Karmakar v Minister for Health
[2019] FCA 868
•16 May 2019
FEDERAL COURT OF AUSTRALIA
Karmakar v Minister for Health [2019] FCA 868
File number: QUD 443 of 2018 Judge: LOGAN J Date of judgment: 16 May 2019 Catchwords: PRACTICE AND PROCEDURE – application for summary judgment – application for striking out of statement of claim – where there are serious deficiencies in pleadings – where substantive applicant has recently engaged senior and junior counsel – whether application should be adjourned for re-pleading – whether adjournment is in the interests of justice – application for summary judgment and striking out adjourned Legislation: Federal Court of Australia Act 1976 (Cth) ss 31A, 37M
Health Insurance Act 1973 (Cth) s 80
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Spencer v Commonwealth (2010) 241 CLR 118
Date of hearing: 16 May 2019 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 10 Counsel for the Applicant: Mr A Morris QC with Mr J Kewley Solicitor for the Applicant: Platinum Lawyers Counsel for the Respondents: Mr G del Villar Solicitor for the Respondents: Australian Government Solicitor ORDERS
QUD 443 of 2018 BETWEEN: ANCHITA KARMAKAR
Applicant
AND: MINISTER FOR HEALTH
First Respondent
DIRECTOR, PROFESSIONAL SERVICES REVIEW AGENCY
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
16 MAY 2019
THE COURT ORDERS THAT:
1.The Respondents’ amended interlocutory application dated 13 March 2019 be adjourned for hearing to 19 September 2019.
2.19 September 2019 also be reserved for use for a trial of the proceedings in the event that the Court so orders.
3.On or before 28 June 2019, the Applicant is to file any further amended Statement of Claim.
4.On or before 19 July 2019, the Respondents is to file any further amended application in support of orders for summary judgement or striking out all or parts of the Applicant’s further amended Statement of Claim, together with any additional supporting material.
5.If the Respondents do not file the application referred to in Order 4 the Respondents are to file a defence by 26 July 2019.
6.If the Respondents file the application referred to in Order 4, the Respondents are to file submissions in support of that application on or before 16 August 2019, those submissions being no longer than 5 pages.
7.On or before 6 September 2019, the Applicant is to file submissions in reply to the Respondents’ application referred to in Order 4, those submissions being no longer than 5 pages.
8.The Applicant pay the Respondents’ costs thrown away in relation to the amended interlocutory application dated 13 March 2019.
9.The parties have liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
Earlier this month, I was allocated, because of an apprehended conflict in respect of the earlier docket judge, responsibility for this proceeding. It became immediately apparent that there was a need to fix a date for the hearing and determination of an interlocutory application filed some time ago by the Minister, seeking summary judgment or, alternatively, the striking out of the statement of claim. It seemed to me that that particular interlocutory application was desirably heard as soon as possible, given the history of this case and the length of time it had been in the Court’s list. I therefore fixed today for that purpose.
The substantive applicant, Dr Karmakar, now has the benefit of representation by senior and junior counsel. I use the word “benefit” advisedly in the sense that it has already become apparent (witness the filed submissions on behalf of Dr Karmakar) that in the relatively brief time in which senior and junior counsel have been retained, a forensic value judgment has been exercised not to press on the merits one of the hitherto contentions advanced on behalf of Dr Karmakar: that the committee constituted under the Health Insurance Act1973 (Cth) (Health Insurance Act) exercised impermissible Commonwealth judicial power. That particular contention was one which was, as was candidly acknowledged in court today, had about it the difficulty of being contrary to binding authority.
The respondent Commonwealth parties (the Minister for Health and an agency head) opened their case for summary judgment or striking out. That having occurred, Mr Morris QC, who appeared with Mr Kewley of Counsel for Dr Karmakar, made an application orally for leave further to amend the statement of claim, and with that - and for that purpose - an adjournment of the hearing of the interlocutory application. It was acknowledged as part of that application that there would be little to be said against an order in respect of costs thrown away by any such adjournment. It was also well appreciated that, in light of s 37M of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and observations notably made in the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 213, a concession as to payment of costs was not, as perhaps it might once have been, a salve in respect of whether an adjournment should be granted. Emphatically, that is so.
Indeed, when one looks at the history of this case, it overwhelmingly required a particular reality check in terms of the pleading of Dr Karmakar’s case, as well as particular propositions of law advanced. It is by no means apparent that the assertion of a need for peer reviewed, agreed, legislatively endorsed, and formally taught standards and benchmarks (as is put on behalf of Dr Karmakar presently) has any particular prospect of success. That particular view, though, must necessarily be a tentative one as I am not in any way, in a context of deciding whether to adjourn to allow for new pleadings, purporting to determine that point on its merits. I express that view only to voice a matter of initial impression. The same might be said in relation to the contention that the scheme ordained in the Health Insurance Act for the review of delivery of particular professional services and as described in s 80 of that Act in some way violates an implied freedom of political discourse, such that some or all of the scheme is invalid.
To understand exactly what occurred in relation to Dr Karmakar on and from her attention initially being drawn to a concern regarding her delivery of medical services requires a significant excursion into the facts of this particular case, which is a time consuming exercise. I say that because two other points raised on behalf of Dr Karmakar raise questions as to whether or not the natural justice requirements which attend an exercise of administrative power were in some way violated either by her not being afforded an opportunity to be heard or by the presence at least of an apprehension of bias in the course of the steps which have lead ultimately to the making of a determination by the director.
The test for summary judgment has been said to be more liberal than that hitherto found in rules of court, but there are particular observations made in relation to s 31A of the Federal Court Act by the High Court in Spencer v Commonwealth (2010) 241 CLR 118 which give one pause for thought at least about exactly how liberal the prescription in that statue is relative to earlier times.
Of course, case management considerations and efficient use of court time (including opportunity cost) are always weighty, but this particular case has been brought back on early, which has had the necessary and desirable effect of equipping Dr Karmakar with the benefit of submissions carefully prepared on behalf of the respondent Commonwealth parties, and of advice from recently retained senior and junior counsel. Her counsel at least see a need for what one might term an “agonising reappraisal” as to repleading this case or, I infer, whether to give other particular advice about its continuance.
The interests of justice, in my view, are not always served just by proceeding to summary judgment, particularly in circumstances where, at least in respect of natural justice issues, there may well be a factual issue which makes the case inapt for summary judgment. The application made on behalf of Dr Karmakar is, quite candidly, one which entails a concession as to the alternative promoted by the Commonwealth parties which is at least the striking out of the statement of claim in its present form.
Of course, it would be possible to proceed today to hear, and perhaps even to determine the application by the Commonwealth parties, subject to the apprehension on my part in relation to the possibility of factual controversy and, in any event, the need to wade through much in terms of procedural steps as they occurred relative to Dr Karmakar. But, in my view, the interests of justice are better served by allowing Dr Karmakar the benefit of some blunt advice via the granting of the adjournment sought on terms as to costs, and bringing the case back, if needs be, either for the hearing of the summary judgment application revised to the extent necessary in light of any repleading, or perhaps even for substantive hearing, on 19 September 2019.
Adopting that course involves the considerable investment of trust on the part of the Court in senior and junior counsel for Dr Karmakar, but there are signs already that such an investment is worthwhile. For these reasons, then, I have decided to grant the adjournment sought on the terms that have been agreed between the parties by way of directions.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 7 June 2019
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