11 It was then said that if the decision had been given at a date earlier than the effective date of the amendment, namely 18 December 2002, 'the decision may have been different'.
12 The solicitor's letter then made various submissions in relation to the merits of the proposed findings to the effect primarily that the proposed findings were not supported by the evidence.
13 On 27 May 2004 the Committee made its final report under s 106L of the Act and forwarded it to the applicant. In the final report, the Committee dealt with the submissions which had been made by the solicitor on behalf of the applicant.
14 As to the question of the applicant's health during the hearing, the Committee said that:
'[The applicant] made no reference to ill health (other than in passing during the discussion of an individual service) or a desire to postpone the hearing due to ill health, at the opening of business on any of the hearing days.
At the resumption of the hearing on the 4th day, [the applicant] stated that he had been concerned in the previous night running over the events of the hearing in his mind, regarding an impression he might have given regarding certain aspects of their practice running. He did not make any suggestion of personal ill health occupying his body, or his mind, during that night.'
15 Further, the Committee said that in their opinion the health problems which the applicant was said to be suffering, namely, hypertension, Type II diabetes and hyperuricaemia 'are not normally considered to render a person acutely incapable of understanding a question, accessing their own memories of previous events or making a response, under oath, which is as truthful as the response they would have made without the disease, or the treatment.' Accordingly, the Committee rejected the submission that the applicant had been at a disadvantage during the hearing for health reasons.
16 As to the question of delay, the Committee accepted that it had withheld its decision pending the change of the law, but denied that, if it had made its decision prior to the passing of the validating legislation, the decision would have been any different. The Committee said that it had advised the applicant of its 'preliminary finding' at the conclusion of the hearing on 26 July 2001 and that the applicant was given an opportunity to make submissions to the Committee.
17 The Committee also rejected the applicant's submissions in relation to the merits of its findings in connection with the rendering of MBS Items 54, 11506 and 11700 services.
18 On 28 June 2004 the Committee forwarded a copy of its final report to the respondent. On 7 September 2004, the respondent made a draft determination ('the draft determination') under s 106T of the Act. The draft determination was accompanied by the reasons for decision of the respondent.
19 The draft determination was to the following effect:
'3. The Determining Authority directs that:
(i) Dr Bahm be reprimanded by the Director, Professional Services Review, or the Director's nominee (paragraph 106U(1)(a) of the Act);
(ii) Dr Bahm be counselled by the Director, Professional Services Review, or the Director's nominee (paragraph 106U(1)(b) of the Act);
(iii) Dr Bahm repay to the Commonwealth, Medicare benefits in the amount of $28,428.12 (paragraph 106U(1)(cb) of the Act);
(iv) Dr Bahm be fully disqualified for a period of 2 months from the time when any final determination takes effect (paragraph 106U(1)(h) of the Act); and
(v) Dr Bahm be fully disqualified for a period of 12 months from the time when any final determination takes effect (concurrent with the full disqualification) from all services in relation to MBS items 11506 and 11700.'
20 The applicant was invited by the respondent to make submissions in response to the draft determination. By letter dated 23 September 2004, Mr Ayoub, the applicant's solicitor, made submissions in response to the draft determination.
21 Relevantly, the letter reads:
'I have to hand a copy of PSRC No 187 Draft Determination as prepared by the Professional Services Review dated 7 September 2004.
My client has instructed me to put forward the following submission in relation to the penalty that he has received as taken in direction 3(iv).
My client instructs me to inform you that he is prepared to accept the other determinations without submission.'
22 The applicant's solicitor's letter then goes on to make submissions to the effect that a full disqualification for a period of two months is excessive and unreasonable. The letter is marked 'Without Prejudice' but there is no reference in the letter to a reservation of rights to challenge the determination of the Committee and the content of the letter is quite inconsistent with any such reservation, as is the fact that the application for review which the applicant ultimately filed in the Court in February 2005 was limited to a challenge to the penalty imposed by the respondent. Whatever, therefore, the author of the letter intended by the use of the words 'Without Prejudice' it is apparent that it was not intended thereby to foreshadow a challenge to the determination in the Committee's final report.
23 On 13 January 2005, the respondent made a final determination under s 106TA of the Act. The respondent referred to the submissions which were made by the applicant but said that the submissions did not lead the respondent to change its view.
Application for review
24 On 10 February 2005, the applicant, acting in person, filed an application for review of the final determination of the respondent in this Court. In the application for review the applicant stated:
'4. The applicant is aggrieved by the decision because disqualification for a period of two months would cause inconvenience and disruption of Medical Management to patients. The Applicant has a large following of patients in the Community as his hours of practice extend to late in the evenings and he is the only Doctor at that time available. The Applicant has debts and the disqualification will put him in extreme financial hardship.'
25 The relief which the applicant claimed in the application for review was:
'(1) The period of full disqualification is unfair and excessive in the circumstances.
(2) The amount of $28,428.12 to be repaid to the common wealth [sic] is incorrect as the Applicant received only 60% of the proceeds of billing. Morley and Beechboro Practices received 40% as management fees.
(3) That the period of disqualification be discharged.
(4) That a stay in the decision to commence disqualification on 24 February 2005 be instituted immediately.'
26 On 28 February 2005, a firm of solicitors (not Mr Ayoub) gave notice of appointment to act on behalf of the applicant. On 17 June 2005, the applicant's current solicitors filed a notice of change of solicitors.
27 On 30 September 2005, the applicant filed a minute of an amended application for review whereby the applicant sought to join as respondents to the application the members of the Committee and the Director, and to include an application to review and set aside the determination made by the Committee in its final report. The grounds proposed to be relied upon in the amended application for review are:
'1. The [Committee] and [the Director] failed to accord the applicant natural justice in that:
a) it failed to adjourn the proceedings in spite of the fact that the applicant was ill at the time and on medication that made him confused and drowsy;
b) although a general notice was issued to the applicant setting forth the matters that would be dealt with, insufficient particulars were supplied to enable the applicant to prepare his case. The [Committee] should have provided to the applicant exact particulars of the patient, date and details of inadequate or faulty treatment;
c) the general notice that was issued to the applicant was dated 16 May 2001 and the hearing was on 14 and 15 June 2001 and as such the applicant had insufficient time to prepare a defence; and
d) there was a delay of some three years before the case was reviewed thereby severely prejudicing the applicant's means of defending himself.
2. The [respondent] and the [Committee] improperly exercised its power in that:
a) it failed to give sufficient weight to the effect of the applicant's illness on the oral evidence given at the hearing conducted on 14 and 15 June 2001 together with the fact that the applicant was in a state of drowsiness and confusion as a result of taking prescription medication for pain relief in relation to his illness, as stated in the submission dated 23 September 2004 by Malcolm J Ayoub, Barrister and Solicitor, made on behalf of the applicant; and
b) there was no reasonable basis for ordering that the applicant ought to repay $28,428.12 bearing in mind that he only received 40% of that sum from his employer.
3. There was no evidence or no adequate evidence to justify the making of the decision of the [Committee] that:
a) the applicant lacked the knowledge to interpret test results in relation to MBS items 11506 and 11700 services;
b) the applicant used the tests in relation to MBS items 11506 and 11700 services as a substitute for history taking and physical examination of patients;
c) the applicant conducted tests in relation to MBS items 11506 and 11700 services when it was not clinically indicated; and
d) the applicant managed a number of common conditions poorly, including chest pain and asthma.'
28 The additional relief sought to be included in the amended application for review is an order that the determination made by the Committee in its final report that the applicant had engaged in inappropriate practice be set aside.
29 In order for the applicant to be able to amend the application for review in the terms proposed, it is necessary that the applicant obtain the leave of the Court to join as parties to the application, the members of the Committee and the Director, and also, at least, insofar as the application for review under the ADJR Act is concerned, to obtain an order extending the time for the bringing of the application for review against the Committee and the Director.
30 Counsel did not in their respective submissions, in relation to the extension of time, distinguish between an application for review under the ADJR Act and relief by way of certiorari by reference to s 39B of the Judiciary Act. However, in my view, different issues arise in relation to each of the proposed remedies and I will deal with the position in respect to each remedy separately.
Application for extension of time under ADJR Act
31 Section 11(3) of the ADJR Act provides that an application must be made during the period commencing on the day on which the decision is made and ending on the 28th day after the day on which the document setting out the terms of the decision is furnished to the applicant. Insofar as the application is made under the ADJR Act an application for the review of the Committee's final decision should have been made within 28 days of 27 May 2004. The application to amend the application to challenge the lawfulness of the final report of the Committee was first filed on 30 September 2005. It was, therefore, some 15 months later than the time prescribed under s 11(3) of the ADJR Act for the bringing of such an application for review. Section 11(1)(c) permits the Court to extend time for filing of an application for review.
32 Counsel for the applicant submitted that the delay in making the review application against the Committee was adequately explained in the affidavits of the applicant and the affidavit of Mr Robert Butcher.
33 In his affidavit dated 30 September 2005, the applicant says:
'The delay in the filing of the Notice of Appeal [sic] of the PSRC No. 187 was due to the following:
(a) I had previously retained a young solicitor from Port Kennedy in Western Australia named Malcolm J Ayoub, who referred to Brock Partners, a law firm in Sydney, to provide advice in relation to an appeal. However, a Notice of Appeal was not filed in this matter and in fact nothing was done as Brock Partners did not have the required expertise;
(b) I was in a position of financial hardship and unable to obtain any further legal advice in relation to the appeal at the time the PSRC No. 187 made its Report;
(c) I was unaware that there was a time limit in which an appeal against a decision of the PSRC. No 187 could be brought; and
(d) I mistakenly thought that this appeal was sufficiently constituted without joining the second, third, fourth and fifth respondents.'
34 In his affidavit Mr Robert Butcher, a member of the solicitors representing the applicant, said that after their appointment as solicitors to represent the applicant, there was some further delay caused by a dispute between the parties in May 2005 as to discovery and the need to make searches under the Freedom of Information Act 1982 (Cth) to obtain documents relating to the proceedings before the Committee.
35 Counsel for the applicant also submitted that there was an excessive period of delay between the hearing and the making of the draft and final reports. Further the counsel for the applicant argued that there are common questions of law and fact between the proposed application for review and the existing proceeding and that the respondent's final determination and the Committee's final report arise out of the same transaction or sets of transactions.
36 Counsel for the respondent submitted that the question of whether leave should be given to extend time to bring the proposed application for review against the Committee's determination, should be considered and determined, before making any determination as to whether there is a basis for a joinder of the proposed parties to this application.
37 Counsel for the respondent also submitted that the proper principles applicable to determining whether to extend time are those stated in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 ('Hunter Valley Developments').
38 Further, counsel for the respondent submitted that there is no adequate explanation for the applicant's delay in seeking to bring an application for review of the Committee's determination in its final report. The respondent submitted that whatever the applicant's financial position was, it is apparent that the applicant had access to legal advice throughout the process. Lengthy representations were made on his behalf in response to the draft report by the Committee, and further representations were made in response to the respondent's draft determination.
39 Further, counsel for the respondent submitted that after the date of the handing down of the final report the applicant took no steps to protest the findings in the Committee's final report. He submitted, further, that the respondent had subsequently taken action on the basis that the final report of the Committee was unchallenged and effective. A draft determination was made, submissions were sought from the applicant, and provided, and a final determination was made. No challenge was made to the lawfulness of the Committee's final report even when the applicant commenced his application for review in this Court in February 2005.
40 Further, counsel for the respondent submitted that most of the complaints, the subject of the proposed grounds of review, were ventilated in the written submissions of Mr Ayoub provided in response to the Committee's draft report, and were dealt with by the Committee in their final report. Counsel submits that there is no merit in the proposed grounds.
41 I accept counsel for the respondent's submissions that an expression of the appropriate principles to apply in determining whether to extend the time for the making of an application for review provided for under s 11(3) of the ADJR Act, is to be found in the observations of Wilcox J in Hunter Valley Developments at 348‑349. I intend to apply those observations to the facts of this case. Of particular relevance to this case is the following observation at 348‑349:
'2. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non‑curial means, has continued to make the decision‑maker aware that he contests the finality of the decision (who has not "rested on his rights": per Fisher J. in Doyle v. Chief of Staff (1982) 42 A.L.R. 283 at 287) and a case where the decision‑maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v. Allen (1984) 1 F.C.R. 287 with Lucic at 414‑415 and Hickey v. Australian Telecommunications Commission (1983) 48 A.L.R. 517 at 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at 410) but also the "fading from memory" problem referred to in Wedesweiller v. Cole (1983) 47 A.L.R. 528.'
42 Firstly, I deal with the applicant's explanation for the delay. In effect, the applicant's case is that he did not know that there was a time limit within which to 'appeal' from the findings of the final report of the Committee and he did not get legal advice because he was without financial means. In my view, this is not a satisfactory explanation for the delay in failing to commence the application for review within the prescribed period. I accept the respondent's submissions that whatever the state of the applicant's financial position was at the material time, the evidence shows that the applicant was able to obtain the legal advice and assistance of a solicitor both before and after the final report of the Committee had been made. This is evident from the fact that the applicant used the services of a solicitor to make submissions in response to the draft report of the Committee and the draft determination of the respondent.
43 Further, a relevant consideration in relation to the applicant's delay is the applicant's 'extra curial' conduct of the kind referred to by Wilcox J in Hunter Valley Developments. The conduct in question is assessed by reference to the manner in which the applicant acted after becoming aware of the determination which he now seeks to impugn.
44 It is significant that the draft report was only forwarded by the Committee to the respondent on 28 June 2004 ‑ after the expiry of the prescribed 28 day period for the making of an application under the ADJR Act; and that the respondent then proceeded, relying upon the findings in the final report of the Committee, to make a draft determination.
45 In the draft determination the respondent proposed various 'directions' which are set out in [19] above. These directions included a direction that the applicant be fully disqualified for a period of two months from the time when any final determination takes effect. It is also significant that on the applicant's instruction, the solicitor, during the course of making submissions in relation to the draft determination of the respondent, stated that the applicant was prepared to 'accept' all the 'determinations' made by the respondent save for the direction in relation to the full disqualification for two months. The applicant adopted this position, notwithstanding that the respondent had in its written reasons made it plain that it had accepted and was acting on the findings made in the final report of the Committee and that its determination and directions were based on those findings. The position of the applicant in limiting his challenge to the draft determination to the proposed full disqualification for two months penalty, is consistent with his conduct in not seeking to impugn the final report of the Committee by way of an application for review; and, indeed, with his position at the time of the filing of the application for review in this Court on 10 February 2005. By this conduct, the applicant manifested an intention not to challenge the lawfulness of the final report of the Committee and he permitted the respondent to embark upon the draft and final determination process - a process in which he participated without advising the respondent that he did not accept the determination in the final report, indicating that his only challenge was to one element of the penalty proposed to be imposed by the respondent.
46 In my view, this factor weighs substantially against the granting of leave to extend time to permit the applicant to bring the proposed application for review of the Committee's determination in the final report.
47 The next relevant consideration is the merits of the proposed application for review. I deal firstly with the complaint as to the delay in the handing down of the draft and final reports. One of the grounds of review in the proposed amended application is that the delay 'severely prejudiced the applicant's means of defending himself'. The manner in which the applicant was prejudiced is not stated in the proposed amended application. However, in the applicant's solicitor's letter of 25 March 2004 responding to the Committee's draft report the applicant's solicitor appears to complain that had the report been made prior to the effective date of the validating legislation 'the decision may have been different.' Further, the effect of what the applicant says in his affidavit of 28 July 2005 is that, had the Committee proceeded to give its decision within a reasonable time after the hearing, the outcome would have been different.
48 There are two possible arguments being raised by the applicant. Firstly, that had the determination in the Committee's final report been made prior to the validating legislation the determination would have been invalid on the grounds that the Committee had been unlawfully established and no final determination could have been made against the applicant by the respondent. A second argument appears to be that, regardless of whether the Committee was lawfully established or not, the delay prejudiced the applicant because it caused the Committee to come to a different result.
49 As to the first argument, there is authority that it is improper to grant a contested adjournment of legal proceedings for the purpose of enabling one party to take advantage of a proposed amendment of an enacted law (Meggitt Overseas Limited v Grdovic [1998] 43 NSWLR 527). That authority could apply by analogy to the circumstances of the delay by the Committee in this case.
50 However, in considering the merits of the applicant's case for the purposes of determining whether to extend the time for the making of the proposed application for review, it is necessary to consider whether any effective relief could be granted to the applicant on this ground at the hearing of the review application. In my view, because the legislation which was passed has retrospectively validated the adjudicative referral in question, no effective relief would be available to the applicant on that ground at the hearing of the review application.
51 I now deal with the second possible argument in relation to delay. In my view, it is apparent from the transcript of the hearing that at the conclusion of the evidence at the end of the hearing on 26 July 2001, the Committee expressed its concerns in relation to the complaints made against the applicant. A reading of this transcript shows that the concerns were expressed in a way which was adverse to the applicant and that the Chairman of the Committee invited the applicant to make further submissions either orally or in writing to the Committee prior to the Committee preparing its draft report. The applicant responded to that invitation as follows:
'No, there is nothing more to [add] because the whole thing has been explained.'
52 There is no evidence that after the hearing and before the making of the draft report, the applicant made, or attempted to make, any further submissions orally or in writing in response to that invitation. The concerns expressed by the Committee to the applicant at the end of the hearing found expression in the proposed findings in the draft report of the Committee.
53 In my view, therefore, there is little prospect of the applicant succeeding in his proposed application on the grounds that delay may have made a difference to the result, nor that the delay meant that the applicant was prejudiced in 'defending himself'.
54 There is also a proposed ground of review that there was a failure to accord natural justice in each of the following respects: there was a failure to adjourn the hearing as the applicant was suffering from ill health, the applicant did not receive sufficient particulars of the complaints made against him, and the applicant did not have sufficient time to prepare for the hearing.
55 The complaint about the failure to adjourn on the grounds of ill health was made by the applicant's solicitor to the Committee in his submissions in response to the Committee's draft report. In my view, the Committee answered the complaint in its final report and there is no merit in the complaint made by the applicant on this ground.
56 I am unable to conclude that there is merit in the proposed grounds that the applicant did not have sufficient time to prepare for the hearing and that the complaint was not sufficiently particularised. Firstly, the applicant had an opportunity to raise those issues before the Committee himself and this was not done. Secondly, there was no complaint made by the applicant through his solicitor at the time of responding to the draft report, and thirdly, some of the important findings made against the applicant by the Committee are based on admissions made by the applicant during the hearing.
57 As to the proposed ground of review that there was no evidence capable of supporting the findings in the draft report, counsel for the applicant made no submissions on this point. In his affidavit of 1 August 2005 the applicant simply asserts that there was no or insufficient evidence in relation to the findings of the Committee impugned in the proposed amended application for review. I have perused the draft and final reports of the Committee. There is in the draft report an appendix comprising 37 pages setting out in tabular form the evidentiary basis for each of the findings in its draft report. Further, as previously mentioned, some of the findings against the applicant are based upon admissions made by the applicant. I am, therefore, unable to find that there is merit in the 'no evidence' ground of review.
58 I take into account in the applicant's favour that a review of the Committee's determination in its final report would be unlikely to disturb the rights of persons other than the parties to the application and the Committee. I also take into account that the applicant will suffer some prejudice if he is precluded from bringing his proposed application for review in respect of the determination of the Committee. However, in assessing the extent of that prejudice I take into account the views I have expressed on the merits of the proposed application for review against the determination of the Committee.
59 In balancing all the considerations, I am of the view that the interests of justice do not favour the grant of an extension of time to make the proposed application for review under the ADJR Act.
Application to extend time to seek relief by way of certiorari
60 The relief which the applicant seeks against the Committee in his proposed amended application for review is to set aside the determination of the Committee. As the Committee has discharged its statutory function the prerogative relief against the Committee would be by way of certiorari. As mentioned above, the applicant appears to have proceeded on the assumption that it would be necessary to obtain an extension of time in order seek relief by way of certiorari. There is, however, no provision in the Federal Court Rules which in terms imposes any time restriction for the bringing of any application for relief by way of certiorari. It may be arguable that the time limits imposed by the High Court Rules for the commencement of an application for the issue of a writ of certiorari, apply by reason of s 38(2) of the Federal Court of Australia Act 1976 (Cth), but no submission was made to me to that effect, and I do not propose to decide this application on that basis.
61 I decline to make an order for the joinder of the members of the Committee and the Director. I do so by applying, by analogy, the principle that a court will not usually exercise its discretion to allow an amendment to join a person as a party to an application who has a good defence under a period of limitation (see, Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 236).
62 In Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 496:
'An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependant on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice.'
63 Although those remarks were addressed specifically in relation to the time limits for obtaining prerogative relief under the High Court Rules, the observations have wider applicability in relation to public acts and are germane to the facts of this case.
64 Delay and acquiescence have been described as defences available to a respondent in relation to relief sought by way of certiorari in the sense that a court may, in the exercise of its discretion, refuse relief on those grounds. In assessing whether there has been an unwarranted delay, such as would equate with a limitation defence, it is significant that s 106L(3) of the Act provides that the Committee is to deliver its final report to the respondent no earlier than one month after the date that a copy of its final report is delivered to the person under review. This period equates with the prescribed period for bringing an application for review under the ADJR Act and is an indication of legislative intent as to the time within which applications for review of the Committee's final report should be brought (see the observations of Branson J in Joseph v Health Insurance Commission [2005] FCA 1042 at [6]).
65 When assessed by reference to that one month period, a delay of 14 months, in all the circumstances of this case, amounts to an unwarranted delay which would, in the exercise of the Court's discretion, lead to the refusal of relief. The proposed respondents have, in my view, a good defence, and I would, therefore, decline to order that they be joined as parties to the application.
66 The applicant's application is, accordingly, dismissed with costs.
I certify that the preceding sixty‑six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.