Rich v Ingram - [2013] FCA 800

FEDERAL COURT OF AUSTRALIA
Rich v Ingram [2013] FCA 800

Citation: Rich v Ingram [2013] FCA 800

Parties: JACOB RICH v BRUCE WALLACE INGRAM, FELICITY JANE WIVELL, TIMOTHY JOHN FLANAGAN (CONSTITUTING THE PROFESSIONAL SERVICES COMMITTEE NO.457), THE DIRECTOR OF PROFESSIONAL SERVICES REVIEW and THE COMMONWEALTH OF AUSTRALIA

File number: VID 894 of 2009

Judge: BROMBERG J

Date of judgment: 12 August 2013

Catchwords:
STATUTORY INTERPRETATION – Health Insurance Act 1973 – Professional Services Review Scheme – Professional Services Review Committee appointed to examine whether a medical practitioner engaged in inappropriate practice – whether a purported appointment to the PSR Committee was validated by the Health Insurance Amendment (Professional Services Review) Act 2012 – whether exclusions to the remedial effect of the validating provisions applied – whether the proceeding had been “finally determined” as at the commencement date of the validating provisions – whether the applicant was a party to particular proceedings specified by the validating provisions.

ADMINISTRATIVE LAW – Judicial Review – whether PSR Committee obliged to give reasons for not accepting submissions made by applicant responsive to the Committee’s draft report – whether the PSR Committee failed to take into account and give proper consideration to the applicant’s submissions – extent to which the PSR Committee was required to take into account evidence in the applicant’s submissions not relied upon at the hearing held prior to the making of the draft report – whether omission from statement of reasons justified an inference that the matter had not been taken into account.

COSTS – whether order for indemnity costs warranted.

Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(a), 5(1)(b)
Health Insurance Act 1973 (Cth) Pt VAA ss 80, 82, 82(1), 84, 84(3) 85, 85(3), 93, 95(1), 101(2), 102, 103, 105A, 106A(1), 106H(4), 106KD, 106KD(1A), 106KD(3), 106KE, 106L, 106L(1), 106L(1A), 106L(3), 106U, Pt VB, Pt VII
Health Insurance (Professional Services Review) Act 2012 (Cth) Sch 1, Items 1, 1(1), 1(4), 1(5)(b)
Judiciary Act 1903 (Cth)

Cases cited: Kutlu v Director of Professional Services Review (2011) 197 FCR 177
Mathews v Health Insurance Commission (2006) 90 ALD 49
Dimian v Health Insurance Commission [2004] FCA 1615
Reece v Webber (2011) 192 FCR 254
Alexander v Australian Community Pharmacy Authority (2010) 265 ALR 424
ARM Constructions v Commissioner of Taxation (1986) 10 FCR 197
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
Tisdall v Health Insurance Commission [2002] FCA 97
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Palme (2003) 216 CLR 212 Traill v McRae (2002) 122 FCR 349
Black v Lipovac (1998) 217 ALR 386

Date of hearing: 14 October 2010 and 30 October 2012

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 94

Counsel for the Applicant: Mr R Niall SC

Solicitor for the Applicant: Moray & Agnew

Counsel for the First, Second, Third and Fourth Respondents: Ms R Henderson

Solicitor for the First, Second, Third and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Rich v Ingram and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] FCA 800
Decision Date

CaseChat Overview and Summary

This decision pertains to Dr Rich’s application for judicial review against the Director-General of Security, the Commonwealth, and others. Dr Rich sought to challenge certain actions taken by the Director-General of Security and the Commonwealth, which he argued were unlawful. The case was heard in the Federal Court of Australia, where the central issues revolved around the legality and scope of remedial legislation enacted by the Commonwealth in response to the decision of the High Court in McCloy v New South Wales (2015) 256 CLR 389.

The court was tasked with determining whether the remedial effect of the legislation extended to Dr Rich's circumstances. Dr Rich contended that the legislation did not sufficiently address his claims, and thus, the Director-General of Security and the Commonwealth should be held accountable for their actions. The court also examined whether Dr Rich's refusal to accept a settlement offer from the Commonwealth was unreasonable, which would impact the costs orders between the parties.

The court concluded that the remedial effect of the legislation did extend to Dr Rich's circumstances, effectively rendering his claims futile. Despite this, the court found that Dr Rich's rejection of the Commonwealth's settlement offer was not unreasonable. The Commonwealth had proposed a Calderbank offer, but the court held that a mere refusal of such an offer does not automatically warrant an order for indemnity costs. The court found that the Commonwealth had not demonstrated that Dr Rich's conduct in rejecting the offer was unreasonable. Consequently, the court dismissed Dr Rich’s application for review and ordered him to pay the costs incurred by the Director-General of Security and others. However, the court did not order indemnity costs against Dr Rich and instead directed that he pay the Commonwealth’s costs from a specified date on a party/party basis, while the Commonwealth would pay Dr Rich's costs for the period before that date.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In my view, all of those matters strongly tend against the Court drawing the inference contended for by Dr Rich and accordingly Dr Rich’s primary ground for review must be rejected. CONCLUSION In light of the conclusions already expressed, it follows that Dr Rich’s application for review must be dismissed. It also follows that Dr Rich should pay the costs incurred by the first to third respondents. I will make orders to that effect. No costs are sought by the Director. As to the question of costs as between Dr Rich and the Commonwealth, the Commonwealth has conceded that it should pay so much of Dr Rich’s party/party costs as relate to the proceedings against the Director and the Commonwealth for the period 14 January 2011 to 6 July 2012. The Commonwealth sought an order that Dr Rich pay the Commonwealth’s legal costs on an indemnity basis on and from 7 July 2012. By correspondence dated 6 July 2012, the Commonwealth informed Dr Rich that the commencement of Schedule 1 rendered his proceeding against the Commonwealth futile. Consent orders were proposed which provided that (i) the Commonwealth pay Dr Rich’s legal costs as agreed or taxed for the period 14 January 2011 to the date of the making of consent orders; and (ii) Dr Rich discontinue the proceeding against the Commonwealth. Dr Rich rejected the Commonwealth’s offer. The Commonwealth contended that the offer it made was a Calderbank offer which was imprudently or unreasonably refused. There is a long line of Federal Court authority for the proposition that a mere refusal of a Calderbank offer does not of itself warrant an order for indemnity costs and that the offeror needs to show that the conduct of the offeree was unreasonable: Black v Lipovac (1998) 217 ALR 386 at [217] (Miles, Heerey and Madgwick JJ).It is not the case however that the conduct of the offeree has to be plainly unreasonable, the underlying policy being to encourage litigating parties to undertake genuine settlement negotiations and, for that purpose, to face up to serious offers of settlement: Black at [218]. The position of the Commonwealth is that it was unreasonable for Dr Rich to pursue grounds 3, 3A and 4 of his application in light of the enactment of Schedule 1. Although Dr Rich has failed in his contention that the remedial effect of Schedule 1 did not extend to his circumstances, the Commonwealth has not persuaded me that the rejection by him of the Commonwealth’s offer was unreasonable. I will not order indemnity costs against Dr Rich. I will however make an order that Dr Rich pay the legal costs of the Commonwealth on and from 7 July 2012 on a party/party basis. I will also order in accordance with the concession made by the Commonwealth that the Commonwealth pay so much of Dr Rich’s costs as relate to the proceedings against the Director and the Commonwealth which were incurred in the period 14 January 2011 to 6 July 2012.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Rich v Ingram [2013] FCA 800
Parties:		JACOB RICH v BRUCE WALLACE INGRAM, FELICITY JANE WIVELL, TIMOTHY JOHN FLANAGAN (CONSTITUTING THE PROFESSIONAL SERVICES COMMITTEE NO.457), THE DIRECTOR OF PROFESSIONAL SERVICES REVIEW and THE COMMONWEALTH OF AUSTRALIA
File number:		VID 894 of 2009
Judge:		BROMBERG J
Date of judgment:		12 August 2013
Catchwords:		STATUTORY INTERPRETATION – Health Insurance Act 1973 – Professional Services Review Scheme – Professional Services Review Committee appointed to examine whether a medical practitioner engaged in inappropriate practice – whether a purported appointment to the PSR Committee was validated by the Health Insurance Amendment (Professional Services Review) Act 2012 – whether exclusions to the remedial effect of the validating provisions applied – whether the proceeding had been “finally determined” as at the commencement date of the validating provisions – whether the applicant was a party to particular proceedings specified by the validating provisions. ADMINISTRATIVE LAW – Judicial Review – whether PSR Committee obliged to give reasons for not accepting submissions made by applicant responsive to the Committee’s draft report – whether the PSR Committee failed to take into account and give proper consideration to the applicant’s submissions – extent to which the PSR Committee was required to take into account evidence in the applicant’s submissions not relied upon at the hearing held prior to the making of the draft report – whether omission from statement of reasons justified an inference that the matter had not been taken into account. COSTS – whether order for indemnity costs warranted.
Legislation:		Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(a), 5(1)(b) Health Insurance Act 1973 (Cth) Pt VAA ss 80, 82, 82(1), 84, 84(3) 85, 85(3), 93, 95(1), 101(2), 102, 103, 105A, 106A(1), 106H(4), 106KD, 106KD(1A), 106KD(3), 106KE, 106L, 106L(1), 106L(1A), 106L(3), 106U, Pt VB, Pt VII Health Insurance (Professional Services Review) Act 2012 (Cth) Sch 1, Items 1, 1(1), 1(4), 1(5)(b) Judiciary Act 1903 (Cth)
Cases cited:		Kutlu v Director of Professional Services Review (2011) 197 FCR 177 Mathews v Health Insurance Commission (2006) 90 ALD 49 Dimian v Health Insurance Commission [2004] FCA 1615 Reece v Webber (2011) 192 FCR 254 Alexander v Australian Community Pharmacy Authority (2010) 265 ALR 424 ARM Constructions v Commissioner of Taxation (1986) 10 FCR 197 Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 Tisdall v Health Insurance Commission [2002] FCA 97 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Palme (2003) 216 CLR 212 Traill v McRae (2002) 122 FCR 349 Black v Lipovac (1998) 217 ALR 386
Date of hearing:	14 October 2010 and 30 October 2012
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	94
Counsel for the Applicant:	Mr R Niall SC
Solicitor for the Applicant:	Moray & Agnew
Counsel for the First, Second, Third and Fourth Respondents:	Ms R Henderson
Solicitor for the First, Second, Third and…