Hill, W.L. v Howe (Minister of State for Community Services & Health)
[1991] FCA 457
•04 JULY 1991
Re: WILVENE LESLEY HILL
And: THE HONOURABLE BRIAN HOWE (THE MINISTER OF STATE FOR COMMUNITY SERVICES
AND HEALTH); NICHOLAS J. RADFORD; JOHN HORGAN; ARTHUR WATERHOUSE; STELLA KWONG
AND WILLIAM ROSE (constituting a Medical Services Committee of Inquiry)
No. V G369 of 1990
FED No. 457
Administrative Law - Privilege - Constitutional Law (Commonwealth)
30 FCR 272/102 ALR 661
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)
CATCHWORDS
Administrative Law - Judicial Review - Health Insurance Act - allegation of excessive servicing against medical practitioner - medical practitioner summoned to produce documents and attend hearing before Medical Services Committee of Inquiry - validity of summons - whether summons oppressive, unreasonable or ambiguous.
Privilege - medical practitioner summoned to produce medical records to Medical Services Committee of Inquiry - claim to medical professional privilege.
Constitutional Law (Commonwealth) - section 109 - whether Evidence Act 1958 (Victoria) s.28(2) is inconsistent with Health Insurance Act 1973, s.96(1).
Administrative Decisions (Judicial Review) Act (1977), ss. 5, 6.
Health Insurance Act (1973), ss. 20A, 20(2), 79(1B), 80(1), 82, 94(C), 95, 96, 99, 102.
Evidence Act 1958 (Vic.), s. 28(2)
Rochfort v Trade Practices Commission, 153 CLR 134.
Price v McCabe, 73 FLR 33.
HEARING
MELBOURNE
#DATE 4:7:1991
Counsel for the applicants : Mr R. Miller
Solicitors for the applicant : Maule James
Counsel for the respondents : Mr R.R.S. Tracey
Solicitor for the respondents: Australian Government Solicitor
ORDER
The application be dismissed.
The applicant pay the respondent's costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an application for judicial review brought pursuant to sections 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR).
THE APPLICATION
By her amended application filed 18 April 1991 the applicant seeks the review of the following decisions and conduct of the second to sixth-named respondents (inclusive) (the committee) made on or about 4 December 1990, namely decisions
1. That a summons dated 21 November 1990 issued under section 96 of the Health Insurance Act 1973 (the Act) requiring the applicant to produce certain documents in connexion with an inquiry by the committee as to whether professional services rendered by the applicant being services for which Medicare benefits have been paid were excessive services within the meaning of section 79(1B) of the Act was valid.
2. That a witness who produces any documents under section 96 of the Act may be required to give evidence for purposes other than for the purpose of identification and that such documents may otherwise be used by the committee.
3. That the applicant was required to produce all of the documents specified in the summons to the committee.
4. That the applicant had no reasonable excuse for refusing or failing to produce a document required by the summons.
THE FACTS
The following facts are common cause:
1. The applicant is a medical practitioner duly registered as such in
the State of Victoria carrying on practice in that State and is entitled to be paid medicare benefits pursuant to subsection 20(2) or section 20A of the Act.
The second to sixth-named respondents (the committee) constitute a
Medical Services Committee of Inquiry for the State of Victoria established pursuant to subsection 80(1) of the Act. The second-named respondent (the chairman) is the duly elected chairman of the committee.
On 21 November 1990 -
(a) pursuant to paragraph 94(c) of the Act, the committee determined that it appeared to it that the applicant may have rendered excessive services within the meaning of the Act.
(b) pursuant to subsection 95(1) of the Act the committee gave notice in writing (the notice) to the applicant that it proposed to hold a hearing into the matter referred to in 3(a) above (the hearing) at a time and place specified.
(c) pursuant to subsection 96(1) the chairman by writing under his hand summoned the applicant to attend the hearing, and to produce documents referred to in the summons at the hearing.
(d) the chairman addressed a letter to the applicant (the letter) which inter alia informed her that following a reference to the committee pursuant to section 82 of the Act the committee had concluded that a hearing was warranted into the services provided to certain patients and which invited the applicant to provide to the secretary of the committee -
(i) her curriculum vitae including particulars of her professional experience;
(ii) a brief description of her practice, its patients and any special professional interests relevant to her practice;
(iii) any additional material she believed may be of relevance in explaining the reasonable medical necessity for the services she had provided which were then under inquiry;
The documents referred to in the summons were -
The original or certified copies of any clinical notes, case records including but not limited to patient case histories, appointment diaries, general correspondence files, other communications in all their forms and all other documents and things relating to the professional services rendered by (the applicant) between 1 June 1989 and 31 May 1990 in respect of those of (her) patients whose names are set out in annexure "A" attached to the notice under section 95, dated 21 November 1990. (the documents)
On 22 November 1990 the applicant was personally served with -
(a) the notice
(b) the summons
(c) the letter
(d) a copy of the provisions of sections 79 to 106AA of the Act
(e) a copy of an Instrument of Referral and annexures thereto issued under section 82 of the Act
(f) a copy of explanatory notes.
On 4 December 1990 the applicant attended the hearing in
accordance with the notice but refused or failed to produce the documents.
Counsel appearing for the applicant at the hearing submitted to
the committee -
(a) that the summons was bad in law; and
(b) that the applicant was not obliged to produce the documents as she had a reasonable excuse or reasonable excuses for refusing or failing to produce the documents.
The major grounds upon which the applicant relied in support of
the proposition that the summons was bad in law were -
(a) that the summons required the production of documents irrespective of whether they were in the applicant's possession, custody or power;
(b) that the summons was ambiguous and uncertain;
(c) that the summons required the production of documents which by reason of section 28(2) of the Evidence Act (Victoria) could only be produced with the authority of the patient, which authority had not been obtained.
The ground upon which the applicant submitted that she had
reasonable excuse for refusing or failing to produce the documents was that the documents contained confidential information which the applicant was obliged not to disclose without the consent of the relevant patients and that consent had been expressly refused in the case of all but one of the patients nominated in the summons. The one patient who had not expressly refused permission was deceased.
The committee ruled that the summons was valid and that the
applicant was obliged to produce the documents.
THE LEGISLATIVE SCHEME
The following is a brief overview of the provisions of the Act which appear to be most relevant to the issues under consideration.
The Act (by its long title) is:
An Act providing for payments by way of medical benefits and payments for hospital services and for other purposes.
It provides, inter alia, for the payment of a benefit (medicare benefit) in respect of proessional service (including a relevant medical service that is rendered by a medical practitioner). By sections 20 and 20A, medicare benefit may be paid directly to the person who has rendered the professional service.
Section 80 makes provision for the establishment in each State of one or more Medical Services Committee of Inquiry the functions of which are to:
... inquire into, and submit to the Minister its report and recommendations on, any matter referred to the Committee by the Minister, being a matter that -
(a) is relevant to the operation or administration of this Act or the National Health Act 1953 (other than Part VII of that Act); and
(b) arises out of or relates to the rendering of a professional service (other than a pathology service), on or after 15 April 1977, in the State for which the Committee is established. (Section 82).
Where after consideration of a matter referred to a committee by the Minister and of any documents that accompany the reference it appears to a committee, inter alia, that a medical practitioner may have rendered excessive services the committee shall conduct a hearing or 2 or more hearings into the matter (section 94). "Excessive services" means professional services in respect of which medicare benefit has become or may become payable and which were not reasonably necessary for the adequate care of the patient concerned (subsection 79(1B)). If a committee proposes to hold a hearing it is required to give the practitioner at least 10 days written notice of the time and place of the proposed hearing, and to give particulars of the matter to which the hearing relates (section 95).
For the purposes of a hearing a member of a committee may by writing under his hand summon the practitioner (or if the notice under section 95 is given to a body corporate, each officer of that body corporate) to attend the hearing and to produce such documents (if any) as are referred to in the summons and to appear at the hearing to give evidence for the purpose only of identifying any such documents (subsection 96(1)). For the purposes of Part V of the Act, a member may by writing under his hand summon a person to appear at a hearing to give evidence and to produce such documents (if any) as are referred to in the summons (subsection 99(1)). A practitioner attending before a committee shall not, without reasonable excuse, refuse or fail to produce a document that he is required to produce by a summons under section 96 (subsection 102(1A)). It is a defence in proceedings for an offence of refusing or failing, without reasonable excuse, to produce a document at a hearing if it is proved that the document was not relevant to the subject matter of the hearing (subsection 102(3)).
THE GROUNDS FOR REVIEWThe grounds of the application for review as set out and particularised in the amended application are:
1. The decision and/or conduct of the committee to uphold the validity of the summons was not authorized by section 96 of the Act or any other provision of the Act or any enactment other than pursuant to which the decision was made or purported to be made. Particulars
(a) the summons requires the applicant to produce to the committee documents not in her possession, power or custody;
(b) the summons was ambiguous and uncertain in that it referred to "all other documents and things ...";
(c) the summons requires the applicant to disclose to the committee confidential information about her patients;
(d) the summons requires the applicant to disclose privileged information to the committee about her patients which privilege has not been waived by her patients;
(e) the summons requires the applicant to disclose privileged information to the committee about her patients which privileged information was expressly refused to be divulged to the committee by her patients.
2. The decision and/or conduct involved an error of law.
3. The decision and/or conduct of the committee that a witness who produces documents under section 96 may be required to give evidence for the purposes of other than only for the purposes of identification and the documents may otherwise be used by the committee was contrary to law.
Particulars
(a) the evidence of the applicant would not be confined to her only identifying any documents she produced'
(b) the committee proposed to make use of the documents so produced.
4. The decision and/or conduct of the committee that the applicant was required to produce all of the documents specified in the summons to the committee was contrary to law.
Particulars The decision and/or conduct required the applicant to divulge confidential or privileged information.
5. The decision and/or conduct of the committee that the applicant had no reasonable excuse or reasonable excuses for refusing or failing to produce the documents required to be produced by the summons was contrary to law as the respondents failed to take into account the provisions of section 102 of the Act. Particulars
(a) the excuses or reasons offered by the applicant for refusing or failing to produce the documents;
(b) the reasonableness of the excuse or excuses offered by the applicant for refusing to produce the documents;
(c) the merits of the applicant's submissions.
The applicant claims to be a person aggrieved by the decisions and/or conduct of the respondents. The respondents do not challenge the applicant's status to bring the application. Nor is it contended for the respondents that the committee did not make a decision or decisions or engage in conduct within the meaning of the ADJR Act. As to this last matter, the application has proceeded on the assumption, rather than a positive finding on my part, that the ADJR Act has application. It is perhaps appropriate to comment that nothing has been put to me which would suggest that the first-named respondent has made any decision or engaged in any conduct relevant to the proceedings.
THE RELIEF CLAIMEDThe specific relief sought by the applicant is:
A. A declaration that the summons is invalid. B. A declaration that any documents produced under section 96 of the Act may only be used for the purposes of identification and may not otherwise be used by the committee.
C. A declaration that the applicant is not required to produce the documents specified in the summons to the committee. D. A declaration that the applicant has pursuant to section 102 of the Act reasonable excuse for refusing or failing to produce a document required by the summons. E. An order prohibiting the committee from further inquiring into or investigating the matters prescribed in the notice.
F. A declaration that the decisions of the chairman of the committee outlined in the application are reviewable decisions to which the provisions of the Administrative Decisions (Judicial Review) Act 1977 apply. G. A declaration that the said decisions should be quashed or set aside.
H. A declaration that the conduct engaged in by the chairman of the committee and the committee was contrary to law.
THE VALIDITY OF THE SUMMONS
The case presented by counsel on behalf of the applicant in support of the application is not essentially different from that put to and rejected by the committee. Two major questions have been raised, first, whether the summons was valid, and second, whether the applicant had a reasonable excuse for her failure or refusal to produce the documents to the committee in response to the summons.
The submission that the summons was invalid is based upon a variety of assertions which to some extent tend to overlap one another. The general thrust of the submissions is that the ambit of the demand for production of documents is so wide and the demand is so lacking in particularity that the summons is oppressive. Other complaints raised by counsel are that the summons purports to apply to all documents without specifically limiting its operation to documents in the possession, custody or power of the applicant and further, that it seeks the production of documents which contain confidential information concerning the applicant's patients.
Before proceeding further it is appropriate that the full text of the summons be examined, but even before that it is relevant to consider the notice issued pursuant to section 95 and served on the applicant at the same time as the summons. I accordingly set out below, first the notice, then the summons.
IN THE MATTER of the Health Insurance Act 1973 ("the Act") - and - IN THE MATTER of Reference No: V7 by the Minister to the First Medical Services Committee of Inquiry for the State of Victoria ("the Committee"). NOTICE OF HEARING PURSUANT TO SECTION 95 OF THE HEALTH INSURANCE ACT 1973 TO: Dr Wilvene Leslie Hill
OF: Glendale Medical Centre, 6 Grey Street, Ringwood East, Victoria 3135.
WHEREAS the Minister for Community Services and Health of the Commonwealth of Australia has referred to a Medical Services Committee of Inquiry for the State of Victoria (hereinafter referred to as "the Committee") established under the Health Insurance Act 1973 ("the Act") a matter within the Committee's functions under the Act namely: whether in rendering professional services to patients particulars of which are set out in annexures marked 'A' and 'B' being services for which Medicare Benefit has become payable, rendered 'excessive services' within the meaning of S.79(1B) of the Act (hereinafter referred to as 'the matter'). AND WHEREAS at a meeting of the Committee held on Wednesday, 21 November 1990 after consideration of the matter and of the documents which accompanied the reference, copies of which are forwarded herewith, it appeared to the Committee that you may have rendered excessive services within the meaning of the Act.
YOU ARE HEREBY NOTIFIED that in accordance with Section 94 of the Act the Committee proposes to hold a hearing into the matter to commence on 4 December 1990 at 7.30 pm in the Conference Room, 12th Floor, 460 Bourke Street, Melbourne. The Committee does not expect to complete the hearing into this matter on the said date. Accordingly, you will be advised in due course of any further dates necessary for the continuation of the hearing.
DATED: This Twenty First Day of November, 1990. SIGNED: .....(Nicolas Radford)........ .... DR N RADFORD
Chairman of the First Medical Services Committee of Inquiry for the State of Victoria --------- IN THE MATTER of the Health Insurance Act 1973 ("the Act") - and - IN THE MATTER of Reference No: V7 by the Minister to the First Medical Services Committee of Inquiry for the State of Victoria ("the Committee") pursuant to Part V, Division 3 of the said Act concerning professional services rendered by Dr Wilvene Leslie Hill. SUMMONS UNDER SECTION 96 TO ATTEND HEARING AND PRODUCE DOCUMENTS TO: Dr Wilvene Leslie Hill
OF: Glendale Medical Centre, 6 Grey Street, Ringwood East, Victoria 3135. WHEREAS by a notice dated 21 November 1990, you were advised that the Committee proposes to hold a hearing into the matter specified in the notice. The said hearing is to commence on 4 December at 7.30 pm in the Conference Room, 12th Floor, 460 Bourke Street, Melbourne. YOU ARE HEREBY SUMMONED TO ATTEND the said hearing at the aforesaid time and place and to attend on each subsequent day of the said hearing until you are excused from further attendance AND TO PRODUCE TO THE COMMITTEE the following documents: The original or certified copies of any clinical notes, case records including but not limited to patient case histories, appointment diaries, general correspondence files, other communications in all their forms and all other documents and things relating to the professional services rendered by you between the 1 June 1989 and 31 May 1990 in respect of those of your patients whose names are set out in Annexure 'A' attached to the Notice under Section 95, dated 21 November 1990.
Section 96 of the Act provides that at the said hearing you are required to give evidence for the purpose only of identifying the above documents.
DATED: This Twenty First Day of November, 1990. SIGNED: .....(Nicolas Radford)........ .... DR N RADFORD
Chairman of the First Medical Services Committee of Inquiry for the State of Victoria
It is common cause that the annexures marked 'A' and 'B' referred to in the notice were served at the same time as the other documents and that annexure 'A' contains the names and addresses of 36 patients treated by the applicant in the period referred to. Annexure 'B' contains particulars of medicare benefit said to have been paid to the applicant in respect of services rendered to each such patient during that period.
On the face of it, it may be said that the summons requires the production of "things" other than documents. If this were so then to that extent the demand for production would be ultra vires having regard to the provisions of section 95 which specifically refers to the production of documents. However, this was not an issue raised on behalf of the applicant and I think that the better view is that on a proper construction of the summons the reference to "things" can only be construed as things in the nature of documents particularly as the particulars specified are prefaced by the words "and to produce the following documents". For the purpose of this application nothing turns on this point.
Notwithstanding the applicant's submissions, it appears to me that the summons has been carefully drawn so as to identify with a considerable degree of precision the documents sought. First, in the recital, the applicant's attention is drawn to the notice of the same date which identifies the subject matter of the proposed inquiry and the committee's conclusion that the applicant may have rendered excessive services within the meaning of the Act. Second, the identity of each patient in respect of whom it is said the applicant may have rendered excessive services is particularised by reference to the annexure "A" and third, the period during which it is said excessive services may have been rendered is set out. The ambit of the documents sought is qualified by the words "relating to the professional services rendered by you" between the dates specified in respect of the named patients. It cannot be said that a demand to produce documents is oppressive or unreasonable or ambiguous simply by reason of the demand extending to all documents that are relevant.
It is true that the summons does not qualify the demand for production by limiting it to documents in the possession, custody or power of the applicant but I do not think the power in subsection 96(1) to require the production of documents can be read in isolation from subsection 102(1A) which attaches a penalty to the refusal or failure to produce documents where such refusal or failure is without reasonable excuse. One of the submissions made on behalf of the applicant was that the practice in relation to the issue of a subpoena in ordinary court proceedings should apply by analogy to a summons issued under section 96. If this is so, then the following comment made by Gibbs C.J. in Rochfort v Trade Practices Commission 153 CLR 134 at p 138 would seem to provide a complete answer to the submission:
A person who is properly served with a subpoena duces tecum in due form requiring him to produce specified documents must (subject to payment of any necessary conduct money) attend at the place directed by the subpoena and produce such of the specified documents as are in his possession. If the documents are not in his possession, however, he is not obliged to endeavour to acquire them from the person who has possession of them, "no man being obliged, according to any sense of the effect of such a subpoena, to sue and labour in order to obtain the possession of any instrument from another for the purpose of its production afterwards by himself, in obedience to the subpoena": Amey v Long (1809) 9 East 473 at p 483; 103 ER 653 at 657.
In any event, on any construction of the words "reasonable excuse" they would apply to a case where the person summoned is unable to produce the documents by reason of not having them in his possession, custody or power. By the same token, if for any reason the person summoned is legally prohibited from disclosing the contents of documents by reason of their confidential nature, that may amount to a reasonable excuse for refusing or failing to produce the documents.
In my opinion the summons was valid and by operation of subsection 102(1A) it cast upon the applicant, in the absence of a reasonable excuse, the obligation to produce the documents identified in it. There is therefore no basis upon which to support the application to review the decision of the committee upholding the validity of the summons.
THE CONFIDENTIALITY ISSUEThe second and perhaps the more significant issue raised by the application touches upon the issue of whether by reason of the confidential nature of the information contained in the documents the applicant had a reasonable excuse for refusing or failing to produce them.
I have some reservation as to whether, in relation to this issue, the committee made a decision or engaged in conduct which is susceptible to review under the ADJR Act. The question of whether or not a summoned person has a reasonable excuse for refusing or failing to produce documents is not one for the committee to decide, but rather, it is a question that arises in the event of proceedings being taken for an offence against subsection 102(1A). Although I raised this point during argument, both parties seemed content that I should rule on it. However, what weight or binding authority my decision would have in the event of a prosecution being commenced against the applicant is something which may have to be decided on another occasion.
The main thrust of the applicant's argument is that by virtue of the provisions of subsection 28(2) of the Evidence Act 1958 (Victoria) she is in effect prohibited without the consent of her patients from producing the documents sought. Subsection 28(2) provides:
No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding or an investigation by a Complaints Investigator under the Accident Compensation Act 1985 any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient.
Counsel argued that the committee hearing was "a proceeding" within the meaning of the subsection, albeit that it was a proceeding before a tribunal established under Commonwealth legislation. His argument was that unless Commonwealth legislation expressly excludes the application of State legislation the State legislation will apply in relation to a proceeding conducted in Victoria particularly as the corresponding Commonwealth legislation (Evidence Act 1905 (Commonwealth)) does not attempt to govern the proceedings and does not deal in any way with the question of medical privilege. On this basis it is said that there is no inconsistency between the State law and any law of the Commonwealth to which the provisions of section 109 of the Australian Constitution would apply.
In addition to the express provisions of the Evidence Act (Victoria) the applicant seeks to rely upon a claimed medical professional privilege analogous to legal professional privilege. The argument is supported by reference to the Code of Ethnics of the Australian Medical Association, the Hippocratic Oath and other like sources. However appropriate it might be for the effective conduct of medical practice and the general enhancement of the relationship between medical practitioners and their patients, the fact of the matter is that, in the absence of any specific statutory provision, there is no Australian authority to support the claim to medical professional privilege. On this issue counsel for the respondents referred to the statement in Cross on Evidence, 4th Edition at paragraph 25325 where it is asserted that judicial authority is uniformly against the existence of any privilege attaching to communications between doctors and their patients. No attempt was made to contradict this proposition.
Even assuming for present purposes that the Evidence Act (Victoria) is capable of applying in relation to the proceedings of the committee (an assumption which I believe lacks any foundation), there is nevertheless an obvious inconsistency between the provisions of the Health Insurance Act, and in particular section 96, and those of subsection 28(2) of the Evidence Act.
The Health Insurance Act is an act providing for payments by way of medical benefits and payments for hospital services and for other purposes. It is not suggested that it is beyond the constitutional competence of the Australian Parliament. It is clearly incidental to any law which provides for the payment of benefits for the rendering of medical services that provision be made to deal in an appropriate way with the rendering of excessive services. In the scheme of the Act, the method adopted for dealing with cases in which it is thought there may be an occasion of excessive services being rendered is to provide for a committee to conduct a hearing into the matter and for the committee to report its opinion to the relevant minister and where appropriate to make recommendations in respect of certain specified matters. To facilitate the conduct of a hearing provision is made in subsection 96(1) for the summoning of "a relevant person" (being the practitioner who is thought may have rendered excessive services or an officer of a body corporate which may have done so) and for requiring such person to produce documents. There can be no other conclusion but that Parliament has contemplated that in the context of a hearing into a suspected case of excessive servicing by a medical practitioner, the committee shall have the power to compel the production of the practitioner's records relating to the patients to whom medical services have been rendered. The object of the Commonwealth law being to compel the production of a doctor's medical records, it must clearly be inconsistent with a State law which purports to restrict the production of such documents. There is in my view a direct collision between the Commonwealth and the State laws. The legislative purpose of subsection 96(1) would be entirely frustrated if subsection 28(2) applied. It is not to the point that absent the production of medical records, a committee may nevertheless seek evidence from other sources. The relevant point is that in aid of the function conferred upon the committee Parliament has specifically made provision for a procedure to facilitate the production of medical records. By any relevant test, the provisions of section 109 of the Constitution apply. The provisions of the Health Insurance Act prevail so as to render invalid any application that subsection 28(2) of the Evidence Act (Victoria) may otherwise have had in relation to the hearing.
In my opinion, the decision or the conduct of the committee (however it may be described) whereby it insisted that the applicant was under an obligation to produce the documents is not susceptible to review for the reason that the documents in question record information which the applicant has acquired in her capacity as a medical practitioner in attending her patients.
THE OBLIGATION TO GIVE EVIDENCESubsection 96(1) places the person summoned under an obligation "to appear at the hearing to give evidence for the purpose only of identifying any such documents". The second "decision" referred to in the application suggests that the committee had made a decision that upon the production of documents pursuant to a summons under section 96(1) the person summoned could be required to give evidence for purposes other than for the purpose of identifying the documents produced. It is not at all clear to me from the transcript of the hearing that any such proposition was advanced by the committee. If it was it is clearly incorrect. But in terms of the ADJR Act no decision appears to have been made obliging the applicant to give any such evidence and accordingly there is no occasion for any relief to be granted in that respect.
One thing that is clear from the Act is that it deals in quite different ways with a "relevant person" summoned under subsection 96(1) and "a person" summoned under subsection 99(1). Subsection 96(1) limits the obligation to give evidence to the requirement to identify documents produced in response to the summons while subsection 102(1A) deals specifically with the refusal or failure of a relevant person to produce documents as required by a summons under section 96. On the other hand, subsection 102(1) provides a sanction in respect of persons appearing as witnesses (whether summoned or not). It is clear that the legislative intent of these provisions is such that it is not open to the committee to compel a relevant person to give evidence by issuing a summons under subsection 99(1). Subsections 99(1) and 102(1) must be construed so as to exclude from their scope a "relevant person". In expressing these views I take comfort from the fact that similar sentiments appear in the judgment of Derrington J in Price v McCabe 73 FLR 33 at p 36.
CONCLUSIONIn view of my conclusions that the committee did not err in upholding the validity of the summons and that the applicant is not entitled to refuse or fail to produce any documents referred to in the summons on the ground that they contain confidential information, there is no basis upon which any decision or conduct of the committee should be interfered with and in those circumstances there is no occasion to grant any of the relief sought.
The application will be dismissed.
0
0
0