Edwards, Dr Frederick Harry v Minister for Human Services and Health Medicare Participation Review Committee

[1996] FCA 748

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIA DISTRICT REGISTRY       )       No. VG 414 of 1996
  )
GENERAL DIVISION                 )

B E T W E E N:

DR FREDERICK HARRY EDWARDS
  Applicant
  - and -

MINISTER FOR HUMAN SERVICES AND HEALTH
          MEDICARE PARTICIPATION REVIEW COMMITTEE
  Respondent

JUDGE:    Heerey J

DATE:     16 July 1996

PLACE:    Melbourne

REASONS FOR JUDGMENT

I am satisfied this is an appropriate case for the exercise of the discretion to grant a stay in the way for which counsel for the applicant contends.  It does seem that the particular difficulties of getting locums to Churchill were canvassed by the Tribunal but the actual commencing date of any particular locum that would in fact work there was not considered.  It seems that the Tribunal, no doubt reasonably, assumed that 28 days would be sufficient to engage a locum, that being the only meaning I can attach to the expression "make the necessary arrangements". 

But subsequent events have shown that this is simply not possible.  I accept the evidence that the applicant has made reasonable enquiries to see if locums are available.  Indeed, there would be no incentive for him not to do so.  I accept
that no locum can be obtained to commence work at this practice before 3 November 1996.

When that locum commences, the terms of s 19B of the Health Insurance Act 1973 (Cth) will be applicable. But it would seem that, subject to genuine arms-lengths' arrangements being made between the locum and the company Motika Pty Ltd for the provision of medical accommodation and other services, and the locum receiving for his or her own benefit the fees via Medicare for the professional work done for patients, that s 19B would not be infringed. Anyway, that is a matter to be worked out in detail.

So I will grant the stay sought.  But I would strongly suggest to the parties that further consideration of this mater might lead to a consent order that the matter be remitted to the Tribunal, which has had the benefit of hearing all the evidence about the matter, that is to say the evidence about the condition of the practice and the circumstances in Churchill, so that the new information about the availability of locums can be taken into account.  If that were done, the present proceeding might hopefully be resolved without putting the parties to the need for further application to this Court in a matter where there has already been, no doubt, very considerable legal expense. 

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment of his Honour Justice Heerey.

Dated:

Associate

Appearances

Counsel for the applicant:       Mr P Lacava

Solicitor for the applicant:     Tyler Tipping & Woods

Counsel for the respondent:      Mr M Goldblatt

Solicitor for the respondent:     Australian Government Solicitor

Date of hearing:                 16 July 1996