Optical Prescription Spectacle Makers Pty Ltd v Withers, A.A

Re: OPTICAL PRESCRIPTION SPECTACLE MAKERS PTY. LTD.
And: ALAN ANDREW WITHERS; PATRICK DAVID LAW and CARMEL SULLIVAN
No. QLD G21 of 1987
Administrative Law

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

Pincus J.

CATCHWORDS

Administrative Law - search warrants - information not supporting warrants - warrants not stating exact object of search - obligations of referring optometrist under Health Insurance Regulations - vagueness of information - warrants void.

Crimes Act 1914, s.10

Health Insurance Act and Regulations ss.128A, 128B, reg.10

HEARING

BRISBANE

#DATE 13:3:1987

Counsel for the Applicant: Mr. Mulholland Q.C., Mr. Herbert, Mr Boddice

Solicitors for the Applicant: Hill and Taylor

Counsel for the 1st and 2nd Respondents: Mr. Clair, Mr. Rice

Solicitors for the 1st and 2nd Respondents: Australian Government Solicitor

Counsel for the 3rd Respondent: Mr. Barns

ORDER

Orders that the documents and other things seized under the warrants in issue in this application be returned forthwith.

Declares that the warrants the subject of these proceedings are void.

Orders that the first and second respondents pay the applicant's costs of and incidental to the proceedings to be taxed.

Notes the undertaking by the applicant "not to destroy or dispose of any of the documents or things taken by virtue of the warrants the subject of this application pending any appeal, and if an appeal is instituted and is successful, to return the said documents forthwith".

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The principal application is for a declaration that a certain search warrant is invalid and was unlawfully executed, for a declaration that documents and things seized under another search warrant were unlawfully seized and for various injunctions and for other relief. On 6 March 1987 the matter came before the Court on an application for an interim injunction and, by consent, documents seized and referred to in the application were placed in the custody of the Court. On 9, 10 and 11 March, material having been filed on both sides, the applicant pursued its claim for final relief or, in the alternative, an interlocutory injunction. Mr. Clair, who appeared with Mr. Rice for the first and second respondents, has informed me that he has no objection to the application's being determined finally insofar as it depends upon matters arising from the terms of the warrants themselves, or the written information on which they were obtained, but objects to my making a final determination in respect of issues raised which may depend upon oral evidence.

The first and second respondents are police officers; the third respondent is the justice who issued the warrants. Mr. Barns appeared formally for the third respondent, against whom no injunction is sought, but has taken no active part in the proceedings; I shall accordingly call the first and second respondents simply "the respondents".
It must be said at the outset that on any view the warrants and information were rather carelessly drawn; whether their deficiencies are fatal is of course another matter.
The application is brought under s.39B(1) of the Judiciary Act which reads as follows:

"The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth."

The provision does not mention declarations. However, since the declarations are sought on precisely the same basis as the injunctions, there would seem to be no reason to doubt that the Court has jurisdiction in respect of the claims for declaratory relief under the accrued jurisdiction, and also because those claims are "associated with matters in which the jurisdiction of the Court is invoked" - s.32(1) of the Federal Court of Australia Act; cf. Philip Morris Inc. v. Adam P. Brown Male Fashions Pty. Ltd. (1981) 148 CLR 457 at p 494. There is express power to grant declaratory relief under s.21 of the Act in relation to matters in which the Court has original jurisdiction. The warrants in question purported to be issued under a Federal statute, namely the Crimes Act s.10.
It is a curiosity of this case that the purpose of the warrants was to investigate a matter which may not, even if the suspicions held proved to be well-founded, have involved the commission of any offence whatever. The applicant is, of course, among other things a well-known maker of spectacles. On 4 and 5 March 1987 Federal Police made searches at its premises in a number of places in Brisbane and also in certain Queensland provincial cities and seized a large quantity of documents. I gather that the warrants under which the seizures were effected are all in much the same form, as are the informations on which the warrants were obtained, so that the result of these proceedings may well determine the validity of the other warrants. The parties have by agreement caused the documents seized under the warrants other than those referred to in the instant proceedings also to be placed in the Court's custody. It is obviously desirable that the dispute be disposed of quickly.
As will appear, I am of the view that the two warrants in question in the case are void and have decided to grant final relief accordingly. It therefore becomes unnecessary to deal with the interlocutory applications. It should be mentioned, however, in case the matter goes further, that had I not found the warrants to be void I would have granted interlocutory relief. It was plain from the evidence of the justice who issued the warrants that she did so on the basis of an assumption as to a fact not stated in information placed before her, an assumption which is admitted to have been erroneous. The assumption was that the referral forms discussed below contained express false assertions. However, I have decided, in accordance with the request of Mr. Clair, senior counsel for the respondent police officers, not to base my determination of the application for final relief on any question canvassed in oral evidence, but to found it on what appears on the face of the documents. The result of this method of approaching the matter, adopted in the interests of expedition, is that the application for final relief has been divided into stages. The applicant succeeds at the first stage, and it is therefore unnecessary to go into questions depending on the oral evidence.
The two warrants in question in the case are identical except as to the officer named and the address of the place to be searched. That relating to 113 Wickham Terrace, Brisbane is as follows:

"

COMMONWEALTH OF AUSTRALIA CRIMES ACT 1914 SEARCH WARRANT TO: Alan Andrew WITHERS

Australian Federal Police Officer

WHEREAS, I Carmel Sullivan A Justice of the Peace with the meaning of that expression in Section 1 of the Crimes Act 1914 of the Commonwealth of Australia being satisfied by information on oath placed before me this day that there is reasonable ground for suspecting that there is in a place situated at 113 Wickham Terrace, Brisbane described as the administration offices of OPSM Pty Ltd situated on the 1st Floor of a four storey building at 113 Wickham Terrace, Brisbane in the State of Queensland things being: 'patient records cards in the names of the persons named on the attached annexure "A" to the Information; appointment books; duplicate receipts relating to the persons named on the attached annexure "A" to the Information; referral forms relating to the persons named on the attached annexure "A"; correspondence between the above suspected persons and OPSM; Medical Benefits Schedule Book; list of common item numbers, pre-signed referral forms, attendance/pay books and other things as to which there are reasonable grounds for believing that the same will afford evidence as to the commission of offences against:-

1. The provisions of section 128A of the Health Insurance Act namely 'a person shall not submit a document false in a material particular which was capable of being used in connection with a claim for payment under this Act.'

2. The provisions of section 128B of the Health Insurance Act namely 'a person shall not make a statement orally or in writing knowing it to be false in a material particular capable of being used with a claim for a benefit.'

3. The provisions of Section 29A(2) of the Commonwealth Crimes Act 1914 namely 'a person who with intent to defraud, by any false pretence, causes or procures any money to be paid, or any chattel, valuable security or benefit to be delivered or given, by the Commonwealth or by any public authority under the Commonwealth to any person.'

YOU ARE HEREBY AUTHORISED with such assistance as you think necessary to enter at any time the said place as more fully described above, if necessary by force, and to seize the said things as more fully described above, as to which there is reasonable grounds for believing that the same will afford evidence as to the commission of the said offences as more fully described above and for so doing this shall be your sufficient warrant."

The document mentions search only in the heading, but no doubt it is implicit that a search is authorised. The points taken for the applicant included that the other warrant used, served at 543 Ipswich Road, Annerley, Brisbane, had no annexure "A" and was therefore too wide. The annexure "A" contained a list of names of customers of the applicant and their doctors. Complaint was made in the material that documents seized included records relating to some thousands of customers, but, in view of the restricted nature of the matters to be considered at this stage, it is unnecessary to make any finding as to the presence or otherwise of the annexure or in relation to the way the searches and seizures were carried out.
The arguments advanced were concerned with alleged deficiencies in the written sworn information on which the justice, at least in part, acted. However, counsel relied on the vagueness of the warrants themselves, considered in isolation, and it is convenient to discuss the warrants first.

WARRANTS
It will have been seen that the warrants refer to record cards, appointment books, duplicate receipts, referral forms, correspondence, lists and "attendance/pay books" and "other things". Each of the first two offences mentioned in the warrant refers to falsity in a material particular and the first offence mentioned ascribes that falsity to a document, the second to a statement. It may be a reasonable inference, as to the first offence mentioned, that the search had to do with ascertaining whether any of the categories of documents earlier mentioned in the warrant were false. One would not, I think, tend to infer that the second offence mentioned was confined to falsity in a document.
Suspicion of falsity in a document or statement implies, of course, that there is a lack of correspondence between the true facts and the document or statement, but the range and nature of the enquiry necessary to investigate the possibility of that lack of correspondence depend entirely upon what falsity is suspected. One could have no idea from the warrant whether the purpose of the search might be to establish that records were false in that they set out services which were not in truth performed, that recorded payments had not in truth been made, or indeed that any other falsity existed which imagination might devise. Reference to the information, discussed below, shows that the suspicion in fact held was of a much narrower kind than the warrants suggest.
As Mr. Mulholland Q.C., senior counsel for the applicant, pointed out, the mention in the warrants of "the above suspected persons" adds a positively misleading quality. It appears to be a reference back to the persons named in annexure "A" and they are principally patients, the implication being that they are suspected of some wrongdoing involving false documents. From the information and what was said by Mr. Clair in argument, it is clear that the reference to "above suspected persons" was an error; the doctors, not the patients, were the suspected persons (as well as the applicant).
With respect to the first two offences suspected, the warrants would be good if it were the law that s.10 of the Crimes Act would authorise the issue of a warrant for the purpose of a kind of audit of records of the applicant, to see if any of them contained anything false affecting claims against the Health Insurance Commission. The authorities referred to below suggest otherwise, and support the view that the warrant must set out the object of the search with some particularity, by saying what wrongdoing is suspected.
Here, subject to a qualification to be mentioned, there would have been no difficulty in doing so. It emerged during the course of the hearing that what was suspected was primarily that customers of the applicant were being referred to eye doctors, without the referring optometrists having specifically turned their minds to the question whether the person referred might need specialist attention - i.e., routinely. The qualification is that counsel had some difficulty in identifying any statutory provision which rendered that unlawful, if it occurred, and that would have made it hard to state the possible offence. But subject to that, the case is one in which the basic requirement of divulging the true object of the search could, simply enough, have been complied with.
It is convenient to turn now to the authorities. It is settled that a warrant must, to be valid, set out the possible offence in respect of which it is issued, but there is some variance in the authorities as to the degree of particularity necessary. There must be put on one side the decision of the House of Lords in Inland Revenue Commissioners v. Rossminster Ltd. (1980) AC 952. In that case, for reasons similar to those which have produced the recent decisions of this Court referred to below, the Court of Appeal had held that particularisation of the suspected offences was necessary, but the House of Lords disagreed: see pp 999, 1005, 1010 and 1023. In Trimboli v. Onley (No. 1) (1981-82) 56 FLR 304 at p 314, Powell J. suggested that some of the observations in the Rossminster case "have attenuated to some degree the rigidity of the tests" set it out in other cases. However, the weight of authority in this Court is in favour of the view that particularity is necessary, thus inhibiting invasions of citizens' premises in pursuit of unstated or vaguely-stated suspicions.
In Brewer v. Castles (No. 2) (1983-84) 52 ALR 571, the offences were specified fairly generally, one being "s.86(1)(e) of the Crimes Act 1914, to wit, conspiracy to defraud the Commonwealth" (p.572); that was held to be enough, at pp.579 and 580. In A.B.C. v. Cloran (1984) 57 ALR 742, the warrant mentioned "commission of offences against s.70 of the Crimes Act 1914". That seems to me to have been fairly comparable with the allegation in the case just mentioned, but Lockhart J., at p.745, held it to be insufficient in that it did not "define with reasonable particularity" suspected offences. In Arno v. Forsyth (1986) 65 ALR 125 Lockhart J. in the Full Court referred to the Rossminster case at p 139 and to the "dangers of too readily striking down warrants on the ground of generality in cases of this kind" - i.e. cases of tax fraud. Jackson J., however, in the same case adopted (at p.143) a view expressed by Lockhart J. in A.B.C. v. Cloran (above) that it is necessary that the warrant "describe the particular offences in relation to which the seizure is authorized so as to enable the persons to whom they are addressed and the persons whose premises are to be searched to know the exact object of the search".
Lastly, in Parker v. Churchill (1986) 65 ALR 107, the "exact object" test just mentioned was accepted by the Full Court; see the reasons of Jackson J. at p 120 1.14. The other members of the Court (Bowen C.J. and Lockhart J.) agreed with the reasons of Jackson J. (p.107) except in a respect not material to the question under discussion. A consequence of the adoption of that view in Parker v. Churchill was that the warrants there discussed were held to be void insofar as they referred to an offence against "s.231 of the Income Tax Assessment Act in that "(named persons)" did at various times since 30 June 1978 until the present time evade payment of income tax": see p.111 1.23 and p.121 1.50. Here, there is no reference to any period during which the suspected offences might have been committed.
It might be suggested, with respect, that the construction of s.10 of the Crimes Act which has been adopted could unduly hamper criminal investigation where there is good reason to suspect some serious crime, but no precise idea of what its character might be. In such cases the doctrine that the suspected offence or offences must be identified might seem to require modification.
As to the warrants in question here, there was no such difficulty. Instead of stating the true object of the search in the warrant, it was, in substance, stated to be to look for some falsehood in a quantity of documents related to claims against the Health Insurance Commission. It does not appear too onerous a requirement that the warrants should have indicated, at least in a general way, what sort of falsehood was suspected and whether it was recent or ancient. If warrants in this form are permitted, that would also allow warrants for searches in patients' or doctors' premises, looking among their medical records for quite unspecified illegalities connected with treatment for which reimbursement might have been claimed from the Health Insurance Commission. At least where the general character of the suspicion is capable of succinct statement, as here, it appears to me that the object of the search should be set out more specifically than by saying that some falsity is suspected. It is true that para.1 of the warrant concludes with the words "which was capable of being used in connection with a claim for payment under this Act" and that para.2 has a similar qualification; but on the assumption that what is qualified, as to para.1, is the word "document" and, as to para.2, the word "statement", neither expression really assists towards defining the purpose of the search.
As to the offence mentioned in the third paragraph, the case seems plain enough. One could not, other than by mere speculation, gather from the warrants the nature of the fraudulent intention or false pretence suspected. The recipient of the warrant might deduce that what was claimed to have been suspected was some fraud by the "suspected persons" in relation to claims on the Health Insurance Commission, but its general nature is not stated, expressly or otherwise. The third paragraph does not even refer to the Commission and it uses the broad expressions "money to be paid, or any chattel, valuable security or benefit". What has been done is simply to point to a wide and general provision in the Crimes Act; that cannot be a sufficient definition of the object of the search.
It should be added that the purportedly quoted portions in paragraphs 1 and 2 of the warrants are inaccurate; nothing appears to flow from that defect.
It follows from the above discussion that the warrants are void on their face and it is unnecessary to hear the case further with a view to resolving any issue depending upon oral evidence. However, as the matter was elaborately argued, it is desirable that I express a view as to another aspect which also depends upon the documents. This is the submission that the justice could not have been satisfied in terms of s.10 of the Crimes Act because the information did not give ground for suspicion of any offence; in particular, it was said, it did not give such ground as to any one of the offences specified in the information and warrant.

INFORMATION

This is a lengthy document which contains a number of rather vague statements. Its analysis must be approached with the caution that, in a crucial respect, the justice did not act upon it alone, but upon the erroneous assumption of fact mentioned above - i.e. that the referral forms mentioned in the information made certain assertions. To that extent, the rival contentions made, as to what might properly have been drawn by the justice from the information alone, have an academic flavour. It is not easy to see how any further hearing of the matter could improve the respondents' position as to this point or avert a finding that the justice's satisfaction was obtained not by "information on oath", but by acting upon the justice's own supposed knowledge of the facts. Mr. Mulholland Q.C. argued forcefully that the justice's oral evidence plainly showed the warrants to have been unlawfully issued. I have, however, determined to proceed at this stage in the limited way indicated above, although I have some doubt as to whether that is a fair or convenient course.
The information begins by saying, in effect, that the informant, a police officer with the Health Insurance Commission (HIC), has been investigating the applicant, that the applicant employs eight optometrists at its head office at Wickham Terrace, Brisbane and that there is a system of referral of patients from optometrists to ophthalmologists that involves the optometrists completing a referral form which goes to the specialist, who then charges in accordance with an item number appropriate to specialist treatment. Sometimes, the information says, the patient does not pay, but assigns the benefit to the doctor who claims from the Commission himself.
In summary, the balance of the information is as follows:

O.P.S.M. employs eight optometrists, all of whom are employed at its head office at Wickham Terrace, Brisbane. When patients are referred to a specialist ophthalmologist, a referral form is necessary, prepared by a medical practitioner, registered optometrist or registered optician. The specialist puts on his account an item number taken from the medical benefits schedule book issued by the Department of Health. The specialist may obtain payment directly from the Health Insurance Commission by obtaining an assignment of the benefit signed by the patient.

"... under the provisions of the Health Insurance Act, Regulations and Schedule there is requirement for the initial medical practitioner to apply his own judgment in a real sense to the question whether or not he will in fact issue the note to the particular patient before he can refer that patient to a specialist."

Also, the specialist must see the referral form before issuing the account with the specialist item number on it. If there is no referral form, the specialist must use a different item number being one appropriate to a consultation by a general practitioner rather than a specialist.

Some dozens of people listed in an annexure to the information have been interviewed. They contacted O.P.S.M. at one of its premises to have their eyes tested, or to obtain a referral to see an ophthalmologist. Some of them were told by an employee of O.P.S.M. that arrangements would be made to prepare a referral form.

In some cases, an O.P.S.M. employee gave the patient a card or piece of paper on which was written a number and were told to take the card to the ophthalmologist. He issued an account on which was written the number on the card or piece of paper and the item number 88, which refers to a specialist consultation.

Some of the patients were told by O.P.S.M. that the referral form had to be signed in Brisbane and that they were to return to collect it a few days later or that it would be posted. In some cases, patients called back later to collect the referral form number. Some of the patients caused the ophthalmologist to be paid by the assignment system referred to above, and some paid the doctor then obtained reimbursement from the Commission.

Patients referred to specialists practising on Wickham Terrace said that they were supplied with a referral form by O.P.S.M. either signed before they arrived, or signed during their visit.

None of the patients were examined by any person at the office of O.P.S.M.

Some of the patients did not take a referral from O.P.S.M. to the specialist.

"I believe that the referral forms are being sent to the Head Office of OPSM and that the Optometrists employed there are signing referral forms without physically seeing the patient."

There are various documents relating to the persons mentioned in the annexure at O.P.S.M. premises and elsewhere "as to which there are reasonable grounds for believing that they will afford evidence as to the commission of the following offences against the laws of the Commonwealth."

Then there were set out the three suggested offences already discussed.
The information does not say in so many words that the falsity or fraud mentioned has to do with the referral forms, but it may well be that the justice should have deduced that from the prominence of the referral forms in the story as set out in the information. A greater difficulty is that the suspected falsity or fraud is not identified. The information does not say that a suspicion is held that any document mentioned in it contains a misstatement of fact, or even a partial statement of fact, such as produced a conviction in R. v. Kylsant (1932) 1 KB 442 in respect of a charge relating to a prospectus "false in a material particular". There Lord Kylsant was held to be guilty under the principle that there may be "such a partial and fragmentary statement of facts that the withholding of that which is not stated makes that which is stated false": see R. v. Bishirgian (1936) 1 All ER 586 at p 591.
In fact, this gap was apparently filled by the justice in the way I have mentioned. Its existence was not an accident. Mr. Clair argued that the mere fact of a referral - the statement "I refer this patient" - necessarily imports, read against the background of the regulations, that the person referring has seen the patient or otherwise determined that specialist attention is truly necessary.
The contention put forward was, of course, disputed by Mr. Mulholland Q.C. who argued that no requirement in the regulations, or elsewhere, created an obligation on the referring party to see the patient before referral. Mr. Mulholland Q.C. contended that the absence of any requirement that the referring party have seen the patient to determine that specialist treatment is truly necessary produces the result that the information disclosed no reasonable ground for suspecting the commission of the offences mentioned.
It is desirable to recollect the purpose of the information as defined by s.10 of the Crimes Act. So far as is relevant, it requires that the information on oath supply "reasonable ground for suspecting that there is any house, vessel, or place ... anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence" - i.e. "any offence against any law of the Commonwealth or of a Territory". Leaving aside the necessity of defining the object of the search, if the justice is to have any opportunity of determining whether there is ground for suspicion of fraud or of falsity in a material particular, the nature of the fraud or falsity suspected must be made clear. Here it was not. Mr. Clair argued that the passage quoted in the penultimate paragraph of the summary above beginning "I believe that ..." was itself a summary of what was suspected; but that does not, nor does any other passage, identify any document or statement containing a falsity. There was a gap as to the essential point of the information. It appears that the suspicion held was, in truth, that of a breach of the requirement mentioned in the second paragraph of the summary above beginning "... under the provisions ..."
The relevant provision is Reg.10 of the Health Insurance Regulations 1973:

"(1) In sub-regulation (2) a reference to a medical practitioner, in relation to a referring of a patient to a specialist, shall be read as including a reference to -

(a) where the specialist to whom the patient is referred is an ophthalmologist - a registered optometrist or a registered optician; and

(b) where the referring arises out of a dental service - a registered dentist.

(2) Subject to sub-regulations (4) and (5), where an item specifies a medical service that is to be rendered by a consultant physician, or a specialist, in the practice of his speciality to a patient who has been referred to him, the patient shall, for the purposes of the item, be referred by a medical practitioner in the following manner, namely, by the medical practitioner furnishing the prescribed information concerning the referral to the consultant physician or specialist, as the case may be, on a referral form made available to him by the Department of Health for the purpose.

(3) For the purposes of sub-regulation (2), the prescribed information is -

(a) the name and address of the medical practitioner, registered optometrist, registered optician or registered dentist who is referring the patient to a consultant physician or specialist;

(b) the name and address of the patient;

(c) the name of the consultant physician or specialist to whom the patient is being referred;

(d) if the patient is being referred by a medical practitioner - whether the patient is being referred for an opinion, for immediate treatment or for continued management of the patient's condition at the time the referral form is signed;

(e) if the patient is being referred by a registered optometrist or a registered optician to an ophthalmologist for ophthalmological services - that the patient is being referred for ophthalmological services; and

(f) if the referring arises out of a dental service rendered to the patient by a registered dentist - that the patient is being referred for medical attention arising out of a dental service.

(4) A medical practitioner, registered optometrist, registered optician or registered dentist shall be taken not to have referred a patient to a consultant physician or specialist in the manner prescribd by sub-regulation (2) unless he has personally signed the referral form containing the information referred to in that sub-regulation and has stated on it the date on which he signed it.

(5) A medical practitioner shall be taken not to have referred a patient to a specialist radiologist in respect of an item that relates to a radiographic examination of one or both breasts unless the referral form, in addition to containing the prescribed information concerning the referral, contains -

(a) a specific request for the service to which the item relates; and

(b) a statement that, for the purposes of the item, there is reason to suspect the presence of malignancy in the breast or breasts because of the past occurrence of breast malignancy in the patient or members of the patient's family, or because symptoms or indications of malignancy were found on an examination of the patient by a specified medical practitioner, as the case may be."

The regulation has the appearance of comprehensively prescribing the requirements of a proper referral. For example, the question whether a referral can be achieved by signature by an agent has been adverted to by the draftsman; it cannot, as sub-regulation (4) makes clear. It would seem an unusual process to add to these careful prescriptions an additional, and important, one along the lines argued. Counsel for the respondents contended that the provisions are concerned principally with machinery and that the substantial questions of what state of mind must accompany the referral and what contact between the referring person and the patient must precede a referral are unstated, as being too obvious to require mention.
It is not, in my view, correct that the regulation prescribes only machinery matters. As to a particular sort of referral, namely that dealt with in sub-regulation (5), it must state, in effect, that there is reason to suspect the presence of malignancy because of family history, or because symptoms were found on examination. No corresponding barrier is stipulated in respect of any other kind of referral.
The nature of the implication may be tested by enquiring what might rationally have been prescribed, if the Governor-in-Council had chosen to impose any such requirement as suggested. It might, for example, have been laid down that a referral should not be issued unless the party referring should be of the opinion that specialist attention was reasonably necessary; that would make it unlawful to refer if the doctor did not, but the patient did, think specialist attention desirable. Alternatively, the regulation might simply have made it unlawful to refer without seeing the patient in order to consider the question whether a referral is necessary, or, simpler still, have proscribed referrals not thought by the referring person to be reasonably necessary. Which implication could one choose?
It may well be that it was because of the difficulties just referred to that the possible offences said to arise from the suspicions held do not include a suggestion of breach of the requirement said to be derived "under the provisions of the Health Insurance Act, Regulations and Schedule". However that may be, I can find no such requirement; but that is by the way. The essential point is that the justice could not, in my opinion, have been satisfied by the information as to suspicion relating to the commission of the possible offences in fact relied on; she could not have been so satisfied in the absence of identification of the falsity in the material respect, or of the fraud.
A separate criticism of the information is that it does not support suspicion of the persons identified in the warrant. It is clear that no such identification is necessary, but it is of course permissible. As explained above, the warrant has the suspected persons as being those set out in the annexure "A", who are principally patients. Mr. Clair argued that, on the proper construction of the information, the reference to "suspected persons" in its corresponding portion should be read as including from annexure "A" the doctors only, not the patients.
It is not possible to conclude with any confidence who are meant to be the "suspected persons" mentioned in the information. Mr. Clair may well be right that the better construction would confine it to the doctors, but if that be so, then in another important respect the information was incapable of supporting the warrant. It has to be said, however, that the information is so vaguely drawn in other respects that it leaves it rather unclear precisely what sort of breach of the law is, or might be, suspected. An example of this is the reference to "pre-signed" referral forms, which in the context appears to me capable of meaning simply that they were signed before the customers arrived. Mr. Clair urged that it should be read as suggesting that they were signed in blank, filled in by someone other than the signatory and incorrectly dated - matters which cannot, in my view, possibly derive from what is stated. One "casually might fancy" the matter mentioned by Mr. Clair (see per Griffith C.J. in Bridgeman v. Macalister (1898) 8 QLJ 151 at p 153) but that is not enough.
Lastly, it appears to me that the information cannot support the warrants, if Mr. Clair's analysis of the former is correct, in that the matters of suspicion stated in the warrants are much wider than those to which the information is directed. If it is right that the information says, in essence, that patients, or new patients, are being routinely referred to eye specialists (at, I was told, an additional cost of $10) and that that is a breach of the obligations of the referring party, then the matters of suspicion stated in the warrant are plainly much too broad.
In summary, the information cannot support the warrants issued.
I propose to grant injunctions and will hear the parties on the appropriate form of relief.

[1987] FCA 101

13 MARCH 1987