Tisdall v Blazow & Anor

[2005] HCATrans 981

[2005] HCATrans 981

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M133 of 2005

B e t w e e n -

DR PETER THOMAS TISDALL

Applicant

and

JUDY BLAZOW (IN HER CAPACITY AS THE DETERMINING OFFICER APPOINTED PURSUANT TO SECTION 86 OF THE HEALTH INSURANCE ACT 1973)

First Respondent

PROFESSIONAL SERVICES REVIEW TRIBUNAL (CONSTITUTED BY THE HONOURABLE A.R. NEAVES, PROFESSOR D. TILLER AND DR P. JOSEPH)

Second Respondent

Application for expedition

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 23 NOVEMBER 2005, AT 9.30 AM

Copyright in the High Court of Australia

__________________

MR S.G. O’BRYAN, SC:   I appear for the applicant, if your Honour pleases.  (instructed by Alan Williamson)

MR N.J. GREEN, QC:   May it please the Court, I appear with my learned friend, MR D.T. MURPHY, for the first respondent.  (instructed by Minter Ellison)

HIS HONOUR:   I have looked at the papers.  Mr O’Bryan, what is your attitude to the expedition?

MR O’BRYAN:   Your Honour, it is opposed simply on the basis that no orthodox ground for expedition is shown.

HIS HONOUR:   Why not?  Your client has the benefit of a statutory stay, a condition of which ordinarily would be if imposed by a court that he prosecute his application with due expedition.

MR O’BRYAN:   It is not suggested that he is not doing that, your Honour.  I think their essential point is to rail against the legislative scheme which says that.  That is really our point.  That is the way the scheme works.  It has been in place for many years.  The scheme has been tweaked and twigged and amended many times but not in this respect, so that the Parliament permits the doctors to participate in the Medicare scheme whilst such rights of appeal and attempted rights of appeal as they have run their normal course.

HIS HONOUR:   The proceedings out of which this application grows were determined in what year?

MR O’BRYAN:   The first proceedings before the committee, your Honour?

HIS HONOUR:   Yes.

MR O’BRYAN:   I think their final report was published in about 2001 or something like that.

HIS HONOUR:   Concerning events occurring when?

MR O’BRYAN:   1996, I think, your Honour.

HIS HONOUR:   Nearly 10 years on, Mr O’Bryan, not quite yet, from the events.

MR O’BRYAN:   Yes, but that is not the doctor’s fault.

HIS HONOUR:   I understand that.

MR O’BRYAN:   The committee did not get established until I think in some leisurely fashion three or so years later, your Honour, and then they do a draft report in a fairly leisurely fashion.  So none of that is the doctor’s fault.  In other words, they do it in a fairly leisurely fashion typically and then now suddenly they want to finish it all off in a rush.  It is simply submitted that that is the way the scheme works and there is no ground for expedition shown.  It is assumed that the Court will be able to hear the special leave application in the not too distant future; that is accepted.

HIS HONOUR:   What I have in mind is 16 December, Mr O’Bryan.  Where are you up to with your side’s papers?

MR O’BRYAN:   We got theirs on Friday and I think we have to reply within 14 days, which would ‑ ‑ ‑

MR GREEN:   Five days.

MR O’BRYAN:   I am sorry, I was instructed 14 days.  That means our reply is due almost today or tomorrow, your Honour.

HIS HONOUR:   It would simply be printing of books that would stand between you and being ready?

MR O’BRYAN:   Yes.  Seven days our reply.

HIS HONOUR:   So that is due on what date?

MR O’BRYAN:   That would be due on Friday, your Honour.

HIS HONOUR:   This Friday?

MR O’BRYAN:   Yes.  I was instructed 14 for some reason.  I had assumed there had been a special order made, but my learned friend informs me that he thinks that the rules apply.

HIS HONOUR:   If your reply is due on Friday, 25 November, is there any reason why the books could not be printed and filed by Wednesday, 7 December?  I do not think it is your carriage, is it, the printing of books?  You have the carriage of printing the books?

MR O’BRYAN:   We are the applicant.  I cannot advance a reason why that could not be done in that time, your Honour.

HIS HONOUR:   Then I will make no direction about the time within which the applicant’s reply is due.  I will simply allow the rules to take their course in that respect.  I will fix 4.00 pm on 7 December as the time by which the applicant is to file the requisite number of copies of the application book.  I will direct that the application be expedited.  I will not fix Friday, 16 December in Melbourne as the time for its hearing but the parties must proceed on the assumption that it is likely, perhaps highly likely, that Friday, 16 December in the list of cases to be heard in Melbourne is the time at which the application for special leave will be fixed for hearing.

If I make the costs of today’s application costs in the application for leave, would either party wish to be heard against my following that course?  Mr Green, you are hovering.

MR O’BRYAN:   No, your Honour.

HIS HONOUR:   You are content, are you, Mr Green?

MR GREEN:   I am, your Honour.  Before your Honour parts with the case, there is one matter I should mention to your Honour.  Under the Health Insurance Act 1973, section 106V(3), the question of the statutory stay your Honour raised with our learned friend at the outset is dealt with. I should tell the Court that the language paragraph (a) picks up is “any further appeal or appeals”. On one view there is not an appeal on foot. There is an application, it is true, for special leave, but the application for expedition was brought out of an abundance of caution, if you like. If anything, the application was actuated by a desire to err on the side of caution. Assumptions, it appears, have been made along the way by people in Dr Tisdall’s position that the mere lodging of an application for leave answers the description of an appeal, and that might be something that has to be examined on another occasion.

HIS HONOUR:   Yes, it might.

MR GREEN:   I just bring that to your Honour’s attention because your Honour appears to have accepted the view that the application for leave equates to an appeal within that statutory description.

HIS HONOUR:   Yes, I understand the point you make and nothing I have said in the course of the hearing should be taken as the expression of any concluded view on a question which was not argued before me.

MR GREEN:   No, and I certainly did not take your Honour to be doing that.

HIS HONOUR:   Very well.  There will be orders in the terms I indicated, namely that:

1.        I fix 4.00 pm on Wednesday, 7 December as the time by which the applicant is to file and serve the requisite numbers of application books.

2.        I will direct that the hearing of the application for special leave be expedited.

3.        The costs of this application will be costs in the application for special leave.

MR GREEN:   May it please the Court.

MR O’BRYAN:   If your Honour pleases.

HIS HONOUR:   I will return to you, Mr Green, the copy of the document you were good enough to supply me with.

AT 9.39 AM THE MATTER WAS CONCLUDED