Vickers v Commonwealth of Australia

[2020] NSWSC 1762

Supreme Court

New South Wales

Medium Neutral Citation:

Vickers v Commonwealth of Australia [2020] NSWSC 1762

Hearing dates:

7 December 2020

Decision date:

08 December 2020

Jurisdiction:

Equity

Before:

Ward CJ in Eq

Decision:

1.   The plaintiff’s motion is adjourned to the applications list on Tuesday 2 February 2021 in respect to the documents produced by the defendant pursuant to order 3 made on 18 February 2020.

2.   In respect to the documents produced by the defendant pursuant to the notice to produce dated 2 October 2020, as identified in Schedule 1 to the notice of motion, the undertaking given by the plaintiff to the Court to use them only for the purposes of these proceedings be amended with effect from Friday, 4 December 2020, such that the plaintiff be permitted to use the said documents in proceedings 2014/217287.

3.   The costs of this motion be the plaintiff’s costs in the cause.

Catchwords:

CIVIL PROCEDURE – implied undertaking – application for leave to use in other proceedings documents obtained under compulsion in present proceedings –release from undertaking for purpose of foreshadowed preservation application.

Legislation Cited:

Health Insurance Act 1973, s 130

Cases Cited:

Alterskye v Scott [1948] 1 All ER 469

Australian Securities and Investments Commission (ASIC) v Marshall Bell Hawkins Ltd [2003] FCA 833

Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283

Metso Minerals (Australia) Ltd v Kalra (No 3) [2008] FCA 1201

Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756; [1991] 3 All ER 878

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

Sybron Corporation v Barclays Bank Plc [1985] Ch 299; [1984] 3 WLR 1055

Category:

Procedural and other rulings

Parties:

Peter Vickers (Plaintiff)
Commonwealth of Australia (Defendant)

Representation:

Counsel:
MK Condon SC (Plaintiff)
A Ng (Defendant)

Solicitors:
William Roberts Lawyers (Plaintiff)
Australian Government Solicitor (Defendant)

File Number(s):

2019/00173629

Publication restriction:

Nil

Judgment

1. HER HONOUR: Before me for hearing on 7 December 2020, by notice of motion dated 4 December 2020, was an application by the plaintiff (Peter Vickers) for leave to use in other proceedings certain documents obtained by the plaintiff in the current proceedings (i.e., for relief from the implied Harman undertaking – see below) in relation to certain documents.

2. The plaintiff’s application was supported by two affidavits affirmed by his solicitor (Brian Nicholas Silva) on 4 December 2020 and 7 December 2020 respectively. The defendant to the present proceedings, the Commonwealth of Australia, did not oppose the making of the orders.

3. I made orders granting leave for the use of certain of the documents in the other proceedings, indicating that I would provide brief written reasons as soon as practicable thereafter. These are those reasons.

Background

4. The background to the present application is set out in the affidavit affirmed 4 December 2020 of Mr Silva (Mr Silva’s 4 December 2020 affidavit) and may be summarised briefly as follows. I make clear that I am not here making any findings as to disputed facts but am simply setting out the context of the present application.

5. The plaintiff is an oral and maxillofacial surgeon (Mr Silva’s 4 December 2020 affidavit at [4]). The plaintiff entered into a Professional Services Agreement in March 2009 with Canada Bay Medical Centre Pty Limited (Canada Bay), one of whose directors is Vivien Munoz-Ferrada (Ms Munoz-Ferrada) (Mr Silva’s 4 December 2020 affidavit at [4]-[5]). A term of the said agreement (cl 3.10(b) provided that, in the event that, through no fault of the plaintiff, the plaintiff was liable to pay back to Medicare any Medicare Benefits which, pursuant to the agreement, had been paid to Canada Bay, then Canada Bay would indemnify the plaintiff in relation to any Medicare Benefits received by Canada Bay that were required to be repaid to Medicare (Mr Silva’s 4 December 2020 affidavit at [6]).

6. In October 2011, Medicare wrote to the plaintiff concerning an audit of fees that the plaintiff had charged in the period from October 2009 to January 2011 (Mr Silva’s 4 December 2020 affidavit at [8]) and from about 12 December 2018, Medicare began deducting amounts from the plaintiff in respect of an alleged Medicare Debt (which debt was claimed at in excess of $1.6 million) (Mr Silva’s 4 December 2020 affidavit at [10]).

7. On 17 July 2020, the plaintiff and Ms Munoz-Ferrada executed a Deed of Guarantee and Indemnity (the Deed), pursuant to which (cl 3), Ms Munoz-Ferrada unconditionally and irrevocably indemnified the plaintiff in relation to all liabilities, damages and costs, losses and expenses that the plaintiff has suffered or incurred or may suffer or incur following or arising from the Medicare audit, including any liability in relation to any Medicare Benefits received by the plaintiff since 1 March 2009 (Mr Silva’s 4 December 2020 affidavit at [12]-[13]).

8. On or about 23 July 2014, the plaintiff commenced proceedings against Canada Bay and Ms Munoz-Ferrada (the 2014 Proceeding) (2014/17287), in which proceedings an amended summons was filed on 18 January 2018. In the 2014 Proceeding, the plaintiff claims against Canada Bay the amount invoiced by Medicare to the plaintiff and claims against Ms Munoz-Ferrada that amount in the event of default by Canada Bay with respect to payment of any amount ordered against it in the proceedings (see Mr Silva’s 4 December 2020 affidavit at [14]).

9. On 3 June 2019, the plaintiff commenced the present proceedings (the 2019 Proceeding) (2019/173629) against the Commonwealth of Australia in relation to the alleged Medicare Debt (Mr Silva’s 4 December 2020 affidavit at [16]).

10. On 9 March 2020, pursuant to orders made in the 2019 Proceeding on 18 February 2020, the Commonwealth of Australia produced certain documents to the plaintiff’s solicitors (the Commonwealth Recovery Bundle) (Mr Silva’s 4 December 2020 affidavit at [17]-[18]).

11. On about 2 November 2020, the Commonwealth produced documents in answer to a notice to produce issued by the plaintiff on 2 October 2020 (the Commonwealth NTP documents) (Mr Silva’s 4 December 2020 affidavit at [19]).

Present application

12. The present application arises because the plaintiff wishes to use certain of the documents produced by the Commonwealth under the coercive powers of this Court in the 2019 Proceeding for the purposes of an urgent application for asset preservation orders with respect to the assets of Ms Munoz-Ferrada (Mr Silva’s 4 December 2020 affidavit at [24]).

13. Relevantly, the plaintiff says that the Commonwealth NTP documents include statements of various medical or dental practitioners and other persons involved in the Medicare audit (namely: persons working for Canada Bay at the relevant time period for which the audit was conducted; practitioners that had provided reports and/or opinions for or behalf of Canada Bay which formed part of the audit material; referring practitioners that had utilised the services of Canada Bay and formed part of the audit material; or who were employed by or on behalf of the Commonwealth in relation to the audit process) (Mr Silva’s 7 December 2020 affidavit at [7]). The documents include records of transcripts of interviews including of Ms Munoz-Ferrada.

14. The plaintiff says that the material produced discloses misconduct (and goes so far as to alleged dishonesty) on the part of or at the direction of Ms Munoz-Ferrada in relation to the falsification of documents relating to Medicare benefits (see the extracts of material set out in Mr Silva’s 4 December 2020 affidavit at [22]). It is noted that in the 2014 Proceeding, Ms Munoz-Ferrada alleges (and the plaintiff denies) that the plaintiff was implicit in the arrangements by which the Medicare Benefits were claimed.

15. The concern leading to the proposed asset preservation order arises out of the fact that property title searches have disclosed that the last of the properties held in the name of Ms Munoz-Ferrada has recently been sold (Mr Silva’s 4 December 2020 affidavit at [25]). It is not known when that sale is due for completion. The plaintiff maintains that evidence of dishonesty provides a basis for an apprehension of dissipation of funds.

16. The Commonwealth, as noted above, does not oppose release from the Harman undertaking but took the view that it is not in a position itself to provide the documents to the plaintiff (see s 130 of the Health Insurance Act 1973).

17. In Mr Silva’s 7 December 2020 affidavit at [7]ff, Mr Silva has deposed to his review of the statements and record of transcripts identified in schedule 1 to the plaintiff’s notice of motion. In particular, Mr Silva has deposed that: each statement contains a paragraph to the effect that the maker thereof provided a statement which accurately set out the evidence that he or she would be prepared if necessary to give in court as a witness and that he or she understood that if the statement was tendered in evidence then he or she would be liable for prosecution if he or she wilfully stated anything in the statement that he or she knew to be false or did not believe to be true; and that the record of transcripts identified in schedule 1 of Ms Munoz-Ferrada disclose that Ms Munoz-Ferrada: was informed that the interview was being recorded; was cautioned that she did not have to say or do anything but that anything she did say or do would be recorded and might later be used in evidence; confirmed her understanding of the caution; and had her legal representative in attendance during the interviews.

18. Mr Silva has also described the other documents referred to in the schedule.

Relevant principles

19. The relevant principles applicable on an application for release from the Harman undertaking were considered by me last year in Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198 (Findex), to which reference was made by the plaintiff on the present application.

20. Relevantly, I note that the circumstances in which such an undertaking arises were considered by the High Court in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36. There, Hayne, Heydon and Crennan JJ said (at [96]) that:

… Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits … 

[footnotes omitted]

21. In Findex, I noted (at [42]) that the implied Harman undertaking has been characterised variously as an obligation; a duty; a formula; a rule; or a principle (referring by way of example to Alterskye v Scott [1948] 1 All ER 469 at 470-471 per Jenkins J; Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 at 764; [1991] 3 All ER 878 at 885; and to the description of the implied undertaking in Harman v Secretary of State for the Home Department [1983] 1 AC 280 itself (at 308) per Lord Keith). It is not necessary here to repeat what I said in Findex at [43]ff as to the purpose of the undertaking.

22. The relevant factors to be taken into account when considering whether leave should be granted (any particular case where the Harman undertaking applies) to permit use in another set of proceedings (i.e., for a purpose other than the purpose of the proceedings in which the documents were obtained) were considered by Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (Springfield Nominees) at 225:

For “special circumstances” to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court’s discretion, many factors being relevant. ... But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.

23. In Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 (Liberty Funding), the Full Court of the Federal Court (Branson, Sundberg and Allsop JJ, as his Honour then was) made reference, with approval, to the above passage from Springfield Nominees. As I noted at [50] in Findex, their Honours there endorsed both the factors identified as relevant to the exercise of the Court’s discretion and that the notion of “special circumstances” does not require that some extraordinary factors must bear on the question before the discretion will be exercised.

24. It should also be noted that in Australian Securities and Investments Commission (ASIC) v Marshall Bell Hawkins Ltd [2003] FCA 833 (ASIC v Marshall Bell Hawkins) Merkel J at [13] said that:

13   The requirements of specificity in respect of the documents to be used and the purpose for which they are to be used is appropriate because the implied undertaking should only be modified or released to the extent that it is in the interests of the administration of justice or in the public interest to do so: see Springfield Nominees at 225 and Moage Ltd (in liq) v Jagelman (2002) 43 ACSR 173 (“Moage”) at 176. Thus, the modification or release should be no greater than is necessary or appropriate to meet the interests of the administration of justice or the public interest. Further, in determining whether to exercise its discretion to grant the modification or release sought, it will usually be necessary for the Court to identify with precision the documents to be released and the purpose of that release.

25. Conscious of the requirement for identification with precision the documents to be released and the purpose of that release, the plaintiff in the present application has pressed at this stage only for release from the undertaking in relation to the Commonwealth NTP documents (standing over its application in relation to the balance of the documents) on the basis that it has not yet had time fully to review the balance of the documents and that the pressing need is for the release of the undertaking in relation to the Commonwealth NTP documents to support the foreshadowed application for an asset preservation order.

26. Finally, I note that in Sybron Corporation v Barclays Bank Plc [1985] Ch 299 at 326-327; [1984] 3 WLR 1055 it was said that:

… However, I do not think it can be right, on an application such as the present, for the court to undertake an examination of the strength of the proposed action in which it is sought to use the documents. I accept that it must be open to the respondent to resist leave on the ground that the proposed action would represent an abuse of process or for one reason or another was bound to fail or ought to be struck out. The court would always I think refuse leave if persuaded that the proposed action was of that character. But that apart, I feel great doubt whether it could ever be appropriate to try to gauge the strength of the proposed action in order to decide whether or not to give leave to use discovered documents for the purposes of that action. If a proposed action is not shown to be an abuse of process or obviously unsustainable then prima facie a plaintiff is entitled to prosecute it. Whether leave to use discovered documents for the purposes of such an action should be granted should depend in my view on the nature of the first action, the circumstances in which discovery was given and the nature of the proposed new action. There may be some cases in which for the purposes of an application for leave; to use discovered documents some assessment of the strength of the case should be attempted, but where, as here, the case is of complexity I do not think it represents the right approach.

Determination

27. With the above in mind, I turn then to the factors that have been identified in Springfield Nominees and Liberty Funding.

28. First, as to the nature of the Commonwealth NTP documents, as noted above, they comprise statements given by persons involved in the Medicare audit; transcripts of the interviews carried out in the course of the audit; a schedule setting out contact details for those that provided statements; the witness list that summarises the evidence provided; a letter providing a detailed summary of the investigation in relation to offences allegedly committed by Ms Munoz-Ferrada; a statement of facts by a compliance officer summarising the factual matters identified during the investigation by the Commonwealth; and an affidavit by the plaintiff.

29. In circumstances where those participating in the investigations and interviews were aware that the statements they made might be tendered and used in evidence, it cannot be said that the documents are private documents of the kind expected to be kept confidential to the individuals concerned (cf the recognition by Flick J in Metso Minerals (Australia) Ltd v Kalra (No 3) [2008] FCA 1201 at [38] of the importance accorded by the common law to an individual’s right to preserve the privacy and confidentiality of his or her own documents).

30. Second, as to the circumstances under which the document came into existence, again, it is clear that the documents in question were prepared in the course of an investigation into alleged offences and in circumstances where it was appreciated that the documents might be used or tendered in evidence in relation to such matters. It is not the case, as referred to in Liberty Funding, that the plaintiff has “fortuitously obtained documents in one piece of litigation [and is] seeking opportunistically to use those documents in another piece of litigation”. Rather, the two sets of proceedings are obviously related.

31. Third, as to the attitude of the author of the document and any prejudice the author may sustain, it is candidly conceded by the plaintiff that Ms Munoz-Ferrada would no doubt oppose the grant of leave that is here sought. However, the plaintiff refers to the acknowledgements made by Ms Munoz-Ferrada (and the other persons involved in the audit) as to the potential for the documents to be tendered or used in evidence.

32. Fourth, as to whether the documents pre-existed the litigation or were created for that purpose and therefore expected to enter the public domain, again it is noted that the documents (though brought into existence before the 2014 Proceeding) were created in circumstances where it was contemplated that they might enter the public domain.

33. Fifth, as to the nature of the information in the documents (in particular whether the documents contain personal data or commercially sensitive information), the documents certainly contain information going to the relevant activities of the individuals associated with the Medical Centre (and many include inculpatory or incriminating information) but it is not clear that there is any particular commercially sensitive information there contained and again the documents were brought into existence in circumstances where it was contemplated that they might be used or tendered in evidence (and hence would not be expected to remain private).

27. Sixth, as to whether the documents contain information that is publicly available, it may be accepted that the material is not likely otherwise to be publicly available.

28. Finally, as to the likely contribution of the document to achieving justice in the other proceeding, in my opinion it is clear that the documents are necessary in the interests of achieving justice in the 2014 Proceeding insofar as it is likely that they will shed light on the very allegations the subject of that proceeding and the allegations made by Ms Munoz-Ferrada of complicity by the plaintiff in the conduct of which complaint is there made.

29. Balancing those factors, and placing weight particularly the last, it was my view that special circumstances had been made out for the release of the Harman undertaking in respect of the Commonwealth NTP documents for the purpose of enabling an application to be made for asset preservation orders before the duty judge this week. Accordingly, I made the orders sought, which I reproduce below for ease of reference.

Orders

37. For the reasons set out above, on 7 December 2020 I made the following orders:

1. Upon the undertaking of Mr Robert Ishak to pay the appropriate filing fee, the Court grants leave to file in court the motion dated 4 December 2020.

2. The plaintiff’s motion is adjourned to the applications list on Tuesday 2 February 2021 in respect to the documents produced by the defendant pursuant to order 3 made on 18 February 2020.

3. In respect to the documents produced by the defendant pursuant to the notice to produce dated 2 October 2020, as identified in Schedule 1 hereto, the undertaking given by the plaintiff to the Court to use them only for the purposes of these proceedings be amended with effect from Friday, 4 December 2020, such that the plaintiff be permitted to use the said documents in proceedings 2014/217287.

4. The costs of this motion be the plaintiff’s costs in the cause.

5. Liberty to apply on 2 days’ notice.

6. The Court orders that these orders be entered forthwith.

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Decision last updated: 08 December 2020