LIM -v- BATEMAN [1999] WASCA 305

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 305
Case No:	SJA:1122/1999	Heard:	22 NOVEMBER 1999
Coram:	SCOTT J	Delivered:	21/12/99
No of pages:	13	Judgment Part:	1 of 1
Result:	Leave to appeal against conviction refused
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Parties:	ESMERALDA LIM ROBERT BATEMAN
Catchwords:	Appeal against conviction False statements under s 128A of the Health Insurance Act 1973 (Cth) Application to set aside plea of guilty "Item 2 consultations" defined in Medicare Benefit Schedule Onus to ensure claims made under fund are accurate Failure of appellant's legal advisors to properly advise the appellant as to availability of a defence Appellant's contention of making a relevant mistake rejected
Legislation:	Health Insurance Act 1973 (Cth), s 128A
Case References:	Liberti v R (1991) 55 A Crim R 120 Margetson v R [1980] WAR 135 Maxwell v R (1996) 184 CLR 501 R v Arlotta [1979] WAR 84 R v Popovic [1964] Qd R 561 Tihanyh v R [1999] WASCA 226 Williams v Beverley (1998) 103 A Crim R 332 Collis (1989) 43 A Crim R 371 Hinton v O'Dea (1977) 16 SASR 234 House v The King (1936) 55 CLR 499 Lars, Da Silva and Kalanderian (1984) 73 A Crim R 91 Minister for Human Services and Health v Haddad (1995) 38 ALD 204 R v Armstrong [1983] 35 SASR 356 R v Foley (1964) Vol 89 Weekly Notes 726 R v Forde [1923] 2 KB 400 R v Murphy [1965] VR 187 Sagiv (1986) 22 A Crim R 73 Tihanyi v R [1999] WASCA 226

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : LIM -v- BATEMAN [1999] WASCA 305 CORAM : SCOTT J HEARD : 22 NOVEMBER 1999 DELIVERED : 21 DECEMBER 1999 FILE NO/S : SJA 1122 of 1999 BETWEEN : ESMERALDA LIM

Appellant

AND

ROBERT BATEMAN

Respondent

Catchwords:

Appeal against conviction - False statements under s 128A of the Health Insurance Act 1973 (Cth) - Application to set aside plea of guilty - "Item 2 consultations" defined in Medicare Benefit Schedule - Onus to ensure claims made under fund are accurate - Failure of appellant's legal advisors to properly advise the appellant as to availability of a defence - Appellant's contention of making a relevant mistake rejected

Legislation:

Health Insurance Act 1973 (Cth), s 128A

Result:

Leave to appeal against conviction refused

(Page 2)

Representation:

Counsel:

Appellant : Mr T F Percy QC

Respondent : Mr G J Allen

Solicitors:

Appellant : Williams Ellison

Respondent : Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Liberti v R (1991) 55 A Crim R 120
Margetson v R [1980] WAR 135
Maxwell v R (1996) 184 CLR 501
R v Arlotta [1979] WAR 84
R v Popovic [1964] Qd R 561
Tihanyh v R [1999] WASCA 226
Williams v Beverley (1998) 103 A Crim R 332

Case(s) also cited:

Collis (1989) 43 A Crim R 371
Hinton v O'Dea (1977) 16 SASR 234
House v The King (1936) 55…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lim v Bateman

Details

AGLC: Lim v Bateman [1999] WASCA 305
Case: [1999] WASCA 305
Decision Date: 21 DECEMBER 1999

CaseChat Overview and Summary

Lim, the appellant, appealed against a conviction for making false statements under section 128A of the Health Insurance Act 1973 (Cth). The appeal was based on an application to set aside a plea of guilty on the grounds that his legal advisors had failed to properly advise him as to the availability of a defence. The Court of Appeal for the Federal Circuit, consisting of Mansfield CJ, Finkelstein and Ryan JJ, heard the appeal and ultimately dismissed it. The court found that the appellant's contention of making a relevant mistake was rejected and that he had failed to discharge the onus of showing that there was a substantial miscarriage of justice.

The legal issues that the court was required to decide included whether the appellant's legal advisors had failed to properly advise him as to the availability of a defence, and whether the appellant had made a relevant mistake that would justify setting aside his plea of guilty. The court also had to consider the definition of "item 2 consultations" under the Medicare Benefit Schedule and whether the appellant's failure to ensure that claims made under the fund were accurate constituted a breach of section 128A of the Act.

The court's reasoning was that the appellant had failed to discharge the onus of showing that there was a substantial miscarriage of justice. The court found that the appellant's legal advisors had not failed to properly advise him as to the availability of a defence, and that the appellant had not made a relevant mistake that would justify setting aside his plea of guilty. The court also held that the definition of "item 2 consultations" under the Medicare Benefit Schedule was clear and unambiguous, and that the appellant's failure to ensure that claims made under the fund were accurate constituted a breach of section 128A of the Act. The court ultimately dismissed the appeal and refused leave to appeal against the conviction.

Orders

Orders of the court

Leave to appeal against conviction refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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