Re Maurice Pozniak v Minister of Health; Medical Services Committee of Inquiry of New South Wales; Campbell Hasting Thorburn; Bruce Ernest Jeffery; Thomas Gerald Quinn; Colin Boyne Degotardi and Noel Allison Fowler [1986] FCA 69 (14 March 1986)

FEDERAL COURT OF AUSTRALIA

Re: MAURICE POZNIAK
And: MINISTER FOR HEALTH; MEDICAL SERVICES COMMITTEE OF INQUIRY FOR THE STATE
OF NEW SOUTH WALES; CAMPBELL HASTING THORBURN; BRUCE ERNEST JEFFERY; THOMAS
GERALD QUINN; COLIN BOYNE DEGOTARDI and NOEL ALLISON FOWLER
No. 395 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.

CATCHWORDS

ADMINISTRATIVE LAW - Application for extension of time to apply for order of review - Consideration of principles applicable to granting extensions of time - Use of authorities upon such applications - Effect of solicitor's error - Application granted - Appropriate costs order.

Administrative Decisions (Judicial Review) Act 1977, s. 11

Health Insurance Act 1973, s. 114

Hunter Valley Developments Pty. Ltd. v. Minister for Home Affairs and Environment (1984) 3 F.C.R. 344

Wedesweiller v. Cole (1983) 47 A.L.R. 528

Hickey v. Australian Telecommunications Commission (1983) 47 A.L.R. 517

Lucic v. Nolan (1982) 45 A.L.R. 411

Duff v. Freijah (1982) 43 A.L.R. 479

Sophron v. Nominal Defendant [1957] HCA 27; (1957) 96 C.L.R. 469

Martin v. Nominal Defendant (1954) 74 W.N. (NSW) 121

Hall v. Nominal Defendant [1966] HCA 36; (1966) 117 C.L.R. 423

Stollznow v. Calvert (1980) 2 N.S.W.L.R. 749

Turner v. Nominal Defendant (1981) 51 F.L.R. 342

HEARING

SYDNEY
14:3:1986

ORDER

The time within which the applicant may bring an application for review of the decisions referred to in the Application for an Order of Review filed on his behalf on 30 December 1985 be extended up to and including that date and the said application so filed be deemed to have been filed within time.

The costs of the application for extension of time be the respondents' costs in the application for review.

The application for review be listed for directions on the twentieth day of March 1986 at 9-30AM.

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

DECISION

This is an application, brought under s. 11 of the Administrative Decisions (Judicial Review) Act 1977, for extension of the time for lodgment of an application for review of decisions resulting in a reprimand to the applicant, a medical practitioner, pursuant to ss. 105 and 106 of the Health Insurance Act 1973, and a requirement that he repay a total of nearly $7,000-00 received by him from the Commonwealth and the Hospitals Contribution Fund.

2. The applicant was alleged to have rendered excessive services to certain of his patients. The allegations were referred by the Minister for Health to the respondent Committee under s. 82 of the Health Insurance Act. The Committee consisted of the respondents, Doctors Thorburn, Jeffery, Degotardi and Quinn. After the enquiry had proceeded for some time, and material had been considered in respect of patients referred to in certain patient records marked A1 to A13, Dr. Degotardi went overseas and Dr. Quinn resigned from the Committee. As a result, the Committee was reconstituted by the addition to its remaining members, Drs. Thorburn and Jeffery, of a new member, Dr. Fowler. It was stated by Dr. Thorburn, who was the Chairman of the Committee, both before and after its reconstitution, that Dr. Fowler would not participate in the recommendations of the Committee in respect of services rendered to the abovementioned patients whose records were marked A1 to A13, and that Dr. Degotardi would be returning from overseas for the submissions. The reconstituted committee proceeded to hear the evidence relating to a further group of patients whose records were identified as A14 to A30, and many months later Drs. Thorburn, Jeffery, Degotardi and Fowler, purporting to act as the committee, made a recommendation that the applicant should be reprimanded for over-servicing patients, and should repay sums totalling the amount stated, upon which recommendations the Minister acted. The recommendations were made on 19 March 1984, and the determination of the Minister was made, under s. 106 of the Health Insurance Act, on 23 May 1984.

3. The applicant, who was unrepresented at the committee hearings, presented no medical evidence other than his own.

4. Accompanying the Minister's Determination and the Committee's Report was a Notice headed:

"DETERMINATION UNDER SECTION 106 OF THE HEALTH

INSURANCE ACT 1973 - REVIEW PROCEDURE".

This Notice advised that Part VA of the Act provided for a request for a review by the Medical Services Review Tribunal, stated that this request must be made within thirty days, and indicated the necessary procedure. It also stated:

"Should you not make a request for review
within the thirty days, the Determination
comes into effect."

It went on to provide some details about the functioning of the review system to which it had referred, being the system invoked by a request under s. 114 of the Act, and pointed out that there could be a further appeal on questions of law from the Review Tribunal to the Federal Court of Australia. It did not suggest that there was an alternative procedure under the Administrative Decisions (Judicial Review) Act, which, however, was subject to a somewhat tighter time limit, nor did it refer to s. 122.

5. It seems to me that where a department, when notifying a decision, furnishes advice about appeal rights, whether because it is required to do so by some regulation or because it considers it appropriate to do so, it is important that the information should not be capable of misleading the recipient by suggesting that his avenues of appeal are more limited than they in fact are. In the present case, the omission of any reference to s. 122 or to the Administrative Decisions (Judicial Review) Act, and the statement that the Determination would come into effect in the absence of a request for review within thirty days, could easily have led the recipient to the conclusion that but the one course was open to him.

6. The applicant's solicitor has sworn that on reading the Notice he assumed the only avenue of review available to the applicant was by way of an application to the Medical Services Review Tribunal. It is true that he consulted senior counsel concerning the appropriate procedure, but in view of his own assumption it is a clear inference that he sought no specific advice concerning the appeal route which was in fact available under the Administrative Decisions (Judicial Review) Act. At all events, he was not told that there was any alternative, and he was advised to have the matter referred to the Medical Services Review Tribunal. On 21 June 1984, within the time prescribed, he made the request required by s. 114 of the Act.

7. The review was set down for hearing before the Tribunal in November 1984, but in October it was arranged, at the suggestion of the Secretary of the Tribunal, that the review would be adjourned indefinitely to await the outcome of a pending Full Court appeal. That appeal was Minister for Health v. Thomson, which was decided on 14 June 1985 and is now reported (60 ALR 701). In that appeal, the Full Court decided it was not open to the Medical Services Review Tribunal to receive new evidence when it reviewed a determination of the Minister under s. 106(1), a ruling which the applicant contends seriously restricts the value, in his case, of a review by the Tribunal. It is suggested by the respondent that the evidence does not establish when the applicant formed the view that he would wish to call fresh evidence, but his solicitor's affidavit asserts (and I see no reason not to accept the assertion) that the solicitor formed that view in accordance with the instructions which he received, which indicates to me that it was his approach from the beginning. The solicitor has not been cross-examined, and I do not think his failure to signal such an intention to his opposition when stating grounds for review, the statement of which would not require him to indicate how those grounds were to be supported, should lead me to any different conclusion.

8. The applicant was advised of the decision in Thomson's Case in September 1985, and on 27 December 1985 he was advised by senior counsel that, because Thomson's Case would prevent the conduct of the review in the way contemplated, he should seek a review under the Administrative Decisions (Judicial Review) Act. The applicant's solicitor has sworn that until 27 December 1985 he was not aware that it was open to the applicant to make an application under the Administrative Decisions (Judicial Review) Act. Furthermore, he has sworn that he was not aware until 27 December 1985 of the legal significance of the changes in the membership of the Committee, which it is now claimed vitiated its recommendations. Not only had he not been aware or advised of the possibility of seeking a review under the Administrative Decisions (Judicial Review) Act, or of making the legal claim now sought to be made, but he had also not been advised that (subject to any question arising under the Administrative Decisions (Judicial Review Act) it was possible to seek a judicial review under s. 122 of the Health Insurance Act 1973 as an alternative to the review initiated by request under s. 114.

9. It is in this situation that the applicant contends I should now exercise my discretion to extend time to enable him to pursue in this Court, rather than a partly lay Tribunal (if indeed the matters could appropriately be raised there, as to which I say nothing), his claims that the Committee was not lawfully constituted to decide the whole enquiry committed to it, that it proceeded without a quorum required under the provisions of the Act, and that the procedures in fact adopted produced a denial of natural justice. It is not necessary for me to consider the validity of these contentions, since it is conceded, and I have no doubt very properly, that the contentions do raise fully arguable issues.

10. The principles which I must apply have been discussed in a number of decisions, and particularly in Hunter Valley Developments Pty. Ltd. v. Minister for Home Affairs and Environment (1984) 3 FC.R 344; Wedesweiller v. Cole (1983) 47 ALR 528; Hickey v. Australian Telecommunications Commission (1983) 47 ALR 517; Lucic v. Nolan (1984) 45 ALR 411; and Duff v. Freijah (1982) 43 ALR 479.

11. In some of the cases, reference has also been made to well known decisions concerning the powers of the courts to extend times under other statutory provisions, and in particular to Sophron v. Nominal Defendant [1957] HCA 27; (1957) 96 CLR 469 and Martin v. Nominal Defendant (1954) 74 WN (NSW) 121. A consideration of those decisions has naturally led me to refer also to Hall v. Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423; Stollznow v. Calvert (1980) 2 NSWLR 749 and Turner v. Nominal Defendant (1981) 51 FLR 342, where the views of Barwick C.J. in Hall's Case were adopted by a Full Court of this Court.

12. The authorities necessarily deal with an endless variety of situations. As a consequence, they show a constant change of emphasis on particular features. The cases set up signposts to guide the court's discretion, but they do not erect fences to limit the breadth of the field within which the legislature has chosen to confer discretion upon the Court. As Walsh J. said in Martin's Case (supra, at p. 124):

"(S)uch applications should be decided upon a
consideration of the words of the statute and
upon a consideration of the circumstances of
the case, and the Court should not be
fettered by any rigid rule as to what may or
may not constitute sufficient cause."

This must be so, if only because the various factors which have been emphasised in the numerous authorities are found in each case in a unique combination. It is impossible (and would be quite unreasonable) to attribute the same weight to a particular factor, in a new pattern of circumstances, which was attributed to it when, in some other decision, it was associated with quite different circumstances. Walsh J.'s judgment in Martin's Case makes this point particularly clear in connection with supposed rules as to the effect of a solicitor's error, as a factor producing the need for an application for an extension of time; but I think a similar analysis can be made of other rules which have been suggested in respect of such applications. Lockhart J. in Hickey's Case (supra, at p. 523) said:

"But the court should not surround the
exercise of its discretion with unnecessary
constraints such as a requirement that there
be special circumstances or considerations of
that kind. The statute does not require
them. Nor should the courts. It is best
left to the good sense of the judge hearing
each case to determine whether, on the
evidence before him, the court's discretion
should be exercised in favour of granting an
enlargement of time to bring an application
for an order of review."

See also, per Sheppard J., in Wedesweiller's Case (supra, at pp. 531-2).

13. Section 11 of the Administrative Decisions (Judicial Review) Act provides for the determination of a prescribed period, which is the prima facie time within which an application must be made, and confers upon the Court a discretion (in terms unlimited) to allow further time. The discretion is a judicial one, and the authorities afford guidance, but the decision is finally an exercise of discretion, in the interests of justice in the particular circumstances of the particular case. In those circumstances, a factor which weighed heavily in some other case may be counterbalanced or negated.

14. The guidance provided by the authorities, in respect of such an untrammelled discretion, does however point to accepted pathways of principled decision which help the Court to avoid the pitfalls of merely private and idiosyncratic opinions.

15. The circumstances of the present application attract several of the principles which are discussed by Wilcox J. in the Hunter Valley Developments Case (supra). In the first place, it is a case of which it cannot be said that "the decision-maker was allowed to believe that the matter was finally concluded". On the contrary, within the time nominated in the Notice sent to the applicant, a review was sought by the only means that Notice suggested. Although a substantial period of time has elapsed, the delay is fully accounted for by the Tribunal's suggestion that the decision in the Thomson appeal should be awaited, and the applicant's compliance with that suggestion. I agree with senior counsel for the applicant that there is some analogy between such a case and a case where an appeal is lodged upon inadequate grounds, to be supplemented later by an amended notice of appeal. Indeed, s.11 of the Administrative Decisions (Judicial Review) Act, in sub-ss. 6 and 7, clearly contemplates that an original application within time will not necessarily produce any rigid constriction of the arguments available to an applicant.

16. The question of a solicitor's error contributing to or producing a delay in lodgment of an application, which is discussed in a number of the authorities I have cited, is also raised in the present case. Despite the suggestion of senior counsel for the respondent that the evidence is insufficiently clear as to applicant's own knowledge, I think it is highly improbable that he was aware of legal considerations which were hidden from his solicitor. The reality is, I think, that he instructed his solicitor he wished to appeal, and left the manner of his appeal to the determination of his solicitor and counsel. I respectfully adopt the approach which Wilcox J. took in the Hunter Valley Developments Case to this question, which is, I think, consistent with that taken by Barwick C.J. in Hall v. Nominal Defendant (supra, at p 433), where the Chief Justice expressed agreement with the view that the solicitor's responsibility in connection with a failure to take proceedings was a material consideration. I note that in Martin's Case (supra), Walsh J., after making it clear that he thought there was no "invariable rule", at the same time accepted that "a failure by a solicitor to take the proper steps could itself be regarded as establishing sufficient cause for an extension of time". In the particular case before him, where an applicant had left the appropriate steps to his solicitor, who had taken no action, Walsh J. did grant an extension of time. See also the comments of Sheppard J. in Wedesweiller's Case (supra, at p. 532).

17. No prejudice to the respondents or public or other interests is suggested, nor is it unimportant that the questions raised should be judicially determined. Although absence of prejudice is not in itself sufficient, it will often be a powerful factor when other considerations come to be weighed: Duff v. Freijah (supra, at p 485); and see Sandery v. Commissioner of Police & Ors. (unreported, Jackson J., 27/2/86).

18. It was correctly emphasised by senior counsel for the respondent that the onus is upon the applicant to justify the extension of time he seeks. However, in my view, in all of the circumstances the applicant has shown that the justice of the case requires the making of an order in his favour.

19. There was argument as to the appropriate costs order. The general rule, as was said in the Hunter Valley Developments Case (supra), would dictate that the applicant pay the respondents' costs. But the application of the rule is not simply automatic in every case, and in Wedesweiller's Case (supra), Sheppard J. ordered that the costs of the parties be costs in the applications to be brought by the applicants for review. In the present case, which has some special features to which I have alluded, I think the appropriate order is that the costs of this application be the respondents' costs in the application for review.