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IN THE COURT OF APPEAL OF NEW ZEALAND
CA664/2009 [2010] NZCA 468
BETWEENJUDITH HEATHER GILL AND ORS Appellants
ANDTHE ATTORNEY-GENERAL First Respondent
ANDTHE REGISTRAR OF AUCKLAND DISTRICT COURT Second Respondent
Hearing:25 August 2010
Court:Hammond, Arnold and Stevens JJ
Counsel:R J Hooker and T Homes for Appellants A M Adams and H H Ifwersen for First Respondent
Judgment:15 October 2010 at 2.15 pm
JUDGMENT OF THE COURT
A The appeal is dismissed.
BThe respondents are entitled to costs for a standard appeal on a Band B basis with an uplift of 100 per cent, plus the usual disbursements as fixed by the Registrar.
The New Zealand public healthcare Scheme [9] The Ministry’s analysis and audit [11]
The investigation – more detail [12]
The search warrant [14]
The High Court decision [15]
First question – was judicial review appropriate? [16]
Second question – challenge to High Court decision
First issue– was the warrant properly issued?[30]
The standard to be applied to s 198 [32]
Failure to exhibit the PHO Agreement[37]
Casual patients and foreign visitors[40]
Failure to exhibit the draft audit report [46]
Failure to exhibit enrolment forms [50]
Vaccination patients [54]
Second issue: Registrar’s appreciation confidential patient files sought [57]
Third issue – reasonableness and the absence of conditions [65]
Fourth issue – scope of the warrant [77]
Fifth issue: was the warrant lawfully executed? [85]
Recent developments in the law [88]
Seizure of hard copies of patient files [91]
Police involvement in execution of warrant [102]
Cloning the hard drive [111]
Result [118] Costs [119] Next steps [123]
Introduction
[1] This appeal concerns a challenge by way of judicial review to the issue and subsequent execution of a search warrant in November 2008 at the medical practice of Dr Gill, Auckland Metro Doctors. The search warrant was issued by the Registrar of the Auckland District Court on the application of an investigator from the Ministry of Health (the Ministry). On its execution, a substantial number of paper and electronic files were seized from Dr Gill’s premises. Rather than awaiting the outcome of the investigation into whether any criminal offences had been committed, Dr Gill brought a pre-emptive challenge against the Attorney-General on behalf of the Ministry before the High Court as to the lawfulness of the issue and execution of the warrant. The High Court dismissed all grounds of challenge[1] and Dr Gill and her medical practice (the appellants) have appealed against that decision.
[1]Gill v Attorney-General HC Auckland CIV-2008-404-8247, 27 November 2009.
[2] There are two key questions raised by the appeal:
(a)whether it is appropriate for the appellants to resort to a challenge by way of judicial review at an early stage of the investigation; and
(b)whether the appellants have demonstrated that the Judge’s decision dismissing all grounds…
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.
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AGLC
Gill v Attorney-General [2010] NZCA 468
Case
[2010] NZCA 468
Decision Date
CaseChat Overview and Summary
This appeal concerns a challenge by way of judicial review to the issue and subsequent execution of a search warrant at the medical practice of Dr Gill, Auckland Metro Doctors. The search warrant was issued by the Registrar of the Auckland District Court on the application of an investigator from the Ministry of Health. On its execution, a substantial number of paper and electronic files were seized from Dr Gill’s premises. The appellants, Dr Gill and her medical practice, rather than awaiting the outcome of the investigation into whether any criminal offences had been committed, brought a pre-emptive challenge against the Attorney-General on behalf of the Ministry before the High Court as to the lawfulness of the issue and execution of the warrant. The High Court dismissed all grounds of challenge and the appellants have appealed against that decision. The appeal was dismissed. The key questions raised by the appeal were: (a) whether it is appropriate for the appellants to resort to a challenge by way of judicial review at an early stage of the investigation; and (b) whether the appellants have demonstrated that the Judge’s decision dismissing all grounds of challenge in the High Court was wrong. The second question may conveniently be broken down into five main issues as follows: (i) whether the warrant was properly issued by the Registrar; (ii) whether the Registrar appreciated that the application for the warrant raised the question of the confidentiality of patient files and whether he should have considered imposing conditions on the issue of the warrant; (iii) the reasonableness of the issue of the warrant, including the absence of terms and conditions relating to the confidentiality of patient files; (iv) the scope of the warrant, including whether it was too broad and/or permitted the Ministry officials to embark on a fishing exercise; and (v) whether the warrant was lawfully and/or reasonably executed. The appellants did not demonstrate that the judicial review action was appropriate in the circumstances of this case. First, it was prematurely taken. The criminal investigation was in its early stages and not all of the seized material had been reviewed. Second, if criminal charges had been laid against Dr Gill, various opportunities would have arisen to challenge the validity of the warrant and/or its execution either before any trial or in the course of it. Judicial review will rarely be appropriate where there is a readily-available alternative remedy. All of the appellants’ challenges have failed. It follows that the appeal must be dismissed. The respondents are entitled to costs for a standard appeal on a Band B basis with an uplift of 100 per cent, plus the usual disbursements as fixed by the Registrar.