Rowell, Philip, in the matter of an application by
[2002] VSC 63
•26 March 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 5791 of 2001
| IN THE MATTER OF AN APPLICATION BY PHILIP ROWELL AS TRUSTEE OF THE DOW CORNING AUSTRALIA SETTLEMENT TRUST AND AS TRUSTEE OF THE EXPEDITED AND CAPITALIZED (CERTAIN AUSTRALIAN CLAIMANTS, DOW CORNING BREAST IMPLANTS) SETTLEMENT TRUST UNDER ORDER 54.02 OF THE GENERAL RULES OF PROCEDURE IN CIVIL PROCEEDINGS 1996 | Applicant |
| v. | |
| THE COMMONWEALTH OF AUSTRALIA | Respondent |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 NOVEMBER 2001 | |
DATE OF JUDGMENT: | 26 MARCH 2002 | |
CASE MAY BE CITED AS: | IN THE MATTER OF AN APPLICATION BY PHILIP ROWELL | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 63 | |
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CATCHWORDS: Application for declaratory relief – Health and Other Services (Compensation) Act 1995 (C'th.), ss.3(4), 8(1)(a), 23 and 24 – Jurisdiction of Supreme Court to make declaration – Administrative Decisions (Judicial Review) Act 1977 (C'th.), s.9(1) and (2).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr. B. Quinn | Ebsworth & Ebsworth |
| For the Respondent | Mr. A. Cavanough Q.C. and Mr. M. Fleming | Australian Government Solicitor |
HIS HONOUR:
In dealing with the application by the Trustee for declaratory relief concerning the provisions of the Health and Other Services (Compensation) Act 1995 I have dealt in some detail with the background to the application and the competing contentions of counsel for the Trustee on the one hand and the Commonwealth on the other.
Having regard to the conclusion I have come to concerning the jurisdiction of this Court to entertain the application much of what I have set out in my reasons for judgment may seem to be superfluous.
However, I have adopted that course in the hope that if this application is now made to the Federal Court of Australia it may assist the member of that Court hearing the application to familiarise himself or herself with the background to the application and the issues which will require his or her determination.
Much of the background to the application is summarised in the outline of submissions of counsel who appeared before me on behalf of the Trustee.
For convenience I have utilised the relevant aspects of that summary in my reasons for judgment making any appropriate amendments or additions to them.
The Trustee's application is for a declaration that:
"The provisions of the Health and Other Services (Compensation) Act 1995 (the Act) and, in particular, section 8(1) thereof, do not apply to any sum or sums payable to qualifying claimants by Philip Rowell as Trustee of the Expedited and Capitalized (Certain Australian Claimants, Dow Corning Breast Implants) Settlement Trust, being exhibit 'PG15' to the affidavit of Peter Gordon sworn 15 May 2001 filed herein, pursuant to the terms of the Settlement Option, being exhibit 'PJR2' to the affidavit of Philip John Rowell sworn 16 May 2001 filed herein."
Many Australian women made claims against Dow Corning Corporation or its related companies ("Dow Corning") in respect of breast implants manufactured by or made from materials manufactured by Dow Corning by filing proofs of claim in Dow Corning's bankruptcy filed under Chapter 11 of the United States Bankruptcy Code on 15 May 1995 in the United States Bankruptcy Court for the Eastern District of Michigan, Northern Division.
Dow Corning submitted to the Bankruptcy Court a proposed Amended Joint Plan of Reorganisation ("the Plan"). One part of the Plan comprised a settlement agreement known as the Dow Corning Settlement Option Regarding the Voluntary Australian Sub-Class ("the Settlement Option"). The Settlement Option provided for a staggered payment of claims of members of the separate sub-class of Australian claimants over a period of 7 years from the effective date of the Plan. There were 3181 such claimants in the sub-class, each of whom agreed to settle their claims by electing to have them governed by and to receive an award of compensation in accordance with the terms of the Settlement Option. On 15 February 1999, solicitors for such claimants executed the Settlement Option on their behalf.
The Plan was approved by His Honour Judge Spector on 30 November 1999 and affirmed on appeal by His Honour Judge Hood on 13 November 2000. However, the Plan is the subject of further appeal and its terms and conditions cannot be implemented until the appeal process is completed. When that will be is unknown.
Paragraph 13.2 of the Settlement Option empowered solicitors for the claimants and the Voluntary Australian Sub-Class Trustee to capitalize the total settlement amount in consideration for an assignment of the receivable and to amend the claims handling time-table and protocols to permit more expeditious claim payments. By a Capitalization Agreement executed 29 March 2001 the total settlement amount was capitalised by payment of $18,150,00US into a trust established by the Expedited and Capitalized (Certain Australian Claimants, Dow Corning Breast Implants) Settlement Trust Deed ("the Trust Deed").
On 21 May 2001 I ordered that:
"Philip Rowell as Trustee of the Expedited and Capitalized (Certain Australian Claimants, Dow Corning Breast Implants) Settlement Trust have authority to implement the Capitalized Trust."
Clause 6 of the Trust Deed confers specific duties on the Trustee. Relevantly, that clause provides that the Trustee must:
"…
(b)apply to the Supreme Court of Victoria for orders and directions authorising the Trustee to implement the Trust and process and pay claims and take other actions on the same terms as the [Settlement Option];
(c)establish the funds required by the [Settlement Option] and distribute the Trust Fund in accordance with the [Settlement Option];
(d)monitor and oversee the procedures for authorisation of payment of claims by the Claims Administrator set out in Schedule A and oversee the procedures of the Claims Review Panel set out in Schedule A;
(e)ensure that payments authorised by the Claims Administrator comply with the Health and Other Services (Compensation) Act 1995 (Cwlth), any Bulk Payment Agreement entered into under that Act between the Australian Health Insurance Commission and Certain Australian Counsel and other related legislation;
(f)upon receiving properly executed releases in the form of exhibits D1 and D2 to the Capitalization Agreement, pay compensation in accordance with paragraph 7 of the Agreement as authorised by the Claims Administrator in writing and at the level specified by the Claims Administrator in writing or where an appeal is brought pursuant to Section VII of Exhibit B, pay compensation specified in the determination of the Claims Review Panel;
…"
Clause 10 of the Trust Deed confers power upon the Trustee "to do all other lawful acts and things incidental to or conducive to the carrying out of this Trust Deed."
Schedule A to the Trust Deed contains procedures for processing claims expressed to be "intended to supplement the Claims Administration Procedures set out in Exhibit B to the [Settlement Option]." Relevantly, the procedures for processing claims are as follows:
"(a)The Claims Administrator, or, where the Claims Administrator has delegated the implementation of the Claims Administration Procedures to the Claims Officers, the Claims Officers must make a decision in relation to each claim in accordance with the [Settlement Option] and inform the relevant claimant of the decision.
(b)If there is no appeal by the Claimant, the Claims Administrator must supply a certificate to the Trustee authorising payment of the amount specified in the certificate.
(c)On receipt of the certificate, properly executed releases in the form of exhibits D1 and D2 to the Capitalization Agreement, and in the absence of manifest error or fraud, the Trustee must pay the claimant in accordance with the certificate of the Claims Administrator.
(d)If the claimant appeals in accordance with and as permitted by the [Settlement Option], the decision of the Claims Review Panel must be communicated to the Claims Administrator. The Claims Administrator must advise the claimant of the result of the appeal. The Claims Administrator must also advise the Trustee. If the claimant succeeds in this appeal, the Claims Administrator must provide a certificate to the Trustee specifying the amount to be paid to the claimant."
Detailed procedures for the calculation and distribution to each claimant of her compensation entitlement are set out in clause 7 and Exhibits A and B to the Settlement Option. Exhibit A requires, in effect, an assessment and characterisation of the severity of each claimant's medical condition by reference to a detailed Medical Conditions List. Exhibit B contains detailed Claims and Administration procedures including provision for allocation of funds in the Trust and procedures for ensuring, in effect, the quality of the evidence by which claimants may prove an entitlement to compensation.
Exhibit C1 to the Settlement Option comprises the Claim Form by which a claimant wishing to claim compensation must submit information regarding their claim.
Exhibit D1 to the Capitalization Agreement (and the Settlement Option) comprises a form of release which each claimant must execute before obtaining their compensation once calculated.
No claimant has yet had their claim processed or their compensation calculated pursuant to the procedures set out in Schedule A to the Trust Deed and the relevant provisions of the Settlement Option.
Section 8 of the Health and Other Services (Compensation) Act 1995 (C'wlth) ("the Act") provides for the recovery by the Commonwealth of past payments of medicare benefits from judgment and settlements. Section 8(1) provides:
"Subject to subsections (2), (3), (6) and (9), if:
(a)a judgment or settlement is made in respect of an injury to a compensable person; and
(b)medicare benefit has already been paid in respect of a professional service rendered to that person in the course of treatment of, or as a result of, the injury; and
(c)a liability has not already arisen under section 7 in respect of that payment of medicare benefit;
there is payable to the Commonwealth an amount equal to the medicare benefit."
Section 7, referred to in s.8(1)(c), applies only where a "reimbursement arrangement" has been made in respect of an injury and is, for present purposes, irrelevant.
Section 3(1) of the Act defines "settlement" as:
"an agreement under which an amount of compensation that a party to the agreement agrees to pay to another person is fixed …"
Section 3(4) of the Act provides:
"A reference in this Act to an amount of compensation being fixed under an order or agreement is a reference to the amount being:
(a)specified in the order or agreement, or in the law under which the order or agreement is made or to which the order or agreement relates; or
(b)ascertainable, at the time the order or agreement is made, in accordance with the terms of the order or agreement, or in accordance with a law under which the order or agreement is made or to which the order or agreement relates."
The argument advanced on behalf of the Trustee may be expressed in the following way.
The agreement to which Dow Corning is a party and under which Dow Corning agrees to pay monies to the claimants is the Settlement Option. However, no "amount" of compensation payable to any claimant is "specified in" the Settlement Option within the meaning of s.3(4)(a) of the Act. Further no "amount" of compensation payable to any claimant was "ascertainable" at the time the Settlement Option was made in accordance with the terms of the Settlement Option within the meaning of s.3(4)(b).
In fact no amount of compensation payable to any claimant is even "ascertainable" now. This is because:
(a)at the time the Settlement Option was executed the claimants were doing no more than agreeing to a mechanism by which they may obtain some uncertain return from the proceeds of the United States bankruptcy proceeding to be distributed over a period of seven years from the effective date. Such return was, in turn, contingent upon the approval of the plan on appeal in the United States Bankruptcy Court. There was, therefore, no way of ascertaining the likelihood, time, or amount of any compensation that may become payable.
(b)the Capitalization Agreement is expressed to be "governed by the terms, conditions and procedures" of the Settlement Option. The capitalization was for the sum of $18,150,000 which was paid into the Trust. However, despite the execution of the Capitalization Agreement, the execution of the Trust Deed and the orders made by this Court that the Trust may be implemented, it was and remains impossible to ascertain the amount of compensation payable to each claimant because -
(i)the total amount that will be available for distribution to claimants after all payments are made from the Costs of Settlement and Administration Fund and after investment of trust monies is unknown; and
(ii)the amount of compensation payable to each claimant from the Trust depends upon the assessment of each claimant's claim in accordance with the procedures provided by the Settlement Option and Schedule A to the Trust Deed.
It follows therefore, so it is said, that the Settlement Option is not an "agreement" under which an amount of compensation is "fixed" within the meaning of s.3(4) of the Act. Nor is there any other instrument in existence which answers that description and under which compensation payable to each claimant "is fixed". Accordingly the Settlement Option is not a "settlement" within the meaning of s.3(1) of the Act or therefore s.8(1)(a) of the Act.
If that is the correct situation as the Trustee contends it is, then the statutory pre-conditions to any entitlement in the Commonwealth to repayment of medical benefits are not satisfied and the Act has no application to any of the claims made by, or the compensation ultimately payable to, claimants whatever that compensation might be.
A further argument advanced by the Trustee in relation to those claimants who are designated as "expedited claimants" is that the payments to be made to them are not "in respect of an injury" and accordingly if medical benefits were paid to some or any of them, which is doubtful, the Commonwealth has no entitlement to any repayment by virtue of the settlement of their claims.
That argument is based upon the following matters.
Clauses 7.1(i), 7.1(ii), 7.2(iii)(b), 7.3, 7.4(i) and 7.4(ii) of the Settlement Option provide for fixed sums up to a maximum of $2,000 to be paid to claimants falling within those clauses (the expedited claimants).
Those claimants are claimants who are unable to demonstrate that they suffered any injury or disease as a consequence of receiving a breast implant. They are being made a nominal payment simply by reason of the fact that they had a breast implant which was manufactured by Dow Corning or made from materials manufactured by Dow Corning.
The reality of the situation is that small payments are being made to such claimants simply to dispose of them as claimants.
The first matter raised on behalf of the Commonwealth in opposition to the Trustee's application is that by virtue of the provisions of s.9 of the Administrative Decisions (Judicial Review) Act 1977 (C'wlth) this Court has no jurisdiction to make the declaration sought by the Trustee.
The sub-sections of s.9 relevant for present purposes are sub-sections (1) and (2) which read:
"9. Limitation of jurisdiction of State courts
(1)Notwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review:
(a)a decision to which this section applies that is made after the commencement of this Act;
(b)conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision to which this section applies;
(c)a failure to make a decision to which this section applies; or
(d)any other decision given, or any order made, by an officer of the Commonwealth or any other conduct that has been, is being, or is proposed to be, engaged in by an officer of the Commonwealth, including a decision, order or conduct given, made or engaged in, as the case may be, in the exercise of judicial power.
(2)In this section
decision to which this section applies means:
(a)a decision that is a decision to which this Act applies; or
(b)a decision of an administrative character that is included in any of the classes of decisions set out in Schedule 1, other than paragraphs (m) and (n).
officer of the Commonwealth has the same meaning as in paragraph 75(v) of the Constitution.
Review means review by way of:
(a)the grant of an injunction;
(b)the grant of a prerogative or statutory writ (other than a writ of habeas corpus) or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ; or
(c)the making of a declaratory order."
The words "decision to which this Act applies" are defined in s.3 of the Act to mean:
"a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1."
Decisions by the Health Insurance Commission under the Health and Other Services (Compensation) Act 1995 are not included in any of the classes of decisions set out in Schedule 1.
What is said next on behalf of the Commonwealth is that the Settlement Option anticipates that there will be settlements of the various claimants' causes of action; that pursuant to s.23 of the Act the Trustee will be obliged (as the notifiable person within the meaning of the Act) to notify the Health Insurance Commission (the Commission) in accordance with that section, in respect of each settled claim whereby the Managing Director of the Commission will in turn be obliged by s.24 of the Act to give the Trustee written notice specifying the sum to be paid to the Commonwealth.
The relevant sub-sections of s.23 and 24 read:
"Section 23 Notice of Judgment or Settlement
23(1) (Notice in Writing). The notifiable person must notify the Commission in writing if a judgment or settlement has been made in respect of a claim.
Section 24 Notice of Charge – Claims Resulting In Judgments or Settlements
24(1) (Written notice to insurer or compensation payer). Subject to subsection (1A) if the Commission receives a notice under subsection 23(1) the Managing Director must give to:
(a)if the notifiable person in relation to the claim for compensation from which the judgment or settlement resulted is an insurer; or
(b) otherwise – the compensation payer;
written notice specifying the sum of the amounts (if any) that are payable to the Commonwealth under this Act or the Charges Act in respect of the amount of compensation."
Sub-section (1A) of s.24(1) is irrelevant for present purposes.
It is clear from the correspondence passing between the Trustee and the Commission that at the relevant time the Managing Director proposes to give to the Trustee pursuant to s.24 of the Act notice specifying the sum of the amounts that are payable to the Commonwealth under the Act or the Charges Act (Health and Other Services Compensation) Care Charges Act 1995) in respect of the compensation paid or to be paid to the various claimants.
The application of the Trustee for declaratory relief necessarily involves, therefore, a review of the legal validity of the proposed decision or conduct of the Manager of the Commission, a jurisdiction denied to this Court by s.9 of the Administrative Decisions (Judicial Review) Act.
The second argument advanced on behalf of the Commonwealth is that although the Settlement Option does not of itself compromise or settle the claimants' claims it is a framework agreement which provides for the entering into of later subsidiary agreements by persons wishing to compromise legal claims against Dow Corning.
What the Settlement Option does is to provide for the availability of a sum of money and establish a mechanism to permit claimants who elect to participate to be considered for eligibility for a share of that sum in accordance with the criteria set out in the Settlement Option. The Settlement Option does not itself contain the intending claimants' election to participate nor does it contain the provisions whereby the intending claimants release Dow Corning from liability.
Ignoring for the moment the classes of claimants permitted to make "expedited" claims and in respect of which the sums of compensation are specified, the Settlement Option alone is not an agreement which by its own terms, fixes the precise amount of compensation to be paid to all classes of eligible claimants. Nor does it by its terms, permit the precise amount of compensation to be paid to certain classes of eligible claimants to be ascertained as at the date on which the Settlement Option was concluded.
It follows, therefore, that the sums of compensation payable to eligible claimants are to be paid not only pursuant to the Settlement Option but also, and more particularly, pursuant to individual agreements entered into by each of the claimants. Those individual agreements will include the various applicants' applications to participate in the Australian Settlement Option but will not be completed until the Trustee has, on behalf of all affected parties, ascertained and fixed the precise amount of compensation due to be paid to the individual claimants in accordance with the terms of the Settlement Option.
It follows therefore, so it is said, that it is only at the time at which the amount to be paid to a claimant has been "fixed" that a settlement has been made within the meaning of s.23 of the Act such that it becomes notifiable to the Commission in accordance with the section.
In other words what has occurred is that the parties have entered upon a course of behaviour extending over time whereby any claimant's agreement to compromise her cause of action would be effected by a series of steps, the last of them being the calculation and fixing by the Trustee of the precise amount to be paid to the eligible claimant. Any other approach would rob the Act of its intended operation.
The Act is intended to catch all compensation payments for personal injury (see s.4) but the timing of its application is affected by the provisions requiring definite fixation of the amount of compensation to be paid. The whole scheme of the Act relies upon the Commission's right to be paid constituting a charge against a fixed or ascertainable sum. It arises in law as soon as (and not before) that ascertainable sum is fixed and becomes known.
The first point the Commonwealth makes in respect of the expedited claim is that the Settlement Option does provide for a variety of prescribed sums of compensation to be paid to those claimants seeking to participate in accordance with the several requirements in respect of the relevant classes.
When a claimant applies to be a member of one of the classes of expedited claims and is accepted a fixed sum will be payable to her and ss.8(1) and 23 of the Act will apply.
As to the Trustee's contention that the expedited claimants will not lead to settlements made in respect of injury to a compensable person in that the claimants have not attempted to, or are not able to, establish to the satisfaction of the Trustee that there was any relevant injury in accordance with the claims procedure laid down by the Settlement Option, nor a medical benefit paid in respect of a professional service rendered to that person in the course of treatment of, or as a result of the injury, it is said on behalf of the Commonwealth that that contention ignores the fact that there will have been, or at least may have been, medical benefits paid in respect of the expedited claimants for professional services rendered to them in the course of or as a result of some injury or disease related to the claims.
The circumstances that a claimant does not choose to provide, or cannot for whatever reason provide, evidence of such an injury or disease in the course of a structured settlement does not mean that there was no treated disease or injury in connection with the claimant's claim; nor does it mean that the expedited settlement of such a claim did not occur in respect of an injury to a compensable person if in fact there was such an injury.
In other words parties to a settlement cannot defeat the Commission's entitlement by effecting a settlement on the ostensible footing that there was no injury and no consequential medical treatment in respect of that injury if the facts were otherwise.
Finally it is argued on behalf of the Commonwealth that the Trustee's application is premature in that it is being made either in respect of indeterminate future circumstances or in respect of a hypothetical situation.
At this stage the Court cannot know that the fixing of the amounts of compensation to be paid in respect of all or most of the categories of claimant (other than the expedited claimants), might not precede the completion by intending claimants, or at least some of them, of the documentation comprising their elections to participate in the Settlement Option.
The case for the Trustee in relation to the Commonwealth's contention that this Court does not have jurisdiction to entertain the Trustee's application is firstly that the Trustee is obliged by clause 6(b) of the Trust Deed to make this application to the Supreme Court of Victoria and has no specific power under the Trust Deed to make an application such as the present to any other court.
In approaching this Court the Trustee is availing himself of the right given to him by r.54.02(2)(a)(i) of the Supreme Court Rules to bring a proceeding for the determination of any question "arising … in the execution of a trust".
Clause 6(b) of the Trust Deed reads:
"6. Specific Duties of the Trustee
The Trustee must:
(b)apply to the Supreme Court of Victoria for orders and directions authorising the Trustee to implement the Trust and process and pay claims and take other actions on the same Terms as the Agreement."
The second argument advanced on behalf of the Trustee in respect of this aspect is that s.9 of the Administrative Decisions (Judicial Review) Act 1977 does not deprive this Court of jurisdiction to make the order sought by the Trustee because the declaration sought does not require the Court to conduct a "review" of any decision or conduct to which s.9 of that Act applies.
In that regard it is said that the Trustee is not seeking an order in respect of a "proposed decision" or "proposed conduct" by an officer of the Commonwealth but rather a declaration that the Act under which any presently hypothetical "decision" or "conduct" may be contemplated has no operation in relation to the claimants or the compensation payable to them.
I propose to deal first with the question whether this Court has jurisdiction to grant the declaration sought.
The first point I make is that if this Court does not have jurisdiction by virtue of the provisions of s.9 of the Administrative Decisions (Judicial Review) Act then no provision in the Trust Deed can give it that jurisdiction. That much, I would have thought, is trite law.
In any event the provisions of clause 6(b) of the Trust Deed do not preclude the Trustee from making any appropriate application in respect of the Trust to the Federal Court of Australia.
It may be argued that before the Trustee does so he should obtain a direction from this Court to that effect. But that is a totally different matter.
If I do conclude that this Court has no jurisdiction to entertain the application, I would not hesitate to give such a direction.
I turn then to the provisions of s.9.
It is said that in seeking the declaration he is, the Trustee is not seeking any order in respect of a "proposed decision" or "proposed conduct" by an officer of the Commonwealth but is seeking a declaration that the Act has no operation in relation to the claimants or the compensation payable to them.
But why is such a declaration sought?
The short answer to the question posed is that it is sought in the hope that if it is made any officer of the Commonwealth will be precluded from serving a s.24 notice on the Trustee.
That an officer of the Health Insurance Commission intends to serve such a notice or notices in due course is clear in my opinion from the correspondence which has already passed between the Commission and the claimants' solicitors Slater & Gordon, in particular the letters of 2 February 2000 and 15 September 2000. The letters read:
"2 February 2000
Jenny Albanis
Slater & Gordon
GPO Box 4864VV
MELBOURNE VIC 3001
Dear Jenny,
Thank you for the final Medicare history statements (a sample of claimants which are party to Dow Corning). I have determined the average amount of Medicare benefits paid for each of the categories below from the services your clients have indicated relate to the compensable injury.
1. Category 1 – Localised Injury $390.94
2. Category 2 – Rupture $888.95
3. Category 3 – Disease Category C $272.61
4. Category 4 – Disease Category B $816.20
5. Category 5 – Disease Category A $310.80
6. Category 6 – SS/SLE $589.92
These figures will be used to finalise the Deed in relation to the Bulk Payment Agreement. If I do not hear from you by the 21 February, 2000, I will accept that you agree with the amounts above and I will forward you the draft Deed for your consideration.
If you wish to discuss this matter further please do not hesitate to contact Kerrie Clynch on (02) 612 4659.
Yours sincerely
Melina Saltori
Manager Compensation."" HEALTH INSURANCE COMMISSION
Legal Services Unit
134 Reed Street Tuggeranong ACT 2900
PO Box 1001 Tuggeranong ACT 2901
Phone: 02 6124 6333
Fax: 02 6282 5025Facsimile Message – First Page
Date: 15 September 2000
To: Carmen Hodges
Slater & Gordon
Fax No: (03) 9600 0290
From: Graham Mynott
Manager, Associated Government Programs
Number of pages including this one: 2
Dear Ms Hodges
RE:BREAST IMPLANT CLAIMS (DOW CORNING)
BULK PAYMENT AGREEMENT
I refer to your facsimile dated 4 September 2000 in relation to the above matter.
I note your comments regarding making application to the Supreme Court of Victoria to request a 'past expenses component' for the purposes of s24(9) of the Health and Other Services (Compensation) Act 1995 ('the Act') be determined in respect of claimants participating under the Australian Settlement Option.
Section 24(9) provides that the HIC will accept any past expenses component that is fixed but does not provide for the HIC to be involved in any application to fix a past expenses component. As such the HIC could not object to the application.
The HIC believes the figures provided on 2 February 2000 are a fair assessment of the amount that should be repaid to the HIC and should not be reduced to the Net Present Value.
If no past expenses component is fixed by the Court and if settlement as defined in the Act has occurred, then the HIC would require payment of the amounts listed on the notice of charge for each claimant. If no past expense component is fixed by the Court and settlement has not occurred then the option of a bulk payment agreement could be revisited.
While the HIC will not be involved in any application to the Supreme Court of Victoria, I confirm the HIC agrees to cease further negotiation in respect of any proposed bulk payment agreement until such time as the Court has made its determination.
The HIC is of the opinion that any application to the Supreme Court of Victoria should include clarification of the amounts for past expenses components for the six categories previously discussed as well as for Advanced Claimants and claimants who fall within more than one category.
Please confirm whether Slater & Gordon are raising the issues of Net Present Value and an application to the Supreme Court of Victoria in respect of all claimants under the Australian Option or only those who have Slater & Gordon as their solicitor.
Should you have any enquiries or require any further information please contact Melina Saltori on (02) 6124 6372 or Helen Stokes on (02) 6124 6831.
Yours sincerely,
Graham Mynott
Manager, Associated Government Programs."
In that situation I think that the inescapable decision one must come to is that the application for declaratory relief does involve a review of the legal validity of the proposed decision or proposed conduct of either the Managing Director of the Commission or some other appropriate officer of the Commonwealth in that it is designed to prevent the Managing Director or officer giving a s.24 notice.
If that view of the matter is correct as I believe it is then this Court has no jurisdiction to entertain the application and the application should be dealt with by the Federal Court.
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