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  • Unreported Judgment

Joyce Ann Walpole v Wendy Faith White

 

[1979] FC 17

IN THE SUPREME COURT OF QUEENSLAND

O.S.C. No. 44 of 1978

FULL COURT

BEFORE:

Mr. Justice Stable S.P.J.

Mr. Justice Kelly

Mr. Justice Dunn

BRISBANE, 16 MARCH 1979

(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.)

------

JOYCE ANN WALPOLE

v.

WENDY FAITH WHITE

EX PARTE: WENDY FAITH WHITE

IN THE COURT OF CRIMINAL APPEAL

C.A. No. 206 of 1978

BEFORE:

Mr. Justice Stable S.P.J.

Mr. Justice Kelly

Mr. Justice Dunn

BRISBANE, 16 MARCH 1979

THE QUEEN

v.

WENDY FAITH WHITS

JUDGMENT

MR. JUSTICE STABLE: For the purposes of this judgment this court is sitting in its dual capacity as it set at the hearing both as a Full Court and as a Court of Criminal Appeal. I consider that the orders to review should be discharged with costs and that the appeals against conviction under section 673 of the Criminal Code should be dismissed. I publish my reasons.

MR. JUSTICE KELLY: I agree with the reasons prepared by my brother Stable and with the orders which he proposes.

MR. JUSTICE DUNN: I likewise agree.

MR. JUSTICE STABLE: Order accordingly.

------

O.S.C. No. 44 of 1978

JOYCE ANN WALPOLE

-v-

WENDY FAITH WHITE

EX PARTE: WENDY FAITH WHITE

C.A. No. 206 of 1978

THE QUEEN

-v-

WENDY FAITH WHITE

___________________________________

STABLE S.P.J.

KELLY J.

DUNN J.

___________________________________

Reasons for Judgment delivered by Stable S.P.J. on the 16th March, 1979. Kelly J. and Dunn J. concurring.

___________________________________

“ORDER TO REVIEW DISCHARGED WITH COSTS: APPEALS AGAINST CONVICTION UNDER SECTION 673 OF CRIMINAL CODE DISMISSED.”

IN THE SUPREME COURT OF QUEENSLAND

C.A. No. 206 of 1978

THE QUEEN

-v-

WENDY FAITH WHITE

O.S.C No. 44 of 1978

JOYCE ANN WALPOLE

-v-

WENDY FAITH WHITE

EX parte: WENDY FAITH WHITE

JUDGMENT - STABLE S.P.J.

The appellant Wendy Faith White, a registered medical practitioner, was charged before a Magistrates Court at Mossman upon 23 charged laid under section 129 of the Health Insurance Act 1973 (Commonwealth). The charges, though relating to different patients, were identical in their content. A sample will suffice:—

“That on the Twenty-first day of June 1977 at Mossman in the Magistrates Courts District of Douglas in the State of Queensland WENDY FAITH WHITE did contrary to section 129(1) of the Health Insurance Act 1973 as amended make a statement in a Medibank Assignment Form numbered JN 14012 to wit that a service described as an Item 25 service was rendered by her or on her behalf on the Twenty-first day of June 1977 to HELEN ASSMAN which statement was false in a material particular in that the said service should have been described as an Item 14 service and which said statement was capable of being used in support of an application for payment of an amount under the said Act namely a claim for Assigned Medical Benefits.”

Regulations provide that an Item 25 service is “Professional attendance at consulting rooms of more than 25 minutes duration but not more than 45 minutes duration (....), and that an Item 14 service is “Professional attendance at consulting rooms of more than 5 minutes duration but not more than 25 minutes duration (....)”.

Section 129 of the said Act in its original form is as follows:—

“129(1) A person shall not make a statement, either orally or in writing, or issue or present a document, that is false or misleading in a material particular and is capable of being used in, in connexion with or in support of, an application for approval for the purposes of this Act or for payment of an amount under this Act.

Penalty: $500 or imprisonment for 6 months.

(2) A person shall not furnish, in pursuance of this Act or of the regulations, a return or information that is false or misleading in a material particular.

Penalty: $500 or imprisonment for 6 months.

“(3) In a prosecution of a person for on offence against this section, it is a defence if the person shows that he did not know, and had no reason to suspect, that the statement, document, return or information to which the prosecution relates was false or misleading, as the case may be.”

An amending Act, the Health Insurance Amendment Act 1977 was assented to on 16 June 1977. Section 129 of the principal Act was amended by increasing the sentences enacted in sub-sections (1) and (2) to $10,000 or imprisonment for 5 years, and by omitting from sub-section (3) the word “shows” and substituting the word “proves”. As I see it, this latter amendment is of no moment, for whichever word is used the sub-section means that there is an onus on an accused person to establish on a balance of probabilities that he falls within its protection.

We are now concerned with but five of the original number of twenty-three charges, the others having been disposed of in one way or another without conviction during the course of the proceedings.

The appeals against conviction on the five remaining charges fell into two categories, because the amending Act of 1977 provided in section 129AC as follows:—

“129AC(1) Subject to sub-section (2), a prosecution for an offence against section 129 or 129AA shall be on indictment.

(2) Where a person is charged with an offence against section 129 or 129AA, a court of summary jurisdiction may, with the consent of the defendant and of the prosecutor and if the court is satisfied that it is proper to do so, determine the charge summarily, but, in that event, the penalty that the court may impose is a fine not exceeding $500 or imprisonment for a period not exceeding 6 months.”

(Sub-section (3) relates to aiders and abettors and to attempts).

Because of this two of the charges were indictable as relating to dates after the passing of the amending legislation, and the other three were appropriately complaint and summons matters. In the event all were dealt with by the magistrate, but this court sat both as a Court of Criminal Appeal under section 673 of the Criminal Code, and as a Full Court upon the return of orders to review under the provisions of The Justices Acts. The same considerations apply from eitheraspect.

The appellant was fined $100.00 on each charge with consequential orders as to costs.

The grounds set out in the appeals and in the orders to review are identical. They are:—

  1. The said convictions were against the evidence and the weight of the evidence.
  1. The said Stipendiary magistrate failed to direct himself as to the elements of the offences charged and the requirements as to proof of those elements.
  1. The finding in each case that the “claim” was “false to the knowledge of the defendant” is
  1. Against the evidence and the weight of the evidence: and
  1. Irrelevant to the said charges.
  1. The said Stipendiary Magistrate was wrong in law in holding as he did that the provisions of sections 129(1) and (3) of the Health Insurance Act 1973 as amended imposed an absolute criminal liability on the defendant for the acts of her agent.

Relevant facts were conveniently summarised by the magistrate in the course of his findings:—

“I find that at all relevant times the defendant, Wendy Faith White carried on business as a medical practitioner from her surgery at Front Street, Mossman and also from her place of residence. She is fully qualified to carry on this business. In the performance of her professional duties, she was assisted by her husband, Gun Larsen, her receptionist, Mrs. Sally Ann Price, who resides at Connolly Street, Mossman and who has since left the defendants's employ, and Valerie Alma Case, whose qualifications appear to be somewhat in doubt, but who acted in the capacity of a trained nursing sister, assisting the defendant in amongst other things, in the performance of her professional functions. Both Valerie Alma Case and Sally Ann Price were fully authorised by the defendant to complete, as the defendant's agents, Medibank Assignment Forms on behalf of the defendant. The receptionist, Sally Ann Price completed Medibank Assignment Forms (in respect of the patients named in the charges of which she was found guilty). I find on the evidence that she was duly authorised to complete these forms on behalf of the defendant and that she did complete them upon information supplied to her either by the defendant herself, or by Valerie Alma Case, a person who had the defendant's authority to supply the information contained in the forms mentioned, to the receptionist Sally Ann Price. When patients entered the doctor's surgery, particulars were entered up in the Day Book, Exhibit 1, by the receptionist, upon instructions received. Upon completion of the visit the receptionist, upon instructions received either from the defendant or Valerie Alma Case inserted the relevant fee, which indicated generally for the information of the persons concerned whether the visit in question was a brief, standard, long or prolonged consultation as the case may be. The receptionist was assisted in the compilation of this information by the list of charges set out on the first pages of Exhibit 1. These entries were made on a daily basis upon instructions received as above, and the defendant carried out a daily inspection of the book. Detailed procedures adopted in the compilation of these entries are set out in the evidence of Sally Ann Price and as previously advised, I accept that evidence as being true. The complainants case in respect of each of the matters of complaint is that in each case the defendant has charged for a long consultation, which is a consultation “extending for a period of more than twenty-five minutes but not exceeding forty minutes in duration, whereas, in fact, the time spent in professional attendance upon the patient was less than twenty-five minutes, thus involving a statement which was false in a material particular in that in each case the service should have been described are an Item 14 service and not an Item 25 service, for which the account in each case was actually rendered.”

The reference to the account rendered which has just been quoted relates to the subsequent history of the Medibank Assigment Forms after their completion by Mrs. Price. The assignment by the patient under section 20(3) of the Act was an assignment of the medical benefit, to which the patient was entitled, to the medical practitioner. The patient having signed as assignor the doctor or her agent (Mrs. Price in all the cases with which we are concerned) signed as assignee. Then, after a number of such forms had been accumulated the doctor as claimant signed a form of Claim for Assigned Medical Benefits - Form 1C provided for under Regulation 2C. Such claim was then submitted to the Health Insurance Commission as required by section 22 of the Act. The significant part of the Form 1C is, “I hereby claim in respect of the professional services specified in the attached assignment forms the amounts specified in those forms in the column headed ‘AMOUNT OF BENEFIT’”.

The magistrate made further specific findings of which one patient's case may be taken as a sample:—

“In so far as the actual matters of complaint are concerned, I deal firstly with the case of Helen Assman. Form JN14012 was rendered to the Health Insurance Commission by the defendant through agent Sally Ann Price making a claim for a visit on the 21st June 1977 in respect of a long consultation Item 25 benefit claim $10.90. I accept the evidence of Helen Assman as setting out the facts surrounding this visit. She attended the doctor on the date in question and she acknowledged her signature on the assignment form. I accept her evidence as to the time spent, and find that the defendant did not spend more than twenty-five minutes in professional attendance upon this particular patient. This claim is therefore false to the knowledge of the defendant.”

After he had dealt with the cases on which he made like findings (and one which he dismissed) the magistrate concluded:—

“During the addresses a large amount of time was spent on seeking a determination by the court on the question of whether the provisions of section 129 render the defendant in these proceedings absolutely liable for the acts of her agent, Sally Ann Price and Valerie Alma Case. In view of the “findings as made I am of the view that it is unnecessary for me to decide this question, having accepted the evidence of Sally Ann Price concerning the defendant's daily inspection of Exhibit 1, the method of compilation of the information contained therein and the authority of the agent to complete and submit assignment forms incorporating this information. However, if my view of the interpretation of section 129(1) should become in any way relevant in any future proceedings in respect of these counts, I am of the view after consideration, in particular of the provisions of section 129(3) that the section does impose an absolute liability on the defendant.”

There is, in my view, no substance in grounds 1 and 2 of the Appeal and Order to Review. Under ground 3 it was argued that the magistrate in some way became oonfused so that he made an unnecessary finding that the claims were “false to the knowledge of the defendant”. Though he may have expressed himself more clearly in parts I do not accept that the magistrate did become confused in his consideration of the facts. The essence of the matter was, as I see his findings, that Sally Ann Price prepared the assignment forms, the claim itself was the doctor's claim though it incorporated as part of the claim the submissions in the assignment forms entered by Mrs. Price. He pinned his findings of falsity to the fact that the appellant inspected the day book every day. In holding that the claims were false to the knowledge of the defendant (not a necessary finding) he appears to be doing no more than indicate, perhaps thinking of the statement of the High Court in May -v- O'Sullivan (1955) 92 C.L.R. 654 at p. 658, that she had not brought herself within the protection of section 129(3) of the Act.

The real question in the case, indeed counsel for the appellant so submitted, was whether section 129 of the Act is a section imposing strict liability. Though he based his decision on another ground the magistrate said that he considered it is such a section.

The Act is one “Providing for Payments by way of Medical Benefits and Payments for Hospital Services and for other purposes”. Such payments are made from the Health Insurance Fund from such amounts as are appropriated by the Parliament from time to time for the purpose - section 126(3)(a) - for the most part. It is a matter of the expenditure of public moneys, obviously for the purpose of public welfare. From the number of cases cited to us I find it unnecessary to go beyond the decision of the Privy Council in Lim Chin Aik -v- The Queen (1962) A.C. 160 particularly at p. 174 to find the approach to the Act:—

“Where the subject matter of the statute is the regulation of the public welfare of a particular activity - statues regulating the sale of food and drink are to be found among the earliest examples - it can be and frequently has been inferred that the legislature intended that such activities should be carried out under conditions of strict liability. The presumption is that the statute or statutory instrument can be effectively enforced only if those in charge of the relevant activities are made responsible for seeing that they are complied with. When such a presumption is to be inferred, it displaces the ordinary presumption of mens rea. Thus sellers of meat may be made responsible for seeing that the meat is fit for human consumption and it is no answer for them to say that they were not aware that it was polluted. If that were a satisfactory answer, then as Kennedy L.J. pointed out in Hobbs -v- Winchester Corporation (1910) 2 K.B. 471, the distribution of bad meat (and its far-reaching consequences) would not be effectively prevented. So a publican may be made responsible for observing the condition of his customers: Cundy -v- Le Cocq L.R. 13 Q.B.D. 207.

But it is not enough in their Lordships' opinion merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations. Unless this is so, there is no reason for penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim.”

The purpose of section 129 is to ensure that the Health Insurance Fund, supported largely by the taxpayer, is not made the target of false or misleading claims. It says too that a person shall not furnish (obviously for the purpose of obtaining money from the Fund) a return or information that is false or misleading in a material particular. The making of a claim on Form 1C for “services specified in the attached assignment forms” is an activity in the control of the practitioner who signs the form - not by an agent but personally. It is tantamount to a representation that what is written on the forms is true. I think it clear that the statute can be effectively enforced only if the doctor is made responsible for the accuracy of the material in the assignment forms which he or she submits under cover of the claim in Form 1C. It is hardly practicable to have an officer of the Health Insurance Fund sitting watching the doctor's clock during a professional consultation. It would be practicable for, say, the doctor to note on the patient's card the beginning and ending times of a consultation. That is but one of the things that a doctor could do within the meaning of the passage which I have just quoted - though it is not for the court to make such suggestions.

Again, there is section 129(3). The preceding subsections deal with (1) making a false statement or presenting a document false or misleading in a material particular capable of being used for the purpose of getting money from the Fund, and (2) furnishing a return or information that is false or misleading in a material particular, putting these matters broadly. I have already quoted the full section. Thus the offences against the section are defined. They relate to material which is so far as a doctor is concerned under the control of that doctor. Section 129(3) puts on the doctor charged with an offence against section 129(1) or (2) an onus to show or prove, once there is a case to answer established, that he did not know and had no reason to suspect that the material to which the charge relates was false or misleading. This, to me, strengthens the conclusion that the section is one imposing strict liability.

Thus I consider that even if the magistrate did mislead himself (which I do not concede) this is a case in which so far as the indictable offences are concerned the proviso to section 668E of the Code should be applied, and similarly, in the case of the orders to review, the proviso to section 213(1)(ix) of the Justices Acts.

The orders to review should be discharged with costs and the appeals under section 673 of the Criminal Code dismissed.

Close

Editorial Notes

  • Published Case Name:

    Joyce Ann Walpole v Wendy Faith White

  • Shortened Case Name:

    Joyce Ann Walpole v Wendy Faith White

  • MNC:

    [1979] FC 17

  • Court:

    QSC

  • Judge(s):

    Mr. Justice Stable S.P.J., Mr. Justice Kelly and Mr. Justice Dunn

  • Date:

    16 Mar 1979

Litigation History

No Litigation History

Appeal Status

No Status