Sherman, Doctor John v Medicare Participation Review Committee

[1996] FCA 1081

IN THE FEDERAL COURT OF AUSTRALIA   )
VICTORIA DISTRICT REGISTRY         )  No. VG339 of 1993
GENERAL DIVISION                   ) 

BETWEEN:DOCTOR JOHN SHERMAN

First Applicant

AND:DOCTOR HENDRICK VAN RENSBERG

Second Applicant

AND:MEDICARE PARTICIPATION REVIEW COMMITTEE

First Respondent

AND:THE MINISTER FOR HEALTH

Second Respondent

CORAM:    Jenkinson J.

PLACE:    Melbourne

DATE:     6 December, 1996

REASONS FOR JUDGMENT

In circumstances disclosed by reasons for judgment given on 7 August 1995 the applicants sought an order of review in respect of what they alleged was a "decision", within the meaning of that word in the Administrative Decisions (Judicial Review) Act 1977, of the first respondent ("the Committee") made in July 1993. Those reasons express my conclusion that what the Committee then did was not such a decision. However, during the hearing the applicants were granted leave to amend their application to claim an order of review in respect of an earlier decision made in March 1993, adherence by the Committee to the reasons for which earlier decision had for a consequence the making of the decision of July 1993. The decision of March 1993 was set aside by me, for reasons given on 7 August 1995. The applicants of the one part and the second respondent ("the Minister") of the other each sought an order that the other pay his costs of the proceeding.

In my opinion no costs order in favour of either applicant should be made.  The proceeding was, until the amendment was granted during the hearing, misconceived.  It was not until discussion exposed the misconception that application for an extension of the time limited for the making of an application for an order of review in respect of the March decision and application to amend were made.  There was no addition to the costs of the hearing by any sustained opposition by counsel for the Minister to the order sought for review of the March decision.

The Minister did not object to the competency of the application, nor raise in written submissions filed in October 1993 the contention that the July decision was not a "decision" within the meaning of that word in the Administrative Decisions (Judicial Review) Act 1977. But, if the Minister's advisers did not see that point, neither did the applicants' advisers. In no other significant respect did any act or omission of the Minister or his legal representatives add to the costs of the proceeding.

I think that the applicants should pay the Minister's costs of the proceeding.  In accordance with an arrangement with counsel, who had not had an opportunity to read the transcript of the proceeding in this court when the question of costs was argued, I will direct that the order concerning costs be not entered before 23 December 1996, so that any party may, if he wishes, file a written submission in support of any different order concerning costs on or before 16 December 1996.

I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson.

Associate

Dated:  6 December, 1996

Counsel for the Applicants     :    Mr. M.R. Titshall Q.C.

No appearance for the First
named Respondent

Counsel for the Second named    :    Mr. M. Goldblatt
Respondent

Solicitors for the Applicants   :    Ebsworth & Ebsworth

Solicitors for the Second      :    Australian Government named Respondent  Solicitor

Date of Hearing                :    12 August, 1996

Date of Judgment               :    6 December, 1996