Artinian v Commonwealth of Australia [1997] FCA 1604 (28 February 1997)

Last Updated: 28 February 2001

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No NG 1004 of 1996

)

GENERAL DIVISION )

BETWEEN: DR YACOUB ARTINIAN

Applicant

AND: THE COMMONWEALTH OF AUSTRALIA

First Respondent

THE HEALTH INSURANCE COMMISSION

Second Respondent

DR R NEWTON

Third Respondent

DR ALAN JOHN HOLMES

Fourth Respondent

PROFESSIONAL SERVICES REVIEW COMMITTEE (NO 29)

Fifth Respondent

CORAM: HILL J

PLACE: SYDNEY

DATED: 28 FEBRUARY 1997

REASONS FOR JUDGMENT

Dr Yacoub Artinian ("Dr Artinian") is the applicant in proceedings for judicial review of certain decisions including a decision that a Professional Services Review Committee (No 29) ("the Committee") be set up pursuant to Part VAA of the Health Insurance Act 1973 (Cth) ("the Act"). This application is in similar terms to the application made by Dr Artinian's brother, Dr Garo Artinian, the subject of my interlocutory judgment dated 27 November 1986.

All that I have been permitted to know about the substantial application is that it has been alleged that Dr Artinian has engaged in inappropriate practice either in connection with the rendering of services or in connection with the initiation of services. Dr Artinian now moves the Court for interlocutory relief restraining the Committee, the fifth respondent to the proceedings as presently constituted, from further considering the reference which was referred to it, so the notice of motion suggests on 29 November 1996.

It is common ground that the Committee met on 31 January 1997. I have been told from the bar table, and I have no reason to doubt, that the transcript of the proceedings on that day occupied some 191 pages. The Committee proposes to resume its deliberations on Saturday, 1 March 1997 and it is for this reason that the present motion has an element of urgency which has necessitated the giving of these ex tempore reasons.

The Committee comprises three persons being respectively the Chairman of the Committee, Dr Rice, and the members, Dr Stephen Phillips and Dr David Rivett. The curriculum vitae of each of these gentlemen is in evidence before me and it is evident from a perusal of them that each is eminently qualified to be a member of the Committee. No suggestion is made to the contrary. The attack made upon their participation is a suggestion of ostensible bias. No suggestion is made that any of the members of the Committee is actually biased.

The present proceedings should be seen against the statutory background of the Act which is set out in some detail in my judgment in the interlocutory proceedings concerning Dr Garo Artinian; Dr Garo Artinian v The Commonwealth of Australia & Ors (unreported, 27 November 1996). It suffices here to say that, where a referral has been made by the Health Insurance Commission to the Director of Professional Services Review pursuant to s86 of the Act into what that section refers to as "inappropriate practice" according to s89 of the Act, the Director must, within 28 days after receiving the referral, either dismiss the referral or set up a Committee to consider whether the practitioner has "engaged in inappropriate practice".

The Committee is to be set up in accordance with s93 of the Act and, relevant to present purposes, is to comprise a Chairperson who is a Deputy Director and two other panel members, each appointed by the Director. By force of sub-sec95(2) of the Act, the Chairperson and other panel members must be medical practitioners belonging to the profession in which the practitioner under investigation was practising when rendering or initiating the referred services.

Sub-section 96 of the Act gives to the person whose conduct is under consideration the right to challenge an appointment of a Committee member, inter alia, on certain grounds including that it:

"(b) is likely to be thought, on reasonable grounds, to be biased.

Such a challenge is required to be in writing, it must set out the basis upon which the challenge is made and be given to the Director within seven days after the person under review has received a notice under s94.

There is no suggestion in the evidence that any such challenge has been made by Dr Artinian, a matter which is, as will later be seen, relied upon as a discretionary ground for refusing relief.

The present proceedings are interlocutory. In deciding whether to grant relief I am thus required to consider whether the applicant has shown an arguable issue to be tried and where the balance of convenience resides. Because the grant of interlocutory relief by way of injunction is discretionary, injunctive relief may be denied where, for example, an application has been made after some considerable delay or where other discretionary matters intervene. In the account which follows of factual matters it must be borne in mind that, in proceedings such as the present, it is not the duty of the Court to find as between the parties the relevant facts or, for that matter, to decide on a final basis, matters of law.

That having been said, I proceed to consider the evidence adduced on behalf of Dr Artinian and upon which the case of ostensible bias is sought to be grounded.

Dr Artinian is a medical practitioner practising at the Warringah Mall 24 Hour Medical Centre. A Dr Bateman, of whom more will later appear, is, like Dr Artinian, a general practitioner practising at the same medical centre. Dr Bateman indeed was Medical Director of that centre until 1996 and is a director of a service company operating that and two other large medical centres in Sydney. It may be inferred that a number of medical practitioners, in addition to Dr Artinian, practice at the centre.

It would seem that individual doctors who have held office in the Australian Medical Association ("the AMA") have opposed the concept of medical centres or at least those medical centres of whom it may be said that they are over-servicing to the detriment of other general practitioners. Tendered in evidence was an extract from a publication which is undated but undoubtedly of some years ago in which a former Queensland AMA President and, at the time of the article, Liberal Party Senator, Dr Herron, spoke of an unholy trinity between the bureaucracy, the government and the Royal Australian College of General Practitioners to diminish the independence of general practice.

Objection was taken to the reception of an article reporting Dr Herron's views on the basis of relevance. In my opinion, it tells nothing of any matter in controversy between the parties and although I accepted it, subject to relevance, I would reject its tender. I should say that even if it were to be accepted because it is relevant, it would add nothing at all to the case. However, more significant are some reports of speeches by Dr Shepherd who was President of the AMA in or around 1993. Since Dr Shepherd ceased to be President, it is accepted, for the purposes of the present proceedings, that Dr Nelson was President for two years, Dr Weedon for one year and the current President is Dr Woolard. There is no evidence of the views of any of Doctors Nelson, Weedon and Woolard to the question of medical centres. Dr Shepherd, however, as already indicated, appears to have been opposed to such medical centres as, in his view, they "cheated the system". I do not understand Dr Artinian to say that his medical practice was one such centre.

In a statement in the AMA journal, under the heading "From the President", Dr Shepherd spoke about vocational registration, a matter which no doubt lies at the heart of the dispute between the parties in the present case. There are other articles sought to be tendered in evidence suggestive of Dr Shepherd's views and it may, I think, be conceded that in general terms at least Dr Shepherd was not in favour of large medical centres. Dr Shepherd indeed had made some remarks in the Sydney publication ("The Manly Daily") which had precipitated Dr Artinian and others commencing proceedings against him for defamation.

Those proceedings, which related to an article published on 7 November 1990, were ultimately settled on the basis of an apology. According to a copy of the apology, which was in evidence, the article had reported on information concerning complaints of poor medical treatment and over-servicing, it being suggested that it referred to, or might be understood as referring to, the Warringah Mall Medical Centre.

Dr Shepherd's outspoken views led to proceedings being brought by Dr Bateman against him and also the AMA for damages for defamation. The subject matter of those proceedings was an article which Dr Shepherd had written in "The Australian Doctor", a weekly newspaper circulated to members of the medical profession. In the issue dated 22 January 1993, Dr Shepherd wrote:

"How is it that a GP, no matter how many doctors he has working for him, can afford a $3 million holiday home when he relies on bulk-billing for the total award for services? ..."

It was alleged that the article in question was defamatory because it imputed that Dr Bateman had cheated the Australian national health system in the operation of his medical practice. There were other imputations and I have not repeated in full the entirety of the matters complained of in the proceedings. Suffice it to say that Dr Artinian gave evidence in those proceedings, although they are not relied upon, directly the proceedings were concluded by a verdict being given for Dr Bateman on 4 February 1997 against all defendants to the proceedings, including the AMA for $54,000, with aggravated damages being awarded against Dr Shepherd and the AMA of a further $25,000. Interest was, of course, added to the verdict.

The AMA, together with the other defendants, was ordered to pay Dr Bateman's costs. Although, in my view, it is irrelevant, the trial judge was somewhat critical of Dr Shepherd and evidence given by him. Reference is also made to an extract from the Parliamentary Debates of the Senate Standing Committee on Community Affairs by Dr Arnold. Counsel for the respondents to the motion opposed the tender of the Hansard transcript of these remarks and referred me to s16 of the Parliamentary Privileges Act 1997 (Cth) ("the PP Act") in support of the submission that the tender should be rejected.

As s16(1) of the PP Act makes clear, that Act was not intended in any way to derogate from the provisions of Article 9 of the Bill of Rights 1688 in their application in relation to the Commonwealth Parliament, but to restrict further the use of reports of proceedings of Parliament and thus reinforce Parliamentary privilege. The PP Act was enacted, as the discussion took of it, as a reaction to a restricted interpretation of Parliamentary privilege arising out of proceedings brought against Murphy J of the High Court of Australia in Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223 at 224 ff; and Hamsher v Swift (1992) 33 FCR 545 at 562 ff.

Under the Bill of Rights, transcripts of proceedings in Parliament were only available for use for very limited purposes. Article 9 of the Bill of Rights proclaimed:

"that the freedom of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament."

In Church of Scientology of California v Johnson Smith (1972) 1 QB 522 at 530, Brown J spoke of the control which Parliament must have over its own proceedings as well as the necessity that Members of Parliament have complete rights of free speech without fear that the motives or intentions or reasonings of the Parliamentarians will be questioned as being the rationale or justification for restricting the use of Parliamentary reports.

Indeed it is clear that the words used in the Bill of Rights were very wide and Blackstone's commentaries suggest that Parliamentary debates or proceedings ought not to be examined, discussed or adjudged elsewhere than in the House of Parliament.

The English position has more recently been discussed in the Queen's Bench Division in R v Secretary of State [1983] 2 All ER 233.

I think that there is a very strong argument that the Bill of Rights itself, without the application of s16 of the PP Act, would in the present case preclude reception into evidence of the document sought to be tendered. I should say of it that in the proceedings in the Standing Committee, Dr Arnold, who was apparently, at the time, Deputy President of the New South Wales Medical Board, had said in response to legislation in bill form for review of the conduct of doctors, presumably the present legislation, that there was no intention that the AMA "would have its people sitting on ... Peer Committees".

The purpose of the tender of the Hansard transcript was, it was said, merely to prove the Dr Arnold had made that statement. If that was the purpose of the tender, it would hardly get the applicant anywhere. The real purpose of the tender was to form the basis of a conclusion that, as was submitted by counsel for Dr Artinian, there was "an assurance or expectation on behalf of the medical profession that people subject to the process [that is to say under the PP Act] would not be subjected to review by AMA members."

That is a use of the speech which goes far beyond a use to the effect that the statement was in fact made. Insofar as I am wrong in the view that the Bill of Rights itself would have caused a tender of the transcript to be rejected, it seems clear to me that s16(3) of the PP Act leads to the same conclusion. Section 16(3) of the PP Act relevantly provides:

"(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament".

In my view, the purpose of the tender was to invite me to draw an inference in the form which I have just outlined and, as such, the tender should be rejected. Again, I should say that I would reach no different view of the present proceedings even if the document in question were taken into account and the tender of it accepted.

Finally, evidence was given by Dr Bateman in relation to his state of mind to the effect that he did not believe that Dr Artinian would receive justice from the fifth respondent. He asserted that members of the Committee should have an open and unbiased mind and asserted also that his state of mind was that the members of the Committee had pre-determined views or were associated closely with members or directors of the AMA and by implication had the same views as those members.

I have great difficulty in understanding the relevance of this evidence. It is said to lie in the fact that because Dr Bateman's state of mind was, as I have indicated, that of a reasonable medical practitioner, or for that matter, a medical practitioner practising in medical centres, a reasonable hypothetical medical practitioner would have similar views. It is true of course that one would not need to call all medical practitioners to prove that all such practitioners held a particular point of view, but, likewise, evidence that one medical practitioner held a particular view could hardly be extrapolated to others.

The Committee was selected from a panel. In evidence was a letter from the Secretary General of the AMA to the then Minister for Health, Dr Lawrence, dated 25 August 1994, which indicated recommendations made for appointments to the panel. It seems that Senator Richardson, who had been the former Minister for Health, had requested that the AMA consult with other organisations to nominate members of panels from which Professional Services Review Committees would be drawn.

According to the letter, some 25 organisations had been consulted and in the result a number of persons had been recommended. Dr Rice, for example, was nominated by the South Australian Branch of the AMA, by the Australian College of Paediatrics and the Royal Australasian College of Physicians. Dr Rivett was nominated by the New South Wales Branch of the AMA and Dr Phillips by the AMA Queensland. It was said from the bar table, and I would accept, that the state branches of the AMA are separate from the AMA itself.

According to the 1995 annual report of the AMA that Association had 22,970 members at the time of the report. Total medical practitioners at around the same time as set out in the AMA's Yearbook for 94/95 were 43,300, being 29,700 general practitioners and 13,500 specialists. In other words, approximately half of the medical practitioners were members of the AMA.

Dr Rice has held an impressively large number of Committee appointments. He has been a member of the Federal Council of the AMA since 1994 as well, of course, as being a member of the AMA itself, presumably for some considerable time.

Dr Phillips, in addition to being a member of the AMA, has been on various committees of the Federal AMA, has been since 1996 an Executive Councillor of the Federal AMA and has been the Queensland Area Representative of that body since 1995. He was president of the Queensland branch of the AMA 1995/96 and an Executive Councillor of the Queensland branch since 1993, as well as having been an ordinary Councillor in 1992.

Dr Rivett has been a Branch Councillor of the New South Wales branch of the AMA in the years 1993 to 1995. He does not hold any position, so far as the evidence suggests, with the federal body. I should say that for reasons which will shortly appear, I would not think it would matter even if he had.

Counsel for Dr Artinian submitted that I should conclude from the evidence which I have described that the AMA has an entrenched opposition to medical centres. Next it is said that there has now been entered against the AMA judgment in respect of the defamation article in proceedings brought by Dr Bateman in which Dr Artinian, at least, had some involvement as a witness which has exposed the AMA to a fiscal liability.

It is said that the defamatory article covers the same ground as the issue before the Committee. That is to say, it is suggested (although there is no evidence to back up the suggestion) that the reference to the Committee in some way relates to Dr Artinian's having worked at a medical centre or otherwise being involved in a medical centre. So it is said that an informed member of the medical profession, or perhaps an informed member of that profession concerned with 24 hour medical centres, would have an apprehension that members of the Professional Services Review Committee, to whom the reference concerning Dr Artinian's services had been referred, would not bring to bear upon its deliberations an impartial mind.

It is not necessary in the present reasons, and time does not permit in any event, that I embark upon an exhaustive discussion of the principles applicable to ostensible bias. They appear to stem from the common law principles of natural justice and early on it was said unanimously by the High Court of Australia in The Queen v The Commonwealth Conciliation Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 at 553 that those principles would only be infringed:

"... when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds."

More recent discussions of the principle in cases such as Liversey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; and Laws v Australian Broadcasting Tribunal (1989) 85 ALR 659, have restated the relevant principles to be applied and it may be said that the general principles are not in dispute. In essence the circumstances must be such as would lead a fair-minded observer to conclude that members of the Review Commission would bring other than an unprejudiced and impartial mind to the resolution of the issues referred to them before the Court would intervene.

The case of Laws v Australian Broadcasting Tribunal (supra) is instructive because in that case Mr Laws had argued that the Australian Broadcasting Tribunal could not be seen to be unprejudiced or impartial in circumstances where Mr Laws had commenced proceedings against the Australian Broadcasting Tribunal, those proceedings not yet having been determined. The High Court of Australia was unanimous in the view that the circumstances did not give rise to a reasonable apprehension of bias.

One cannot, of course, extrapolate from a decision related to the facts of a particular case a conclusion as to the facts of another case. However, it is hard to see how the members of the Committee in the present case could be seen to be more partial than the members of the Australian Broadcasting Tribunal when faced with the fact that there had been a judgment entered against the AMA.

It cannot be lightly inferred that a member of the AMA, even an executive member, necessarily shared the views of Dr Shepherd when he made a defamatory statement, nor may it be inferred lightly that the members of the Committee shared Dr Shepherd's aversion to persons who practice in 24 hour medical centres.

In my view, the facts as they presently stand hardly suggest that the applicant has an arguable case in establishing ostensible bias on the part of the members of the Committee or any of them. The case for the applicant is made more difficult by the fact that Dr Shepherd was President a long time ago, before the members of the Committee were members of the AMA and there is just nothing which ties Dr Shepherd's views to them.

It goes without saying, of course, that the mere fact that a financial judgment has been obtained by Dr Bateman against the AMA is no evidence to support a case of ostensible bias against members of a committee nominated by the AMA and holding office either federally or at state level in that Association.

The balance of convenience does not favour the applicant either. The case has already commenced in the Committee and there seems to me no particular reason why this Court should intervene to stop the hearing proceeding. I should perhaps have added that there is also no evidence before me which in any way makes it clear that the issue before the Committee is an issue relating to medical centres, if that has not already been made clear.

Finally, there are discretionary grounds which in any event, in my view, would disentitle the applicant to relief. As I already indicated, s96 of the Act provides a mechanism for Committee appointments to be challenged in a timely way if ostensible bias is alleged. The applicant made no attempt to avail himself of the procedure. There are good reasons why such a procedure should be availed of because it permits the question of ostensible bias to be determined before the Committee embarks upon the review entrusted to it.

A challenge under s96 of the Act must be taken seven days after the person under review has received notice under s94. In the present case, not only did the applicant stand by and make no challenge under s96, but he has already participated in a hearing which, as has been indicated, occupied some 191 pages of transcript. He now seeks to obtain the assistance of this Court to obtain interlocutory injunctive relief when he has not availed himself of the statutory machinery which would have achieved the same result.

In my view, for all these reasons the application for interlocutory relief should be dismissed and the applicant should pay the respondent's costs of the interlocutory application.

I certify that this and the

preceding eighteen (18) pages

are a true copy of the Reasons

for Judgment herein of his Honour

Justice Hill.

Associate:

Date:

Counsel and Solicitors Dr E Flick and T Alexis

for Applicant: instructed by Abbott, Tout.

Counsel and Solicitors E Hilton SC instructed by the

for Respondents: Australian Government Solicitor

Date of Hearing: 26 February 1997

Date Judgment Delivered: 28 February 1997