Mercado v Holmes

Case [2000] FCA 620

FEDERAL COURT OF AUSTRALIA

Mercado v Holmes [2000] FCA 620

HEALTH LAW – medical practitioners – review scheme under Part VAA Health Insurance Act 1973 (Cth) –“inappropriate practice” – referral by Health Insurance Commission to Director of Professional Services Review – content and form of referral – setting up of Professional Services Review Committee – referral purportedly limited to statement of practice addresses and period of services – substantial “attached material … by way of explanation and background” – whether part of referral – referral initially confined to high volume of services – whether allegation of overservicing can be considered by Committee – material in referral concerning alleged admissions as to high volume services outside period of specified services – whether reasonable apprehension of bias – whether jurisdiction to grant injunction– whether injunction premature

WORDS AND PHRASES – “inappropriate practice” – “referral”

Health Insurance Act 1973 (Cth) ss 81, 82(1)(a), 86(1), 87, 106L, 106V, 114(1), 124A
Judiciary Act 1903 (Cth) s 39B(1) and (1A)

Administrative Decision (Judicial Review) Act 1977 (Cth) s 5

Federal Court of Australia Act 1976 (Cth) s 23

Adams v Yung (1998) 83 FCR 248 applied
Tankey v Adams [1999] FCA 683 mentioned
Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293 applied
Webb v The Queen (1994) 181 CLR 41 at 74 applied
Secretary, Department of Social Security v Jordan (1998) 83 FCR 34 at 46 applied
Khadem v Barbour (1995) 21 AAR 555 at 561 applied
Century Metals and Mining NL v Yeomans (1991) 100 ALR 383 at 417 mentioned
Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 at 319 mentioned
Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 107 ALR 581 at 582 applied
Re Judge Leckie; Ex parte Felman (1978) 52 ALJR 155 at 160 applied
Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 102 applied
Amoe v Director of Public Prosecutions (Nauru) (1991) 66 ALJR 29 at 33-34 applied
Johns v Australian Securities Commission (1992) 35 FCR 16 at 37 applied
Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281 and 292 mentioned
Police v Pereira [1977] 1 NZLR 547 at 557 mentioned
R v Kent Police Authority; Ex parte Godden [1971] 2 QB 662 at 673 mentioned
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 mentioned

Edelston v Health Insurance Commission (1990) 27 FCR 56 at 69-70 mentioned
Tang v Holmes (Sundberg J, unreported, 25 February 1998 at 10) followed
Federal Airports Corporation v Aerolineas Argentinas 1997) 76 FCR 582 mentioned
Boddington v British Transport Police [1998] 2 WLR 639 mentioned

DR MIGUELITO DEL FIERRO MERCADO v ALAN JOHN HOLMES (in his capacity as Director of Professional Services Review)

NO. V 162 OF 2000

HEEREY J
15 MAY 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V162 OF 2000

BETWEEN:

DR MIGUELITO DEL FIERRO MERCADO
Applicant

AND:

ALAN JOHN HOLMES (in his capacity…

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Details
AGLC
Mercado v Holmes [2000] FCA 620
Case
[2000] FCA 620
Decision Date

CaseChat Overview and Summary

The case of Mercado v Holmes involved the applicant, Mercado, who sought relief against the respondents who were officers of the Health Insurance Commission (HIC). Mercado’s application was for an interlocutory injunction to restrain the respondents from hearing any referral under the Health Insurance Commission Act 1973 (Cth) involving the applicant. The case was heard in the Federal Court of Australia.

The primary legal issue before the court was whether Mercado had established a sufficient case to warrant the granting of an interlocutory injunction. Specifically, the court had to determine if Mercado could demonstrate that he had a serious question to be tried and that the balance of convenience favoured the grant of the injunction. Additionally, the court needed to consider whether the respondents were acting in bad faith or if there were other factors that would make the grant of the injunction just and convenient.

In delivering the judgment, the court found that Mercado had established a serious question to be tried regarding the legality of the respondents' decision-making process. The court also noted that the balance of convenience favoured Mercado as the potential loss of a referral hearing could significantly impact his interests. Furthermore, the court determined that there were no substantial countervailing considerations that would outweigh the need for an interlocutory injunction. The court concluded that Mercado had satisfied the requisite criteria for the grant of an interlocutory injunction, and thus, the respondents were restrained from hearing any referral involving Mercado. Additionally, the first respondent was ordered to pay Mercado’s costs of the application including reserved costs.

Orders

Orders of the court

1. The second, third and fourth respondents are restrained from hearing any referral under the Health Insurance Commission Act 1973 (Cth) involving the applicant.

2. The first respondent pay the applicant’s costs of the application including reserved costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HEEREY J

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Ratio Decidendi

Legal Principle Established

Established by: HEEREY J

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