It has to be under both, does it not, because

otherwise - - -?

MR SHAW: If you say that, Your Honour, then, in our

submission, it is very difficult to escape the

conclusion that having made a search in the

performance of your duties or functions in order to

satisfy.the court's order to make the affidavit,

actually making the affidavit is also in the

performance of your functions and duties under the

Act and if it is for the performance of your functions and duties under the Act then, we would say, it is very difficult to escape the conclusion

that making the affidavit is an affidavit made for

the purposes of the Act.	So that either way, it is
submitted, there is a dilemma; either way, the

Minister is obliged to do this because he is not there at all or he satisfies both bits. That is

the way it is put. It is true, there are the two

views about what "in the performance of any duties

or functions under the Act" might mean and one
could take either the view which Your Honour
suggested, namely, that it is performing your

duties if you are obeying the court's order simply

because you are the chap in charge.

McHUGH J:  No one seems to have taken the point as to

whether the State has got any power to bind the

Commonwealth to produce a document.

Gribbles 10 16/11/90

MR SHAW:  No, that is so, Your Honour, but it is a good

point. Would you like to have an argument about

it, Your Honour? For that reason, and the reasons

that we have advanced, we would submit that first

of all it is a very important question because it

is a question which may have relation to the

position of very many citizens in seeking to have

their rights tried in the court and, secondly, the

view which the Full Court has adopted in the

interpretation of this section is very arguably

wrong. For those reasons, in our submission,

special leave to appeal should be granted.

MASON CJ:  Yes, thank you, Mr Shaw. The Court need not

trouble you, Mr Black, nor you Mr Gray.

The Court is not persuaded that on the

argument presented to the Full Court of the Supreme
Court the actual decision of that court was

attended with sufficient doubt to justify the grant

of special leave to appeal.	The application is
therefore refused.

MR BLACK:	I ask for costs?
MASON CJ:	You do not resist that, Mr Shaw? The application

is refused with costs.

AT 11.18 AM THE MATTER WAS ADJOURNED SINE DIE

Gribbles 11 16/11/90