IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 753 of 1993 ) GENERAL DIVISION ) NORMAN RICHARD SOUTHERN Applicant VOCATIONAL REGISTRATION APPEAL COMMITTEE Respondent Coram:Whitlam J Place: Sydney Date: 24 May 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 753 of 1993 ) GENERAL DIVISION ) NORMAN RICHARD SOUTHERN Applicant VOCATIONAL REGISTRATION APPEAL COMMITTEE Respondent Coram:Whitlam J Place: Sydney Date: 24 May 1995 REASONS FOR JUDGMENT The applicant is a medical practitioner. The respondent is the Appeal Committee established by reg 10 of the Health Insurance (Vocational Registration of General Practitioners) Regulations ("the Regulations"). In this proceeding the applicant seeks judicial review of the respondent's decision to dismiss his appeal from a decision of the Royal Australian College of General Practitioners ("the RACGP"), which had earlier declined to provide certification of the applicant's eligibility under s 3F(6)(a) of the Health Insurance Act 1973 ("the Act"). Section 3F of the Act provides (so far as relevant): "3F. (1) The purpose of this section is to provide for the registration of certain medical practitioners as vocationally registered general practitioners. (2) The [Health Insurance] Commission is to establish and maintain a Vocational Register of General Practitioners. ... (4) A medical practitioner may apply to the Commission for registration under this section. (5) The application must be made in a manner approved by the Minister. (6) If: (a) the Managing Director of the Commission is satisfied that the Royal Australian College of General Practitioners has certified that the applicant's medical practice is predominantly general practice and that the applicant has training and experience in general practice that make it appropriate for the applicant to be registered under this section; or (b) the applicant is, in accordance with the regulations, eligible for registration under this section; the Managing Director shall, within 14 days after receiving the application, enter the applicant's name in the Register." The RACGP published on 1 September 1992 a document setting out the criteria relating to eligibility for registration under s 3F of the Act. Section A of that document sets out the criteria for "Qualifications, Training and Experience", and Section B deals with "Determination of General Practice Content". Section A prescribed different criteria according to whether applications were received (i) before 1 January 1993, (ii) between 1 January 1993 and 31 December 1994, or (iii) after 1 January 1995. The applicant applied to the RACGP for certification in February 1993. However, he sought to have his training and experience assessed under the criteria applicable to applications received before 1 January 1993. The applicant did so on the basis that his secretary had telephoned the RACGP to request the appropriate form in November 1992, but that he "did not receive these forms until after Christmas and was not aware that there was a time limitation on application". When the RACGP declined to certify, the applicant appealed to the respondent. He wrote that the "basis (of my appeal) is that I tried to apply before 1st January 1993, having made contact with the College in November 1992, but did not receive my application forms from the College until after the closing date in 1993". The applicant devoted two and a half pages of a letter to the respondent to this topic. He referred to statements allegedly made to him in March and May 1993 by the RACGP's Secretary General. He also forwarded copies of the material that he had earlier sent to the RACGP. This included a statutory declaration from his secretary and a statutory declaration from a Dr Wiggers de Vries, who declared that in October 1992 he had discussed with the applicant "the requirements for becoming vocationally registered". The respondent dismissed the appeal. Its chairman wrote to the applicant that the respondent "agreed that you do not meet the criteria applicable for applications received between 1 January 1993 and 31 December 1994. The Committee was unable to find any evidence to suggest that you applied before January 1993". The statement subsequently furnished by the respondent pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 stated: "12. Dr Southern's appeal against these decisions were (sic) heard by the Vocational Registration Appeal Committee (VRAC) on 2 July 1993. The Appeal Committee had before it all the information presented by the RACGP. 13. The VRAC noted the Statutory Declarations by Dr De Vries and Dr Southern's secretary, Elizabeth Southern. 14. The VRAC also agreed that Dr Southern did not meet the criteria applicable for applications received between 1 January 1993 to 31 December 1994 as set out in paragraph A (ii) of the Criteria for the Vocational Registration of General Practitioners. 15. The VRAC took into account the date Dr Southern wrote on the application form and the accounts of discussions with the RACGP and Dr De Vries in his letters of 7 April and 25 May 1993. 16. In addition to Dr Southern's application to the RACGP, the VRAC considered the following: Letters of 25 May 1993 and 20 June 1993 from Dr Southern to the VRAC Letter of 7 April 1993 from Dr Southern to the RACGP Letters of 18 March, 29 April and 31 May 1993 from the RACGP to Dr Southern Statutory Declarations from Elizabeth Southern and Dr Michael De Vries Three Certificates of Attendance at various courses. 17. The VRAC considered all the evidence listed above. However, the Committee were unable to accept the Statutory Declarations and accounts of conversations between Dr Southern and other parties as evidence that he tried to meet the 1 January 1993 deadline. The Committee agreed that the evidence was insufficient to convince them that discretion should be given to considering his application under the criteria applicable for applications received before 1 January 1993. The VRAC considered that Dr Southern did not meet any of the criteria applicable for applications received between 1 January 1993 to 31 December 1994 as listed in the Criteria for the Vocational Registration of General Practitioners: ... On the merits of Dr Southern's case, the VRAC felt obliged to dismiss the appeal." Counsel for the applicant submits that a breach of the rules of natural justice occurred in the hearing and determination of the appeal. The particulars specified under this head in the amended application do not relate to any procedural unfairness. They seem to be concerned with the entirely irrelevant question of the meaning of any obligation of the RACGP under the Regulations to make "available to the public" the criteria relating to eligibility for registration. Counsel for the applicant eventually identified the breach as consisting of the failure of the respondent to seek from the RACGP records of telephone calls that, according to the applicant's letter, its Secretary General had said existed. Quite apart from the fact (as counsel for the respondent correctly submits) that the respondent has no power to compel such production, the applicant did not even request that such records should be made available by the RACGP. This ground must fail. Whatever such records, if they exist, might reveal, the respondent plainly had no regard to their contents. The applicant also submits that, in effect, the respondent misconceived the true nature of the appeal and failed to consider the merits of his case. The relevant provisions of the Regulations are: "3. (1) Where a medical practitioner proposes that his or her eligibility for registration be considered by an Eligibility Committee, the practitioner must lodge with the Committee: (a) a request for that purpose; and (b) evidence of the eligibility; and (c) a fee of $30. (2) Where an Eligibility Committee receives the request it must consider the eligibility of the practitioner for registration and advise the practitioner of the Committee's decision. 4. (1) Where: (a) the RACGP has declined to certify in relation to a medical practitioner under paragraph 3F (6)(a) of the Act; or (b) an Eligibility Committee has declined to certify in relation to a medical practitioner under subregulation 5(1); the RACGP or the Committee, as the case may be, must give the practitioner written notice of that decision. (2) Where: ... (b) the RACGP or an Eligibility Committee has given a medical practitioner a notice under subregulation (1); the practitioner, in writing, may appeal to the Appeal Committee within 28 days of receiving that notice. (3) Where a medical practitioner appeals to the Appeal Committee, the Committee is to hear and determine the appeal. (4) Where the Committee: (a) allows the appeal: (i) in the case of medical practitioner who is not registered- it must certify in accordance with subregulation 5(2); ...; or (b) dismisses the appeal: ... (ii) ... it must notify the practioner of the result of the appeal. 5. (1) A medical practitioner is eligible for registration where an Eligibility Committee certifies: (a) that the practitioner's medical practice is predominantly general practice; and (b) that the practitioner has training and experience in general practice that make it appropriate for the practitioner to be registered. (2) A medical practitioner is eligible for registration where the Appeal Committee, having allowed the practitioner's appeal, certifies: (a) that the practitioner's medical practice is predominantly general practice; and (b) that the practitioner has training and experience in general practice that make it appropriate for the practitioner to be registered. ... 7. Before certifying in accordance with regulation 5 ..., a Committee must: (a) have regard to the criteria published by the RACGP relating to eligibility for registration; and (b) then proceed to consider the case on its merits." The essence of the applicant's contention is that the respondent did not consider the "merits" of his case, as required by reg 7(b). It is said that the respondent confined its consideration to the criteria published by the RACGP. This argument is also pressed in the familiar language of other grounds of judicial review because the s 13 statement refers somewhat confusingly to a view "that the evidence was insufficient to convince (the respondent) that discretion should be given to considering his application under the criteria applicable for applications received before 1 January 1993". Thus the respondent's decision is said to have been made improperly because if failed to take into account the relevant consideration that the applicant fulfilled the criteria applicable for applications received before 1 January 1993, and because the respondent accordingly fettered its discretion. The Regulations are perhaps obscurely expressed. However, once they are examined in the whole legislative context, I think that their meaning is clear. The starting point is the Act. Section 3F(6)(b) envisages that regulations will provide for a medical practitioner being eligible for registration otherwise than by certification by the RACGP. The Regulations provide that a medical practitioner may lodge a request with an Eligibility Committee (reg 3) or may appeal to the Appeal Committee (reg 4). Either route may lead to certification under reg 5 and hence eligibility. In my view, certifying in accordance with reg 5 is a merely formal act. Regulation 7 prescribes the same test whether an Eligibility Committee is considering a request, or the Appeal Committee is hearing and determining an appeal. In the case of an appeal, reg 4(4)(a)(i) and reg 5(2) make it clear that the Appeal Committee must already have allowed the appeal before certifying. The nature of the appeal is not governed by the language of the certificate prescribed in paragraphs (a) and (b) of reg 5(2). That is dictated by reg 7. The expression "have regard to" was considered in R. v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322. The statute there under consideration required the Permanent Head of the Department of Health to determine nursing home fees. In determining such fees, the Permanent Head was to "have regard to costs necessarily incurred in providing nursing home care in the nursing home". Mason J said (at 329): "When subs.s. (7) directs the Permanent Head to "have regard to" the costs, it requires him to take those costs into account and to give weight to them as a fundamental element in making his determination." The command in reg 7(a) is also mandatory. The sequential step that the relevant Committee is to take under reg 7(b) does not permit it to consider the case by reference to its own view of the matters to be stated in paragraphs (a) and (b) of a reg 5 certificate. The criteria establish the standards and rules or principles to be applied to each individual case. In the case of the criteria for training and experience, it is not open to a Committee to establish new categories and to ignore existing ones. In this context a requirement for consideration "on the merits" may suggest no more than that a matter should not be decided on a purely technical or formal basis. Obviously in the case of an appeal, a practitioner would not be confined to the material originally submitted to the RACGP or to an Eligibility Committee. In my view, reg 7(b) means simply that, where material submitted for assessment against the criteria admits of debate, it is up to the relevant Committee to determine the "merits" of the case. Once the Regulations are understood in this way, it is apparent that the applicant's case must fail. It is common ground that the applicant did not fulfil the criteria for applications received after 1 January 1993. No matter what the respondent meant by the one cryptic sentence in its s 13 statement, it did not have any discretion to re-write the criteria by creating a new category or by treating the applicant's application to the RACGP as being notionally received before 1 January 1993. The "grandfather" category upon which the applicant wished to rely had ceased to exist by the time he made his application. The application will be dismissed with costs. I certify that this and the preceding eight pages are a true copy of the reasons for judgment herein of the Hon. Justice A.P. Whitlam Associate: Date: 24 May 1995 Counsel for the applicant: David Thorley Solicitors for the applicant: Coode, Scott & Corry Counsel for the respondent: Rhonda Henderson Solicitor for the respondent: Australian Government Solicitor Dates of hearing: 23 May, 23 June 1994