Morton, J. v Radford, N.J.

[1985] FCA 314

CATCHWORDS

Administrative law - Judiclal review - Decision of Medical

Servlces Commlttee of Inquiry - Appllcation for stay of hearing by

Committee pendlng hearing of application for order of revlew -

alleged rendering of excessive services by medical practitioner -

Decision of Committee not to travel to country town to take viva

voce evldence from infirm patients - Desire of applicant to

prevent the forming of erroneous oplnion which impugns his

professional standing - Public interest in effectlve and

economlcal puhlic administration - Interlocutory relief refused.

Administratlve Decislons (Judicial Review)	Act 1977 - s s . 6,	13,
15, 16

Federal Court of Australia Act, 1976 - s.23

Health Insurance Act 1983 - ss. 79, 94, 104

JOHN MORTON v. NICHOLAS JOHN RADFORD, ARTHUR WILLIAM BURTON, JOHN

ANTHONY HORGAN and WILLIAM McINTOSH

ROSE

No. VG134 of 1985

Jenkinson J.

12 July, 1985

Melhourne

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	) NO. VG134 of 1985
GENERAL DIVISION	)

B m E N :

JOHN MORTON

Applicant

g: NICHOLAS JOHN RADFORD,

ARTHUR WILLIAM BURTON,

JOHN ANTHONY HORGAN and

WILLIAM McINTOSH ROSE

Respondents

CORAM: Jenkinson J.

PLACE	:	Melbourne
m:	12 July, 1985

REASONS FOR JUDGMENT

Application to stay a hearing instituted in pursuance of

5.94 of the Health Insurance Act 1973, pendmg the hearing of an

appllcation under the Administratlve Declsions (Judicial Review)

& A 1977 f o r an order of review.

The respondents are the members of a Medlcal Services

Committee of Inquiry to whlch it had appeared that the applicant

medical practitioner may have rendered "excessive services",

within the meaning attributed to that expresslon in Division 3 of

Part V of the Health Insurance Act 1983. It 1 s provided by

s.79(1B)(a) of that Act that in that Divislon -

"a reference to excessive services 1s a

reference to professlonal services, being services In respect of which medicare beneflt

has become or may become payable and which

were not reasonably necessary for the adequate

medical or dental care of the patient

concerned. 'I

As the hearing required in those clrcumstances by 6.94 progressed,

the Committee reduced to three the number of patients in respect

of whom it was possible that the Committee might express, in the

report required of it by s.104, the opinion that the applicant had

rendered excessive services. Two of those patients, it is common

ground, were at material times and will remain, by reason of

infirmity, unable to travel from the country town where they	live
to Melbourne, where the hearlng is being conducted. What the

applicant seeks to have reviewed, under the Adminlstratlve

Decisions (Judicial Revlew) Act 1977, is the refusal of the

Committee to take viva voce evidence by those two patlents In or neat- the country town. Ghat the originating application describes

as a "decision" may perhaps be correctly characterised as

"conduct" of the description speclfled in paragraph (a) or In paragraph (b) or in paragraph (e) or In paragraph (f) of s.6(1) of the Admlnistt-ative Decislons (Judlclal Review) Act 1977. For present purposes that question may be ignored.

The Committee has offered to recelve the sworn testimony

of the patients in wrlting, but the applicant both denies the

lawfulness of that course, havlng regard to the procedural

requlrements ordalned In Division 3 of Part V of the Health

Insurance Act 1973 for a hearing instituted in pursuance of s.94,

and clalms that in any event he is entitled to the benefits which

observation of the patients and conslderatlon of their oral

3.

testimony may confer on him.

The Committee's reasons for its decision, furnished

under s.13 of the Administrative Decisions (Judicial Review) Act

1977 do not quite amount to an assertion that nothing which the

taking of the oral testimony of the patients before the Commlttee

in the country town might reveal could advance the applicant's

case, but they come close to that asserton. Counsel for the

applicant suggests that, if the Committee were of that view, the

Committee must have misconcelved the meanlng whlch s.79(1B)(a)

assigns to the expresslon "excesslve services" in Division 3 of

Part V of the Health Insurance Act 1973. The materlal before me,

which includes the transcript of the hearing by the Committee,

seems to provide little support for the suggestion. But that, or

other possible errors which may have led the Committee to Its

decision on the application that it adlourn the hearing to the

country town, might be made to appear on the hearing of thls

application for an order of review. I thlnk that I should

determine the appllcation to stay the Committee's hearing on the assumptlon that some error infected the decision and that one or

more of the grounds of review would be establlshed on the hearlng.

Except for the evidence of the two patlents, all the

evidence which the Committee desired and all the evidence the

appllcant desired to have before the Committee has been received,

and an address to be made by the applicant's solicitor to the

-Committee will complete the hearlng. The Commlttee 1s required by

5.104 of the Health Insurance Act 1973, after completion of the

hearing, to report it6 opinlon on the matter referred to it by the

4.

Minister. If In that report the Commlttee expresses the opinlon

that the applicant has rendered excessive services, that section

requires that the report shall ldentlfy the excessive services.

The provisions of Division 3 of Part V of the Act ensure that an

opinion that the applicant has rendered excessive services will be

expressed only concerning the rendering of services to one or more

of the three patients I have mentioned. The only prejudice which

it is suggested that the refusal to visit two of those patients may work is the forming and the expression In its report by the

Committee of the opinion that excessive services have been

rendered by the appllcant. If no such an opinion la expressed,

that refusal will work no pre~udlce. No publication of any such an opinlon beyond the Department of Health will occur unless the Minister of Health makes a determination, ln accordance with a recommendation by the Committee in ~ t s report, that the appllcant

be reprlmanded, or counselled. Such a determlnatlon, If it were

made, would not be published, otherwlse than withln the Department

and to the applicant, until after the expiration of 30 days from

the tlme when the applicant recelved notice that the determlnatlon

had been made. If such a determination were made, an application

for an order of review In respect of the Committee's report could

be made, and interlocutory relief preventing further publication

of the determlnatlon could be clalmed, wlthin that period of 30

days. If, on the other hand, the Committee's hearlng be stayed

until the present application has been heard and determlned, the

chance that no preludlclal oplnion may be expressed, and that

therefore no occaslon arises to revlew the Committee's refusal to

go to the country town, will be foregone. Further, the process of

hearing the present application may involve an intrusive and

5.

time-consuming inquisition into the deliberations of a committee

of experts, and into the opinions tentatlvely formed by the

several members of the Committee, on a subject withln their field

of expertise, at a stage of those deliberatlons at which those

members may have very properly abstamed from reaching definite

concluslons on every matter which legal argument may suggest to be

germane to the determlnatlon of that appllcation. It is

understandable that the applicant should desire to have prevented

by ~udicial order the formlng, on an erroneous basis, of an

oplnion which impugns his professlonal standing, even though no

prejudlce in the mind of the public will be caused by the formlng

of that oplnion. But in the exercise of the discretionary powers

conferred by ss. 15 and 16 of the Administrative Declsinns

(Judicial Review) Act 1977 and	s.23 of the Federal Court of
Australia Act 1976 the Court must	have regard not only to desires

of that kind, but a l so to the public interest In effective and

economical public admlnistration. In the circumstances of this

case the better course, in my opinion, is to leave the respondents

free to contlnue the hearlng which they have nearly completed and

thereafter to make the report requlred of them.

The applicatlon for interlocutory relief is dismissed.

The costs of the application are reserved.