Mitchelson v Health Insurance Commission (No. 2)

[2007] FCA 1396

FEDERAL COURT OF AUSTRALIA

Mitchelson v Health Insurance Commission & Ors (No. 2) [2007] FCA 1396

PRACTICE AND PROCEDURE – resolution of the question of costs arising out of Mitchelson v Health Insurance Commission & Ors [2007] FCA 1372

DR MARK LESLIE MITCHELSON v HEALTH INSURANCE COMMISSION, DR GEOFFREY HIRST, DR MARCELA COX, DR BRIAN MORTON, DR NICOLAS RADFORD, DR WILLIAM MEAGHER AND MS JANE PHELAN

QUD128 OF 2007

GREENWOOD J
4 SEPTEMBER 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD128 OF 2007

BETWEEN:

DR MARK LESLIE MITCHELSON
Applicant

AND:

HEALTH INSURANCE COMMISSION
First Respondent

DR GEOFFREY HIRST
As chairperson of the Professional Services Review Committee No 445
Second Respondent

DR MARCELA COX
As Member of the Professional Services Review Committee No 445
Third Respondent

DR BRIAN MORTON
As Member if the Professional Services Review Committee No 445
Fourth Respondent

DR NICOLAS RADFORD
As Chairperson of the Determining Authority
Fifth Respondent

DR WILLIAM MEAGHER
As a Member of the Determining Authority
Sixth Respondent

MS JANE PHELAN
As a Member of the Determining Authority
Seventh Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

4 SEPTEMBER 2007

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The applicant in the proceeding is ordered to pay the costs of the respondents of and incidental to the Notice of Motion filed by the respondents in the proceeding on 3 August 2007 on an indemnity basis. 

2.The applicant in the proceeding is ordered pursuant to Order 62 of the Federal Court Rules to pay the costs forthwith upon determination of the quantum of the costs, by taxation or agreement, notwithstanding that the proceeding is not concluded. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD128 OF 2007

BETWEEN:

DR MARK LESLIE MITCHELSON
Applicant

AND:

HEALTH INSURANCE COMMISSION
First Respondent

DR GEOFFREY HIRST
As chairperson of the Professional Services Review Committee No 445
Second Respondent

DR MARCELA COX
As Member of the Professional Services Review Committee No 445
Third Respondent

DR BRIAN MORTON
As Member of the Professional Services Review Committee No 445
Fourth Respondent

DR NICOLAS RADFORD
As Chairperson of the Determining Authority
Fifth Respondent

DR WILLIAM MEAGHER
As a Member of the Determining Authority
Sixth Respondent

MS JANE PHELAN
As a Member of the Determining Authority
Seventh Respondent

JUDGE:	GREENWOOD J
DATE:	4 SEPTEMBER 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 8 May 2007, the solicitors for Dr Mark Leslie Mitchelson filed a document in the Court described as a Notice of Appeal for the purpose of commencing a proceeding described on the face of the document as ‘On appeal from the Professional Services Review Committee – Determining Authority’.  The Notice of Appeal recites that the document is in accordance with Form 55A and is filed pursuant to Order 53, r 2, Order 53B, r 2 and Order 59, r 1 of the Federal Court Rules. 

2. The respondents to the proceeding filed a Notice of Motion on 3 August 2007 seeking to dismiss the proceeding as constituted by the purported Notice of Appeal dated 3 May 2007 and filed 8 May 2007, pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (‘Federal Court Act’) or alternatively pursuant to Order 53, r 18 of the Federal Court Rules, as incompetent; alternatively, an order that the proceeding be struck out pursuant to s 23 of the Federal Court Act or pursuant to Order 11, r 16 of the Federal Court Rules.

3. In the course of hearing the Notice of Motion, the solicitor for the applicant in the proceeding sought leave to amend the Notice of Appeal in terms of a document described as an Amended Application for an Order of Review filed on Friday, 24 August 2007. 

4. The resolution of the Notice of Motion and the Application for Leave to Amend are dealt with in Mitchelson v Health Insurance Commission & Ors [2007] FCA 1372.

5. The remaining question is that of costs.

6. Dr Mitchelson filed the initiating document on 8 May 2007.  That document was to be amended in proper form so as to formulate a competent initiating proceeding, by Monday, 30 July 2007.  Nothing happened until the respondents filed their Notice of Motion returnable on Tuesday, 28 August 2007 with the result that on the preceding Friday, 24 August 2007, Dr Mitchelson filed the contended Amended Application for an Order of Review.  As a result, nothing of any consequence has happened in the conduct of the matter throughout May, June, July and now August.  Plainly, this matter needs to be and will be expedited. 

7. Having regard to the inadequate formulation of the Notice of Appeal and the failure to make the proposed amendment within the time limited by the Order and the delay caused thereby, I propose to make the following Orders:

   1.The applicant in the proceeding is ordered to pay the costs of the respondents of and incidental to the Notice of Motion filed by the respondents in the proceeding on 3 August 2007 on an indemnity basis. 

   2.The applicant in the proceeding is ordered pursuant to Order 62 of the Federal Court Rules to pay the costs forthwith upon determination of the quantum of the costs, by taxation or agreement, notwithstanding that the proceeding is not concluded. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:
Dated:        4 September 2007

Solicitor for the applicant in the proceeding:	Mr Royds, William Royds Lawyers
Counsel for the Respondents in the proceeding:	Mr Maloney
Solicitor for the Respondents:	Sparke Helmore
Date of Hearing:	4 September 2007
Date of Judgment:	4 September 2007