Dimian & Anor v Commonwealth of Australia

[2006] HCATrans 565

[2006] HCATrans 565

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S124 of 2006

B e t w e e n -

RIFAAT GEORGE DIMIAN

First Plaintiff

CHEE KAN KENNETH WONG

Second Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Summons for directions

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 11 OCTOBER 2006, AT 10.16 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   Your Honour, I appear with my learned friend, MR M.A. ROBINSON, for the applicant.  (instructed by TressCox Lawyers)

MR D.M.J. BENNETT, QC, Solicitor-General for the Commonwealth of Australia:   I appear with my learned friend, MS R.M. HENDERSON, for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Jackson.

MR JACKSON:   Your Honour should have, I think, a draft of some questions for referral to the Full Court and also a draft agreed statement of fact.

HIS HONOUR:   I am not sure about the questions.  I saw a draft of an agreed statement of facts.

MR JACKSON:   May I give your Honour a copy of the questions.

HIS HONOUR:   Thank you.

MR JACKSON:   Your Honour, could I just mention something about the agreed statement of facts first?

HIS HONOUR:   Yes.

MR JACKSON:   We have had some further discussions this morning and the draft that your Honour would have received has some slight amendments to it which we have only just made.  I wondered if I could indicate those to your Honour?

HIS HONOUR:   Certainly.

MR JACKSON:   The first is, your Honour, at the bottom of page 5 in footnote 3.

HIS HONOUR:   This matter seems to have some age on it.  The determination or the preliminary determination, or whatever it was, of the body seems to have been made in January 2004, according to this agreed statement of facts.

MR JACKSON:   Yes, your Honour, that is the ‑ ‑ ‑

HIS HONOUR:   I am looking at paragraph 17.  On 13 January 2004 the Committee made a final report.

MR JACKSON:   Well, your Honour, there were other proceedings, I think, between other parties that perhaps resulted in this being ‑ ‑ ‑

HIS HONOUR:   This does not look like a rush to justice.

MR JACKSON:   Well, your Honour will have seen the position in paragraph 18, for example, and there was a decision in the Full Court of the Federal Court in another matter.

HIS HONOUR:   Exactly.  I am wondering why that should not just take its course.

MR JACKSON:   Well, could we say this, your Honour.  The issues that are involved in this case go – and your Honour will see that, I think, in the outline of submissions we had on the original directions hearing when the matter was before Justice Heydon.  Your Honour will see in paragraph 4 we indicated that the matter was of considerable significance to a large number of medical practitioners and also your Honour will see in ‑ ‑ ‑

HIS HONOUR:   I understand that, but it must have been of considerable significance to them for a long time.

MR JACKSON:   Well, your Honour, can I just say this.  This case is one where the particular persons are persons who came before and a decision was made in January 2004, as you will see.  These proceedings were started, but there had been proceedings, of course, with other doctors in the Federal Court.  There was a decision in the Federal Court of that matter – that decision of the Federal Court.  That is where that matter stands.  It has been adjourned for the Full Court pending a determination of these proceedings.

HIS HONOUR:   By the way, apparently section 71 was not argued in that other matter.  Is there anything to stop you arguing it in that other matter now?

MR JACKSON:   Well, your Honour, it was not argued at all, as I understand the position.  We would have to get leave to do so in the Full Court, which we may not do.

HIS HONOUR:   Is this a Rich point?

MR JACKSON:   Yes, it is, your Honour.  It is a point of that kind.

HIS HONOUR:   I understand.  Anyway, you were telling me about these amendments.

MR JACKSON:   I was going to say, your Honour, first of all at page 5, at the bottom of the page, footnote 3 you will see the opening words.  It says “Examples of other independent statutory complaints bodies”.  It should be, “Examples of legislation relating to other independent”, et cetera.

HIS HONOUR:   I am sorry to interrupt you again, but that Rich point would be the same as the – are you involved in those cases about the Auditors Board?

MR JACKSON:   No.

HIS HONOUR:   I see.

MR JACKSON:   I know that those cases have been the subject of special leave, I think.

HIS HONOUR:   Yes.

MR JACKSON:   Your Honour, the second thing relates to paragraph 45.  I will come back to paragraph 42 in a moment.  You will see in the second line it has “his/her” ‑ ‑ ‑

HIS HONOUR:   Again before we get to that, another thing that struck me as I was reading this is that paragraph 34 provides some information about sources of general practice funding and it is information about the year 2001 to 2002.

MR JACKSON:   Well, that is because it is the latest available source of information.  You see that it comes, except, I think, in respect of items that are (c) and (d), from a document which is called “Financing general practice”, et cetera, in the footnote.  That only came out last year and, your Honour, those are the latest figures.

HIS HONOUR:   What does that expression “major sources of general practice funding” mean?

MR JACKSON:   Well, where the doctors got their remuneration from.

HIS HONOUR:   Doctors’ revenue?

MR JACKSON:   Yes.

HIS HONOUR:   It looks at it from the point of view of the payer rather than the payee, I suppose?

MR JACKSON:   Well, the payer has no doubt assembled these figures, but they are the moneys that, as we would understand it, are the payments that are made.

HIS HONOUR:   How does anybody know how much money doctors earn from private patients?

MR JACKSON:    Well, I suppose, your Honour, it is the Tax Commissioner who could tell anyone that, but what is being said here is that it is well known that these are the major sources.  That is a basic fact.  Your Honour will see it has, for example, paragraphs 32 and 33 ‑ ‑ ‑

HIS HONOUR:   Was this kind of information before the Federal Court in that other case?

MR JACKSON:   Evidence along these lines was sought to be tendered and rejected.  That is a reason why we are seeking to have those facts in the material here.  Your Honour, I am sorry, I was just going to refer to two minor things and one slightly more major.  The minor thing is paragraph 45, the second line, “his or her” rather than “his/her”.  Then in paragraph 47 the word “equally” we agreed to strike out. 

If I could go to paragraph 42 for a moment, there are two aspects of it.  The first is in the first line.  It says “While fully disqualified”.  We have agreed that it should read “While fully or relevantly partially disqualified”.  The second aspect of it relates to halfway down the third line to the end of the paragraph, the words saying:

and would only be eligible for medicare benefit for an “unreferred” consultation, at a much lower rate of medicare benefits than would otherwise be the case.

That sets out effectively what the Commonwealth position is.  There is a slight disagreement between us about the construction of the legislation.  What we had proposed, your Honour, is that the paragraph be slightly reconstructed so that each party could set out, in effect, what it contended was the relevant construction of the paragraph.

HIS HONOUR:   Mr Jackson, I would only contemplate referring a case to a Full Court if I thought that I understood all the agreed facts in a document like this and if I also thought that the facts were relevant and were the whole of the relevant facts.  Now, as I understand it, the case that is going on in the Federal Court proceeded on the basis of evidence with objections to evidence you have explained and so forth.

MR JACKSON:   And a degree of judicial notice, your Honour.  Could I just say, your Honour, what happened in relation to it was that evidence was sought to be tendered of many of the matters that you will see referred to here that are, in fact, the subject of the agreement.  The judge rejected the evidence but made an observation based on judicial notice and what the parties have sought to do here is to put before the Court material that is agreed and sets out the ‑ ‑ ‑

HIS HONOUR:   What is the relevant ultimate fact or what are the relevant ultimate facts that this material is said to establish?

MR JACKSON:   The relevant ultimate facts, your Honour, leaving aside the judicial question, relate to whether this amounts to civil conscription in terms of section 51(xxiiiA).

HIS HONOUR:   What is it about these facts that indicate that it does?

MR JACKSON:   That indicate, your Honour, that as practical matters, medical practitioners are obliged to participate in the scheme and their services are, in a sense, called up to participate in the scheme.  It is not absolutely compulsory, but not all forms of conscription are compulsory for everyone.  For example, in military conscription in post‑World War II days, two forms here for everyone and then for some.  Each would be conscription.

HIS HONOUR:   I will hear what the Solicitor‑General has to say about this question I intend to ask to you also, but the question I have in mind is, why should this matter not be remitted to the Federal Court so that it can take its place in the Federal Court presumably after, if necessary, the decision of the Full Court of the Federal Court in the matter that is already there which may be the subject of an application for special leave to appeal to this Court?

MR JACKSON:   Well, your Honour, we rely on the matters set out in our outline of submissions on the application.

HIS HONOUR:   Mr Solicitor?

MR BENNETT:   Well, your Honour, it is a case where, subject to the minor fiddling with paragraph 42, the facts are all agreed and that is only a matter of construction of legislation in any event.

HIS HONOUR:   But there is a case pending before the Full Court of the Federal Court which may or may not work its way up to the High Court.  The matter is plainly not a matter or urgency.  This dispute has been hanging around for years.

MR BENNETT:   It may well be that the cases be united at some stage in this Court.

HIS HONOUR:   But the section 71 point is the subject of the appeal in those Auditors Board cases which I think will be probably listed for hearing in February.

MR BENNETT:   There are differences in that we take the view that in these cases where that sort of challenge is made we just utter the word “chameleon” and the problem goes away, but it is obviously every tribunal there are elements which point one way and elements that point to the other and we just say the chameleon doctrine trumps Boilermakers.  There is quite a lot of authority in this Court and other courts from Tasmanian Breweries on which deals with ‑ ‑ ‑

HIS HONOUR:   But the civil conscription issue about bulk billing is taken up by that current proceeding in the Federal Court?

MR BENNETT:   Yes, it is, your Honour.  That is in the Full Court.

HIS HONOUR:   As I understand it, that case would have been heard in August of this year if it were not for these proceedings.

MR BENNETT:   I think that is so, your Honour.  Whether it will await these proceedings or try and unite itself with them, I do not know, but it does not matter much.  We have a neat set of agreed facts which set out what the parties agree are the relevant matters and there is no dispute.

HIS HONOUR:   Then if this matter were remitted to the Federal Court, you may be able to bring it on in the Federal Court at the same time as the appeal in the other matter.

MR BENNETT:   Well, there would be little advantage, your Honour, when there are pure questions of constitutional law and they may involve analysis and distinguishing whether the ruling of the Court’s decisions in two earlier cases, in the General Practitioners Case and ‑ ‑ ‑

HIS HONOUR:   Do you have a convenient reference to Justice Stone’s decision, or a copy of Justice Stone’s decision?

MR BENNETT:   Yes, it is Selim v Lele.

HIS HONOUR:   I just wondered if you had a copy of her judgment.

MR BENNETT:   Yes, certainly, your Honour.  It is an FCA reference.

HIS HONOUR:   I have it here, thank you.  Just let me look at something.  I am just trying to find where in her judgment she deals with this question of admissibility of evidence.

MR JACKSON:   Your Honour, may I add something, if I can interrupt my learned friend.

HIS HONOUR:   Yes, certainly.

MR JACKSON:   I am reminded that in those proceedings the challenge was to Part VAA of the Act and there was not a challenge to – and your Honour will see the provisions are referred to in question 1 of the draft questions stated here – sections 10, 20 and 20A which are the provisions establishing fundamentally the scheme.

HIS HONOUR:   Do you know where she dealt with that question of admissibility of evidence, Mr Jackson?

MR JACKSON:   It is paragraph 21, I think.  Paragraph 21 was the paragraph I intended to refer to earlier, and that was done after the evidence was rejected.

HIS HONOUR:   Paragraph 21 is about standing and it seems to deal with the question whether exclusion from the scheme for misconduct, if I can use that word, would have serious consequences for a medical practitioner.

MR JACKSON:   Yes.

HIS HONOUR:   Is that the only issue?

MR JACKSON:   Can I put it this way, your Honour.  What was sought to be adduced in evidence before Justice Stone was evidence dealing with the sort of matters that your Honour will see in the case stated.  She rejected evidence of that kind but took judicial notice of the matters referred to in the last part of that paragraph.

HIS HONOUR:   Was it submitted to her that the relevance of that evidence was to the question of standing?

MR JACKSON:   Well, standing plus also, I think, your Honour, to the scheme and civil ‑ ‑ ‑

HIS HONOUR:   That is what I was looking for in her judgment.  I wanted to find where it was in her judgment that she dealt with the question of the

relevance to the constitutional validity of the scheme of information of this kind.

MR JACKSON:   I am sorry, your Honour.

HIS HONOUR:   Is there any such reference, Mr Solicitor?

MR BENNETT:   I am sorry, your Honour?

HIS HONOUR:   In this agreed statement of facts there is set out a deal of information, not all of which I am sure I understand, which is apparently set out on the basis that the information is relevant to the constitutional validity of the legislation.  Mr Jackson told me that some information of that kind was tendered and rejected by Justice Stone and I asked where in her judgment she dealt with that and I was referred to a paragraph of her judgment that deals with it only in the context of standing of the plaintiff which suggests that the evidence was tendered to her for the purpose of proving that a practitioner would suffer adverse financial consequences if excluded from the scheme.  At the moment, so far as I can see, she does not seem to have considered whether or not that information was relevant to the constitutional validity of the scheme.  But if I am wrong about that, I would like to know.

MR BENNETT:   Well, that is the impression I get when looking at the judgment, your Honour, but I have not analysed in great detail whether that is the case.

HIS HONOUR:   Is there anything more you want to say?

MR JACKSON:   Your Honour, no, there is not.

MR BENNETT:   As I understand it, your Honour, the relevance is to the question of degree of practical compulsion and that is the only relevance of it.

HIS HONOUR:   If information of this kind is relevant to the constitutional validity of the legislation – and it may be for all I know; I am not suggesting for a moment that it is not – then the information should be dealt with by a court that has the capacity to deal with any objections to relevance or to test the information.  The impression I get reading these agreed facts is that the precise meaning of some of the information contained in it is not entirely clear. 

I have already referred to that information about the year 2001 to 2002 concerning major sources of general practice funding.  For my part, I would not know what to make of figures of that magnitude without knowing, for example, what to compare them with.  Is there any information here, for example, about how much remuneration doctors receive from private patients?

MR BENNETT:   Well, 34B, your Honour, but that is not broken down.

HIS HONOUR:   I think that the most appropriate course for me to take in this matter, particularly having regard to the current state of the litigation in Selim v Lele, as I understand it, in which the appeal was due to come on for hearing in August of this year, is to remit this matter to the Federal Court and it will then be for the parties to decide whether they want to proceed in a substantive way with this matter as well as Selim v Lele or whether the decision in Selim v Lele on appeal, perhaps taken together with the decision of this Court in the proceedings in relation to the section 71 question concerning the Auditors Board, can be made.

MR BENNETT:   Your Honour, if it were remitted, all that would happen would be that a document substantially in the form of this document would be handed up as an agreed statement of facts.

HIS HONOUR:   Yes, that might then depend upon the approach to case management taken by the judge who is dealing with the matter in the Federal Court.  The judge might want to know further information.  There might be questions of evidence.

MR BENNETT:   Well, your Honour, in a sense, the agreement of the parties in this case has provided more detail and more useful determination of facts than the contest in Selim v Lele.

HIS HONOUR:   Then that might be a very useful basis for proceeding in the Federal Court.  Why, for example, should we not have the benefit of the decision of the Full Court of the Federal Court in this case of Selim v Lele?  As I say, there does not seem to be anything urgent about these cases.

MR BENNETT:   Well, your Honour, it is a pure constitutional question.

HIS HONOUR:   When you say it is a pure constitutional question, that depends upon the facts and the relevance of the facts.

MR BENNETT:   On which the parties have agreed.

HIS HONOUR:   Yes.

MR BENNETT:   In my respectful submission, bearing in mind the extent of agreement in this case, this is in many ways a more appropriate vehicle than Selim v Lele.

HIS HONOUR:   That, I am afraid, is what I am not persuaded of.

MR BENNETT:   Where one has this sort of generalised factual matter and one has on the one side the government and on the other side doctors who, no doubt, have access to institutional information, it is far more likely that one gets to a convenient set of facts to work on by the procedure that has been undergone in this case.

HIS HONOUR:   Am I right in thinking that the solicitors who are running Selim v Lele are the same as the solicitors who are running this case?

MR BENNETT:   Yes, your Honour, they are.  Your Honour, we submit that the Court can conveniently decide the case on the basis of the draft agreed statement of facts.  It has the benefit of Justice Stone’s decision.  It does not have the benefit of the further consideration by the Full Court, but the Full Court has taken the view that it is more appropriate for the questions to be determined here first.  While the matter is not of enormous urgency, it is certainly desirable that it be determined as quickly as possible because of the risk that other practitioners in the same situation will make the same objections and perhaps delay proceedings.

HIS HONOUR:   What has been going on since January 2004 when the final report adverse to these practitioners was made?

MR BENNETT:   Well, your Honour, those proceedings take some time, as I understand it, and, of course, the proceedings in consequence of it have been delayed by the need to prepare the draft agreed statement and by the considerations being given to the relative pace of this case and the other one.

HIS HONOUR:   This litigation was commenced in May 2006.

MR BENNETT:   Yes.  Well, your Honour, we submit it is desirable that it be determined early.  We do not press for a hearing date this year largely because there are two other matters, one of which is before your Honour in a few minutes, which seem to have greater urgency.

HIS HONOUR:   The list is full for this year anyway.

MR BENNETT:   Yes. 

HIS HONOUR:   I do not think that Auditors Board Case has yet been listed, but I expect it to be listed for February.

MR BENNETT:   If your Honour please.

MR JACKSON:   May I say a couple of things, your Honour?

HIS HONOUR:   Yes.

MR JACKSON:   A principal reason why between 2004 and the institution of these proceedings apparently was the fact that there was judicial review of an aspect of the case.  That is what took up the time, so it is not as if nothing happened in that time.  The second thing is, could I just mention that the BMA Case was on demurrer in the Court and the General Practitioners Society Case was a case stated and, your Honour, we join in the observations of our learned friend, the Solicitor‑General.

HIS HONOUR:   For the reasons that I indicated in the course of discussions with the Solicitor‑General, I think that these proceedings should be remitted to the Federal Court and I order that they be remitted to the Federal Court.  There is nothing about parties that requires to be altered or cleared up, is there?

MR BENNETT:   No, your Honour.

MR JACKSON:   No, your Honour.

HIS HONOUR:   It will be for the Federal Court to decide how this matter should proceed having regard to the current state of the litigation in the case of Selim v Lele.  Costs to date in this Court should be costs in the proceedings in the Federal Court.

AT 10.45 AM THE MATTER WAS CONCLUDED