Edelsten, G.W. v Minister for Health

[1993] FCA 995

JUDGMENT NO. ........ ... TCFS ....,. r ........ .,.. 43

ADMINISTRATIVE LAW - Judicial review - extension of time for bringing application - injunction restraining Medical Review Services Tribunal from resuming hearing - discretionary factors in grant of relief - prospects of success - adequate provision made for review in statute - better review position of Tribunal.

Administrative Decisions (Judicial Review) Act 1975 ss.,10(2)(b)(ii), 11.

Health Insurance Act 1973 ss. 119, 122, Part VA.

Re Pozniak (unreported, Burchett J, 14 March 1986)

Geoffrev Edelsten v Minister for Health & Ors

(No. VG 501 of 1993)

Place: Melbourne
Judge :	Heerey J
Date:	16 December 1993

IN THE FEDERAL COURT OF AUSTRALIA )

1

VICTORIA DISTRICT REGISTRY	1	No. VG 501 of 1993
1
GENERAL DIVISION	1
B E T W E E N :

GEOFFREY W EDELSTEN

- -

and

MINISTER FOR HEALTH

First Respondent

NICHOLAS J RADFORD, JOHN
HORGAN. ARTHUR WATERHOUSE.
STELLA KWONG. WILLIAM ROSE

(Constituting the First Medical Services Committee of Inquiry)

Second Respondent

and

THIRD MEDICAL SERVICES REVIEW TRIBUNAL

Third Respondent

JUDGE :	Heerey J
DATE:	16 December 1993
PLACE :	Melbourne

MINUTES OF ORDERS

1. That the time for bringing this application for an order of review under the A d m i n i s t r a t i v e D e c i s i o n s ( J u d i c i a l Review) Act 1975 be extended to 26 November 1993.

2. The motion by notice dated 25 November 1993 be dismissed.

3. The applicant pay the respondents' costs of the notice of motion.

NOTE :  Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA )

1

VICTORIA DISTRICT REGISTRY	1	No. VG 501 of 1993
1
GENERAL DMSION	1
B E T W E E N :

GEOFFREY W EDELSTEN

Applicant

and

MINISTER FOR EEKGTH

First Respondent

NICHOLAS J RADPORD. JOHN

HORGAN. ARTINR WATERHOUSE, STELLA KWONG, WILLIAM ROSE

(Constituting the First Medical Services Committee of Inquiry)

Second Respondent

and

THIRD MEDICAL SERVICES REVIEW TRIBUNAL

Third Respondent

;mDGE:	Heerey J
m:	16 December 1993
PLACE :	Melbourne

EX TEMPORE REASONS FOR JUDGMENT

motion dated 25 November 1993, seeks injunctive relief which

The applicant, Dr Geoffrey Walter Edelsten, by a notice of

would restrain the Third Medical Review Services Tribunal (the Tribunal) from reviewing a determination adverse to him made by the first respondent, the Minister for Health, and also that the Minister be restrained from further demanding payment of a sum of $107,858.50 and from publishing the determination in the Government Gazette.

There is a threshold point which arises from the fact that the decision sought to be reviewed under the Administrative Decisions (Judicial Review) Act 1975 is the decision of the Minister made on 4 June 1993 and tXe application for review was not filed until 26 November. Hence Dr Edelsten would need an extension of time under s.11 of the AD(JR) Act. Because of the urgency of this matter, in the light of the Tribunal's plans to resume its hearings tomorrow, and because one of the relevant issues in considering an application for an extension of time is the prospects of success of the application itself if leave were to be granted, the merits of the substantive application became the subject of argument.

I think the most appropriate course in all the circumstances is that I grant leave to bring the application for review out of time and then proceed to consider the application for injunction. It is sufficient to say that the reason given for the delay in bringing the application was that it was not until -Sunday 30 October 1993, whilst preparing for the

of Burchett J in Re Pozniak delivered on 14 March 1986. Dr Tribunal hearing, that Dr Edelsten read an unreported decision

Edelsten says, and I accept, that up until then he thought that the repeal of s.122 of the Health Insurance Act 1973 in 1990 meant that he did not have any right of appeal to a court. His error is understandable and bearing in mind that the overall delay is not large and that he filed the application within 24 days of becoming aware of his right, I think it is appropriate that I grant leave to bring the application out of time.

I now turn to the question of the injunction itself. The

lengthy history of this matter commences on 24 June 1988 when Dr Edelsten was notified that a meeting of the First Medical Services Committee of Inquiry in Victoria (the Committee) found that he may have rendered excessive services within the

meaning of the Health Insurance A c t .

He challenged that decision in this court, initially having some success at first instance, but a decision of the Full Court delivered on 16 November 1990 was adverse to him. The Committee resumed its inquiry in May 1991. There was further litigation seeking adjournments of the Committee's inquiry. Also Dr Edelsten experienced some serious ill health during that period.

On 27 August 1992 the Committee concluded its hearing. On 10

June 1993 Dr Edelsten received a notice from the Minister

the Minister had determined that excessive services had been advising of recommendations of the Committee and the fact that

rendered and that the sum of $53,929.25 by way of Medicare benefits was to be repaid by Dr Edelsten, with an equal additional amount as penalty.

On 7 July 1993 Dr Edelsten exercised his right to seek review by a review tribunal under Part VA of the Health Insurance A c t . The Tribunal sat on 9 November, having refused an application for adjournment by Dr Edelsten based on a request that he have time to seek a judicial review of the decision of Committee and of the Minister's determination, and also on the basis of his ill health. However, the Tribunal undertook not to consider the material placed before it for review and the addresses made by himself and counsel representing the Minister until after the decision had been reached on any application for judicial review. The Tribunal's hearing will resume tomorrow.

I have reached the conclusion that I should not grant the injunction sought because Dr Edelsten would not, in my view, have a reasonable prospect of success at the final hearing of this application. Moreover, insofar as he has any complaints about the way the Committee dealt with the matter, he has a better range of remedies available from the Tribunal and a further right of appeal on a question of law to this court under s.124A of the Health Insurance Act. As a consequence, I

think that if this matter went to trial there would be a	strong case for the exercise of the discretion conferred by
s.l0(2)(b)(ii)	of the AD(JR) Ac t .

In the course of submissions before me and from reading the affidavit in support, it became clear that Dr Edelsten's application was based on two complaints. First, it was said that the Committee did not take into account certain material and/or that such material was not included in the material forwarded by the Minister to the Tribunal. The material in question consisted of affidavits which Dr Edelsten filed in the Federal Court in the litigation already mentioned and served on the members of the Committee as respondents.

Dr Edelsten did not give evidence before the Committee. He was not a compellable witness and chose not to appear. It appears that this caused the Committee some inconvenience but of course that was Dr Edelsten's right to exercise and the fact that the Committee was caused inconvenience is not to the point.

The Committee's report, described as "Reference V6 Book l", being exhibit AJS5 to the affidavit of Anthony Julian Santospirito, sworn 15 December 1993, does however include a copy of one affidavit sworn by Dr Edelsten in the Federal Court proceeding on 17 June 1991 (see page 17). The purpose of that affidavit was to challenge some procedural arrangements the Committee was proposing to make to overcome

the difficulty caused by Dr Edelsten being in prison at the time . However, it included in para.8 and 9 a brief description of the nature of the medical practice that he

carried on. Those paragraphs were included in the body of the Committee's report because they were the only details of the training, qualification and experience of Dr Edelsten that were available to the Committee.

Leaving that affidavit aside, it seems to me that the Committee, particularly in the circumstances where Dr Edelsten had declined to give evidence before it, had no obligation to consider as part of its deliberations material which the individual members of the Committee received for quite a different purpose, and only because -they were respondents to the litigation instituted by Dr Edelsten. Indeed it might be argued that it would have been improper for the Committee to so use the material.

It follows that the Tribunal, which has a review function under s.119 of the Health Insurance Act, is not obliged to consider that material.

The other attack on the Committee's decision is the assertion of a lack of evidence or "adequate" evidence for the Committee to make the findings that it did. The Tribunal will be able to assess the validity of that complaint and, being an expert body, will be in a better position to do so than a judge of this court. Moreover, although the Tribunal does not carry

out a -re-hearing function, its review is more extensive than that which is available to this court considering the "no evidence" ground under s.6(l)(h) of the AD(JR) Act.

Such considerations bring me to s.lO(2) (b) (ii) of the AD(JR)

Act which provides that, notwithstanding s.lO(1)

"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:

(i)   .. .

(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."

Those words have to be applied in their ordinary meaning. I do not see that one can or should read into the statute any requirement of, as Dr Edelsten argued, a "heavy onus" before the discretion is exercised. In the present case it is all the more likely that a trial judge would exercise the discretion because the applicant has already invoked the alternative procedure and that procedure has almost completed.

For those reasons I order that the time for bringing this application for an order of review under the AD(JR) Act be extended to 26 November 1993. I order that the motion by notice, dated 25 November 1993, is dismissed.

I will-order that the applicant pay the respondents' costs of

the notice of motion.

I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

Associate

Appearances

Counsel for the applicant:	In person
Solicitor for the applicant:	In person
Counsel for the respondent:	M r R Huttner
Solicitor for the respondent:	Australian  Government
Solicitor
Date of hearing:	16 December 1993

24 December 1993

Sonia Cornale
Federal Court of Australia
Principal Registry
Law Courts Building
Queens Square

SYDNEY NSW 2000

Dear Sonia,

Re: Tracenia Nominees Ptv Ltd v Centro Provertv Ltd

No. WAG 63 of 1993

Re:  Geoffrev W Edelsten v Minister for Health

No. VG 501 of 1993

I enclose copies of the judgments delivered by his Honour b l r Justice Heerey in che above matters on 10 and 16 December respectively.

A diskette record of the catchwords, minutes and reasons for judgments are also enclosed.

These judgments are for general distribution.

Regards,

David Br nan	LlL-d9j!l..+-
~ssociat; to Heerey J enc.