Case: Mathews v Health Insurance Commission (No. 1) [2005] FCA 1061
Outcome: referred to
In Mathews v Health Insurance Commission (No. 1) [2005] FCA 1061 , Edmonds J refused an application for discovery of the file of the Committee. In that case, the Applicant submitted that the file should be disclosed on the basis that an affidavit of the Manager of the Committee Unit indicated that the Manager had reviewed the Committee file and certain statements in the affidavit were made in consequence of that review. Referring to the principles articulated by Gaudron J in the Herijanto cases , his Honour rejected the application for discovery of the Committee file . 67 In the present case, the Committee has not opposed the disclosure of the material provided in Professor Nicholl's report in respect of which the Applicant makes the objection based on judicial immunity. In my view, there are two considerations which lead me to reject the submissions of the Applicant as to the application of judicial immunity in this case. 68 The first is that the advice of Professor Nicholls and the circumstances surrounding the provision of his report have not been shown to be a part of or an aspect of the decision-making process of the Committee or any individual member. The certification by Professor Nicholls and matters relating to it were directed to the provision of advice as to whether a statistical method was valid and could be used by the Committee. In other words, the advice of Professor Nicholls provided a basis, factum or tool of analysis in respect of which the Committee was free to act if it so chose. The Committee was able to accept a methodology approved by him as being in accordance with the required procedures, but his certification of the relevant methodology could not be said to be part of the Committee's 'decision-making process' in the sense articulated by Gaudron J in the Herijanto decisions. 69 The second consideration is that Professor Nicholls cannot be considered to be a member or agent of the Committee. I do not agree with Applicant's contention that the principle of judicial immunity operates to prevent Professor Nicholls from providing copies of his report to the Court because he is effectively the Committee's agent. Professor Nicholls is an independent expert consultant of the Committee, and accordingly the evidence which is objected to is not within the immunity conferred by s 106F. 70 In addition, I do not consider that s 129 of the Evidence Act 1995 (Cth) takes the matter further or is of any assistance to the Applicant. I do not need to decide whether the immunity can be waived in a manner similar to the way in which, for example, legal professional privilege can be waived, having regard to the public interest element that is concerned with the grant of judicial immunity. I note that Division 3 of Part 3.10 of the Evidence Act in which s 129 appears is entitled "Evidence Excluded in the Public Interest." Clearly, the evidence given by Professor Nicholls in this case is an expression of his own independent advice. 71 As a consequence of my ruling in the course of the hearing on the judicial immunity objection, counsel for the Applicant indicated that he might seek discovery of other documents in the Committee file on the basis that there had been a "waiver" of the privilege by the Commission, and that the Applicant was therefore entitled to see the whole of the file and not just simply the letter of advice from Professor Nicholls. However, this course was not pressed by the Applicant. 72 For these reasons, I am of the opinion that the challenges made to the decisions of the Director and the Professional Services Review Committee must fail. 73 Accordingly, the application is dismissed with costs. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 6 March 2007 Counsel for the Applicant: Mr M A Robinson Solicitor for the Applicant: TressCox Lawyers Counsel for the Respondents: Mr P J Hanks QC with Ms R M Henderson Solicitor for the Respondents: Minter Ellison Lawyers Date of Hearing: 18 &amp; 19 December 2006 Date of Judgment: 6 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/269.html