Romeo & Anor v Asher

[1991] HCATrans 367

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S64 of 1991

B e t w e e n -

DR NATALE ROMEO and DR LUIGI

GENUA

Applicants

and

DR JOAN ASHER. DR GODFREY

DOUGLAS, DR JOHN CAMPBELL and

DR KEN RAWLE (Constituting a

Medical Services Committee of

Enquiry)

Respondents

Application for special leave

to at;>peal

MASON CJ

DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY. 13 DECEMBER 1991, AT 12.06 PM

Copyright in the High Court of Australia

Romeo 1 13/12/91

MR R.J. ELLICOTT, QC: If the Court pleases, I appear with

MR A.S. MORRISON and MR B.G. McMANAMNEY, for the

applicants. (instructed by Vaughan Zarb &

Capolupo)

MR D.M.J. BENNETT, QC: If the Court pleases, I appear with

my learned friend, MS R.M. HENDERSON, for the

respondents. (instructed by the Australian

Government Solicitor)

MASON CJ: Yes, Mr Ellicott?

MR ELLICOTT:  Your Honours, we would submit that this is a

clear case for granting special leave to appeal.

Your Honours have read the papers and Your Honours

will see that it raises a very important question

of administrative law. There have been many cases

before this Court and, of course, there have been a

multiplicity of cases before the Federal Court and

other courts in recent times dealing with the

question of procedural fairness or natural justice.

This is not just another case. It does raise

a very significant issue and that is really this:

is there a point of time in a proceeding which is

inquisitorial in nature where, in effect, the

parties being inquired into as to some conduct

which they have alleged to have committed are

entitled to have specific particulars of the

matters which are alleged against them or which

might be found against them, in circumstances
where, at the very beginning of the proceedings, no

such particulars are given?

It is important in terms of administrative

justice because not only is it important to the

persons involved and the costs that they may incur
if they have to, as it were, embrace all the issues

that are involved in the proceedings. For

instance, here, there are 20 patients and 1032

services that are alleged to be excessive, and all

the particulars that have been given are right at

the beginning of the proceedings where they are

told that, "We are going to inquire into these

1032 services". And as to each service there could

be four or five or more issues; in other words,

there could be 5000 or more issues in the

proceedings - theoretically, of course - but on the

face of it, they are there.

Now, what we are submitting is that in a case

such as this the question of whether or not a

person in the position of our clients should be

granted particulars of what the particular body may

tentatively think is to be found against them, that

Romeo 2 13/12/91

they should have those particulars as a matter of

procedural fairness.

MASON CJ:  In many cases, that would be right, would it not?

The demands of natural justice, fairness, would

require that and that would be the general

principle.

MR ELLICOTT: That is the general principle and that general

principle is not in issue. We have Mahon's case

and many other cases in this Court that lay it down

and we do not need this Court to tell us what the

principle is, and Annetts v Mccann is an important

case in this Court, a recent case, in which the
very question of intervention by the courts into

the procedures of a coronial inquiry was raised and

determined and this Court found that there ought to

be intervention.

MASON CJ: Yes, in the circumstances of that - - -

MR ELLICOTT:  In the circumstances of that case. Now, in

the circumstances of cases of this character, this
question is going to arise and in the history of

these medical services committees and the cases

that have come before the Federal Court, there have

been instances - Dr Freeman's case led to

litigation in a number of respects before the

court. That is an example where the court itself

laid down some procedures, that is,

Mr Justice Woodward laid down some procedures which

were designed to do the very thing that one might
expect this Court, in its pronouncements, would

expect these bodies to do but they ignored those

procedures and what they wished to do is to hand

out, at the beginning of the proceeding, the

particulars that they are bound to give; maybe make

some statement during the course of the

proceedings, but they assert the right to go into

their closed room as experts and to decide the

matter after hearings that went over some six

nights at two hours a night and to decide it

applying possibly their own expertise and dealing
with matters and making decisions on matters and

expressing views about matters that may never have

been ventilated in the course of those hearings.

Now, that only has to be stated, we would

submit, to appear to be unjust and if - - -

MASON CJ: But relief is then available if they do that, is

it not?

MR ELLICOTT: Well, Your Honour, this is the very point:

what do we do then? The horse has bolted. Our

clients, under these provisions - and I will take

Your Honours to them - first of all, could be

Romeo	13/12/91 reprimanded; secondly, they could be struck off the roll of medical practitioners and, thirdly, as a
result of these proceedings, the Commonwealth is
able to, if found against them, recover substantial
sums of money from them. In other words, what this
proceeding does is do everything that a court might
do, that is to say, to make an order against a
person and at the same time leave a person with
that person's reputation sullied in some way, but yet to do it without all the protection that a
court will give a person. For instance, if there
was a section that said that medical practitioners who engage in excessive services shall refund to
the Medical Benefits Fund or whatever it is -
Medicare - the amounts paid to them in respect of
those services, then that issue would have to go to a court and the court would, of course, obviously, lay down procedures. Particulars would have to be
given. You would have to specify as to the
services; why they were said to be excessive, and then the case would go on and the doctors would be
protected. But that is not the way this is done.
It is done to avoid, to some extent, that particular method of approaching it but also, no
doubt, to use the means of administrative justice.
Now, administrative justice, obviously, is just as important when it is close to the procedure
of a court - in other words, when it is on the edge of judicial power - it is just as important that
that be administered in accordance with appropriate procedures as it is that the court administers its
procedure in order to give procedural fairness, and
that is simply for the reason that at the end of the day people's rights or obligations are
established. It might be said, "Well, they are, in effect, legislating." That would have to be the
technical explanation of what is happening. They
are making an administrative ruling that passes
into law when the section says that these amounts
can be recovered or when the section says these
people can be reprimanded, and when the sections
says the report has to be published in both Houses
of Parliament, and their reputation is sullied.
The costs of proceedings are clearly involved. For instance, a proceeding like this one. If I can
just first of all refer to the Freeman p~oceedings
which have been the subject of cases that are
referred to in the judgments and no doubt
Your Honours have referred to them. Now, there
were some 1600 patients in that case and thousands
of services. Now, ultimately, it became so complex that Mr Justice Woodward ordered that the inquiries
be abandoned. But in the course of his judgment
what he did was to lay down in two or three pages
some simple procedures because he felt that one

Romeo 4 13/12/91

should try and give some guidance to these
committees as to how they should act. And it is
because of the complexity of proceedings such as
this, so far as the issues are concerned, that that

guidance is needed.

Now, here, the Committee is simply saying,

"Well, we have the right, notwithstanding that

there are 1032 services, to say to you, after

inquiring for as long as we want to inquire, over

six nights, two hours a night - 12 hours - examined

the doctors, looked at the clinical notes, looked

at any X-rays, considered specialists' reports and

considered any evidence that you in your wisdom may
have thought you might like to bring on those

multiplicity of issues, we claim the right to go into our private room and to sit down and make a report bringing to bear our special expertise as

doctors - we are your peers - and to say what we

want to say about those matters", and it goes off

to the minister and the minister, of course,

immediately - because of the procedure, he is going

to make a determination.

Now, that determination, that decision, can be

then the subject of an appeal to another body and

it can come through to the Federal Court and from

the single justice to the Full Court as in

Freeman's case, but that would not allow the person

to overcome the problem of that person's reputation

having been sullied or the problem of it having

been said that these people should be reprimanded.

In other words, the horse has bolted.

It may lead the court to say, "Oh well,

looking at it, procedural fairness hasn't been

undertaken here and hasn't been given and therefore

we will set it aside", but that is no remedy to a

person whose reputation is involved. And another

thing that is important is that on that review you

cannot call any further evidence. So that if they

say for some reason that brings to bear their

expertise as doctors that such-and-such a procedure

was inapt, you cannot then, on appeal, bring before

that particular tribunal, bring fresh evidence to

say that that is not inapt. You cannot bring your

specialist or whoever it may be.

Now, Your Honours, that is the gravamen of

this problem and it really is something, we would

submit with respect, this Court should look at

because there is a need in the interests of the due

administration of justice. Those words,

"justice ..... ", we would submit, in section 35A are

not just about justice in courts, but the whole

system of justice and it has passed beyond courts.

It is now into referees; it is into arbitration; it

Romeo 13/12/91

is into dispute resolution and, of course, at the

federal level, this procedure has been iround for a

long time and one would have thought that by this,

these bodies would have laid down procedures but

they obviously have not.

MASON CJ: But why this case, Mr Ellicott?

MR ELLICOTT: Well, simply because, Your Honour, in this

case the hearings have been held - and I will take

Your Honours to the passages in a moment - they

have been asked for particulars of matters that

concern them. They say, "Oh, yes, we were

concerned about excessive injections and you should

address your mind to that", and we said, "All

right, well, we understand that. We'll get our

evidence and we'll bring it along", and we did that

subsequently. That has been done. But as to other

matters, "Well, you must address us on everything

because we haven't made up our minds about them."

And then they say, "So far as we're concerned,

we're at the end of our inquiries."

MASON CJ: But is not the problem this: the question

whether particulars ought to be given in what you

call administrative justice cases is a question

that arises in very many of them?

MR ELLICOTT:  Yes.

MASON CJ: Whether the particulars ought to be given depends

on the facts and circumstances, the stage the

proceedings have reached. If we were to grant

leave in this case why should we not be granting

leave in very many cases?

MR ELLICOTT:  No, Your Honour. Your Honour, sometimes the

Court surely - this Court - should intervene to

say, "Look, well let us take a case and let's

demonstrate to the judicial and quasi-judicial

community what we think is the appropriate way in

which to deal with proceedings", and once that

happens - - -

MASON CJ: Yes, and we do that. We look for an appropriate

case.

MR ELLICOTT: Yes. Now, this is an appropriate case, we

would submit, without a doubt because our clients

are now faced with the proposition that they have

to look into 1032 matters; they have got to guard

themselves against the possibility that the

tribunal in question may find against them on a

large number of matters. They do not get paid

their costs if they are successful. And the other thing is, if they go ahead and do it, think of the time and the effort of administrative justice that

Romeo 6 13/12/91

is being undertaken by these service committees.

In other words, if doctors of whom it is said have

endless funds and money they can soon bog down

these committees, but that is not the game.

What we are saying here is this is an apt case

because our clients are actually facing that choice

even though, at this stage, that would mean asking

to reopen their case. They have already brought

all the evidence that they felt they should and

they have made their closing submissions and they

would have to ask, if they were so minded, if they

wanted to get the additional protection, to reopen

and therefore to, in effect, bring such evidence as

they wanted; such patients as they wanted.

GAUDRON J:  Your argument - I suppose you have some

difficulty because, really, you have got to say,

"Well, there might be an issue that I couldn't have

anticipated to establish that there is any natural
justice requirement in the situation". Is that

right?

MR ELLICOTT: Yes, and that would be clear, we would submit,

from what I am about to read Your Honours.

GAUDRON J: Yes, but particulars do not always serve that

function.

MR ELLICOTT:  I have used the word "particulars" as an

expression to cover being told what are the matters

that are likely, in the broad, to be put against

you. In relation to this particular case, this

Committee, having sat for so long, having in its own mind decided that it has, indeed, considered all it wants to consider, it ought to be able to

say, after a short inquiry or sitting in private,

"These are the things that are concerning us. Now,

we may or may not find against you in relation to

them but of the 1032 we're only concerned about

95 • II

GAUDRON J: It is one thing to say there are 1032. It is

another thing to say there are 1032 procedures involved with respect of five - was it five or

six - patients.

MR ELLICOTT: No, 20 patients. Your Honours, the sort of

issues that arise, if I can just - - -

DEANE J:	Mr Ellicott, what if they were to say to you,
"Looking at the 1032 services in relation to 20
patients, and the number of injections given in relation to each of those patients, we are
concerned that there has been over-servicing in
respect of each of those patients" - - -

Romeo 7 13/12/91

MR ELLICOTT:  If they say that we would have to face up to

it. And then, if that is the situation, so be it.

DEANE J: But have they not effectively said that?

MR ELLICOTT: Well, with respect, not - they have not.

DEANE J: That is the subject of the inquiry and they have

said to you, "We're particularly concerned about

the injections and we're not prepared to rule

anything out at this stage."

MR ELLICOTT:  What they are saying is, "We really haven't

thought about anything else." But that, we would

submit - - -

DEANE J: But if you come down to that, it is a very, very

narrow distinction.

MR ELLICOTT:  Your Honour, in one sense it is a narrow

distinction but in terms of procedural fairness to

people, it is a pretty important matter, an

extremely important matter - I mean, obviously in

this short time I cannot take Your Honours to the

transcript of the proceedings - but they are left with these doctors sitting there in the Committee asking about some services and asking about others.

There are four or five different reasons why one might theoretically say something is excessive but

only asking about one or two particular reasons why

something might be excessive and then in relation

to particular services, why should a person in our

clients' position be left to guess? Why should

they be put in that position? Because, at the end
of the day they are the ones who are the victims.

They are the ones who are pilloried and they are

the ones who have to make payments back. Why does

not the Commonwealth Parliament say "These people

shall be liable to refund for excessive services

and the Commonwealth can recover". Now, if that

happened, they would get all the protections that I

am submitting they are entitled to now.

If it is going to be done the other way by

legislating it out, in effect, after an

inquisitorial hearing, then that ought to be done

subject to the very same procedures.

Can I take Your Honours to page 83. At the

beginning of the hearing they said, at page 83,

line 17:

we can look back at the transcript. However

I, there may be areas of clinical practice and

areas that occur to us as the hearing

progresses and I certainly agree that those

can be indicated and you will be given an

Romeo 13/12/91

ample opportunity when we look as if we are getting to the end of the line to point out

any of those and to reiterate and give you

full and adequate opportunity to make any

submissions either on a specific or on a

general basis before the hearing is formally

concluded.

Now, there we are. That sounds as if they are

going to be, if I say so with respect, reasonable

about it and they are going to say, "Right, at the

end of the day or as we go along we may be

concerned about a particular matter and we'll tell

you."

Dr Morrison said, "Thank you", and over the

page - we reiterate the point at line 10 on

page 84. But on 15 June - and this is after these

proceedings have been held:

THE CHAIRMAN:  ... well that concludes the

portion of the proceedings in which we look at

the services rendered by the doctors to these

patients that have been referred to us; except

that a little bit of tidying up of a couple of

reports that I think are still to come.

Now, they are right at the end.

What we would invite before we formally

consider the services provided, we would

invite either you Dr Romeo and Dr Genua or

your legal representative counsel to make any

submission on your behalf and to bring any

points to our attention that may not have been

covered during the course of the hearing. When that has been done and you have been

given the opportunity to do that, we will then

proceed to consider the transcript and

services rendered, make our decision and

formulate our report and forward it to the

Minister.

So that is it.

However, before that occurs, of course, you

have every opportunity to address us and

bring, or raise any matters that you see fit.

DEANE J: And what is the procedure after the report is

forwarded to the minister?

MR ELLICOTT: There are appeal procedures.

DEANE J: At what stage is it tabled in Parliament?

Romeo 9 13/12/91

MR ELLICOTT:	It is tabled in Parliament after those appeal procedures take place and if they are to be
followed to their logical conclusion, they will be in a public court, that is to say, before a single justice of the Federal Court or the Full Federal
Court.  And:

DR MORRISON:  I don't know what the procedure

has been on previous occasions but in my

respectful submission, my client would be

entitled to know by way of particulars, any of

the services in respect of which the Committee
has a concern and to know what the nature of that concern is before my clients either ask

the Committee to consider further evidence or hear submissions in relation to those matters.

Otherwise what is left is for them to deal

with the matters at large without knowing
which services any allegations are made about

or even what the nature of those allegations

are and in my respectful submission, as a

matter of natural justice they should know

what your areas of concern are and how they

relate to particular services.

The Chairman, after they had - said:

I reject any suggestion that this Committee

has an obligation to provide the particular

sought by yourself as counsel and we do not

provide them.

Now, that is a direct refusal to provide them on

any ground whatsoever. It is not saying, "Oh well,

we've considered whether there may be something

that we ought to tell you about because we may make

an adverse finding against you." They are just

saying, "We don't have any obligation to do it,

full stop." And one can perhaps·guess why that is.

However the hearing to date has demonstrated

that many of the services rendered have

involved courses of therapy given by

injection. The Committee would welcome being

addressed on this question and make it clear

that this ought not to preclude address on the
totality of the evidence provided before this

Committee.

So that what they are saying there is that,

"That is one thing that has been brought to our

attention, but that's it. Otherwise, we haven't

had time, in effect, to deal with that." Now, that

does not mean that they are facing any practical problem. They have to consider it anyhow. They

can go off the bench, if you like, and they can

think about this for another two Thursday nights

Romeo 10 13/12/91

for two hours and they can formulate tentative

views but when they do that they can come back and

they can give some answers.

Your Honours, if I may just hand up three

bundles. I am not going to take Your Honours

through all those, not that Your Honours would let

me. Amongst those is a case - there is the

legislation, but there is a case of Freeman v

McKenzie, 82 ALR.

MASON CJ: This is the decision of Mr Justice Woodward that

you were referred to earlier?

MR ELLICOTT: That is right, yes. What happened there was

that the proceedings were forever stayed - became

so complex that Mr Justice Woodward decided to stay

them forever. But can I take Your Honours to

page 470 - and really, they had got to a procedural

impasse and that is why His Honour stayed it and,

in this sense, what His Honour said was obiter
dicta. At about line 15:

I find it impossible to deal with this question without saying something about the

way in which, in my view, an inquiry such as
this should ordinarily be conducted.

I am conscious of the fact that it is not for this court, in its supervisory role, to

tell a committee how it should conduct its

in.quiry. The court's task is rather to direct

the committee back on the rails if it has run

off them or, in an extreme case, to stop the

committee in its tracks.

On the other hand the committee is, in my

view, entitled to such positive guidance as

the court feels it can properly give.

And he goes on, and I will not read the lot.	He
then seeks to outline the procedure that should be

followed, because Your Honours will appreciate that

when the matter comes to the Committee, what they

have is probably something like exists in this

case, that is, a series of computer print-outs

identifying patients and various services and they

may go into great lengths, but they do not say any

more. And he says at the foot of page 470:

Having outlined its procedures, the next

logical step, in my view, would be for the

committee or one of its officers to provide an

outline of the material upon which the

committee had reached the view that excessive

services may have been rendered. Where this

included a report by some investigator or

Romeo 11 13/12/91

analyst, that person could, if it were thought

appropriate, be called to explain or elaborate

the report and to be cross-examined by the

practitioner or his representative. There is,

of course, no obligation on the committee at

this or any later stage of the hearing to

explain to the practitioner, or defend, any

tentative views it may have formed about

over-servicing.

Only after some such groundwork has been

laid should the practitioner be asked,

pursuant to s 96 of the Act, to produce his

clinical notes for the cases previously

specified. He is required by the section to

produce those notes, but not to answer

questions about them if he does not wish to do

so. He should, however, be given the

opportunity to explain or comment on them if

he so wishes.

In most cases it would then be convenient

for the committee to adjourn the hearing so

that it could consider the material before it

in a private meeting. This would give it an

opportunity to weed out any cases which

appeared unnecessary or unprofitable to

pursue - either because the services provided

seemed reasonably appropriate in the light of

the clinical notes, or perhaps because it

appeared that the patient would not be

available to either the doctor or the tribunal

for further inquiry and the case was one where

the evidence of the patient would probably be

relevant.

I do not accept, as was argued by counsel

for the applicant, that the committee was
obliged to interview, or have interviewed on
its behalf, patients or other treating doctors

before determining which cases of possible

over-servicing merited further consideration.

I think the committee could indicate its

concern about a particular case or group of

cases, and invite the practitioner to respond,
basing itself upon the clinical notes and its

own experiences.

Your Honours, we have passed beyond the

clinical notes and there is - they have had the only of the clinical notes; they have had the
doctors in front of them and the doctors have
answered questions, being questioned by the

answers and, latterly, they have had some patients

in front of them and, latterly, they have had some

psychiatrists or psychologists in front of them so

Romeo 12 13/12/91

that they are able therefore, if they sit down and

if they think that they have done enough by way of

inquisitorial proceedings to form views, they can

surely form tentative views and tell people about

them.

Now, that, we say, justifies this case being

treated as a special case. It is quite clear that

in Freeman's case the thing got bogged down and had

to be abandoned because proper procedures were not

followed. I will not go into the facts of

Freeman's case but Your Honours can see there that

they were forever stayed and there were attempts

during the proceedings to try and get particulars,

and it went to the Full Court and the Full Court

said, "No, we won't grant them right at the outset.

Maybe later during the proceeding it would be

appropriate to order particulars or to give

particulars", but it never got to that until this
proceeding before Mr Justice Woodward, and then the

application was to stay it. Now, I suspect that

that judgment of Mr Justice Woodward has been

ignored.

Now, in the Federal Court we have the

judgments of Justices Morling and Neaves and they
have taken the attitude, at page 50 of the

application book, line 4:

It is, however, quite a different

question whether the Court should interfere in

the conduct of a hearing in the manner

suggested by the appellants.

And this is what Your Honours were putting to me.

While this Court has a general supervisory

role ..... in relation to the conduct of

inquiries ..... the Court will not, unless

compelling circumstances are shown, examine

the material before a Committee at any

particular stage of a hearing which it is

conducting in order to determine, in the

abstract, whether, if a particular finding is

made, the making of that finding may vitiate

the Committee's report ..... It is only after

the findings of the Committee are known that

such an inquiry can profitably be undertaken.

Now, what we are saying - - -

GAUDRON J: As a general statement, that may well be right,

may it not?

MR ELLICOTT: It might be.

Romeo 13 13/12/91

GAUDRON J: If the issue is whether or not you are likely

to - an issue is likely to be raised or may be

raised that you have not thought of. If you have

not thought of it - all you are asking the Court to

do in matters such as this is speculate.

MR ELLICOTT:  No, with respect not.

GAUDRON J: That is not necessarily a helpful course.

MR ELLICOTT: All we are seeking, Your Honour, is for them,

that is to say, the Committee, to specify those

matters which are of concern to them, having had

the benefit of such inquiries as they thought were

necessary. Now, this is an inquisitorial procedure

but the body itself has all the trappings of the

court as Your Honours will see from the legislation

that is in that bundle. They have power to summon

witnesses; they have immunity; they can force

answers to questions and there are counsel allowed;

cross-examination is allowed, everything. They are
not bound by the rules of evidence. They can

gather their material by any means that they like.

Now, if we are going to, in this country, have

this sort of inquiry which affects private

citizens, then this Court should take an interest

in those inquisitorial procedures because, with

very great respect, people are going to be injured

in the course of them. In a simple case where it

simply says, "I'm having an inquiry as to whether

the service that you gave or those five services

you gave on a particular day were excessive.",

well, that it not going to create a problem. This

is a case, like other cases, where there is said to

be a long period of excessive services and that is

where the problem arises and that is where

inquisitorial procedures and proceedings can become

oppressive and where injustice can happen.

Now, why does one leave it until after the

can be prevented by laying down simple procedures,	report when the damage is done? And if the damage
why is it not appropriate for this Court, if it
seems so simple, to say so because it does not seem
to be so simple to the medical services committees
or those advising them? They have already been
told by the court, by Mr Justice Woodward, that
they ought to get their act in order, but they have not done it.

Mr Justice Burchett has written what we would

submit is a very powerful judgment and he points

out the problems - and so you get another division

in the Federal Court - that are associated with

this from the citizen's point of view - from our

clients' point of view.

Romeo 14 13/12/91

The matters that can be in issue - and these are only some of them - in relation to excessive

services, are these: for instance - - -

DEANE J:  Mr Ellicott, would it not be fair to say, looking

at the page you took us to, that in the Federal

Court the decision turned on what is said in the

last six lines on page 50 of the application book?

MR ELLICOTT:  The last six lines of page 62, Your Honour?

DEANE J: Page 50.

MR ELLICOTT: Well, it does, Your Honour, in one sense but

what they are saying is, "We're not going to tell

you.	We are not going to turn our mind to it."
They have said, "We will not tell you.	We don't
have any obligation to tell you".	We do not have
any protection from that.

DEANE J:	I appreciate the way you put it.
MR ELLICOTT:	And that is what it turns on.

DEANE J: But I was looking what -

MR ELLICOTT: Yes, it is, but that is, we would submit, the

enormity of it. No citizen is protected in those

circumstances. No citizen that is in - it surely

has a presumption of innocence against him or her

in relation to the matter. You cannot just assume

that because doctors are said to have provided

excessive services that they are guilty. With

their professional reputation, that has to be

guarded and if the Parliament is going to lay down

these procedures, the bodies that administer them,

we would submit, ought to act as courts would so

that if this was a claim for excessive services in
the court, the court would order particulars of,

"What are the matters in respect of which you say

these are excessive?", and secondly, "On what

grounds do you say they are excessive. For

instance, was the consultation too long? Were
there too many consultations? Did you give the
consultation to a member of your family? Did you

give it because the patient wanted it? What

cultural considerations are involved in relation to

it?" Those are many of the issues that potentially

arise in this case.

Your Honours, under the section of the Act,

which I will refer Your Honours to, we have a

statutory right to give evidence and to make

submissions and to call evidence. Section 96B: Where a relevant person attends -

Romeo 15 13/12/91

that is the doctor

appears or is represented at a hearing ..... he

or his representative, as the case requires,

shall be given the opportunity to give

evidence, and to call witnesses, on behalf of

the relevant person, to examine other

witnesses appearing at the hearing and to

address the Committee.

Now, how does one exercise that right if one is

left, as it were, facing a series of issues which

are limitless in any sense of the word, which are

mind-boggling to any piece of litigation - 1032

services? Because they have to report. They

cannot ignore the services. They have to look at

every one because the section which requires them

to report, section 104:

After completion by a Committee of a hearing

in relation to a matter, the Committee shall

report to the Minister its opinion on the
matter and, in a case where the Committee, in

the report, expresses the opinion -

(a) that a practitioner specified in the

report has rendered excessive services ..... the
report shall identify the excessive services.

So, they have to consider every one of them. They

cannot ignore them. And by the time it is reached

in these proceedings they ought to know those

which, prima facie, they might think to be

excessive.

Your Honour the Chief Justice asked me, "Why

this case?". Well, this is an excellent case

because it is right at the door of judgment. It is

right at the end where they are·saying, "We've got

no obligation to give you anything" and it is right

at the point where we do not know what they are

going to report and where they are not going to

tell us. Now, what better case could there be to

look at the particular issue and for this Court to

come to grips with the problems of inquisitorial

procedures?

Now, those two systems do not work together too well, particularly if you do not understand the

inquisitorial procedure. It is probably difficult

enough in the hands of judges, but when it is

committed to laymen and laywomen, then the problem

becomes much more difficult and their desire

perhaps to cut corners and not observe natural

justice becomes more prone. Nobody knows what

interest bureaucrats have in making sure that the

procedures are cut so that government expenditure

Romeo 16 13/12/91

is kept down. I would strongly submit to

Your Honours that this is a clear case for leave.

It is not just on the border where Your Honours

should be scratching your heads but a clear case,

one where this Court ought to intervene.

Sooner or later, if you do not grant it here,

some grave injustice will be done and then the

Court will say, "Oh well, - - -"

MASON CJ:	" - - - Mr Ellicott was right."
MR ELLICOTT:	" - - - Mr Ellicott was right." Thank you,

Your Honour, for the concluding remark.

MASON CJ: Yes, Mr Bennett?

MR BENNETT: If the Court pleases. Your Honours, I have an

outline of submissions which I hand to the Court.

MASON CJ:	Yes?
MR BENNETT:	Your Honours, these are investigative

committees. Their task is to start, in effect,

from scratch. They have in practice, of course, a

computer print-out showing something which looks

like a cause for concern; they hear evidence of the

doctor and those who he wishes to call. What my
friend is submitting is that such a body, a body of

experts, before it retires to consider its verdict,

has in some way to give a draft judgment or to say,

"Well, these are our prima facie views on the

matters. These are the matters which are

concerning us. Please address us on those."

Now, certainly, it may well be a counsel of judicial perfection for a judge who is against a

litigant on a particular point to say to that

litigant's representative, "I'm particular

concerned about x. It seems to be that you've got

a problem. What is your answer?"

MASON CJ: That would certainly lead to an economical

disposition of cases, would it not?

MR BENNETT:  Your Honour, we do not suggest for a moment

that is not a course which, in appropriate cases,

should be engaged in. What is novel about this

case is the suggestion that in some way it is

compulsory and it is a denial of natural justice

not to do it.

MASON CJ: But is there not a problem with what the Chairman

said:  "We are under no obligation to give

particulars"?

Romeo	17	13/12/91
MR BENNETT:	I would submit not, Your Honour.	In the course

of the proceedings no doubt some matters become

obvious to counsel and to the tribunal, some

matters do not. Matters are dealt with; evidence

is called. Presumably, the counsel appearing

before the tribunal has some idea what the issues

are or must be because he calls that evidence.	The
doctor says, "I thought that service No 1 was
necessary for these reasons and I produce this

evidence." That must mean that there are a number of bases on which the Committee can deal with that service either way within the range of what has

been discussed and argued.

If the Committee then goes off and decides it

on some totally foreign basis, if the Committee

goes off and decides it on some basis that could

not reasonably have been anticipated, then, of
course, at that stage, there would be a denial of

natural justice. But what my friend is seeking

here is to erect an anticipatory breach of natural

justice, to say, "Well, there may be something I

haven't thought of" and we would submit that the

law simply does not go so far as to require that to

be done.

Your Honours, even if that were wrong, this

case would be a very inconvenient vehicle for the matter to be determined. An appropriate case for the question of whether it is appropriate to give

particulars at this stage to be determined would be

one in which one could say to the Court, "Here is a

letter we wrote which says, 'These are the issues

as we perceived them at the inquiry and the issues

to which we addressed ourselves: 1, 2, 3, 4', or,

'In relation to particular services, these were the

issues as we saw them, and it is to that that we

addressed ourselves'. Now, would you please

confirm that those are the issues because if there

is something else we need to know about it?" One

could understand that, perhaps, might raise a

convenient vehicle. But if this case comes to the

Court, the Court is going to be speculating. It is going to be asking the very question

Justice Gaudron asked my learned friend which is,

"Please tell me what you can't anticipate? Please

tell me what is the point which you are not able to

anticipate might be raised against you?", which is,

of course, a meaningless question. That is the

problem with raising it at this stage.

It is not so much a question of locking the

stable door after the horse has bolted, it is a

question of a slightly different aphorism of crying before one is hurt. One just does not know whether

or not that would arise and, more importantly,

there is no reason to assume that it will arise.

Romeo 18 13/12/91

There is no reason to assume in this case that the

Committee will decide the matter on the basis of

anything which was not apparent in the course of

the way the matter was conducted.

Now, Your Honours, in addition, the question

is not one of general importance. We would submit

the issue may depend on the extent to which the
hearing itself and the questioning by members of

the Committee has thrown up with reasonable clarity

what the issues are. Suppose, for example, we, at

the hearing of the appeal, are able to demonstrate,

if one goes through the transcript:  "Here are

questions by the tribunal; here are matters which

have been raised which show quite clearly what

issues have been thrown up". Why would one then

say that there was some failure to disclose those

matters?

MASON CJ:  Mr Bennett, if I can interrupt you. We will

adjourn now and we will resume at ten minutes to

two.

AT 12.57 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 1.54 PM:

MR BENNETT:	Your Honour, before lunch I was making the point in paragraph 2(a) on page 2 of the
submissions thatt one of the difficulties the Court
would have to determine in seeing whether this was
an appropriate case for ordering particulars as the
members retired to consider the matter is whether
the questioning has thrown up issues; how clearly those issues are demonstrated; whether the issues are clear or not clear, and matters of that sort
and that would be, in a case of this sort, a very
difficult factual inquiry.

Your Honours, the other point is this: if

Your Honours go to page 63 of the application book,

Your Honours see at the top of the page the passage
relied on by my learned friend at line 5 where the

Chairman declines to give particulars, but at

line 20 she develops that a little and she says:

I think that is covered in the general, at the

end and I cannot with any honesty, with

honesty answer that question, because we have

not had any discussion on that matter at all.

Romeo 19 13/12/91

I have given you the only area that has arisen in our minds so far, from which your question

of particulars could be in any way answered.

Now, at page 26 that is dealt with in the

initial judgment, the judgment of

Mr Justice Foster, and at line 18 His Honour says

this:

The answer was that it was not possible. The

Committee is a committee of experts. There is

not the slightest suggestion made that the

proceedings are being conducted by them

otherwise than in a fully responsible and bona
fide manner. In these circumstances, the

court can only accept that, with the best will

in the world, the Committee is currently

unable to assist in the narrowing of the

issues of the inquiry in toe way sought by the

applicants.

What they were about to do, Your Honours, is

to retire and consider the evidence; to consider

the submissions; to carry out their investigative

function. What is being asked of them is that

before carrying out their investigative function they indicate the final result or give, as it is described in Minister of Health v Thomson, a

preview of their reasons or draft judgment or a

draft summary and, in my respectful submission,

there is simply no requirement of the law that they

do so.

One cannot assume that they will go wrong.

One cannot assume that having listened to the

evidence they will now decide the matter on the
basis of something not properly argued or not
properly brought to the minds of the applicants by

the conduct of the proceedings. If they do not,

there will never be a denial of natural justice.

If they do, it will become apparent then.	And
there is, of course, one must never forget, an

intermediate course which may well be the one

adopted. It may well be that having retired,

having embarked on their investigative process,

having thought about the matter, they will say to

themselves, "There is a matter which wasn't

properly brought to the attention of the

applicants. We will relist it for the purpose of

indicating that, and allowing evidence to be

brought and submissions made."

Why should we assume in advance that if such a

matter occurs, that will not be done? Indeed, why

should we assume that such a matter will occur in

any event, because it may not if they decide it on

the issues which have been clearly identified,

Romeo 20 13/12/91

either by the express identification of the

injection issue, which is obviously the main issue,

or by some means in the course of the inquiry which

became apparent that some matter was being pursued.

So, for those reasons, we submit that this is

a case where there is insufficient doubt; there is

no question of general importance and, in any

event, the case is a highly inconvenient vehicle

for an appeal. May it please the Court.

MASON CJ: Yes, Mr Ellicott?

MR ELLICOTT:  Your Honours will notice that at page 63 the

Chairman said:

Well, I think that is covered in the general,

at the end and I cannot with any honesty, with

honesty answer that question, because we have

not had any discussion on that matter at all.

And then the rest of that, and then down at the

bottom:

Yes, well I may not be able to accede to that request, because we may not have an idea in

our own minds. I think I have gone just about

as far as I can at the moment with this

request.

Now, that has to be set against the statement that:

I reject any suggestion that this Committee

has an obligation to provide the particulars

sought by yourself.

Now, my friend has said that the investigatory

inquisitorial procedures, as it were, they are

about to embark upon. Well, of course, they have

embarked upon it much earlier than this - at the

beginning of the hearings - and Your Honours will

appreciate there is no counsel assisting this body.

They conduct their own procedure so there is no

separation of function; there is nobody you can

talk to and say, "Well, give us the particulars".

They are prosecutor and judge in that sense. So

that their functions just have to be understood and

dealt with as they go along and when one comes to

this point, as we have come to at page 63, the

proper course is for them, if you like, to retire.

We are not asking that they give us a preview of

their judgment. All that we are asking is that

they tell us those matters about which they have a

concern, having considered the whole range of

services which are alleged to be excessive and to

tell us in relation to those what are the

Romeo 21 13/12/91

particular aspects of them in a general sense that

they are worried about, just as they have said:

The hearing to date has demonstrated that many

of the services rendered have involved courses

of therapy given by injection.

Now, that was enough to tell us. That is all they

have to do. We are not asking them to prejudge;

simply to say to us, "You needn't worry about that,

worry about these, and these are the reasons why."

My friend drew attention to Annetts v Mccann,

Your Honours, and to the proposition that people

should not cry before they are hurt. Actually,

that is what happened in Annetts v Mccann, they did

cry before they were hurt because they were

worried. That is what we are doing here. One of

the arguments put against the applicants in that

case was that there was no suggestion that they

were necessarily going to be hurt, but that was not

the point. The point was that they had an interest

at stake; not an interest to go into all issues but

to know any matter of concern that might affect

them.

My friend seemed to rely on the fact that this

was a body of experts. That, in itself, is a

problem. If you have a body of experts who

appears, that is a problem. That is a reason why

one needs to be more cautious about the procedures

of natural justice.

Really, in the end, we would submit my friend

has given no answer to the fact that they said, "We

reject any suggestion that this Committee has an

obligation to provide the particulars sought by

yourself as counsel and we do not provide them".

Now, that is a very positive statement. They made

it and that is their state of mind, and that is why

these proceedings have been through the Federal

Court, the single judge, the Full Court and, with	respect, that is why we are here because they are
refusing to say a very simple thing actually:
"Yes, we'll have a look at this. We'll go into our
private room. We've got to do it anyhow, and we
will tell you the things that you need worry about and we will tell you the things you need not worry
about. If we decide that it's everything, we'll
tell you that." That is all we are asking. And if
it is such a small thing, why have they not done
it? The reason is because the Crown, for some
reason, is standing on the proposition that they
have no obligation to do it and, of course, they
may think that that would create some inconvenience
and they may have good reasons, administratively,

Romeo 22 13/12/91

why they do not want to do it and why they want to

make an issue of this.

We, on the other hand, have the problem of

being deprived of natural justice. If the Court

pleases.

MASON CJ: Yes, thank you, Mr Ellicott.

It is conceded that this case does not raise a

question of general principle. It is a question of

applying settled principle to the particular facts

and circumstances of this case.

Whether a tribunal is required to give

particulars of matters of specific concern at some

stage of an inquiry into services alleged to be
excessive is very much a matter of degree and fine
judgment. In this case, the court below considered

that the stage had not been reached when it could

be said that natural justice had been denied and

considered that the question should be left for

determination should the need arise after the

tribunal makes its findings.

In the Full Court of the Federal Court

Merling and Neaves JJ said, in their joint

judgment:

"In the circumstances of the present case, the

Court would not, we think, be justified in

assuming that the Committee will proceed to

make findings upon any matter of which the

appellants have not had adequate notice. That

is to say we do not think the conclusion can

yet be reached that the Committee has denied

the appellants their undoubted right to

natural justice."

That conclusion was, in our view, open to the

Federal Court.

The application for special leave is therefore

refused.

MR BENNETT:	I seek costs, if the Court pleases.
MASON CJ:	And you do not oppose that, Mr Ellicott? The

application is refused with costs.

AT 2.04 PM THE MATTER WAS ADJOURNED SINE DIE

Romeo 23 13/12/91