Edelsten v Minister for Health

[1994] FCA 82

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY No VG 501 of 1993

GENERAL DIVISION

B E T W E E N :

GEOFFREY WALTER EDELSTEN

Applicant

A N D :

MINISTER FOR HEALTH AND OTHERS

Respondents

COURT:  NORTHROP J

PLACE: MELBOURNE

DATE: 15 FEBRUARY 1994

REASONS FOR JUDGMENT

This is the return of a motion brought by the respondent, the Minister for Health, seeking an order that the application for an order of review herein be dismissed pursuant to sub-paragraph 10 (2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). When the matter was called on, Dr Edelsten, who appeared in person, raised an objection that the notice of motion was incompetent and that the Court should not proceed with the hearing of it on the ground, among others, that it was an abuse of the process of the Court.

It is not necessary, at this stage, to go into any detail as to the substance of this matter, but the application for review seeks to review a number of decisions as well as conduct. A reference to the application, which was issued on 26 November 1993, indicates that the decisions sought to be reviewed are the decision of the first respondent, the Minister for Health, made on or about 4 June 1993, being the decision that the applicant had rendered excessive services within the meaning of subsection 79(1B) of the Health Insurance Act 1973 and the decision of the second respondent, being the members constituting the First Medical Services Committee of Inquiry, to recommend to the Minister for Health that the applicant had rendered excessive services which decision was made on or about 10 May 1993. Following those decisions, pursuant to the provisions of the Health Insurance Act the matter came before the third respondent, the Third Medical Services Review Tribunal. The Review Tribunal has not given its decision. The applicant seeks to review the conduct of that Tribunal. The application defines the conduct as follows:

"The Conduct of the third Respondent made on or about 9 November 1993 whereby the third Respondent refused to consider material which was originally filed in the Federal Court as part of proceedings involving both the first and second Respondents and decided such material would not be considered in the conduct of its review."

It is not necessary to go through the statutory provisions by which these various bodies are set up, their functions and powers. It is sufficient to say that the hearing before the Review Tribunal commenced on 9 November 1993, continued on 10 November 1993 and concluded on 17 December 1993. There was, as I understand it, an application by Dr Edelsten that the hearing by that Tribunal should be adjourned because of potential proceedings which might be commenced in the Federal Court of Australia but the Review Tribunal refused to accede to that request. Apparently, the Review Tribunal did make some suggestion that it would not proceed with the consideration of its deliberations as to the outcome of the review or to announce its decision until after the completion of the Federal Court proceedings which might be commenced relating to this matter. By way of aside, that view may well have been too wide. As indicated during the course of argument, it is difficult to see how the decision of the Review Tribunal could have any effect whatsoever, particularly in light of subsequent events if it had made errors of law.

The application to this Court for judicial review was filed on 26 November 1993, that is, during the period of the adjournment of the proceedings before the Review Tribunal but before it had completed its hearing. By the application, Dr Edelsten sought a number of orders by way of motion, including an order that he have leave to commence the application in the Federal Court outside the time specified in the Judicial Review Act. He sought also interlocutory orders restraining the Review Tribunal from continuing its review. On 16 December 1993 the Court, constituted by Heerey J, gave leave to commence proceedings out of time but refused to make the interlocutory orders sought. In those circumstances, the Review Tribunal was quite entitled to proceed with the hearing, as it did, on 17 December 1993. I can see no reason why it cannot, at this stage, continue its deliberations as to what it should do and to make public any decision it arrived at as a result of those deliberations.

At the time the matter was argued before Heerey J, reference was made to paragraph 10(2)(b)(ii) of the Judicial Review Act. That paragraph provides in substance that notwithstanding subsection 10(1), which can be ignored for present purposes, the Court may, in its discretion, refuse to grant an application under sections 5, 6 or 7 of the Judicial Review Act that is 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:

"(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."

Arising from discussions on the submissions made on behalf of the respondents, it appears that the motion is brought pursuant to O54 r7 of the Federal Court Rules. In this regard, rules 6 and 7 of that Order are of importance. Rule 6 provides:

"6. In applying Order 20, rule 2 to applications under the Administrative Decisions (Judicial Review) Act 1977, that rule shall be construed as if paragraph 1(a) read "no reasonable basis for the application is disclosed".

Rule 7 provides:

"7. Any party who seeks to have an application for an order of

review dismissed:

(a) on a ground set out in Order 20 Rule 2;

(b) on a ground set out in section 10 of the Administrative Decisions (Judicial Review) Act 1977; or

(c) in the exercise of the Court's discretion;

shall apply promptly for such dismissal."
On one view, the discretion to refuse to make an order

conferred by paragraph 10(2)(b)(ii) of the Judicial Review Act is a discretion which should be exercised at the conclusion of a hearing of an application for judicial review. The power goes to a discretionary matter and would apply in circumstances where an applicant had established grounds for the making of the order sought, but despite that, the Court has discretion to refuse to make an order in the circumstances specified in that paragraph. There are authorities to the effect that for practical reasons it is desirable that where a respondent is proposing to raise this discretionary matter, that respondent can do so at an early stage by way of motion for an order of the type referred to in O54 r7(b). Having regard to the context in which this power to dismiss is contained, and having regard to the well established legal principles that in applications under O20 r2 to have an application dismissed on the ground that no reasonable cause of action is disclosed that the courts have adopted (see, for example, General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at pp 128-9) that all facts in support of the claim being made must be assumed in favour of the applicant and against the respondent seeking to have the application dismissed or stayed, the same principles should be applied here. This is only logical. It sits neatly with the concept that the exercise of a power of the kind referred to in paragraph 10(2)(b)(ii) of the Judicial Review Act is a power having the same character.

Applying those principles, for the purposes of the hearing of the motion, it must be assumed that the applicant, in this case Dr Edelsten, would succeed in his claim. Even so, for the reason specified in that section, the Court could only come to one conclusion and refuse to make an order on the ground specified in that section. In these circumstances, it seems to me that there is nothing in the submission that the motion is an abuse of the process of the Court. The purpose of the motion overcomes a problem, which otherwise would arise, of the Court having to consider the whole of the applicant's case to determine whether, on the facts proved, the applicant would succeed. The summary power is designed to avoid that very thing. It allows a summary judgment to be given in the circumstances where, even if otherwise an applicant would succeed, no order would be made in favour of that applicant.

The problem in the present case, to some extent, arises from the fact that the application for review seeks to review decisions which have been made, about which there are no problems, but also seeks review of conduct of the Review Tribunal. The conduct which is challenged is illustrated by a reference to pages 8 to 10 of the application. Commencing on page 8 the application sets out why the applicant is aggrieved as follows:

"1. A great quantity of relevant material was filed in the Federal Court proceedings and was examined by the second Respondent.

2.   This material was referred to during its Inquiry and forms part of its decision.

3.   Notwithstanding that the Applicant has requested that this material form part of the review by the third respondent, the third respondent has refused to examine this material or to take in into consideration in the conduct of its review."

The grounds for the application need not be referred to at the

present time.

Although it may be said that this conduct extends to the consideration of the determination and the publication of it by the Review Tribunal and although that is still in the future, the application is seeking to review conduct which has already passed. In all the circumstances of the case, I see no reason why the Court should not proceed with the hearing of the motion by the Minister for Health on the basis that it is to be assumed that the claim by the applicant would succeed, but even assuming that, this is a case where in its discretion the Court would of necessity refuse to grant the orders sought, on the ground that adequate provision is made by a law under which the applicant is entitled to seek a review of those decisions and conduct by another tribunal.

The Court will continue with the hearing of the motion.

The matter before the Court is, in reality, the proper construction and application of paragraph 10(2)(b)(ii) of the Judicial Review Act. Reduced to its bare minimum, the Court can only exercise its discretion in favour of the respondent in this case if there is adequate provision made by any law, other than the Judicial Review Act, under which the applicant is entitled to seek a review by another tribunal of the decisions or content specified.

In this regard Mr Hutner, on behalf of the respondents, has referred the Court to the scheme under the Health Insurance Act by which there exists procedures for the review of the decisions or conduct of the Minister for Health, the Committee of Inquiry and the Review Tribunal respectively. Under s106 of the Health Insurance Act, the Minister has power to make a determination on a recommendation of a committee constituted under the Health Insurance Act in relation to matters of over-servicing by medical practitioners. There is a provision in that Act for review of that determination by the Minister. This is contained in Part VA of the Health Insurance Act. Paragraph 107A(1)(a) is as follows:

"107A (1) Subject to this Part, where the Minister makes a determination, the person to whom the determination relates may:

(a) if the determination is a determination other than a determination referred to in paragraph (b), request the Minister in accordance with Division 3 to refer the determination to a Medical Services Review Tribunal for review; or

(b) ... "

The Act contains a number of provisions setting up Review Tribunals. Under s114, provision is made for a request for review by a person to whom a determination relates, and for how the request is to be made. The request is made in writing and must set out the grounds on which the request is made and it is to be served on the Minister within a specified time. The Act contains detailed provisions as to what follows thereafter including the rights of parties at the proceedings under review. Section 118 deals with the procedure before the Tribunal. Section 119 deals with the proceedings on review. It is a long section as follows:

"119 (1) 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 on the review; and

(b) shall, subject to subsection (2):

(i)     in the case of a determination that consists of a refusal by the Minister, under subsection 23B(2), to accept an undertaking - affirm or set aside the determination;

(ii) in the case of a determination made under section 106 in accordance with a recommendation referred to in paragraph 105(2)(e) or (f) or 105(2A)(f) or (g) or a determination made under section 106FK in accordance with a recommendation referred to in paragraph 106FJ(2)(f) or (g), 106FJ(3)(f) or (g) or 106FJ(4)(d) or (e) - affirm, set aside or vary the determination;

(iii) in the case of any other determination under section 106 or 106FK - affirm or set aside the determination, or set aside the determination and make any other determination that the Minister is empowered to make under that section in giving effect to any recommendation of a Committee.

(2) The decision of a Tribunal on a review shall, for all purposes (except for the purposes of this Part), be deemed to be a determination of the Minister."

Having regard to the whole of the relevant provisions of the Health Insurance Act, it appears that a Review Tribunal has a power to review the decision of the Minister based upon the material that was before the Minister, being the report of the Committee of Inquiry, and all matters that were before the Committee. It appears that no further evidence can be given to the Review Tribunal, but it exercises its discretion on all the matters properly before the Committee and the Minister, and thus before it. If in fact it takes into account extraneous matters, that may well be a basis for a challenge to the decision of the Review Tribunal. If it fails to take into account relevant matters, that may well be a basis for Review of the decision of the Review Tribunal.

Section 124A of the Health Insurance Act provides:

"124A A party to a proceeding before a Tribunal under Division 3 may appeal, on a question of law only, to the Federal Court of Australia from any decision of the Tribunal in that proceeding."

In the circumstances and on the assumption made in favour of the applicant as illustrated earlier in these reasons, it is necessary for me to determine whether those provisions constitute adequate provisions made by law, in this case the Health Insurance Act, under which the applicant, Dr Edelsten, is entitled to seek a review by this Court or another tribunal of the decisions which are being reviewed by the Review Tribunal or the conduct of that Tribunal. In doing this, the first crucial words are "adequate provision" in paragraph 10(2)(b)(ii) of the Judicial Review Act. The word "adequate" is a word in everyday use. It has well defined meanings and essentially means sufficient or suitable. That is given in the Shorter Oxford English Dictionary. Fully sufficient or suitable are the meanings given in the Macquarie Dictionary. In this context, the adequate provision is to be read as adequate in the sense of suitable or sufficient provision for review.

In my opinion, the provisions of the Health Insurance Act do make adequate provision, in that sense, for the review of the decision made by the Minister and of the Committee of Inquiry by the Review Tribunal. If the Review Tribunal makes any error of law, the decision can be reviewed by this Court on an appeal under s124A of the Health Insurance Act. A very detailed set of provisions are applicable to the procedures of the Review Tribunal, a very detailed procedure is provided for the setting up of the Review Tribunal, and its powers and functions. In those circumstances, this is a case where, in the exercise of a discretion, even if the applicant otherwise was entitled to review under the Judicial Review Act, the Court should exercise discretion under paragraph 10(b)(2)(ii) of the Judicial Review Act. In my opinion, this is the only conclusion which the Court could come to in the circumstances of this case.

Dr Edelsten did argue that there were special features applicable which should be taken into account to deny that conclusion. For instance, the serious nature of the consequences of a determination by the Review Committee, the effect on the medical practitioner concerned, the fact that the Review Committee is not able to consider questions of law, such as whether there was a denial of natural justice in the earlier proceeding before the Minister or the Committee of Inquiry, and the limited nature of the review. But it is difficult to see how that can have any real meaning when the Review Tribunal is in essence and in fact exercising the powers of the Minister on material that was properly before the Minister.

As I said before, if the Tribunal goes wrong in any of those areas, there is an appeal to this Court. It is also argued that a course of this kind would result in additional costs, but I reject that argument because it would be completely unrealistic to enable this existing judicial review application to proceed at a time when it may well be that the Review Tribunal will come to a decision which is unreviewable and completely binding on the parties. If errors do occur, Dr Edelsten can appeal, on a question of law, to this Court.

In these circumstances, the motion is granted. It is ordered that the application for order to review herein be dismissed with costs.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment of The Honourable Mr Justice R.M. Northrop.

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