Sherman, Doctor John v Medicare Participation Review Committee

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

Doctor John Sherman and Doctor Hendrick van Rensberg sought judicial review of a decision made by the Medicare Participation Review Committee in July 1993, alleging it was an administrative decision subject to review under the Administrative Decisions (Judicial Review) Act 1977. The applicants were initially denied the opportunity for review, as the court determined the decision in question was not a valid "decision" under the Act. However, during the hearing, the applicants were granted leave to amend their application, shifting focus to an earlier decision made by the Committee in March 1993, which they argued indirectly led to the July decision. The court subsequently set aside the March decision but declined to order costs in favour of either party.

The primary legal issue before the court was whether the Committee's March decision constituted an administrative decision subject to judicial review under the Act. The court also had to determine whether the Minister for Health's failure to raise certain objections in a timely manner contributed to the costs of the proceeding. Furthermore, the court examined whether the applicants' misconceived initial application, which was later amended, warranted an order for the applicants to pay the Minister's costs.

Justice Jenkinson concluded that the applicants should bear the costs of the proceeding. The court reasoned that the applicants' initial application was misconceived and only became valid after the amendment was allowed. Although the Minister did not object to the competency of the application or raise certain objections promptly, these factors did not significantly contribute to the costs. The court noted that the applicants' legal representatives also failed to identify key issues early in the proceeding. The judge opted not to enter the costs order immediately, allowing for potential written submissions from the parties before finalizing the costs decision.

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