Ho v Grigor

Case [2006] FCAFC 72

FEDERAL COURT OF AUSTRALIA

Ho v Grigor [2006] FCAFC 72

PRACTICE AND PROCEDURE – judicial review – medical practitioners - decisions made under the  Health Insurance Commission Act  - alleged over-servicing – interlocutory orders in similar pending judicial proceedings by unrelated parties – ‘order’ reciting parties acceptance that test case would determine outcome of their proceedings – whether an order – agreement by counsel – whether agreement certain – result of test case - challenged decision set aside – whether challenged decisions in pending proceedings to be set aside pursuant to agreement – whether test case  issues before decision-makers in pending proceedings – undesirability of orders linking outcome of pending proceedings to outcome in test case – official decisions not to be set aside except for demonstrated error – uncertainty of agreement - leave to appeal granted – interlocutory orders set aside

WORDS AND PHRASES ‘order’

Health Insurance Act 1973 (Cth) s 106KA
Federal Court of Australia Act 1976 (Cth) s 23

Health Insurance (Professional Services Review) Regulations 1999 reg 11

Oreb v Willcock [2004] FCA 1520 cited
Oreb v Willcock (2005) 146 FCR 237 cited
Wong v Professional Services Review Committee No 339 [2005] FCA 1351 cited
R v Edwards (1884) 13 QBD 586 cited
R v Recorder of Oxford; Ex parte Brasenose College [1970] 1 QB 109 cited
Warramunda Village Inc v Pryde (2002) 116 FCR 58 cited
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 cited
In Marriage of Evans (1992) 108 FLR 14 cited
Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 cited
Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 cited
Minogue v Williams [2000] FCA 125 cited
Ex parte Bucknell (1936) 56 CLR 221 cited

HUGO HUU HIEP HO v WAL GRIGOR, HEATHER KNOX AND PHILLIP KNOWLES constituting the PROFESSIONAL SERVICES REVIEW COMMITTEE NO 295, THE DETERMINING AUTHORITY established by Section 16Q of the Health Insurance Act 1973 (Cth), HEALTH INSURANCE COMMISSION, BERNARD RAYMOND KELLY in his capacity as ACTING DIRECTOR OF PROFESSIONAL SERVICES REVIEW and ALAN JOHN HOLMES in his capacity as DIRECTOR OF PROFESSIONAL SERVICES REVIEW
NSD 744 of 2006
HIEN THANH DO v SIMON WILLCOCK, GEORGE PEPONIS AND ROD McMAHON constituting the PROFESSIONAL SERVICES REVIEW COMMITTEE NO 293, THE DETERMINING AUTHORITY established by Section 106Q of the Health Insurance Act 1973 (Cth), HEALTH INSURANCE COMMISSION, BERNARD RAYMOND KELLY in his capacity as ACTING DIRECTOR OF PROFESSIONAL SERVICES REVIEW and ALAN JOHN HOLMES in his capacity as DIRECTOR OF PROFESSIONAL SERVICES REVIEW
NSD 745 of 2006

FRENCH, STONE and BESANKO JJ
19 MAY 2006
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 744 OF 2006

On appeal from a decision of a single judge of the Federal Court of Australia

BETWEEN:

HUGO HUU HIEP HO
APPELLANT

AND:

WAL GRIGOR, HEATHER KNOX AND PHILLIP KNOWLES constituting the PROFESSIONAL SERVICES REVIEW COMMITTEE NO 295
FIRST RESPONDENTS

THE DETERMINING AUTHORITY established by Section 106Q of the Health…

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AGLC
Ho v Grigor [2006] FCAFC 72
Case
[2006] FCAFC 72
Decision Date

CaseChat Overview and Summary

In the case of Ho v Grigor, the parties involved were Ho and Grigor, and the dispute concerned the outcome of proceedings that hinged on the appeal in Oreb. The Federal Court of Australia was the court that addressed this matter. The legal issues the court had to resolve included whether the appeal in Oreb should determine the outcome of the Ho and other related proceedings and whether the respondents should be required to pay the applicant's costs. The court had to consider the agreement between the parties that the proceedings' outcome depended on the appeal in Oreb, except for specific issues in the Lee matters.

The court's reasoning was grounded in the agreement between the parties that the outcome of the proceedings should depend on the result of the appeal in Oreb. It was decided that the hearings for the majority of the cases would be vacated except for the Lee matters, which were to focus on specific issues not covered by the Oreb appeal. The court also granted leave for further amendments and submissions in the Lee matters. The court concluded that the respondents should pay the applicant's costs unless they filed written submissions within a specified timeframe.

The final orders of the court granted the applicant leave to appeal and allowed the appeal. The orders made by the primary judge on 19 April 2006 were set aside, and the respondents' notice of motion filed on 13 March 2006 was dismissed. The respondents were required to pay the applicant's costs for the notice of motion, the application for leave to appeal, and the appeal unless they filed written submissions within 14 days of the date of this judgment seeking a different order.

Orders

Orders of the court

1. The applicant has leave to appeal against the order of the learned primary judge made on 19 April 2006.

2. The appeal is allowed.

3. Paragraphs 2 to 5 inclusive of the orders made by the learned primary judge on 19 April 2006 are set aside.

4. The respondents’ notice of motion filed 13 March 2006 is dismissed.

5. The respondents are to pay the applicant’s costs of the notice of motion filed 13 March 2006.

6. The respondents are to pay the applicant’s costs of the application for leave to appeal and of the appeal unless they file written submissions within 14 days of the date of this judgment seeking a different order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Following the discussions outlined above, his Honour made orders in the following terms in each of the Ho and Do matters and, apparently, in other applications then before him: ‘1.Leave is granted to file and serve the notices of motion of the Respondent in the matters of Do, Ho, Lee, Lee and Bartos, returnable instanter.2.Leave is granted to file and serve the notice of motion of the applicant in Wong, returnable instanter. 3.Subject to issues raised in the constitutional argument, and except for the ‘racial issue’ in the two Lee matters ..., all of the parties in the remaining proceedings (Wong, Do, Ho, Lee, Lee and Bartos) accept that the outcome of the proceedings turn solely upon the result of the appeal in Oreb (being an appeal of the judgment contained in Oreb v Willcock [2004] FCA 1520).4.On the basis of this agreement, the hearings listed in the week of 6 December 2004 in the matters Wong, Do, Ho, Lee, Lee and Bartos, are vacated, with the exception of two Lee matters ... which are listed on 8 December 2004.5.Argument in the two Lee matters ... listed on 8 December 2004 will turn solely upon the ‘racial issue’ and its effect upon the application of the ‘exceptional circumstances’ provisions contained in s106KA of the Health Insurance Act and Reg 11, and also the s92 issue. 6.Leave is granted to file further amended applications in the two Lee matters. ...7.The applicant is granted leave to file and serve opening submissions in the two Lee matters. ...8.The respondent is to file and serve opening submissions in the two Lee matters ... by close of business on Monday 6 December 2004.’The Oreb Case – the Judgment at First Instance In the Oreb case, Dr Oreb had been found by the Professional Services Review Committee to have rendered 80 or more services on each of 33 days between 1 January 2000 and 8 August 2000. He submitted to the Committee that there were exceptional circumstances which applied to his practice during the referral period. These circumstances related to patient demand, the ethnic profile of his patients, his own ethnicity and linguistic skill which enabled him to communicate with them, his inability to attract and retain sufficient medical services to the practice and his work patterns. Dr Oreb spoke Croatian. He had been born in Dalmatia which was regarded by his Bosnian and Serbian patients as an area which had been neutral in the Bosnian and Serbian conflict. He said 20 per cent of his patients were refugees or victims of torture or trauma. The majority came from non-English speaking backgrounds. Dr Oreb also told the Committee that he did not open his practice on Wednesdays or weekends during the referral period. He did not have an appointment system although he had recently introduced one. He said also that there was a lack of other Serbo-Croatian speaking doctors in his area and so his patients came from all over Sydney. He did not know of any other Serbo-Croatian doctors in the areas from which those patients came.

Ratio Decidendi

Legal Principle Established

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