Tisdall v Health Insurance Commission (No 2)

[2002] FCA 149

FEDERAL COURT OF AUSTRALIA

Tisdall v Health Insurance Commission (No 2)
[2002] FCA 149

PETER THOMAS TISDALL v
HEALTH INSURANCE COMMISSION AND ORS
V 849 OF 2000

TAMBERLIN J
MELBOURNE

15 FEBRUARY 2002

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 849 OF 2000

BETWEEN:

DR PETER THOMAS TISDALL
APPLICANT

AND:

HEALTH INSURANCE COMMISSION
FIRST RESPONDENT

DR ALAN JOHN HOLMES (as the Director of Professional Services Review)
SECOND RESPONDENT

DR KENNETH NEVILLE (as Chairperson of Professional Services Review Committee No 106)
THIRD RESPONDENT

DR DAVID ROSENTHAL (as a Member of Professional Services Review Committee No 106)
FOURTH RESPONDENT

DR NICHOLAS DEMEDIUK (as a Member of Professional Services Review Committee No 106)
FIFTH RESPONDENT

DR LOUISE MORAUTA (as the Determining Officer)
SIXTH RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

15 FEBRUARY 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondents’ costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 849 OF 2000

BETWEEN:

DR PETER THOMAS TISDALL
APPLICANT

AND:

HEALTH INSURANCE COMMISSION
FIRST RESPONDENT

DR ALAN JOHN HOLMES (as the Director of Professional Services Review)
SECOND RESPONDENT

DR KENNETH NEVILLE (as Chairperson of Professional Services Review Committee No 106)
THIRD RESPONDENT

DR DAVID ROSENTHAL (as a Member of Professional Services Review Committee No 106)
FOURTH RESPONDENT

DR NICHOLAS DEMEDIUK (as a Member of Professional Services Review Committee No 106)
FIFTH RESPONDENT

DR LOUISE MORAUTA (as the Determining Officer)
SIXTH RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	15 FEBRUARY 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. In this matter, I delivered judgment this morning.  Subsequently an application was foreshadowed, seeking certain orders in relation to the publication of that judgment and further proceedings in relation to this matter.  The orders which are sought are in effect to restrain the Determining Officer from taking any further steps pursuant to the Act until the determination of an appeal which has been foreshadowed and in respect of which I am informed by Mr Monotti an undertaking has been proffered by his client to pursue the appeal to the Full Court.

2. Other orders sought are that there not be any publication in any form, other than to the parties and their legal advisers, of the fact of the making of the Report, or any of the contents of the Report, or the name of the applicant, provided that this would not in any way affect publication of the judgment and reasons.  It is also sought that there be an order for the purpose of giving full effect to these orders, that the applicant be referred to as “Dr X”.  Although the applicant submits that there is some prejudice caused by publication of the judgment, no evidence has been produced to the Court in respect of any prejudice.

3. The application is made at a very late stage of the proceedings.  The matter has been listed before the Court on a number of occasions in which the applicant's name has been disclosed.  I am told that the judgment delivered this morning has been published to parties other than the parties to the proceeding.  No order was sought at any stage prior to or during the four-day hearing, nor was any order sought this morning in respect of the publication of the name of the applicant.

4. There is of course a strong public interest in the proceedings of the Court being open and transparent and for this reason, it must be an unusual situation where judgments and the names of the parties are suppressed.  In the present case, I think that the public interest in open justice outweighs the considerations which have been suggested to me by counsel for the applicant in the proceedings as to possible prejudice. 

5. In all the circumstances, I am not satisfied that any order ought be made restraining further proceedings by the Determining Officer, nor am I satisfied that there ought be any restraint of the publication of the name of the applicant or the judgment, having regard to the public interest in open justice and to the previous conduct of the applicant in relation to this matter.  Accordingly, I dismiss the application made on behalf of the applicant.

6. In the circumstances, I think that costs should follow the outcome of the application. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             28 February 2002

Counsel for the Applicant:	Bruce Monotti
Solicitor for the Applicant:	Grundy Maitland & Co
Counsel for the Respondents:	M D Murphy
Solicitor for the Respondents:	Minter Ellison
Date of Hearing:	15 February 2002
Date of Judgment:	15 February 2002