Tang, Theodore T v Holmes, Alan John (in his capacity as Director of Professional Services Review under the Health Insurance Act 1973

[1997] FCA 1381

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 631 of 1997

BETWEEN:

THEODORE T TANG
Applicant

AND:

ALAN JOHN HOLMES (in his capacity as Director of Professional Services Review under the HEALTH INSURANCE ACT 1973)
First Respondent

RICHARD WILLIAM FRANCIS KING (in his capacity as a Member of Professional Services Review Committee No 68)
Second Respondent

LYNETTE ANNE EDWARDS (in her capacity as a Member of Professional Services Review Committee No 68)
Third Respondent

BRUCE WALLACE INGRAM (in his capacity as a Member of Professional Services Review Committee No 68)
Fourth Respondent

JUDGE:	RYAN J
DATE:	28 NOVEMBER 1997
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

There is before the Court a motion for an interlocutory injunction restraining the second, third and fourth respondents who are members of a Professional Services Review Committee, purportedly set up by the first respondent pursuant to s 93(1) of the Health Insurance Act 1973 (“the Act”) from holding a meeting as part of its investigations. The substantive application has been brought under the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”) and in the alternative by way of an application for prerogative relief against an officer of the Commonwealth. It raises, in the first place, the application and proper interpretation of s 89 of the Act which provides:

(1)     Within 28 days after receiving the referral, the Director must:

(a)dismiss the referral; or

(b)set up a Committee to consider whether the practitioner has engaged in inappropriate practice.

(2)     The Director’s decision on the referral is not rendered invalid merely because it is not made within the 28 day period.

It is not disputed that the referral to the first respondent was notified to the applicant on 27 March 1997 and presumably occurred shortly before that date.  It is also common ground that the decision to set up the Committee was notified on 17 October 1997 and, it may be inferred, was taken very shortly before that time.

On the limited view of the facts which I have been able to form I consider that at least two serious questions to be tried are raised by the substantive application. They are, first, whether the lapse of time between the referral and the decision to set up the Committee was such as to preclude the first respondent from contending that there has been substantial compliance with s 89 of the Act. That section is curiously drafted and the researches of counsel have revealed no legislative parallels to it which have been the subject of authoritative judicial exposition.

It is inappropriate at this early stage of the litigation that I venture any more than a provisional view of the proper interpretation of s 89. I consider it to be seriously arguable that the section requires substantial compliance with the time limit prima facie imposed by s 89(1) and that the lapse of over six months which occurred in this case did not amount to such compliance. I also regard it as seriously arguable that a decision of the kind contemplated by s 89(1) is one to which the AD (JR) Act applies. It is clearly a decision contemplated by the Act and is the last act reposed in the Director before the referral passes to the Professional Services Review Committee.

It may be, as Mr Hanks of Counsel for the respondent has contended, that the decision of the first respondent is analogous to that of Dr Dash, which was discussed by a Full Court of this Court in Edelsten v Health Insurance Commission (1990) 27 FCR 56. However, as emerged in discussion with Counsel in the course of today’s hearing, there are significant differences between the legislation applicable to Edelsten’s case, and the sections of the Act in its present form conferring powers on the Director. Those differences are sufficient, in my view, to demonstrate that a decision is reposed in the Director and that what is contemplated by ss 88, 89, 90, 91 and 93 is not mere conduct of the kind characterised by Davies J in Edelsten where his Honour said at p 73:

Pursuant to s 82 of the Act, Dr E G Dash, a delegate of the Minister for Community Services and health, referred to a Medical Services Committee of Inquiry the question whether each professional service rendered to patients by Dr Edelsten, particulars of which were annexed, was an excessive service within the meaning of s 79(1)(B) of the Act.

This reference had a practical effect so far as Dr Edelsten was concerned for it activated the duties which the Act imposed on the Committee of Inquiry, namely the duty to inquire and report in accordance with the Act.

However, Dr Dash’s reference was not a decision. It was conduct engaged in for the purpose of making a decision under s 106 of the Act. The lodgment of a request under s 82 was the first procedural step required by the Act prior to the making of a decision under s 106. The conduct was reviewable under s 6 of the Judicial Review Act; but the grounds relied upon were not established.

As to balance of convenience, it is clear that injunctive relief could interrupt and delay the implementation of a succession of procedural steps, one of which, the first hearing by the Professional Services Review Committee, is scheduled to occur on next Thursday, 4 December 1997. By s 106M of the Act, it is provided that:

(1)     Subject to subsection (2), the Committee must give its report (and any minority report) to the Determining Officer within 90 days after the Committee was set up.

(2)     The Chairperson of the Committee may, before the time for reporting expires, apply in writing to the Director for an extension of time.

Any significant delay in the conduct of hearings by this Committee could imperil its compliance with sub-s (1) of that section.

However, I have been given an undertaking by Mr Walters of Counsel for the applicant that the applicant would not oppose, or take any point about, any extension of time of the kind contemplated by s 2 if one were necessitated by reason of any delay attributable to the granting of injunctive relief in these proceedings.

There is no evidence before the Court as to the course which the hearing of the Committee will take after it commences at the appointed time of 9.00am on 4 December. However, I have been informed from the Bar table by Mr Hanks that the usual practice of similar Committees is to proceed to a conclusion or at least as far as they can in the circumstances. There is no evidence that the Committee would be seriously inconvenienced if it were required to defer its hearing until after 12 December 1997 when this matter is fixed to come for a directions hearing before the Judge to whom it has been assigned for hearing and full determination at first instance as part of his docket. On the other hand, serious expense and inconvenience would be occasioned to the applicant if he were required to produce substantial clinical and other records and attend before the Committee, perhaps for two or more days, very likely with legal advisers, and it were then demonstrated that the proceedings could not validly be maintained, in conformity with the Act.

I have been influenced in deciding to exercise the Court’s discretion in the way which I have by the leisurely course taken by the first respondent since the receipt of a referral in this matter up to the time of the notification of the decision to establish the Committee. In these circumstances I consider that it is appropriate to grant an injunction in the terms sought, subject to the undertaking which I have recited, until 4.15pm on 12 December 1997 or further order.  That limited form of interlocutory relief will allow the parties to put before the Court such further material as they may be advised, particularly going to questions of the balance of convenience which I have discussed, necessarily in an abbreviated form, in the reasons which I have just given.

I shall therefore make an order in the form indicated and adjourn the application for interlocutory relief to be further heard at the same time as the directions hearing on 12 December 1997.  I shall reserve the costs of both parties of today’s hearing.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:            28 November 1997

Counsel for the Applicant:	Mr B Walters
Solicitors for the Applicant:	F L A Partners
Counsel for the First, Second, Third and Fourth Respondents:	Mr P Hanks
Solicitors for the First, Second, Third and Fourth Respondents:	Minter Ellison
Date of Hearing:	28 November 1997
Date of Judgment:	28 November 1997