IN TRE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V.G. No. 6 of 1982 wwe even GENERAL DIVISION BETWEEN: JACK FREEMAN Applicant and JAMES BEST, R. C. WEBB, N. J. RADFORD 3. Ff. MACDONALD and D. R. LESLIE (who are sucd as the Chairman, Deputy- Chairman and members of the Medical Services Committee of Inquiry for the State of Victoria) and MICHACL JOHN MACKELLAR (who is sued as the Minister of State for Health) Respondents NORTHROP J. EX TEMPORE JUDGMENT 27_ JANUARY 1982 I propose to give my judgment in this matter immediately because there is some urgency about the matter, and because it was brought on as a matter of urgency dering the vacation. Normally the matters raised would require time for consideration but I have formed a sufficiently clear viow as to the result to srakle me to at least announce my decision and give an indication in summary form of the basis for that decision, and if necessary, at the request of either party to give more detailed reocons if either party wants to take the matter further, from the decision I am about to give. Any reguest for those reasons should be made within fourteen days of today, and if an appeal is taken from my decision any necessary orders to extend time could be given. At the very beginning I should indicate I propose to make the order sought in paragraph 3 of the notice of motion being an order that pend:ng the hearing and determination of the application V.G. No. 6 of 1982, or until further order, the deczsion of the Medical Service Committee of Inquiry of the State of Victoria dated 29 July 1981 and the determination of the Minister of State for Health dated 10 September 1981 be suspended, and that there will be liberty to apply. The effect of that order will be to prevent the Review Tribunal from proceeding with the hearing of the review which, at the present time, has been fixec for 10 February 1982. The substance of the matters before the Court will be stated, and although regard has been had to all the submissions made it iS not necessary to refer to each of them. The applicant is a medical practitioner, and pursuant to the provisions of the Health Insurance Act 1973 he was given notice that the Minister had referred the matter to a committee - a Medical Services Committee of Inquiry - to consider whether he had rendered excessive services under the provisions of the Health Insurance Act 1973. I should indicate that the applicant received notice of the inguiry dated 8 February 1980, given by the Chairman of the Committee, in accordance w:th the requirements of the Health Insurance Act 1973, and in particular, s.95. The notice was given under s.95 of the Act, and the inquiry was to be held on Wednesday, 27 February 1980. The notice also requested the applicant to notify the Committee whether he would be present or not, and the particulars to be inguired into were whether - and I guote: ",.. each professional service rendered to certain of your patients, particulars of which are set out in the annexure hereto, was an 'excessive service' within the meaning of section 79(1B)(a) of the Act." Annexed to the notice also was an attachment setting out certain provisions of the Health Insurance Act 1973 in relation to the conduct of that inquiry. Included also with the notice, as being the particulars, was a lengthy document containing a list of names and what appears to be medical services rendered to those persons, the result being that a very large number of services affecting a large number of patients were being made the subject of the inquiry, as to whether the services were excesSSive or not. The applicant, unwisely, wrote a letter in unusual form and rather contemptuously stating he would not be attending because of the wide nature of the inguiry and the number of patients involved and services provided, the shortness of time, and further, he was not obliged to give any evidence relating to matters which were confidential as between him and h:s patients. That letter was not received by the Committee until after the hearing on the date specified on the notice, namely, 27 February 1980. The powers of the Committee are set out in Division 3 of Part V of the Health Insurance Act 1973, and for present purposes it is sufficient to say that under s.94, where an inguiry is to be made as to whether a practitioner has rendered excessive services or not, the Committee is reguired to conduct a hearing into the matter. The powers conferred by s.92 are expressly subject to s.94. There then appears a number of detailed provisions as to how that inquiry is to be conducted, although the procedure is at the discretion of the Committee itself. It is clear that the proceedings are in the nature of a hearing at which evidence is to be given on Oath or affirmation. There iS power to summon witnesses and protection is given to what is said at that hearing before the Committee which is to be held in private. £ should indicate that at the hearing, what happened was that a transcript was taken as required, but the whole hearing took about five minutes and the evidence consisted of the presentation or tendering of a number of exhibits, including the notice to the applicant, various other documents which are not in dispute, and Exhibit 2 which is a large print-out of computer records. In due course the Minister, in the exercise of the power conferred by the Act, and following upon the recommendation made by the Committee, made a determination under s.106 of the Act. The substance of the determination was that the Minister accepted the recommendations made by the Committee under s.105 of the Act, and directed that $60,705.17 be paid to the Commonwealth of Australia, and $327.65 be paid to the Hospital Benefits Association Limited, being amounts which had been paid by those two bodies in relation to services provided by the applicant. The notice of the determination was dated 15 September 1981 and signed by the Minister for Health. Annexed to the letter containing the determination was a notice that the applicant had a right to request a review of the determination by a Medical Services Review Tribunal constituted under the Health Insurance Act 1973. At the time the Act provided for an alternative method of appeal to a prescribed court. The Review Tribunals are constituted under Part VA of the Act and the procedures to be adopted are set out in Division 3 of Part VA which provide for a request for review of determinations. The sections then set out the rights of the parties and make provision that in the proceedings before a tribunal, the Minister and the person who requested the review are parties, and that when a request is made the person making the request may appear and be represented before the tribunal. As well the Minister may be represented. The parties shall be given the opportunity to address the tribunal. In addition, upon the request for the review, the Minister shall forward the request to the President of the Review Tribunal a copy of the reference that gave rise to the determination, a transcript of the Proceedings of the hearing conducted for the purposes of that reference, the report on that reference and any documents sent to the Minister with that report, and the determination. The proceedings to be followed on review are set out in s.119 of the Act, and I shall quote sub-section (1), paragraph (a): "A tribunal that reviews a determination in accordance with a request - (a) shall consider the matter to which the determination relates having regard to the grounds set out in the request, the documents forwarded by the Minister with the request and any addresses made to the Tribunal during the proceedings or the review ..." + There appears to be no power to refer back to the Committee for re-determination in accordance with law. For present purposes the Tribunal is authorized to "affirm, set aside or vary the determination" only. Applicatz:ons to prescribed courts by way of appeal are to be in the nature of a re-hearing - s.123. The matter of the distinction between the powers of a review tribunal and a prescribed court do take on some importance in the present case in that it is not clear whether the proceedings before the revrew tribunal are in the nature of a re-hearing or not, but it is not necessary for me to express any final view on that matter. In 1981, in the case of re Compensat:ion (Commonwealth Government Employees) Act 1971, ex part ee PS hr Portelli, I had to consider the provisions of that Act in relation to a review by a Commonwealth Employees Compensation Tribunal, which in some respects is similar to the review provisions contained in the Health Insurance Act 1973, while at the same time there was then an alternative procedure by way Of appeal to a prescribed court. That matter has been reported in Volume 35 of the Australian Law Reports, p.207, but is subject to appeal to a full court of this Court. In that case, reference is made to other cases such as Shell Company of Australia Limited v. Federal Commissioner of Taxation, a decision referred to me today, but which I find not necessary to refer to further for the purposes of this decision. There were sufficient Gifferences between Portelli's case and the present case to indicate that, under the Health Insurance Act 1973, the position is not clear, and so I proceed on the basis that the hearing of the matter before a Review Tribunal is not a re-hearing, and that the powers of the Tribunal are more limited, but that is no finally concluded view one way or the other, but is is of importance as to the orders made. The substance of the complaint by the applicant is that there waS no evidence before the Committee to warrant the recommendations made by it, or the determination made by the Minister. In December 1981, a copy of the material which was before the Committee, being the transcript of proceedings and the exhibits - except Exhibit 2 which was made available in Court but was not necessary to be examined - were forwarded to the applicant, together with the recommendation of the Committee. A reference to the recommendation of the Committee illustrates that much material was considered by the Committee which, on the face of it, was not included in the record on the proceedings before the Committee and, again on the face of it, it is open to draw the inference that the Committee had regard to many matters which were not put to it by way of sworn evidence at the hearing of the reference to ait by the Minister. On the material before the Court, there is much force in the submissions made by counsel for the applicant that there has been a non-compliance with the requirements of the Judicial Review Act and, in particular, that there was no evidence or other material to justify the making of the decision by the Committee and the Minister, In addition, it was argued that there was a denial of natural justice in that if the Committee had regard to Material that was not put to it at the hearing of the inquiry, it should have notified the applicant of that Material to give him an opportunity of considering the matter. Under s.3(3) of the Judicial Review Act, it is provided that: "3(3) Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation Shall itself be deemed, for the Purposes of this Act, to be the making of a decision." Applying that section, the recommendation of the Committee is a decision, as well as the determination of the Minister. - 10 ~- This is an application for an interim order, or interlocutory order, under s.15 of the Judicial Review Act, seeking the suspension of the operation of those two decisions, pending the hearing and determination of the application to this Court. Tt is an interlocutory matter, and it is undesirable for me to express any view, one way or the other, of any firm kind in relation to the 1lzkelihood or Otherwise of success of the application and, in any event, the full materials upon which the application will be heard are not before the Court, but it is sufficient to say that, on the material before the Court, there is a sufficiently strong prima facie case in the requisite sense as expressed in the Beecham decision in the High Court, as well as decisions of this Court, to justify the making of an interim order; the question being whether, in the circumstances of this case, such an order should be made. The substance of the ecpposition to the making of the order is based upon s.10(2)(b) of the Judicial Review Act, which provides, in substance - "10.(2) ..- (b) the Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason - -ll- Be (i) that the applicant has sought a review by the Court, or by another court, of that decision, conduct or failure otherwise than under this Act; or (ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct Or failure." It is contended that the Health Insurance Act 1973 provides a method whereby the decision of the Minister can be reviewed by the Review Tribunal, and that the applicant should pursue that review, rather than seek an order under the provisions of the Judicial Review Act. Again, I am dealing with an interlocutory matter and not a final hearing, but in my opinion, that contention fails. It is argued that here the applicant sought legal advice in September of 1981, and that he in fact has lodged an application for review by the Review Tribunal. It is said that this is an adequate provision made by law for the review of the decision by the Minister, and that the applicant should pursue that remedy, rather than come to this Court. It is argued further that he sought legal advice and that, despite the fact that the notice setting out his rights was misleading and, in fact, wrong, in that it did not inciude all the rights he had, nevertheless the solicitor should have known the provisions of the Health Insurance Act 1973 and advised the applicant of his alternative remedies of review or appeal by way of -12- re-hearing. As against that, it is argued that it was not until December of 1981 that the legal advisers were first fully informed of the paucity of the material before the Committee and that thereafter, having regard to the vacation period, the applicant has acted with all speed in seeking the application to this Court, and in seeking the interim orders. In my opinion, the existence of alternative remedies iS no bar to the exercise of power under the Judicial Review Act, nor is the fact that an appeal in fact has been lodged to the Review Tribunal. In this regard, I refer also to what was said by Mr. Justice Toohey in Kelly v. Coates 35 A.L.R. 93, where it is said that the onus is on the respondent to satisfy the court that it should not make an order which otherwise it would make. In the present case, it seems to me that the issue for determination by this Court is whether the proceedings before the Committee were in fact in breach of the requirements as set out in s.5 of the Judicial Review Act and, in particular, the two matters already referred to. That is a matter of law and can be determined, subject to any right of appeal, one way or the other by this Court. There iS a certain doubt as to the nature of the powers of the Review Tribuna] under s.119 of the Health Insurance Act 1973 and, in any event, there is an appeal by -13- way of guestion of law to this Court from any decision by that Tribunal. It seems, again, that the practical answer is that this Court should be able to express an' opinion, one way or the other, on the issues raised by the applications, without forcing the parties to proceed by way of review before the Tribunal, and possibly then to this Court. Even though the Commonwealth, prima facie, pays the cost of proceedings before the Tribunal, nevertheless it seems amportant that this matter should be determined on the basis of the smallest number of procedures and hearings appropriate. Accordingly, having regard to those factors, and also to the fact that the initial hearing before the Committee was in February 1980, and that the decision of the Minister was not given until September 1981 when the request for the review was made, that there will be no undue hardship caused to the respondents by a further delay of the hearing of the review if it is an appropriate process. Accordingly, for those reasons, it is proposed to make the orders sought, that pending the hearing and determination of the application V.G. No. 6 of 1982 or further order, the decision of the Medical Service Committee of Inquiry for the State of Victoria, dated 29 July 1981, and the determination of the Minister of State for Health, dated 10 September 1981, be suspended, and there will be liberty to apply. es oor Mee ad en Nee ee aaa aT eee ote ta ete tet bo cee ELE NODA AD Sar nthe men acm mmr he et red ERE etree wt amet wee -14- As far as costs are concerned, J would propose to make the cost of today the cost in the cause. The next directions hearing is, I think, 5 February. T adjourn the directions hearing until 5 February at 10.15 a.m. The courc is adjourned sine die. —_— ee eT ee aed SR TSE © corify that this and the thictce > (14) preceding pages ate a tine copy of the | Reasons for Judgment herein of the Konomable Mr. Justice «thee -_ ae ; ¢ Lath Alen fe Associate Dated: 27 Tane wy SZ, d aout Gsace Sree 2.7. _wOo aos!