Martinovic, A.m. v Minister for Health, Housing & Community Services

[1993] FCA 873

Attention: Judgments Clerk

dw %zL@L7& 4

Re Martinovic v. Minister for I

! Health Housing and Community
Services G 164 and 165/92

l

Please find herewith the final
page of the Martinovic judgment
as requested. I have signed
this page so it may be photocopied

for distribution.

With thanks,

JUDGES' CHAMBERS

FEDERAL COURT OF AUSTRALIA	1
119 NOFXH QUAY	!
BRISBANE 4000	I
AUSTRALIA	l

"Attention: Judgments Clerk"

:	Please find herewith extempore	1 ;
f  3
:	reasons for judgment of Cooper J.	,
I	in the matter of Martinovic v.	!  .
Min. for Health, Housing and
Comm. Serv G 164192 and G165/92.	,

I cannot recall if I have alreadv :

*

1

:	forwarded this judgment to you.
I	If not the judgment is for limited distribution.

With	thanks.,	i
I

I

JUDGES CHAMBERS	~ ~ / e -
FEDERAL COURT OF AUSTRALIA	I
119 NORTH QUAY	I
BRISBANE 4000	!
AUSTRALIA	1 t

873    1 9 3

JUDGMENT NO. ..mm,lamea.mesamaa wmmnemsso.

IN THE FEDERAL COURT OF AUSTRALIA

Ql IEENSLAND DISTRICT REGISTRY

GENERAL DIVISION	No. G164 of 1992 No. G165 of 1992
BETWEEN:

ANDRIYA MILAN MARTINOVIC

MINISTER FOR HEALTH. HOUSING AND

COMMUNITY SERVICES

First Resoondent

DR. DAVID BACKSTROM. PROFESSOR
MITCHELL. DR. CRAMOND. DR. FRYAR AND

DR. TODD

Second Respondents

JUDGE MAKlNG ORDER:	Cooper J.
WHERE MADE:	Brlsbane
DATE OF ORDER:	28 May, 1993

MINUTES OF ORDER

T tE COURT ORDERS :-

l.	That applications QGl64 and 165 of 1992 be dlsmissed for want of
prosecution.

2.                    That the applicant pay the respondents' costs in each application including reserved costs and the respondents' costs of and incidental to the notlce of motion in each application, such costs to be taxed unless agreed to by the parties.

Note: Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court

Rules.

IN THE FEDERAL COURT OF AUSTRALIA
OUEENSI .AND DISTRICT REGISTRY

GENERAL DIVISION	No. G164 of 1992 No. G165 of 1992
BETWEEN:

ANDRIYA MILAN MARTINOVIC

Anolicant

MINISTER FOR HEALTH. HOUSING AND

COMMUNITY SERVICES

First Resaondent

DR. DAVID BACKSTROM. PROFESSOR
MITCHELL. DR. CRAMOND. DR. FRYAR AND

DR. TODD

Second Resoondents

C O R M	Cooper J.
PLACE:	Brisbane
DATE:	28 May, 1993

EXTEMPORE REASONS FOR JUDGMENT

On 2 November, 1992 the applicant commenced actions No. G164 and

G165 of 1992. Action G164 of 1992 was against the Minister for Community Services

and Health as the first respondent, and Drs. Backstrom, Crawford, Fryar, and Todd,	and Professor Mitchell, the second respondents. Proceeding G165 of 1992 is simply
against the doctors and the professor.
The respondents in proceedings G165 of 1992 constitute the Medical Services Committee of Inquiry, Queensland, and at the trme of the institution of the proceedirigs had before it a reference l r l relation to the applicant which had been
initiated in respect of excessive pathology services or rendering excessive services
within the meanlng of the Health Insurar~ce Act 1973, that hearing was due to commence or1 2 November, 1992.

l'he applicant sought as against the Committee of Inquiry an order to

review a refusal to adjourn the holding of the inquiry and a refusal to provide proper particulars of the matters to which the hearing would relate. The applicant sought in

application G164 of 1992 a declaratiori that the referral by the Minister to the Committee of the question of whether the applicant had initiated excessive pathology

services was invalid and of no force and an rnjur~ction restraining the committee from

proceeding. He also sought a further declaration that the referral by the first

respondent to the Committee of the matter of whether the applicant had granted excessive services was invalrd and of no force and an injunction restraining the Committee from embarking upon that hearing.

The applicant sought interim relref a matters of hours before the

Committee was due to commence its work on 2 November, 1992. On that occasion,

Thursday, 12 November, or earlier order, I adjourned the application to 12	upon receiving undertakings not to embark upon the inquiry until midday on
Nove~nber, 1992 and gave certain directions as to the filing of material and reserved
the questlon of costs.

On 12 November I made orders ~ I I terms of a draft init~alled by counsel

which had the effect of settlng a t~metablc for the taking of steps in both proceedings

and allow~ng for the amend~nent of the application filed in G164 of 1992. The timetable becomes relevant because it was reached with a view to ensuring that the matters in issue could be determ~ned qu~ckly in the interests of both the applicant and the respondents. The timetable required that any request for particulars be delivered before 27 November, 1992; that the particulars be glven by 11 December, 1992; that

discovery be given on or before 18 December 1992; and inspection take place on or

before 24 December, 1992. The hearing of the matter was to proceed by affidavit

and in order to enable the parties time to prepare the affidavits the date for the filing and service of affidavit material by the applicant was set at 13 February, 1993. The

respondent was to file any affidavit ~na te r~a l in reply by 13 March.

Upon completion of the interlocutory steps, the matter was to be set

down for a period of five days in consultation with the District Registrar. The order

also provided that each party was to have liberty to apply to come back to the court if

necessary and the costs of the hearing were each party's costs in the cause.

I11 an affidavit of Ralph John Hewison filed on 30 April, 1993, the

history of the matter is set out, including what steps have been taken since those
orders were made.	I will not repeat it all save to say that the applicant has taken no

step to comply with any of the orders made. The Australian Government Solicitor acting for the respondents in each action have sought in correspondence with Messrs. McCullough and Robertson, the then solicitors for the applicant, to obtain compliance

with the orders. Messrs. McCullough arid Robertson advised on 22 January, 1993 that they had received no instructions from their cllent, they were endeavouring to obtain

instructions as quickly as possible and would contact the Austral~an Government

Solicitor shortly.

Apparently, Messrs. McCullough and Robertson were dismissed by the

applicant some time in January, 1993 although he does not depose to the

circumstances in which he came to terminate their retamer.

Messrs. Power and Power wrote on 27 January, 1993 that they were now

acting for the applicant and while not addressing the failure of the applicant to comply with the orders, indicated that contact has been made directly with the Minister by the applicant on 21 January, 1993 after the tune had expired for

compliance with the orders. On 10 March, the Australian Government Solicitor replied to the letter of Messrs. Power and Power and put forward a suggested amended tlmetable to enable the matter to proceed to trial at an eady date and ind~cated that IF the timetable was not agreed and complied with, an application

would be made to the court. On 22 March Messrs. Power and Power wrote again talking about what was happening with the Minister but not addressing the question

as to why the orders were not being complied with.

On 25 March, 1993 the list clerk of this court wrote to the parties asking

whether or not the directions had been complied with and whether or not the matter

was ready to set down for trial.

On 2 April, 1993 the Australian Government Solicitor wrote to Messrs.
Power and Power stating that it was the intention of the Australian Government

Solicitor ;it the expiration of seven days to apply to have the proceedings struck out

for want of prosecution.

On 13 April 1993 Messrs. Power and Power wrote to the Australian

Government Solicitor, advising that they had no further instructions from their client,

and they no longer acted for hiln. The applications to strike out the proceedings for want of prosecution were made by notice of motlon filed on 30 April, 1993. The proceedings were served by a process server on the applicant on 12 May, 1993 and

the notice of motion was made returnable for 2.15 in the afternoon on Friday last, 21

May.

On the return of the notice of motion the applicant filed an affidavit

which had exhibited to it a letter from the Minister for Health d~rected to the
applicant wherein the Minister states:

"My prtq~ose irz writirzg i.7 to fornznlly cvfer you n review of your trentrrzerzt of pntients wit11 clrrorzic fntipe syndrome (CFS) by n special cor~zr~ziifee ivlziclt I /rove estnblislzed

rcrlder tile Nniiorrnl Henltlz Act

7Ile cor?lrniltee conzprise.~: Dr D~vid Wntsorz, clrninnnrz; Ilze

.~pecinIkt pl~ysicinn, Dr B y e PhiNi/r, n gerzernl prnclitioner;

nrrd Pro/es.sor Grnerne Stetvnrt I ~ J ~ I O is director of tlze

clepnrtmerzt of clirricnl inznlrtr~olo~ nt Wesinlend Hospital.

Follotvirrg your npernerrt, tlre comnzitfee will irzdeperlderzt& review your prnctice irz relntiorr to CFS. the con~mittee jitzds your trentrner~t of CFS ~~nrier~ls i v npprprinte, tlze

Heoltlz Irzxcrnrzce Cornnzt~siorz will nccept t11nt jindirzg and

inke rlo fitrrlter nctiorr irz tlzis nlntter.	You slro~ild be nnJnre
thnl i i ~ c MSC1 into your pnthology	orderirig prnclices will
lznve to be fornrnlly corzcluded. Jlo~vel~er,	g tlze specic~l
con~nritlee	jirrrls irz yoztr favour, tlzis will be corrsidered by tlze

MSCI irz detennir~irrg the clit~icnl relevnr~ce of yorcr prnctice.

If ori flie otlier irnrid, (lie con~niiftec jiridr that your

trcnttrzerzt is itinpproprinfe, I seek yorir ~rt~dennkitig citl~er to

cliar~ge your prnctice of rrzedicir~c, or to issue nccortrzts irt n wny tlrat makes if clenr to pntietrts tllnf your services do not nftrncf Medicnre betieJfs, nnd tlrnt pnfiertfs niny tneet tlie fit11

co.~t of trenttnetit or tests ordered by you tlierriselves.

Sliould yorc reject m y offer, or tzoi resporzd to it by 24 Mny 1993, nzy delegate will tIzerr corz.ridc~ tlze need for n firrfker refereerzce to nri MSCI in relnfion to flzis ??zatter.

I look fonvnrd to your respotrse by 110 Inter tlznrr 24 May."

In the context of these proceedings, the reference in the letter to a
further reference to the MSCI relates to the provision of services in respect of which

medical benefits have been paid since the time of the matters the subject of the origlnal reference. Since that time, there has been a further payment of monies in relation to the provision of these services. There has also been a refusal to pay money in relation to some of these services arrsing fron~ one of the grounds taken in these proceedings, namely, that the services provided were not clinically relevant medical services, such that they were not capable of being referred to the tribunal.

That allegation had been withdrawn earlier III the proceedings.	It was raised again on
21 May, 1993, but it is clear to my mind that the matters to be determined by the

special committee relate to a question of medical practice and do not relate to any particular legal issue or administrative law issue. What is proposed, as appears from

the letter, is that, if the special~st committee forms a view favourable to the applicant

in relation to his practice of treating persons suffering from chronic fat~gue syndrome,

that favourable determination, carrying with it the opinion of eminent medical specialists, will be put before the MSCI. It would then be considered by the MSC1

treating as relevant to its deliberations that special inquiry had taken place by persons holding eminent qualifications and that those persons had formed a professional

opinion favourable to the applicant's professronal conduct. In a practical sense a favourable determination would resolve the subject matters of the references to the MSCI. However, I E decisions were made by the specialist committee adverse to the

applicant, that would not resolve the proceedings in this court for, it seems to me, that the matters the subject of the inquiry may still need to be resolved before the MSCI, in that there is nothing to suggest that the referral will be withdrawn or that the MSCI

would be in a position to simply ignore it the pending reference.

The applicant now says that he wishes to discontinue the proceedings in

this court and that no order should be made as to costs, because he has achieved a political solution to the legal problem. His conduct has however caused the

responder~ts costs and expense in being brought to this court to defend the

proceedings ;~nd attempt to obtain complia~~ce with the court's orders.

In n ~ y vlew, the leave to withdraw both proceedings ought to be given

on the basis that the applicant pay the taxed costs of the respondents, unless such

costs are agreed. The reason that I come to t h ~ s view is that the applicant has by his conduct allowed the respondents to Incur costs in proceedings which, from the end of January 1993, the applicant has shown no interest at all in pursuing. The applicant

has taken, so far as the material discloses, absolutely no step slnce November or

December 1993 to comply with any order which has been made by the court. The

application to withdraw the proceedings comes only after the respondents have taken

out a notice of motion to seek to have the matters struck out. The applicant did not seek to come back to the court at any point in time to have the proceedings adjourned over, or to have the time frame contained in the directions reset. Such a course should, in my view, have been followed.

The respondents argued that the proceedings should be dismissed for

want of prosecution with an order for costs. Othenvise it is submitted it lles within the power of the applicant to avoid paying costs by simply taking no further step in the proceedings. On reflection, I agree.

THE COURT ORDERS :-

l. That applications QG164 and 165 of 1992 be dismissed for want of prosecution.

That the applicant pay the respondents' costs in each application

including reserved costs and the respondents' costs of and incidental to

the notice of motion in each application, such costs to be taxed unless

agreed to by the parties.

I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Cooper.

Date:  1 October, 1993 &W&W-U&.

Associate

Counsel for tile Applicant

Dr. Mariinovic:	Mr. A. Mackl~n
So>licitors for t11e Applicant
Dr. Martinovie:	Michael Quinn & Company
Counsel for the Respondents:	Mr. P. Hack
Solicitors for the Respondents:	Australian Government Solicitor
Date of Hearing:	28 May, 1993
Place af Hearing:	Brisbane
Date of Judpent:	28 May, 1993