Vickers v Commonwealth of Australia (No 2)

[2021] NSWSC 227

Supreme Court

New South Wales

Medium Neutral Citation:

Vickers v Commonwealth of Australia (No 2) [2021] NSWSC 227

Hearing dates:

4 March 2021

Decision date:

04 March 2021

Jurisdiction:

Equity

Before:

Ward CJ in Eq

Decision:

1.   The undertaking given by the plaintiff to the Court (to use the documents, produced by the defendant pursuant to order 3 of the orders made on 18 February 2020 in these proceedings, only for the purpose of these proceedings) be amended, such that the plaintiff can use the said documents in proceedings 2014/217287.

2.   The undertaking given by the plaintiff to the Court (to use the documents referred to in [14] of Mr Silva’s affidavit affirmed 4 March 2021 as the N-4 documents, only for the purpose of these proceedings) be amended such that the plaintiff can use those N-4 documents in proceedings 2014/217287.

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

Catchwords:

CIVIL PROCEDURE — Implied undertakings — Release from

Cases Cited:

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

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

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

Vickers v Commonwealth of Australia [2020] 1762

Category:

Procedural 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

EX TEMPORE Judgment

1. HER HONOUR: In matter 2019/00173629, in which Dr Vickers is the plaintiff and the Commonwealth of Australia is the defendant, by notice of motion dated 4 December 2020 but filed on 7 December 2020, orders were sought by Dr Vickers in effect for the release from the implied Harman undertaking (so-called after Harman v Secretary of State for the Home Department [1983] 1 AC 280). The Commonwealth neither consents to nor opposes the application. Those orders were sought by the plaintiff in order to enable him to use documents produced by the defendant pursuant to orders made on 18 February 2020 and documents produced by the defendant pursuant to a notice to produce dated 2 October 2020 in what I might refer to as related proceedings, 2014/00217287, in which the plaintiff sues Canada Bay Medical Centre Pty Ltd and Vivien Munoz-Ferrada.

2. The matter came before me on 7 December last year and I made certain orders in relation to part of the material that was sought to be used for the purposes of the 2014 proceedings. However, at that stage the full ambit of the material that was sought to be relied upon was not known. I published reasons on 8 December 2020 in Vickers v Commonwealth of Australia [2020] 1762 in relation to that application.

3. What was brought back before me by urgent application today was the balance of the notice of motion filed in court on 7 December 2020. The plaintiff relies on three affidavits affirmed by the solicitor for the plaintiff, Brian Nicholas Silva, those being affidavits affirmed 4 December 2020, 7 December 2020 and 4 March 2021.

4. In broad summary, the dispute the subject of the 2014 proceedings relates to claims in relation to Medicare benefits applied for by the Canada Bay Medical Centre in relation to services that Dr Vickers says were not provided by him and for which the Commonwealth has sought a refund from him. The amount in dispute is roughly $1.6 million.

5. In the affidavit of Mr Silva affirmed 4 March 2021, Mr Silva refers to the documents that were produced by the Commonwealth in the 2019 proceedings. As an exhibit to that affidavit, Mr Silva has included a schedule that sets out and describes the documents that were produced by the Commonwealth on 9 March 2020 pursuant to the orders that I made on 18 February 2020. I have been taken to a sample of that material to indicate the relevance of that material to the 2014 proceedings.

6. In my reasons published on 8 December 2020, I set out the relevant principles that were applicable on an application for a release of the Harman undertaking (see [19]-[26]) and I do not propose to repeat those now.

7. Turning then to the particular factors that have been identified in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 and Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; [2005] FCAFC 3, I have already noted, in my earlier judgment, the nature of the documents that are sought to be used, and I have noted that the persons participating in the relevant investigations and interviews were aware that the statements they made might be tendered and used in evidence (see at [28]-[29]).

8. I noted at [30] the circumstances under which these documents came into existence; namely, that they were produced in accordance with applications that were made 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. The other factors that are set out in my reasons at [31]-[33] remain, in effect, the same.

9. In my opinion, the contribution of the documents to the achievement of justice in the 2014 proceedings makes it appropriate that there be a release from the implied Harman undertaking in relation to those documents.

10. For those reasons, I make the following orders:

1. The undertaking given by the plaintiff to the Court (to use the documents, produced by the defendant pursuant to order 3 of the orders made on 18 February 2020 in these proceedings, only for the purpose of these proceedings) be amended, such that the plaintiff can use the said documents in proceedings 2014/217287.

2. The undertaking given by the plaintiff to the Court to use the documents referred to in [14] of Mr Silva’s affidavit affirmed 4 March 2021 as the N-4 documents, only for the purpose of these proceedings) be amended such that the plaintiff can use those N-4 documents in proceedings 2014/217287.

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

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Decision last updated: 12 March 2021