CATCHWORDS Administrative law - Judicial review - Decision of Medical Services Committee of Inquiry - Application for stay of hearing by Committee pending hearing of application for order of review - alleged rendering of excessive services by medical practitioner - Decision of Committee not to travel to country town to take viva voce evidence from infirm patients - Desire of applicant to prevent the forming of erroneous opinion which impugns his professional standing - Public interest in effective and economical public administration - Interlocutory relief refused. Administrative Decisions (Judicial Review) Act 1977 - ss. 6, 13, 15, 16 Federal Court of Australia Act, 1976 - 5.23 Health Insurance Act 1983 - ss. 79, 94, 104 JOHN MORTON v. NICHOLAS JOHN RADFORD, ARTHUR WILLIAM BURTON, JOHN ANTHONY HORGAN and WILLIAM McINTOSH ROSE No. VG134 of 1985 Jenkinson d. 12 duly, 1985 Melhourne IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISTON ) ) NO. VG134 of 1985 } BETWEEN: JOHN MORTON Applicant AND: NICHOLAS JOHN RADFORD, ARTHUR WILLIAM BURTON, JOHN ANTHONY HORGAN and WILLIAM McINTOSH ROSE Respondents CORAM: Jenkinson J. PLACE: Melbourne DATE: 12 July, 1985 REASONS FOR JUDGMENT Application to stay a hearing instituted in pursuance of s.94 of the Health Insurance Act 1973, pending the hearing of an application under the Administrative Decisions (Judicial Review) Act 1977 for an order of review. The respondents are the members of a Medical Services which it had appeared that the applicant Committee of Inquiry to medical practitioner may have rendered "excessive services", within the meaning attributed to that expression in Division 3 of Part V of the Health Insurance Act 1983. It 1s provided by s.79(1B)(a) of that Act that in that Division - "a veference to excessive services 15 a reference to professional services, being services in respect of which medicare benefit 2. has become or may become payable and which were not reasonably necessary for the adequate medical or dental care of the patient concerned." As the hearing required in those circumstances by 5.94 progressed, the Committee reduced to three the number of patients in respect of whom it was possible that the Committee might express, in the report required of it by s.104, the opinion that the applicant had rendered excessive services. Two of those patients, it is common ground, were at material times and will remain, by reason of infirmity, unable to travel from the country town where they live to Melbourne, where the hearing is being conducted. What the applicant seeks to have reviewed, under the Administrative Decisions (Judicial Review) Act 1977, is the refusal of the Committee to take viva voce evidence by those two patients in or near the country town. What the originating application describes as a "decision" may perhaps be correctly characterised as "conduct" of the description specified in paragraph (a) or in paragraph (b) or in paragraph (e) or in paragraph (f) of s.6(1) of the Administrative Decisions (Judicial Review) Act 1977. For present purposes that question may be ignored. The Committee has offered to receive the sworn testimony of the patients in writing, but the applicant both denies the lawfulness of that course, having regard to the procedural requirements ocrdained in Division 3 of Part V of the Health Insurance Act 1973 for a hearing instituted in pursuance of s.94, and claims that in any event he is entitled to the benefits which observation of the patients and consideration of their oral 3. testimony may confer on hin. The Committee's reasons for its decision, furnished under s.13 of the Administrative Decisions (Judicial Review) Act 1977 do not quite amount to an assertion that nothing which the taking of the oral testimony of the patients before the Committee in the country town might reveal could advance the applicant's case, but they come close to that asserton. Counsel for the applicant suggests that, if the Committee were of that view, the Committee must have misconceived the meaning which s.79(1B)(a) assigns to the expression "excessive services" in Division 3 of Part V of the Health Insurance Act 1973. The material before me, which includes the transcript of the hearing by the Committee, seems to provide little support for the suggestion. But that, or other possible errors which may have led the Committee to its decision on the application that it adjourn the hearing to the country town, might be made to appear on the hearing cf this application for an order of review. I think that I should determine the application to stay the Committee's hearing on the assumption that some error infected the decision and that one or more of the grounds of review would be established on the hearing. Except for the evidence of the two patients, all the evidence which the Committee desired and all the evidence the applicant desired to have before the Committee has been received, and an address to be made by the applicant's solicitor to the "Committee will complete the hearing. The Committee 1s required by 5.104 of the Health Insurance Act 1973, after completion of the hearing, to report its opinion on the matter referred to it by the 4, Minister. If in that report the Committee expresses the opinion that the applicant has rendered excessive services, that section requires that the report shall identify the excessive services. The provisions of Division 3 of Part V of the Act ensure that an opinion that the applicant has rendered excessive services will he expressed only concerning the rendering of services to one or more of the three patients I have mentioned. The only prejudice which it is suggested that the refusal to visit two of those patients may work is the forming and the expression in its report by the Committee of the opinion that excessive services have been rendered by the applicant. If no such an opinion 1s expressed, that refusal will work no prejudice. No publication of any such an opinion beyond the Department of Health will occur unless' the Minister of Health makes a determination, in accordance with a recommendation by the Committee in its report, that the applicant be reprimanded, or counselled. Such a determination, 1f it were made, would not be published, otherwise than within the Department and to the applicant, until after the expiration of 30 days from the time when the applicant received notice that the determination had been made. If such a determination were made, an application for an order of review in respect of the Committee's report could be made, and interlocutory relief preventing further publication of the determination could be claimed, within that period of 30 days. If, on the other hand, the Committee's hearing be stayed until the present application has been heard and determined, the chance that no prejudicial opinion may be expressed, and that therefore no occasion arises to review the Committee's refusal to go to the country town, will be foregone. Further, the process of hearing the present application may involve an intrusive and 5. time-consuming inquisition into the deliberations of a committee of experts, and into the opinions tentatively formed by the several members of the Committee, on a subject within their field of expertise, at a stage of those deliberations at which those members may have very properly abstained from reaching definite conclusions on every matter which legal argument may suggest to be germane to the determination of that application. It is understandable that the applicant should desire to have prevented by judicial order the forming, on an erroneous basis, of an opinion which impugns his professional standing, even though no prejudice in the mind of the public will be caused by the forming of that opinion. But in the exercise of the discretionary powers conferred by ss. 15 and 16 of the Administrative Decisions (Judicial Review) Act 1977 and 5.23 of the Federal Court of Australia Act 1976 the Court must have regard not only to desires of that kind, but also to the public interest in effective and economical public administration. In the circumstances of this case the better course, in my opinion, is to leave the respondents free to continue the hearing which they have nearly completed and thereafter to make the report required of them. The application for interlocutory relief is dismissed. The costs of the application are reserved. ' u a_ & . = |c= i=. Py ' ' ' c , wero 5 le a my " Le