Bishop v The Queen B65/1999 [2000] HCATrans 380 (22 June 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B64 of 1999

B e t w e e n -

KERRY MARIE BISHOP

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Brisbane No B65 of 1999

B e t w e e n -

MALCOLM FRANCIS BISHOP

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Brisbane No B66 of 1999

B e t w e e n -

PENINSULA CARE PTY LTD

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 22 JUNE 2000, AT 10.34 AM

Copyright in the High Court of Australia

MR S.A. SHIRREFS: If the Court pleases, I appear on behalf of the applicants. (instructed by Macrossans Lawyers)

MR P.J. BUGG, QC: If the Court pleases, I appear with my learned friend, MR C.W. PORRITT, for the respondent. (instructed by the Commonwealth Director of Public Prosecutions)

KIRBY J: Yes, Mr Shirrefs.

MR SHIRREFS: This application raises the following issues: firstly, whether a claim, as was here, for nursing and personal care entitlements, which claim is based upon the meaning of "nursing and personal care" in the relevant delegated legislation, is a representation of fact, one of law, or an expression of opinion. Secondly, can a representation which is an expression of opinion or representation of law found the offence of defrauding for the purpose of section 29D of the Crimes Act or, to put it another way, for the purpose of the offence of fraud, which is based upon false representations, must the representation be one of material existing fact?

The Court of Appeal in Queensland in considering this issue accepted the latter proposition to the effect - for the purpose of the appeal, at least - that the representation must be one of material existing fact but, in so far as the representations here were concerned, held that the claims for nursing and personal care entitlements were representations of fact, not of law, and then were not required to consider any further the matter before the Court.

It is submitted that in so holding that the representations or the claims for nursing and personal care that were made here were ones of fact and not of law and thereby upholding the ruling of the trial judge, the Court of Appeal fell into error.

KIRBY J: This is a case where your clients pleaded guilty at trial, is it not?

MR SHIRREFS: Yes.

KIRBY J: It seems scarcely a good vehicle for testing the propositions that you want to advance in this Court.

MR SHIRREFS: It has related difficulties, your Honour, and no doubt - - -

KIRBY J: It certainly has. I mean, you presumably got the agreement on the sentencing facts. Indeed, I think I read that there was an agreement on the facts that would go before the primary judge for sentencing. In those circumstances, that was the time for you to be arguing and disputing and contesting about what facts would be relevant to go before the judge for the purpose of sentencing. This is a hopeless vehicle for us to be getting into the issues of the meaning of the statute.

MR SHIRREFS: Your Honour, there are two answers to that. The first answer is this: if the proposition, or principle, which was accepted by the Court of Appeal to the effect that a representation to found criminal liability is to be one of fact and not one of law and expression of opinion, if that is correct, then as a matter of law no conviction could follow.

KIRBY J: Yes, but you have pleaded guilty. The way in which our law provides for that point to be taken is for you to contest your guilt.

MR SHIRREFS: The plea of guilty was made in circumstances where the - - -

KIRBY J: Do not trouble me about the circumstances. The debate, the issues, have merged in the judgment which follows the plea of guilty.

MR SHIRREFS: Yes.

KIRBY J: There is a conviction.

MR SHIRREFS: Yes, there is a conviction based upon the ruling of the trial judge that this was a representation of fact. If the primary proposition is correct, that firstly it is a representation of law, and being a representation of law that no criminal liability could therefore attach, then the convictions are bad at law.

KIRBY J: The time for you to take that point is when you are facing your plea.

CALLINAN J: Your client having received the benefit also of a reduction in the number of counts from 15 to one.

MR SHIRREFS: The counts into one were rolled up to include the 16 - - -

CALLINAN J: Yes, but it is still only one count.

MR SHIRREFS: It is still only one count, yes, that is accepted. This issue in relation to the plea of guilty was before the Court of Appeal below, along with affidavits which were to be argued if it came to the point before the court below, that the plea was entered on the understanding by these applicants that they reserved their right to appeal with respect to this particular issue as to the point of law which was ventilated before the trial judge.

KIRBY J: Yes, but you are now in the High Court of Australia.

MR SHIRREFS: I understand that. We did not get - - -

KIRBY J: You have to get past a barrier, which is not an insuperable barrier, of special leave. We have to look at it from our point of view, which requires us to look at whether this is a vehicle that tenders to us a not insignificant question which may on one future occasion come to us. The way in which this trial proceeded with the plea of guilty would tender it to us in a very indirect manner. The way the issues are tendered is if you have factual disputes at the trial and the facts are sorted out and you have the verdict of a jury. That is the time in which you can have the issue determined by this Court. But this is not a good vehicle, I am afraid.

MR SHIRREFS: I do not disagree with that. But it comes to this Court - - -

KIRBY J: I realise you have to do your best for your client in the situation. It is a serious and important matter for your clients. I have read the material, but I have sat here for nearly five years now and I have rarely seen a less suitable vehicle.

MR SHIRREFS: I accept that also. It comes before this Court on the point of principle, that principle being that as a matter of law if the principle be correct that a representation to attract criminal liability must be one of fact rather than of law or expression of opinion, if that principle is correct, then the pleas here which were based, and solely based, upon the ruling of the trial judge that this was a representation of fact, if that be wrong, and indeed is a representation of law or expression of opinion, then the convictions were wrongly recorded and, as a matter of law, these convictions should not stand.

That is where we come to because as far as that principle is concerned, that was accepted by the Court of Appeal for the purpose of hearing this matter, but they found the representations were of fact, not ones of law. If in interpreting this legislation, which these applicants were required to do - we have provided the legislation to the Court in the additional material - it is clear that when one looks at this legislation, one is required to construct its meaning. This Court has held that when on the facts one is required to consider the application of those facts to legislation, that involves generally a question of law. That emerges from the Collector of Customs v Agfa as a general proposition to the effect that where questions of fact fall to be considered within legislative provision, that is generally one of law.

The legislation here, if I could refer the Court to volume 2 of the additional material, and it is the principles, the subordinate legislation provided by the Minister in Nursing Homes Financial Arrangements Principles, which is the legislation which determines what is and is not nursing and personal care. It is to be found in volume 2 behind the second tab, in section 2 under "Interpretation". On the second page, page 6 of those principles, it says:

"nursing and personal care" means -

(a) the planning or giving of nursing care to an approved patient by nursing and personal care staff; and

(b) other care (including therapy) provided to an approved patient personally by nursing and personal care staff to -

(i) assist the patient to carry out activities of daily living which the patient is unable to perform adequately without assistance;

(ii) assist the rehabilitation of the patient; or

(iii) meet a special need of the patient.

It then sets out who falls into the category of nursing and personal care staff, that being a person who is an employee of the proprietor of the nursing home and who is either the Director of Nursing, a registered nurse, enrolled nurses or nurse's aides or assistants to nurses. You then go back to the previous page which defines "assistant to a nurse" meaning:

a person who assists a nurse to provide nursing and personal care.

So it becomes a circular definition, a broad definition, with no apparent edges to the meaning of "nursing and personal care". In my respectful submission, the state of the law enunciated by this Court in, for instance, Collector of Customs v Agfa, is to the effect that when one considers legislation of this nature and tries to apply facts to it, although within the definition there may be ordinary words, as those words are used here requires the person to interpret and to construct the meaning.

KIRBY J: I understand that point. I momentarily passed the issue of whether there is a suitable vehicle, but looking at the practicalities: your clients owned, I think, four nursing homes, they were well acquainted with this area of operations, they have pleaded guilty to charges of dishonesty.

MR SHIRREFS: Yes.

KIRBY J: I mean, the case to bring such an issue up is a case in which there is no plea. The person is a person who has not had your clients' experience and the issue is then tendered in an acute way to the Court. There are then very real issues of justice which are fuelling and become the engine of the consideration of the legal point. This is not a good vehicle, I am afraid.

MR SHIRREFS: That goes back to the question of the vehicle, and I understand the difficulties that are presented to me in relation to that issue. My point, to answer that, is the one that I have been making since I started, which is that there is a proposition of law which has emerged from the 1800s, was accepted by Chief Justice Latham - - -

KIRBY J: It has emerged from the 1800s, it was accepted by Chief Justice Latham, it will still be here on the next occasion that this issue is raised.

MR SHIRREFS: Yes, but that does not assist my clients who have pleaded guilty to an offence which is submitted as a matter of law they could not have been found guilty. There is the point - - -

KIRBY J: They were represented and I see it is asserted by experienced counsel. No suggestion is made that they were misled or they were tricked into pleading guilty - - -

MR SHIRREFS: No, the material that was before the Court of Appeal below in affidavit material was that they pleaded guilty on the advice give by senior counsel that they could reserve their appeal against conviction on this point.

KIRBY J: So they could, to the Court of Appeal.

MR SHIRREFS: And they did.

KIRBY J: They did. They could not reserve their rights to special leave to appeal to this Court. That belongs to us.

MR SHIRREFS: Yes, I understand that, but we say the Court of Appeal fell into error by finding here that these were representations of fact. They were, indeed, representations of law or expressions of opinion. If the point of principle is correct that a representation which founds a charge of fraud must be one of existing fact and not one of an expression of opinion or of representation of law, then the criminality to which they have pleaded ought not to have attached to them. In other words, the convictions are bad at law. That is why we are here. We are here because in the court - - -

KIRBY J: Why are we here? We are here because the Court is burdened and over-burdened and has to have a special leave gateway, and the criteria are such that we have to look relevantly in a case like this as to whether this is an appropriate vehicle to tender the question to us. It is obfuscated by your pleas of guilty. There is no doubt about that.

MR SHIRREFS: I understand that also.

KIRBY J: Also, there are difficulties on the facts in looking at what would happen down the line, that your clients were very deeply involved in running these facilities- - -

MR SHIRREFS: Nursing homes in Queensland and also in Victoria.

KIRBY J: They had a number of them and they would have known the general nature of this legislation and the differentiation between quasi-medical staff and non-quasi-medical support staff.

MR SHIRREFS: Your Honour, on the definition to which I have just taken the Court, arguably any person who is employed by the proprietor of a nursing home and provides care to a patient is performing nursing and personal care. Therein lies the difficulty - - -

CALLINAN J: I do not read it that way at all. I just think that is a totally strange reading. I just do not think that that is a possible reading.

MR SHIRREFS: In answer to that, your Honour, it throws up all sorts of problems. It throws up problems as to where you draw the line. Indeed, recently before the AAT, the Minister for Health has recognised those problems and accepted that this involves a construction of the statute by the person who is required to assess whether it is nursing and personal care work that is being done or is domestic work that is being done for a patient. My point that I am ventilating before this Court - putting aside the question of the vehicle; and I understand those difficulties - is a pure point of law. That point of law is that they have pleaded guilty to offences of defrauding the Commonwealth, based upon a ruling by a trial judge that the representations were of fact. If the point of principle is correct that a person cannot be held criminally liable for representation which is one of law or an expression of opinion, which, in our submission, this is, then their convictions are bad. That is the reason that we are here. Beyond that, I really cannot take it any further.

KIRBY J: Thank you, Mr Shirrefs. The Court does not need your assistance, Mr Bugg.

Mainly because of the pleas of guilty entered at the trial by the applicants, this application does not provide a suitable vehicle by which the Court could consider the issues of principle in the interpretation of the applicable legislation which the applicants wish to raise. In saying this, the Court does not express any final opinion on the correctness of the interpretation given by the Court of Appeal of Queensland of the relevant federal legislation. The applications are therefore dismissed.

I should say, Mr Shirrefs, under fire, you did a good job for your clients. It was not your fault that you had a number of obstacles in the way.

The Court will now retire to reconstitute for the following matters of Fox.

AT 10.57 AM THE MATTER WAS CONCLUDED