Freeman, J. v McKenzie, M.A

[1988] FCA 504

CATCHWORDS

ADMINISTRATIVE LAW - ~udrcial review - committee of inquiry

into alleged excessive services provlded by doctor -

committee commencing inqulry into thousands of servlces

provided to hundreds of patlents some ten years earller - whether an abuse of process by reason of scope of inquiry, delay or failure to provide adequate particulars - possible

steps to reduce oppression - power of Court to grant

permanent stay - factors affecting Court’s discretion.

Admlnistrative Decisions (Judicial Revlew) Act 1977

ss. 3, 5 and 6

Health Insurance Act 1973 ss. 79,82,90,91,92,94,95,96,

96A,968,97,104,105,106 and 1 0 6 ~ ~ .

JACK FREEMAN and M.A. MCKENZIE, W.M. MCCUBBERY, D.W. LORDING,

D.R. GAULD and	G.J. ROYAL (who are sued as the Chairman and
Members of the Second Medical Services Committee	of Inquiry
for the State of Victoria)

No VG 94 of 1988

NO VG 245 Of 1988

Woodward J

6 September 1988

Melbourne

:  I’ ’

IN THE FEDERAL COURT OF AUSTRALIA)

)

VICTORIA DISTRICT REGISTRY ) NO. VG 94 Of 1988

) No. VG 245 of 1988

GENERAL DIVISION	1
BETWEEN:

JACK FREEMAN Applicant

and

M.A. MCKENZIE, W.M. MCCUBBERY, D.W. LORDING,

D.R. GAULD and G.J. ROYAL (who are sued as the

Chairman and Members of the Second Medical Services

Committee of Inquiry for the State of Victoria)

Respondents

MINUTES OF ORDER

COURT: Woodward J

- DATE: 6 September 1980

PLACE:  Melbourne

THE COURT ORDERS THAT:

In action No VG 94 of 1988

1. The notices pursuant to hearings notified to the applicant by two

5.95 of the Act, sent to him on

4 February 1988, be for ever stayed.

2.	The respondents pay the applicant's costs	of this
application. In action No VG 245 of 1988

3.     Each party bear its own costs of this appllcation.

- Note: Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

L

U

IN THE FEDERAL COURT OF AUSTRALIA)

)

VICTORIA DISTRICT REGISTRY	)	NO. VG 94 Of 1988
)	NO. VG 245 Of 1988 -
GENERAL DIVISION	)
BETWEEN:

JACK FREEMAN Applicant

and

M.A. MCKENZIE, W.M. MCCUBBERY, D.W. LORDING,

D.R. GAULD and G.J. ROYAL (who are sued as the

Chairman and Members of the Second Medical Services

Committee of Inquiry for the State of Victoria)

Respondents

COURT: Woodward J

- DATE: 6 September 1988

PLACE:  Melbourne

REASONS FOR JUDGMENT

These are consolidated applications, the first of

which, in its form, seeks an order	of review, pursuant to the
Administrative Decisions (Judicial Revlew) Act 1977	('the

Judicial Review Act'), concerning decisions made, and conduct

proposed, by the respondents under the Health Insurance Act
1973 ('the Act'). The second application seeks to rely on
any other source of power the Court may have to "exercise
general supervisory jurisdiction" over the respondents, as
counsel expressed the matter.

In substance what is sought is a permanent stay of

an inqulry, being conducted by the respondents under the Act,

-into whether the applicant, a doctor, has directly, or

through his employees, rendered "excesslve services" to

patients within the meaning of s.79(lB)(a) of the Act.

The respondents have not questioned the power of

the Court to make the orders sought. The combined effect of

~~.3(1),3(3),3(5),5(l)(e),5(2)(j),6(l)(e) a n d 6 ( 2 ) ( ~ ) of the

Judicial Review Act is to give the Court power to prevent a

committee of inquiry established under an Act of the

Parliament from acting in an oppressive manner whlch amounts

to an abuse of power. It was also conceded, on behalf of the

committee, that it could itself terminate an Inquiry in order

to prevent an abuse of power.

The substance of the applicant's argument is,

first, that the very nature of the inquiry, involvlng as	it
does well over	6000 services, rendered to over 1600 patients,
over a period of two and	a half years, is oppressive. At the

proposed rate of proceeding, which could hardly be

accelerated from the applicant's viewpoint, it would take at

least five years to complete the programme of hearlngs.

Secondly, the inquiry has, it is said, become so

oppressive as the result of eight years of delays that it

ought now to be terminated before it begins.

Finally, it is argued, by counsel for the

applicant, that the respondents' failure to provide further
particulars of the alleged over-servicing has compounded the

oppression.

The relevant sections of the Act for present

purposes are ~ ~ . 7 9 , 8 2 , 9 0 , 9 1 , 9 2 , 9 4 , 9 5 , 9 6 , 9 6 A , 9 6 B , 9 7 , 1 0 4 , 1 0 5 ,

106 and 106AA of Division 3.

The relevant parts of those sections are as

follows:

"Division 3 Medical Services Committees of Inquiry

79.	(1) .... (1A) .... (le) A reference	in	this	Division	to
excessive	s rvices	i	a	reference	to

professional servaces (other than pathology

services), being services in respect of which

medicare beneflt has become or may become

payable and which were not reasonably

necessary for the adequate medical or dental

care of the patlent concerned.

( 2 )	....
( 3 )	....
( 4 )	where a practitioner provides a
professional service in the course of his

employment by another person, then, for the

purposes of this Dlvision, that service shall

be taken to have been rendered by that

practitioner and not by that other person.

( 5 ) ....

82.         A Committee shall inquire into, and

submit the o Minister its report and

recommendations on, any matter referred to the

Committee by the Minister, being a matter that -

(a) is relevant to the operation or

and administration of this Act ... .;

(b) arises out of or relates to the

rendering of a professional servlce

(other than	a pathology service), on
or after 15 April 1977,	in the State
which for Committee theis established.

90. section [This detailed makes

provision for the conduct of meetings of	a
Commlttee.]

91. (1) Subject this to Act and the

regulations, a Committee may regulate the

proceedings at its meetings as it thinks fit.

( 2 ) The meetings of a Committee shall be

held in private.

92.         Subject to section 94, the Committee

may, for the purpose of its inquiry into a

matter the subject of a reference, inform

itself in such manner as it thinks fit.

94. Where, after consideration of a

matter referred to a Commlttee by the Minister

and of any documents that accompany the

reference supplied by the Mlnister, it appears to the Committee that -	(a)	....
(b)	....
( C )	a practitioner may have rendered
excessive services;
(d)	a person may have caused or
permitted a practitioner employed by
the person to renders excessive
services;
(e)	....

( f) a practitioner may have initiated

excessive pathology services;

(g) a person may have caused or

permitted a practitioner employed by

the person to initiate excessive

pathology servlces; or
the Committee shall -	(h) ....
(j) unless paragraph ( k ) applies -

conduct a single hearing lnto the

matter; or

(k)	if it is atisfied that it is appropriate to do so - conduct 2 or more hearings into the matter, each
hearing being a hearing into the
matter in so far as the matter
relates to ne or more of the
circumstances referred in to

paragraph (a) to (h) (inclusive).

,‘l ’

. - 5 -

95.(1) A Commlttee shall, if it proposes to

hold a hearing Into a matter in so far as the
matter relates to a circumstance referred to
in paragraph 94(c),(d) or (e), glve notrce in
writing of the tlme and place of the proposed
hearing, at least 10 days before the date of
proposed hearing, to the person first referred

to In that paragraph.

( 2 )	....
( 3 )	....

96.(1) For the purposes of a hearlng, a

member may, by wrlting under his hand, summon

[the person given notlce under s.951 to attend

the hearing and to produce such documents (If any) as are referred to rn the summons and to appear at the hearing to give evldence for the

purpose only of identifying any such

documents.

(3) A summons under this section may be

served on the relevant person concerned

personally or by post.

96A.(1)	Where a relevant person is summoned
under section 96 to attend	a hearing, he shall

attend in person, and may be represented by

another person, at the hearing.

(2) Where notice of a hearing has been

served under section 95 on a person other than a body corporate, and the person has not been

summoned under section 96 to attend the

hearing, he may attend in person,	or may be
represented by another person, at	the hearing.

( 3 ) ....

96B.(1) Where a relevant	person	attends,
appears or is represented at	a hearing in
accordance with sub-section 96A (l),	(2) or

( 3 ) , he or his representative, as the case

requires, shall be glven the opportunlty to

give evidence, and to call witnesses, on

behalf of the relevant person, to examine

other witnesses appearing at the hearing and

to address the Committee.

( 2 ) ....

97. [This section makes d tailed

provisions, similar to those in s.90, for the

conduct of a hearing, as distlnct from a

meeting. Among the provislons are the

following -1

( 3 ) The rules of evidence do not apply

in relation to a hearing and the procedure for

conducting the hearlng is, sublect to thls Act
and the regulations, within the discretion of

the member presiding.

( 5 ) The member presiding at a hearing

may adjourn the hearing from time to time as

he thinks fit.

104. After completion by	a Committee of a
hearing in relation to	a matter, the Committee

shall report to the Minister its opinion on

the matter and, in a case where the Commlttee,

in the report expresses the oplnlon -

(a)	has	rendered	excessive	services;	or
(b)	that	a person	specifled	in	the

report has caused	or permitted a
practitioner -

(i) who is employed by the person

so specified; or

(ii) who is employed by a body

corporate of which the person

so specified is an officer,

to render excessive services,

the report shall identify the xcessive

services.

105.

( 2 )	Where
(a)	a Committee has, in a report under section 104, expressed the opinion
that a practltloner has rendered
excessive services, has and
identified those services; and
(b)	a medicare benefit is payable, or has been paid, in respect of any of those services,

the Committee may, in the report, make one or

more of the following recommendations:

( C ) that the practitioner, being a

practitioner other than a body

corporate, be reprimanded;

(ca) that the practitioner, being a

practitioner other than a body

corporate, be counselled;

(e)	where the medicare beneflt 1s payable, but has not been paid, to the practitloner - that the medicare benefit or a specrfied part of the
medrcare beneflt cease to be

payable;

(f)	where the medicare benefit has been paid to the practitloner or has been pald, or is payable, to another
person, (including another

practitioner or another person by

whom the first-mentioned

practitioner is employed) - that the amount of the medicare benefit or a specified part of that amount be payable by the practltioner to the Commonwealth.

( 2 A )	Where -
(a)	a Committee has, in a report under section 104 -
(i) expressed the opinion that a person has caused or permitted a practitioner -

( A ) who is employed by the

first-mentioned person;
or

(B) who is employed by a body corporate of which the first-mentionedpersonis an officer,

to render excessive services;

and

(ii) identified those services;

and

(b) a medicare benefit is payable, or has been paid, in respect of any of those services,

the Committee may in the report make one or
more of the following recommendstions:

(C) that the first-mentioned person, being a person other than a body corporate, be reprimanded;

(d) that the first-mentioned person, being a person other than a body corporate, be counselled;

- 8 - .

where the medicare benefit is

payable, but has not been pald, to

the first-mentioned person	- that
the medicare benefit or	a speclfied

part of the medicare benefit cease

to be payable;

where the medlcare benefit has been
paid to the flrst-mentioned person
or has been paid or is payable to a

person other than that flrst-

mentioned person - that the amount

of the medicare benefit or a

specified part of that amount be

payable by the first-mentioned

person to the Commonwealth.

....

....

106. Where (1) a Committee makes a

recommendation In accordance with sub-sectlon
105(2) or ( Z A ) , the Minister may make a
determination, in writing, in accordance with

that recommendation.

( 2 )	....
( 3 )	....

1 0 6 A A . ( 1 ) As soon as practicable after a

determination of the Minister under section

106  takes effect or takes effect as varied,

the Minister shall cause to be prepared a

statement settlng out particulars of that

determination, including	a	statement of the
reasons	for	making the determination, which

may take the form of, or include, a reference

to, or an abstract from, the report to the

Minister on which the determination is based,

together with a statement setting out any

comment whlch the Minister wlshes to make, or

any material which he wishes to present, in

relation to the determination.

( 1 A ) Where a statement is prepared under

sub-section (l), the Minister -

(a) may, if he thinks fit, cause the

statement to be published in the

Gazette; and

(b) shall cause a copy of the statement
to be laid before each House of the
Parliament within 15 sitting days of
that House after the preparation of
the statement.

.

The following chronology of events, provided by the

applicant, has not been challenged by the respondents.

1.	30 October 1979	Visit by Dr. Eccles-Smlth to surgery.
2.	9 November 1979	Delegate [makes] reference to
First Committee of Inquiry
(reference stricted to
professionalservicesperformed by Dr. Freeman). Annexures "A" and "B" [listing summaries and details of services performed].
3 .	8 February 1980	First Notice pursuant to S.95.
4 .	27 February 1980	First Hearing (not attended by Dr. Freeman).
5 .	29 July 1981	First Committee of Inquiry
[reports] to Minister.
6 .	15 September 1981	Minister [w ites] to Dr.
Freeman advising of Committee's
recommendation. Applicant
required to repay $61,032.82.
7.	12 October 1981	Applicant serves Notice of
request revlew o for
Minister's determination
pursuant to S.114.

8.	13 November 1981	Minister
application referred to Medical

advises revlew

Sevices Review Tribunal.

9. 10 February 1982 Date fixed

for review by Tribunal. conduct of

10.	January 1982	Applicant seeks order of review
pursuant to [Judicial Review
Act] (VG No. 6 of 1982).
11.	27 January 1982	Application comes on before
Northrop J. His Honour makes
interim orders taying the
effect of the decision of the Committee dated 29 July 1981 and determrnation of Minister dated 10 September 1981. Case adjourned.

12. 16 April 1982 Orders by consent that and recommendation decision

of Committee

and determination the of

Minister be set aside. Costs
to Dr. Freeman. Basis of

appllcation [is] that Dr.

Freeman [has] been denied

natural	justice	in	that	the
Committee	had	regard	to	Dr.

Eccles-Smith's report and other

materlal without that fact

being disclosed to Dr. Freeman.

13. 18 August 1983 Dr. Freeman receives letter

from	Chairman	of	First
Committee	with	new	notice
(Second	Notice	pursuant	o

5.95). Still original

reference. Hearing set for 27

September 1983.

14. 30 August 1983 Delegate of Minister writes to

Dr. Freeman enclosing copy of

report of Dr. Eccles-Smith.

15.	13 September 1983	Dr. Freeman applies to Federal Court for order of review under
[ Judiclal Review Act 1
complaining of denial of
natural justice because
composition of First Committee of Inqulry reveals actual or apprehended bias.

16. 2 December 1983 Application heard by Northrop

J. Consent orders made.

Committee	restrained	from
conducting	hearing.	Dr.

Freeman awarded costs.

16A 1 May 1984 Fresh reference to Committee by
delegate. S.94 decisron made.

17. 3 May 1984 Second M dical Services

Committee of Inquiry writes to
Dr. Freeman - new notice (Thlrd
Notice). Inquiry to be held on
5 June 1984. Summons to attend

also issued on 3 May.

18. 22 May 1984 Committee agrees to adjourn

hearing to 19 June (at request
of Dr. Freeman).

19. 4 June 1984 Dr. Freeman applies to Federal

Court for order of review under

[Judrclal Review Act] ( V G No.

162 of 1984). Applicant

contends that S.94 decision

improperly made, and also

attacks S.95 Notice and 5.96
Summons clalmlng an entitlement
to addresses of patients prior

to any hearing.

20. 22 June 1984 Matter comes before Sweeney J.

By	consent	Commlttee	given
leave to (Fourth Notice).	serve	fresh	notice

21. 29 June 1984 Fourth notice s rved fixing

hearing date 16 October 1984.

22. 2 October 1984 Fifth notice served fixing

hearing	date	for	4 December
1984.

23. 7-8 November 1984 Application heard by Northrop

J. Decision reserved.

24. 5 March Northrop 1985 J. dismisses

application with costs.

25. 25 March 1985 Dr. Freeman gives Notlce of

Appeal to Full Court.

26. 26-27 June 1985 Full Court hears appeal.

27. 26 July 1985 Delegate makes second reference

18026(a)	[concerning	MS
o v e r - s e r v i c i n g b y p r a c t i t i o n e r s
employed].

28. 10 October 1985	Full
Court with costs. dismlsses appeal

29. 22 October 1987 Dr. McRenzie writes to Dr.

Freeman citing "various

reasons" for delay and encloses

fresh notice (Sixth Notice)	-
proposed hearing 17 November 1987.

30. 17 November 1987 Second Committee purports to

commence hearing into reference

MS 18026. Committee indlcates
proposes to hear reference MS
18026(a) as well having decided

on 6 October 1987 pursuant to

S.94(d) that there may have

been excessive servicing in

relation to that matter (though

no tice ever served in

relation to that reference).

Ob~ection taken. Committee

refuses request for further

particulars. Committee states
It wlll adlourn hearing to 22

December 1987.

31. 25 November 1987	Second Committee issues Seventh and Eighth notices under S.96,
and summons under 5.96 for
hearing on 22 December 1987.

32.	17 December 1987	Written request by Dr. Freeman for further particulars.
33.	22 December 1987	Dr. Freeman receives reply
saying no further particulars to be supplied.
34.	22 December 1987	Second Commlttee purports to
commence h arlng. Objection
taken that both notices and
summonses invalid. Request
pursued further for
particulars. Committee upholds objections and states that new
notices and summonses wlll be
issued.
35.	4 February 1988	Letter from Second Committee
enclosing Ninth and Tenth
Notlces pursuant to S.95 and
summonses. Proposed hearing
date 16 February 1988.

36. 10 February 1988	Dr. Freeman writes to Committee requesting further particulars.
37. 15 February 1988	Committee refuses further
particulars.

38. 16 February 1988 Second Committee purports to

commence	h aring.	Objection
taken.	Request	made

for further particulars. Submitted

that Committee should itself

stay any further hearlng of the

matter because of the delay

involved	and	the	oppressive
nature	proposed	the	of

Committ	proceedings.
resolves to continue hearing, but agrees to adjourn to permit applicant to review decision.

39. 26	February 1988	Dr. Freeman writes to Mlnlster
requesting him to stay the
proceedings, or alternatlvely to withdraw his reference.

40. 24 March 1988 Committee writes to Dr. Freeman

in response to request for

reasons for not agreeing to

stay proceedings. States that
it does not have any dlscretlon

or power to grant such a stay,
and in any event, would not do

so in the clrcumstances.

41.	24	June	1988	Mlnister	responds	and	states
that he cannot withdraw a
reference once made. Accepts
that Commrttee may ultimately conclude that it cannot report on the matters et out in reference."

The decision of Northrop J referred to as item 24

above is now reported under the name Freeman v McCubbery

(1985) 65 ALR 361. The decision of the Full Court (Smlthers,

Lockhart h Jenkinson JJ), referred to as item 28, has not

been reported. The decision of Northrop J glves a detalled

account of events up to that time.

It will be seen from the chronology that there is

an unexplained delay of 17 months between the first hearing

by the first committee on 27 February 1980 and its brief
report to the Minister on	29 July 1981. There was a further

unexplained delay of 16 months between 16 April 1982 and 18

August 1983. Another delay of several months occurred

between 2 December 1983 and 1 May 1984, only part of which could be explained by the Christmas break. But, worst of

all, a full two years elapsed between the decision of the

Full Court in October 1985 and the next step taken by the

first respondent, Dr McRenzie, in October 1987. Thls delay

is explained, but not excused, by a perceived requlrement to

obtain legal advice for the committee and a need to

reconstatute the commlttee.

Although I thought, at one stage of the hearing,

that it would be convenient to defer the questron of further

particulars - in case	it proved unnecessary to deal with	t -
I now believe that	I should consider this issue first,

because it may be possible to reduce the alleged oppresslon
on the appllcant by ordering further particulars. Further
palliative orders could also be made, perhaps limiting the
scope of the inquiry. Only after these have been considered
should a judgment be made about the delay which has occurred

in the case.

The question of particulars was raised by the

applicant and debated by both parties. Counsel for the

applicant argued that further particulars were necessary from

the outset - giving details especially of the present

addresses of patients (which may not be known to the doctor),

of the particular services to that patient said to be

excessive and of the practitioner rendering those services.

Counsel for the committee said that the Full Court had held that no further particulars were necessary at thls stage, and it was only as the hearing progressed that further

particulars might become necessary. It would be a burdensome

task to provide, for example, the present addresses of all

the 1600 patients involved - where these were available - and

it was impossible at this stage to say which particular

services might ultlmately be alleged to be excessive.

I f m d it imposslble to deal with thls questlon

without saying something about the way in which, In my view,

an inquiry such as this should ordinarily be conducted.

I am conscious of the fact that it is not for this

Court, in its supervisory role, to tell a committee how it

should conduct its inquiry. The Court's task 1s rather to

direct the committee back on the rails f it has run off them or, in an extreme case, to stop the committee in its tracks.

On the other hand the committee is, in my view,

entitled to such positive guidance as the Court feels it can

properly give. The Court's role should not be purely negative - telling the committee what is wrong without any suggestions as to how to put it right. It is in that spirlt,

and because of the need to rule on the question of

particulars, that the following comments are made. However

each committee will have to make its own procedural declsions
in	the light of the particular circumstances of the case
before it. The power to do so is speciflcally conferred on the presiding member of the committee by	5.97 of the Act.
One mistake, in my view, made by the committee in the present case was to begin its proceedings on	17 November

1987 (see chronology above) by asking DC Freeman whether he

. ..

,I i .

had any witnesses he wished to call. It 1s true that no

answer was glven and so we do not know just what the

committee had in mind. But it would be normal for any

inquiry into possible mlsconduct by a person to begln with a

statement as to how the particular tribunal proposed to

conduct its proceedings, including the breaking up of the

possible areas of inquiry. In the present case, where

several different types of speclfic over-serviclng were

suggested,	I	would have thought the logical course was to
look first at	a number of instances of the same type	of

service, rather than	a number of patients who had experienced
a wide range of services	- many of them, no doubt, involving

no suggestion of over-servicing. The intention to deal first

with a particular aspect of possible over-servicing would,	of
course, be conveyed to the practitioner In advance.

Having outlined its procedures, the next logical

step, in my view, would be for the committee or one of its

officers to provide an outline of the material upon which the

committee had reached the view (pursuant to s.94 of the Act)

that excessive services may have been rendered. Where this

included a report by some investigator or analyst, that

person could, if it were thought appropriate, be called to

explain or elaborate the report and to be cross-examined by

the practltioner or his representative. There is,	of course,
no obligation on the Committee at this or any later stage	of

the hearing to explain to the practitioner, or defend, any
tentative views it may have formed about over-servicing; see
Minister for Health v Thomson (1985) 8 FCR 213.

Only after some such groundwork has been laid

should the practltloner be asked, pursuant to s.96 of the

Act, to produce his clinical notes for the cases previously
specified. He is required by the section to produce those

notes, but not to answer questions about them If he does not

wish to do so.	He should, however, be given the opportunlty
to explaln or comment on them If he	so wishes.

In most cases it would then be convenient for the

committee to adjourn the hearlng so that It could consider the material before it in a private meeting (see ss.90 and 91). This would give it an opportunlty to weed out any cases

which appeared unnecessary or unprofitable to pursue - either

because the services provided seemed reasonably appropriate
in the light of the clinical notes, or perhaps because it
appeared that the patient would not be available to either
the doctor or the tribunal for further enquiry and the case
was one where the evidence of the patient would probably be

relevant.

I do not accept, as was argued by counsel for the applicant, that the committee was obliged to interview, or
have interviewed	on its behalf, patients or other treating

doctors before determining which cases of possible

over-servicing merited further consideration.	I think the
committee could indicate its concern about	a particular case

or group of cases, and invite the practitioner to respond,

basing itself upon the clinical notes and its own

experiences.

Having determined which cases It wished to pursue,

the committee should then provide the practitloner, before

its resumed hearing, with particulars of those cases, giving,

so far as it had them available, the names and addresses of

the patients concerned, the dates and nature of the relevant
services and, where necessary, the name of the doctor who
provided the service. This would enable the practitloner to
determine what, if any, evidence he wished to call at the
resumed hearing.

This sequence of events would need to be repeated for each batch of cases reviewed by the committee. The point

to be remembered is that, generally speaking, a practitioner

should not be called on to justify his treatment of a particular patient until the committee has reached a view, based on readily available records, that the particular case

requires further consideration, and has notified the

practitioner of that fact so that he can fully prepare his

response.

For the reasons I have given, I think it would be

possible in this case for the Court to frame an order f o r

further particulars, to be supplied at an appropriate stage

of the committee's proceedings, which would assist the

applicant in the conduct of his case while not imposing an undue burden on the committee or those who would have ta do the work on its behalf.

Further, the Court could require the committee, as and to notify the applicant of those topics, of the sequence
in which they would be considered and, from hearing to I have suggested, to select manageable topics for inquiry,

hearing, of the particular consultatlons of which the

committee	required	clinical	notes	or invited	further
evidence.

Steps such as these would tend to reduce the

enormous number of services to be considered, to arrange them

in a convenient and logical sequence, to put aside those

which the applicant need not be concerned about, and to

provlde him with adequate particulars of the remainder,	so
that he could prepare his answers to the inquiry and his supporting evidence, where necessary.

Bearing in mind the possibility of reducing the

burden on the applicant by means such as these,	I	turn to
deal with the question of delay. Before considering the

possible effects of the long periods of unexplained, or

unconvincingly explained, delay, it is necessary to say

something about the true nature of the committee's inquiry.

In my view it cannot be said, as was submitted by

counsel for the respondents, that an inquiry into

over-servicing is merely "an investigation to ensure the

protection of public revenue", involving no serious

consequences for the doctor being investigated apart from the

, l '

possibilities of reprimand, counselling or having to repay to

the Commonwealth medicare benefits relating to the excessive

services [see s.105 above).

On the contrary, an allegatlon of persistent and

widespread over-servicing is, I believe, a very serious

allegation. It means that the doctor concerned has been

subjecting his patlents to unnecessary procedures in order,

in effect, to commit	a fraud on the national health scheme.
TO do this would be highly unprofessional conduct, and such	a

finding could hardly be ignored by professional or licensing

bodies. The ultimate consequences for the doctor, in terms

of his reputation, and even, perhaps, his right to practice

his profession, could be very serious indeed. It is true
that any threat to his right to practice would involve

separate proceedings, where questions of prejudicial delay

could be re-opened. But the damage to his reputation arising

from an adverse finding by the committee could be

considerable.

The Act expressly provides for adverse findings to

be publicized in the Government Gazette and the Parliament,
no doubt	as a salutary warning to other doctors not to

indulge in over-servicing (see s.lO6AA above). Such

publicity could seriously damage a doctor’s practice.

All this is;’in my view, recognized by the various

safeguards, includingthose against self-incrimination, which
are built into the legisiatiw scheme. It must not be lost

- . .

- -. -

sight of when the committee of inqurry is determining what

procedures It should follow in reachlng conclusions on

matters referred to it.

Because of the serious consequences for a doctor of

a finding of persistent over-servlcing, well-established

principles concerning delay, derived from crlmlnal law, are
not irrelevant for present purposes, though they must be used
with caution. They have been applied, from time to time, in
disciplinary proceedings. However, each case must be decided
on its own facts and no flxed guidelines are possible.
Obviously relevant factors include the right to a reasonably
prompt determination of allegations of misconduct, whether

involving criminal activity or other mmoral or anti-social

behaviour, the seriousness of those allegations from a

community viewpoint, and the potential penalties for the
person suspected or accused of wrongful conduct. The length

of delays and the reasons for those delays will clearly be

important. So also will be the nature of the proceedings and

the extent to which they depend on the availabllity of

witnesses and the reliability of their memories. Finally,

the public interest in arriving at the truth of the matters

alleged must be brought into the balancing exercise which is

required.

I do not find it particularly helpful to refer

directly to what has been said by other courts faced with similar, but widely varying, problems. But I believe the

considerations I have listed are consistent with what has

been said and cited in cases such as Herron v McGregor (1986)

6 NSWLR 246, Kintominas v Attorney-General for the State of New South Wales (1987) 24 A Crim R 456, and - R v Gagliardl (1987) 26 A Crim R 391.

In the present case I am influenced by

(a) the total period of unexplained (or inadequately

explalned) delays, amounting to some five years - half the

time which has expired since the events now in questlon
occurred;
(b) the serious nature of the allegations the applicant has

to face, and which he fails to answer at his peril;

(c) the circumstance that the most obvious way for a charge

of over-servicing to be rebutted is to show that the service

in question was appropriate to the particular case;

(d) the potential relevance of the	patient's recollection of
what he or she told the doctor, which led to	a particular
treatment being prescribed, and which may not be fully
recorded in clinical notes;

(e) the presumption, which in my view is inescapable, that

many patients said to have been the subject of over-servicing

have died, moved (with their records) to another doctor, or

suffered from failure of memory, since the services were
performed in 1971-79; and
(f) the presumption that the memory of the applicant, and of
other doctors employed by him, of individual patients, and

the factors which led to the prescription of particular

treatments, will have faded in the	9-11	years since those
prescriptions were made.

As against these considerations I must bear in mlnd

that there is In this case statistlcal evldence that has

satlsfied a committee of experienced doctors that excessive services may have been rendered by the appllcant over a wide range of patlents. The public interest is involved both

through the possible waste of public monies (assessed	at an
early stage of the proceedings at over	$60,000) and through

the possible threat to the integrity	of the health scheme	if
excessive services are unchecked.

Weighing these factors as best I can, in exerclse

of my judicial discretion, I have reached the clear

conclusion that these proceedings should be put to rest.

However fair-minded the committee might try to be, and

however closely its further proceedings might be monitored by

the Court, the risk of substantial injustice to the applicant

has, I believe, become too great.

It was inevitable that months would be taken ln

preparing for an inquiry such as this. In this case a number

of honest errors were made whlch were successfully challenged

by the applicant, and these added considerably to the time

taken. The applicant also mounted an unsuccessful challenge

to the Court which took up about twelve months in 1984-85.

All these delays, although worrying, can be

accepted as being within the bounds of reason. Certainly the

applicant cannot make capital out	of his own unsuccessful
court action - and he has not attempted to do	s .

I

- 2 4 -

The remaining five years of inadequately explalned

delays are, however, quite unacceptable in proceedings as

serious as these from the applicant’s viewpoint. Both in

fairness to the particular applicant, and as a mark of the

Court’s determination to see that proceedrngs which it 1s

called on to oversee are conducted justly, these proceedings

must be permanently stayed.

The respondents should pay the applicant’s costs of

the first application, No VG 94 of 1988. I do not find r t

necessary to make any findings in relation to the second
application, No VG 245 of 1988; since it took up little time
at the hearing I think it best that each party bear his own

costs of that application so far as they are identifiable.

I certify that this and the

twenty-three (23) preceding

pages are a true and accurate copy of the Reasons for Judgment herein of

The Hon Mr Justice Woodward

Associate

Dated: 6 September 1988
Counsel for the Applicant:	Mr M. Weinberg QC h M r J. Miller

Solicitors for the Applicant:  H.S. Wise, Gershov h CO

Counsel for the Respondents:  M K J. Pagjenbaum QC h

MC N. Moshinsky

Solicitors for the Respondents: Australian Government

Solicitor

Date of hearing: 21 - 22 July 1988