Federal Court of Australia

Raiz v Director of Professional Services Review [2023] FCA 771

ORDERS

THE COURT ORDERS BY CONSENT THAT:

1.    The First Respondent provide discovery of:

(a)    the curricula vitae of Dr Martine Walker, Dr Debra Coleman and Dr Nedra Vanden Driesen;

(b)    the administrative correspondence referrable to category 13 referred to in paragraph 52 of the Affidavit of Ben Dube filed on 23 May 2023; and

(c)    the correspondence from Ms Samantha Williams referrable to category 16 referred to in paragraph 54 of the Affidavit of Ben Dube filed on 23 May 2023.

THE COURT ORDERS THAT:

2.    The Applicant’s Interlocutory Application filed on 17 May 2023 be dismissed.

3.    The Applicant pay the First Respondent’s costs of and incidental to the Interlocutory Application to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

OVERVIEW

1    This is an interlocutory application by Dr Danny-Glen Raiz (Dr Raiz), for orders that the first respondent (Director) and second respondent (Committee) each provide non-standard discovery in relation to Dr Raiz’s application for judicial review. The Committee filed a submitting notice in the proceedings.

2    Dr Raiz commenced these proceedings more than a year ago. Despite that lapse of time and despite Dr Raiz being at all times represented, Dr Raiz has continued to amend the particulars to his grounds of review as articulated in various amended statements of claim, the most recent being a second further amended statement of claim having been filed by consent on 24 May 2023 (SFASC). The matter has been plagued by delay. In an effort to conserve the final hearing date set for September this year, and to allow the parties to progress their preparation for the hearing, I foreshadowed my view to the parties that the present application for non-standard discovery would be unsuccessful in relation to most categories. Dr Raiz intimated that he wanted reasons for my rulings. These are my reasons for having formed that view.

BACKGROUND

3    The background to the proceedings is relevant to assess Dr Raiz’s current application for non-standard discovery.

4    By originating application and statement of claim filed 11 February 2022, Dr Raiz seeks judicial review of what he says are two decisions made by the respondents. First, the decision made by the Director to refer an investigation into Dr Raiz’s Medicare charges to the Committee and, secondly, the Committee’s publication of a draft report of its findings.

5    Both of the decisions which Dr Raiz seeks to review by his originating application are steps taken by the Director and the Committee under Part VAA of the Health Insurance Act 1973 (Cth) (HIA). Part VAA of the HIA creates a professional services review scheme, under which a person’s conduct can be examined to ascertain whether they have engaged in “inappropriate practice” as defined in s 82 of the HIA.

6    The administrative structure for the review of a person’s conduct comprises the Director of Professional Services Review and the Professional Services Review Panel (which includes the Director).

7    A review under the scheme is commenced by a request made to the Director by the Chief Executive of Medicare to review the provision of services. Following this, the Director will decide whether to conduct a review of the provision of services (and, if so, undertake that review), and, after the review, will decide whether to take no further action, enter into an agreement, or to refer the services to a Professional Services Review Committee (such as the Committee in these proceedings).

8    If a Committee is established, it will investigate the provision of services by the person under review, and provide a draft and final report to that person as to whether they have engaged in inappropriate practice. In the event the Committee finds that the person has engaged in inappropriate practice, a determining authority may impose sanctions.

9    In the present case, the Director decided to refer Dr Raiz’s practices to the Committee on 9 March 2018, and the Committee produced a draft report on 30 September 2021. The draft report was provided to Dr Raiz on the same date.

10    As mentioned, Dr Raiz commenced these proceedings on 11 February 2022. On 10 March 2022, Wheelahan J made orders restraining the Committee from taking any further action in respect of the draft report until these proceedings are finally heard and determined.

11    On 24 May 2023, Dr Raiz filed the SFASC which raises 10 grounds for review. Dr Raiz relies variously upon those grounds to support his application for non-standard discovery.

THE APPLICATION FOR NON-STANDARD DISCOVERY

12    In around February 2023, Dr Raiz foreshadowed an intention to file an application for non-standard discovery.

13    On 11 April 2023, in an attempt to narrow the categories in dispute, the Director, appropriately, agreed to an order requiring the Director to file and serve a bundle of relevant documents (Application Book). That Application Book was filed on 9 May 2023. It contains more than 100 documents and comprises more than 2,000 pages.

14    On 17 May 2023, Dr Raiz filed this application seeking orders for non-standard discovery by way of categories, an affidavit in support (Aff-D-GR), and written submissions filed 31 May 2023.

15    The Director relies on the Application Book, its written submissions filed 2 June 2023 and on two affidavits of Mr Ben Dube dated 23 May 2023 (Aff-Dube) and 2 June 2023.

Method of discovery sought

16    In the interlocutory application, Dr Raiz seeks orders for non-standard discovery in accordance with r 20.15 and rr 20.14(1) and (2) of the Federal Court Rules 2011 (Cth) (Rules).

17    Rule 20.15 provides for orders for non-standard and more extensive discovery as follows:

20.15     Non‑standard and more extensive discovery

(1)    A party seeking an order for discovery (other than standard discovery) must identify the following:

(a)     any criteria mentioned in rules 20.14 (1) and (2) that should not apply;

(b)    any other criteria that should apply;

(c)     whether the party seeks the use of categories of documents in the list of documents;

(d)     whether discovery should be given in an electronic format;

(e)     whether discovery should be given in accordance with a discovery plan.

(2)    An application by a party under subrule (1) must be accompanied by the following:

(a)        if categories of documents are sought -- a list of the proposed categories; and

(b)     if discovery is sought by an electronic format -- the proposed format; and

(c)     if a discovery plan is sought to be used  -- a draft of the discovery plan.

(3)     An application by a party seeking more extensive discovery than is required under rule 20.14 must be accompanied by an affidavit stating why the order should be made.

(4)    For this Division:

    “category of documents” includes documents, or a bundle of documents, of the same or a similar type of character.

18    Rules 20.14(1) and (2) concern the scope of documents to be discovered by a party ordered to give standard discovery:

(1)     If the Court orders a party to give standard discovery, the party must give discovery of documents:

(a)     that are directly relevant to the issues raised by the pleadings or in the affidavits; and

(b)     of which, after a reasonable search, the party is aware; and

(c)     that are, or have been, in the party’s control.

(2)     For paragraph (1)(a), the documents must meet at least one of the following criteria:

(a)     the documents are those on which the party intends to rely;

(b)     the documents adversely affect the party’s own case;

(c)     the documents support another party’s case;

(d)     the documents adversely affect another party’s case.

19    Where a party seeks the non-standard discovery of documents by category, the party giving discovery is generally not required to take a decision on the matters raised in r 20.14 of the Rules. Accordingly, the criteria of standard discovery contained in r 20.14 is excluded unless those criteria are expressly incorporated into the order for non-standard discovery. In the present case, Dr Raiz has expressly incorporated the r 20.14 criteria, seeking in the interlocutory application, “non-standard discovery in accordance with Rule 20.15 and Rules 20.14(1) and (2) of the [Rules]”.

20    Relevantly, r 20.14(1)(a) requires the discovering party only to disclose documents “directly relevant” to the allegations in issue. In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2011] FCA 1396, in determining whether certain documents were “directly relevant” under an application for standard discovery, Collier J referred to various authorities decided in the context of the rules of the State Courts. Her Honour approved the view that “directly relevant” means something that tends to prove or disprove the allegation in issue: at [34] citing Robson v Reb Engineering Pty Ltd [1997] 2 Qd R 102 at 105 per Demack J. However, in contrast to the rules relating to discovery in the State Courts, under r 20.14(1), what documents will be considered “directly relevant” to the issues raised is, to some extent, given content by the matters listed in sub-r 20.14(2). In United Voice v Accolade Wines Australia Ltd [2013] FCA 285 at [21], Lander J stated that no documents other than those described in r 20.14(2) can be said to be “directly relevant” within r 20.14(1)(a): see also Adelaide Brighton Cement Ltd, Re Concrete Supply Pty Ltd v Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement) (No 3) [2018] FCA 1058 at [3]-[12] per Besanko J.

21    Rule 20.14(1)(b) otherwise contemplates that the documents to be discovered are only those which the party can become aware of by “a reasonable search”. This expression is not defined. In Galati v Potato Marketing Corporation of Western Australia (No 2) [2007] FCA 919, Siopsis J considered at [59] that the rule means what it says in that no more than a reasonable search is required, and it certainly does not necessitate a review of “all documents”.

22    Central Practice Note: National Court Framework and Case Management (CPN-1) otherwise states the following regarding the searches to be undertaken by a party obliged to make discovery:

10.8     If the Court approves a Request, a Discovery Respondent’s search for and production of documents pursuant to a Request must be: made in good faith, uninfluenced by any negative impact on the Discovery Respondent (other than legitimate considerations such as genuine legal professional privilege or commercial confidentiality), and should be comprehensive, but proportionate.

…

10.10     Where a Request has been approved by the Court, a Discovery Respondent must, if requested to do so by a Discovery Applicant, provide a brief description of the steps taken by the Discovery Respondent to conduct a good faith proportionate search to locate discoverable documents, such as what records have been searched for, what search criteria or terms have been used, or what databases have been searched.

10.11     Where a Discovery Respondent asserts that documents are unavailable or burdensome to access and discover, the Discovery Respondent must clarify to the Discovery Applicant (unless there is demonstrably no need to do so), how the Discovery Respondent manages, stores, accesses, destroys and disposes of documents. The Court may require a Discovery Respondent to depose to such information.

(Emphasis added.)

23    If an order for discovery is made, once the search for documents is complete, discovery is given by the party serving a list of documents in accordance with rr 20.16 and 20.17 of the Rules.

Legal principles attending orders for discovery

24    There is no “right” to discovery: r 20.12 of the Rules; CPN-1 at [10.2]. The Court will only order discovery in circumstances where it is necessary for the determination of issues in the proceeding, and such an order will facilitate the just resolution of the proceeding as quickly, inexpensive and efficiently as possible: r 20.11 of the Rules; Pleash (Liquidator), in the matter of SFG Relocations Pty Ltd v Fourie [2022] FCA 552 at [15] per Stewart J. This requires an assessment of the appropriateness of discovery and its scope is to be determined by reference to the nature of the proceedings and the matters in issue in them: Saint v Holmes (No 1) [2005] FCA 1057 at [36] per French J.

25    An application for non-standard discovery is ordinarily sought in circumstances where standard discovery is insufficient, for example, in commercial litigation with voluminous documentation. Relevantly, the Administrative and Constitutional Law and Human Rights Practice Note (ACLHR-1) provides:

Unless a party provides an acceptable justification, no discovery or interrogatories will be ordered in proceedings for administrative law cases and constitutional law cases. For human rights cases, parties will be expected to be co-operative and proactive in ensuring any discovery process is managed efficiently and in a timely way.

26    The party seeking discovery bears the onus of satisfying the Court that the documents are necessary: Alliance v Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 4) [2013] FCA 1044 at [33] per Mansfield J citing Trade Practices Commission v CC (New South Wales) Pty Ltd & Ors (No 4) [1995] FCA 556; 58 FCR 426.

27    In cases of judicial review which seek to establish an error of law in reasons that have been supplied, that burden will often be much more difficult to discharge than compared to claims where factual matters play a more prominent role: Saint v Holmes at [36].

28    The principles relevant to an order for discovery in an application for judicial review, as summarised by Merkel J in Carmody v MacKellar [1996] FCA 791; (1996) 68 FCR 265 at 280 as follows:

The following principles may now be taken to be well established by the decisions of the Court in Melbourne Home of Ford v Trade Practices Commission [1979] FCA 15; (1979) 36 FLR 450, W.A. Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175 and Australian Securities Commission v Somerville (1994) 51 FCR 38:

1.    the Court has a discretionary power to order discovery in proceedings for the review of an administrative decision;

2.    the proper exercise of the power depends upon the nature of the case and the stage of the proceedings at which discovery is sought;

3.    if a proceeding or claims in it are essentially speculative in nature the Court will not order discovery in order to assist the applicant in a fishing exercise;

4.    the evidence or material which will be required to establish that the proceeding or particular claims in it are not essentially speculative will vary with the nature and circumstances of the particular case;

5.    if there is not the slightest evidence or there is no other material to support the bare allegations made in the proceeding, then as a general rule, an order for discovery ought not to be made.

Those principles were affirmed by the Full Court in Jilani v Wilhelm [2005] FCAFC 269; (2005) 148 FCR 255 at [108] and were adopted recently by Abraham J in Rivas v Republic of Chile [2020] FCA 737 at [41].

CONSIDERATION

29    The Director promulgates five general reasons why the application for non-standard discovery should be dismissed:

(1)    The material relied upon by Dr Raiz does not demonstrate that discovery is necessary.

(2)    Dr Raiz makes no attempt to identify the gaps in the (extensive) documents provided to date.

(3)    Dr Raiz’s affidavit and submissions demonstrate an approach that will continue to delay proceedings. (I add that this is in circumstances where the final hearing is set down in September and should be protected because of the delay to date.)

(4)    The Director has already conducted extensive searches which have not yielded results outside of documents already provided in the Application Book and there is no reason to infer that she is withholding documents.

(5)    The Director denies the process for searching is flawed as argued by Dr Raiz.

Category 1

30    The documents sought by the first category are those which relate to the Committee’s policy or understanding of the scope of its duties under s 82 of the HIA including any such documents that relate to the decision in Selia v Commonwealth [2017] FCA 7. The documents in this category are said to relate to Ground 7 of the SFASC which alleges that the Committee, in its draft report, took into account matters which were beyond the scope of its inquiry into “inappropriate practices”.

31    Dr Raiz submits he is “in complete disbelief that the [Committee] did not take note of and discuss the implications of this case or other cases dealing with the construction of section 82”. With respect, this submission is misconceived. Ground 7 seeks to establish the Committee erred in misunderstanding the scope of its statutory task by conducting a review of conduct that, it is alleged, is beyond the Committee’s jurisdiction. As formulated, the ground of review concerns a matter of statutory construction; it requires judicial consideration of s 82 and its application as articulated in the Committee’s draft report itself. It does not require consideration of the Committee’s policy documents. No order will made for discovery within this category.

Category 2

32    By Category 2, Dr Raiz seeks discovery of any documents that relate to the Committee’s policy or understanding of the scope of its duties under s 106M of the HIA, including any such documents relating to the decision of Selia v Commonwealth [2017] FCA 7. This category also relates to Ground 7 of the SFASC.

33    Section 106M of the HIA provides:

Referral of matter to a regulatory body to be mentioned in Committee’s report

(1)     This section applies if, in the course of its investigation, the Committee:

(a)     formed an opinion that any conduct by the person under review caused, was causing, or was likely to cause, a significant threat to the life or health of any other person and sent a statement of its concerns to the Director under section 106XA; or

(b)     formed an opinion that the person under review failed to comply with professional standards and sent a statement of its concerns to the Director under section 106XB.

(2)     The Committee must mention that it has formed the opinion, and set out the terms of the statement, referred to in paragraph (1)(a) or (b):

(a)     if the statement was sent before the Committee prepared its draft report—in the draft report; and

(b)     in the final report.

(3)     The Committee must disregard any opinion formed as mentioned in subsection (1) when making findings for the purposes of its draft report or final report.

34    The evidence relied upon by the Director to oppose this category demonstrates that no notices as required under s 106XA or s 106XB were sent: Aff-Dube at [34]. Clearly, the provision is not engaged. The Committee’s understanding of or policy concerning the provision is therefore irrelevant to the proceedings.

Category 3

35    Dr Raiz seeks any document forming the referral from the CEO of Medicare to the Director, on or about 3 March 2017.

36    The solicitor for the Director, Mr Dube, deposed to the nature and extent of the searches undertaken to discover the documents which were disclosed in the Application Book: Aff-Dube at [13]. In particular, he deposed to the fact that only one document was identified in relation to Category 3 of Dr Raiz’s application: Aff-Dube at [35]. That document has already been produced in the Application Book. I accept the Director’s submission that there is only one document related to this category and that it has already been disclosed

37    In his written submissions, Dr Raiz states that:

The bottom line is that the Respondents argue that they have almost nothing at all to discover. The Respondents should discover all documents with relevant descriptions in the usual manner and list those for which privilege is claimed. At that point the debate between the parties can be more focussed.

38    However, submissions of this nature fail to demonstrate any acceptable justification for discovery under this category, let alone that such discovery is necessary. Rather, the evidence indicates that any order for discovery would be futile. As mentioned above, any order made in the terms sought by Dr Raiz would simply require the Director to conduct “reasonable searches” that are “comprehensive, but proportionate”. The affidavit evidence of Mr Dube suggests that searches of this nature have already been carried out. There is nothing to suggest otherwise, or that the searches were not made in good faith such that an order for discovery is necessary.

39    The application for discovery in respect of this category must fail. There is one document comprising the referral that has already been discovered; any further order would be futile.

Category 4

40    By Category 4, Dr Raiz seeks any documents from the Director or any staff person on the Director’s behalf, to potential candidates for appointment to the Committee, including any emails to such persons, emails between the Director and relevant staff personal, and notes of telephone conversation made by the Director. Dr Raiz relies upon Ground 1 of the SFASC in support of this category. Ground 1 contends that the referral by the Director was made in breach of s 89C of the HIA for failing to invite, receive and take into account submissions made by Dr Raiz before determining whether to make a referral to the Committee.

41    The Director’s fundamental opposition to this category is one of relevance. The Director further opposes the category for the reason that the documents which fall into this category have been located are produced in the application book. In that regard, Dr Raiz’s submission that no documents have been provided by the Director within this category is objectively wrong.

42    The documents sought by this category simply do not relate to the contention made in Ground 1 regarding the appointment of potential candidates to the Committee. Whether the Director breached the obligation in s 89C of the HIA will be determined upon the evidence related to her consideration, which is distinct from the appointment of candidates.

43    I am satisfied the Director has disclosed all documents related to these grounds and, in any event, no further order can be made given there is no relevance and therefore no utility.

Category 5

44    By Category 5, Dr Raiz seeks discovery of any documents forming the referral from the Director to members of the Committee, on or about 9 March 2018, including any comments or directions given to the members. Dr Raiz relies on paragraphs 11 and 26 to 28 of the SFASC, which underpin the ground for review that the second respondent was unlawfully constituted.

45    The Director submits that she has released the documents in her possession which relate to this category under the FOI request and in the application book. The relevant documents, included in the application book, are three letters from the Director to the members of the Committee regarding their appointment to the Committee, and two letters are from the Director to Dr Raiz regarding the Director’s action following the review and the referral to the Committee respectively.

46    Dr Raiz submitted, following the filing of the application book, that he had not been provided with any documents within this description, whether under FOI or otherwise, arguing that “it is inconceivable to [Dr Raiz] that there was not communication with the candidates for the Committee and discussion of the personalities involved and issues.”

47    As with Category 4, this submission is misleading and, in event, amounts to a speculative assertion about which there is not the slightest evidence. Evidently, disclosure of documents related to this category has been made. For the reasons explained in relation to Category 3, I accept that full disclosure has been made by the Director.

Category 6

48    By Category 6, Dr Raiz seeks disclosure of documents to or from the Director relating to the submission lodged by him pursuant to s 89C(1) of the HIA on or before 2 March 2018, including any document related to: the transmission or delivery of his submissions to the Director; a summary or precis of his submission delivered to the Director; and, the Director personal reading his submission or directing other persons to read them. Dr Raiz also relies on Ground 1 of the SFASC for this category.

49    The Director submits that all documents relevant to this category have been disclosed in the Application Book.

50    Although this category may be relevant, I am not persuaded that the Director has failed to disclose the documents encompassed in the category. No further order is necessary.

Category 7

51    By Category 7, Dr Raiz seeks any documents to or from the members appointed to the Committee that relate to their qualifications and experience in the subject of mobile dental anaesthetics. This category seeks documents related to Ground 4 of the SFASC wherein Dr Raiz contends that two panel members lacked the requisite knowledge in mobile dental anaesthetics and the Committee was therefore unlawfully constituted.

52    The Director promulgates three arguments in response: first, documents pertaining to the panel member’s qualifications have been disclosed; secondly, any further documents required by the category are irrelevant in that the contention advanced by Dr Raiz by Ground 4 is a question which requires the HIA to be construed in light of the evidence about the panel members’ qualifications: Chandra v Webber [2010] FCA 705; 187 FCR 31 at [55]-[67] per Bromberg J; and thirdly, the category, as formulated, is too broad to be a meaningful discovery category.

53    The documents disclosed by the Director in the Application book include a letter from Dr Raiz’s solicitors seeking “details of the educational qualification and clinical experiences of these other two panel members. In doing so, we require details beyond a mere acknowledgement that these panel members are registered and practising anaesthetists one email to Dr Raiz’s solicitors confirming the qualifications and brief background of each Committee member” and an email in response confirming the qualifications and providing a brief background on the other two panel members.

54    In addition to the two documents disclosed, the Director has consented to an order for the discovery of the panel members’ curricula vitae. This consent is appropriate as it is relevant to the interpretation of s 95 of the HIA and I will make an order to that extent.

55    As to whether the Director should be ordered to discover any other documents as sought by this Category, I accept that the category as framed is too broad. Analysis of s 95 requires a discrete enquiry which can be satisfied on the evidence that has already been, and which will be produced. No further order is appropriate.

Category 8

56    The documents that Dr Raiz seeks under Category 8 are any documents relating to the constitution of the Committee hearing on 20, 21 June 2019, and 16 July 2019, including the absence of the Chair, Dr Walker, and whether the Committee hearing should proceed in her absence. This category relates to Grounds 4 and 5 of the SFASC by which it is contended the Committee was rendered unlawful in the absence of the chairperson. It is uncontroversial that the Chairperson was not present for first three days of the hearing. Accordingly, the issue that remains in dispute is whether the HIA required the chairperson to be present for the panel to be lawfully constituted. That is a question of law.

57    The documents sought by this Category are irrelevant to the inquiry arising from Grounds 4 and 5. As with Categories 4, 6 and 7, the documents sought are not relevant to the interpretation of the statutory requirements.

Category 9

58    By Category 9, Dr Raiz seeks any documents relating to the Committee’s considerations of taking evidence from Dr Raiz and his proposed witnesses following the hearing on 17 July 2019.

59    The Director submits the whole of this category is protected pursuant to s 106F(1) of the HIA which provides that “a Committee member has, in the performance of his or her duties, the same protection and immunity as a Justice of the High Court.” It has been recognised by this Court that, by virtue of s 106F, working papers of the Committee are not discoverable: Saint v Holmes at [54] per French J. For that reason, an order for Category 9 as sought by Dr Raiz is inappropriate.

Category 10

60    Category 10 was not pressed.

Category 11

61    Category 11 seeks any documents relating to the selection of services for investigation that were the subject of fraud by third parties, including who made that selection and whether consideration was given to their deletion. Dr Raiz asserts that this category is relevant to the allegation in Ground 9 that the Director took into account an irrelevant consideration, being data that did not relate to him.

62    To the extent that discovery is sought of how the sampling process was used, any such documents would be irrelevant to whether or not they were in fact taken into account, which is the question to be determined at trial. Further, consideration of services that will form part of the Committee’s deliberations is a matter that goes to the deliberative functions of the Committee. To the extent that any documents exist, they are protected by s 106F of the HIA.

63    In any event, the documents recording the data requested by the Director have been included in the application book at tabs 3, 4 and 36: Aff-Dube at [47]. As deposed to at [48] of that affidavit, there is a further document relevant to the Committee’s investigation stage of the process, discovery of which has been agreed to by the Director.

64    Subject to that document, no order will be made in respect of Category 11.

Category 12

65    By this category, Dr Raiz seeks any documents relating to the selection of services for investigation that were not provided by him including who made the selection and whether consideration was given to their deletion.

66    Category 12 is said to be relevant to paragraph 48.2 of the SFASC, which refers to the services of one anaesthetist having been erroneously taken into account. There is no utility in ordering discovery of how the selection of services was made. The question at trial is whether or not the service provided by another anaesthetist was in fact taken into account.

67    Further, as with category 11, the Director has deposed to there being no documents which fall within the category: Aff-Dube at [50]. Even if there were any such documents, they too would be subject to the protection referred to in respect of category 11.

Category 13

68    Category 13 seeks documents relating to actions taken by the Committee or any person on its behalf to contact any dental practice to: obtain a complete set of clinical notes relevant to Dr Raiz’s services under investigation; check whether the documents held by the Committee were a complete set of notes; and obtain any patient consent documents and other documents provided to the patient by Dr Raiz. Dr Raiz relies on paragraphs 54-58 of the SFASC, which plead to the allegation of legal unreasonableness. That is a question of law for determination at trial on the face of the record.

69    To the extent that the Director has identified additional documents within this category, being administrative correspondence by officers of the agency including about handling the documents once received from the dental practices, the Director has consented to give discovery of those documents so as to progress the matter and avoid further delay. I am prepared to make such an order although it seems to me to be far from clear whether such administrative correspondence has any relevance to the substantive judicial review application.

70    In the face of the evidence that the application book contains the notices issued by the Committee to the relevant practices the subject of the investigation (Aff-Dube at [51]), there is no utility in making a broader order.

Categories 14 and 15

71    By Category 14, Dr Raiz seeks any documents related to the Committee’s contact or endeavours to contact the Australian Society of Anaesthetists concerning recommended fees and the role of its Relative Value Guide. Category 15 seeks discovery of any documents related to the costs of running a mobile dental practice both generally and as they relate to Dr Raiz.

72    Whether or not the Committee relevantly failed to take into account any such matters is, again, a matter for trial. The Director has deposed to there being no documents that show any attempt to contact the Australasian Society of Anaesthetists, nor relating to the cost overheads of running a mobile dental practice: Aff-Dube at [50]. In such circumstances, there is no utility in making any order for the discovery of further documents within these categories.

Category 16

73    By this category, Dr Raiz seeks any documents in the Committee’s possession relating to him that have not previously been provided to him, including any documents from Ms Samantha Williams and any report or documents authored by any member of the Committee that were considered by the Committee.

74    As the Director submitted this request is in the nature of a “dragnet claim” as referred to by French J in Saint v Homes at [48]. His Honour said, in relation to a claim “for all documents relating to the actions taken by [Dr Holmes] and the [Commission], including…”:

In the context of a judicial review application on defined grounds for want of procedural fairness, improper exercise of power, absence of evidence and error of law, no basis is laid for such a wide-ranging claim.

Those remarks are equally apposite to this claim.

75    To the extent that the claim identifies two sub-categories of documents, the Director deposes to all documents sent to or by Ms Williams having been discovered, with one exception, which she agrees to provide: Aff-Dube at [53]-[54]. Similarly, the only document which Dr Raiz has identified which was referred to by the Committee is Exhibit 12 and is in tab 63 of the application.

76    Subject to an order, by consent, in respect of the additional document concerning Ms Williams, I reject the claim for discovery in respect of category 16.

Categories 17 to 19

77    By Category 17, Dr Raiz seeks any documents related to the Director’s disclosure of her knowledge or dealings with him in any personal or other professional capacity including: her and her husband’s role at Barton Private Hospital; her or her husband’s role in any disciplinary or other action against him at Barton Private Hospital; and any complaints to the Australian Health Professional Regulatory Authority.

78    Similarly, by Category 18, Dr Raiz seeks documents related to the Director’s contact, or by any person on her behalf, with AHPRA concerning Dr Raiz.

79    By Category 19, Dr Raiz seeks documents related to the Director’s contact, or any person on her behalf, with Barton Private Hospital concerning him.

80    These categories relate to Dr Raiz’s allegation of apprehended bias, being Ground 2, as pleaded in paragraphs [12]-[24] of the SFASC. The thrust of that allegation relates to conduct by the Director’s husband, of whom it is asserted held a personal animus towards Dr Raiz. It is said that the Director’s state of mind was infected with her husband’s asserted animosity because one must “logically assume that was a topic of conversation over dinner or in bed”. The claim is said to support the assertions pleaded in [21] and [23] of the SFASC. Dr Raiz has not adduced any evidence to support those assertions. Nothing is contained in the affidavit filed in support of the application. This ground of review does not support an order for discovery. I accept the Director’s submission that the relevance of any such documents is speculative and the claim is a fishing exercise.

81    Further, it is the respondents’ evidence that there are no such documents: Aff-Dube at [56]

Disposition

82    Dr Raiz has failed to demonstrate that the categories of documents that he seeks are necessary for the efficient and just resolution of the proceeding in accordance with the requirements of the Rules.

83    For these reasons, no discovery will be ordered in respect of any of the categories sought by Dr Raiz save in respect of the documents which the Director has consented to providing.

84    Given that the application has been almost entirely unsuccessful, it is appropriate that Dr Raiz pay the Director’s costs.

Associate:

Dated:    7 July 2023