Condoleon v Director of Professional Services Review

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 297 of 2010

DETERMINING AUTHORITY NO 530 ESTABLISHED BY SECTION 106Q OF THE HEALTH INSURANCE ACT 1973 (CTH)

JUDGE: LOGAN J DATE: 17 DECEMBER 2010 PLACE: BRISBANE

REASONS FOR JUDGMENT 1 This matter was in the list for judgment earlier this month, having been the subject of a hearing before me in respect of the amended application for judicial review on the grounds as they then stood. Very late in the piece, prior to the delivery of that judgment, it became apparent to the solicitors for Dr Condoleon that a question may exist as to the lawfulness of the appointment of those gentlemen who collectively comprise the second respondent, the Professional Services Review Committee, number 580. 2 The basis upon which an interrogative note was thought to exist in respect of the lawfulness of the appointment of the members of that committee was detailed as fully as was then possible by Dr Condoleon's solicitors, in an affidavit which was read before me on the day on which judgment was to be delivered. On the strength of that affidavit, Dr Condoleon moved that judgment not be delivered. He further moved that the delivery of judgment be adjourned, that he be granted leave to reopen his case, that he be granted leave pursuant to O 15 r 1 of the Federal Court Rules to file and serve a notice of discovery and that the first and second respondents provide copies of documents discovered within a time sought in that application. 3 Those acting on behalf of the respondents did not oppose the adjourning of the delivery of judgment or the making of further discovery specifically directed to the subject of the documents relevant to the appointment of the committee. I then adjourned the delivery of judgment to today and made interlocutory directions in respect of the discovery and also the filing of a proposed yet further amended application identifying, if Dr Condoleon was so advised, the additional grounds upon which it was proposed to seek leave to reopen the case in relation to the issue of the lawfulness of the appointment of the committee. 4 Such an application, in amended form, has been filed, as directed, as a consequence of the disclosure of documents which has occurred. The basis for the proposed amendments becomes apparent from the affidavit of Dr Condoleon's solicitor, Mr McQuaid, filed on 16 December 2010. I am satisfied by reference to the material exhibited to that affidavit that there is an issue to be tried in respect of the lawfulness of the appointment of the second respondent. I am also satisfied that the issue is one which could not, with due diligence, have been identified by Dr Condoleon or those advising him prior to the hearing of the judicial review application before me. 5 As was apparent on the occasion when judgment was initially listed, the concern in respect of the lawfulness of the appointment of the committee arose by virtue of a perusal of a newspaper article in The Australian, where a question as to the adequacy of public administration within the Department of Health and Ageing in respect of committee appointments was raised. It was, in the circumstances, a very proper stance for the respondents to take the course which they did in relation to the adjourning of the delivery of judgment and cooperating with Dr Condoleon on the subject of discovery. 6 Whilst the basis of the challenge concerned is more particularly identified in the proposed further amended application, it appears to have two limbs: one going to whether a deputy director was indeed a panel member; and the other going to whether, in this case on reappointment, there was, as the Health Insurance Act 1973 (Cth) (Health Insurance Act) - at least, on first reading - would seem to require, a consultation with the Australian Medical Association by the Minister. Counsel for the respondents has indicated today that, particularly insofar as the committee members are concerned, their stance in respect of the questioning of the lawfulness of their appointment is that they would wish to abide the order of the Court in that regard. They had, earlier, taken an adversarial role in relation to other grounds of review. 7 Upon that being signified, counsel for Dr Condoleon moved for the joinder of an additional party so that there could be a contradictor before the court in respect of the grounds additionally raised. At least as presently advised, I see no reason why any such contradictor ought to be heard more widely than in respect of the point additionally raised. To permit a wider basis for the making of submissions would be to burden Dr Condoleon with additional costs and, in effect, to hear two representatives of the Commonwealth in respect of those earlier grounds of review. 8 The party who commended herself to Dr Condoleon was, understandably, the Minister of State to whom the administration of the Health Insurance Act - and, in particular, s 84 and s 85, the provisions of interest - is consigned under administrative arrangements promulgated by Her Excellency the Governor-General. That Minister presently is the Honourable Nicola Roxon MP, Minister for Health and Ageing. 9 Order 6 r 2(b) provides, materially, that: Two or more persons may be joined as ... respondents in any proceeding ... where the Court gives leave so to do. 10 Order 6 r 4 provides, again materially: (1) The Court may grant leave under rule 2 before or after the joinder ... (2) An applicant may apply for leave under rule 2 ... either before or after the filing of his originating process and may apply without serving notice of the motion on any person on whom the application has not been served. 11 In these rules, one finds the basis upon which an order might be made for the joinder as sought orally by motion by Dr Condoleon. 12 An alternative party suggested was the Commonwealth of Australia. It may perhaps be a distinction without a difference, given that, axiomatically, a Minister of State is an officer of the Commonwealth and might be thought to advance submissions on behalf of the Commonwealth; but it seems to me that, given that the power of appointment is vested by the statute in the Minister, that it is more appropriate that the Minister be the party rather than the Commonwealth. I say that because, had the point been at large at the commencement of the case, I might have expected the Minister to be named as a respondent. 13 It seems to me that it is necessary, in the interests of justice, having regard to the matters that I have related, for the Honourable Nicola Roxon MP, sued in her capacity as Minister for Health and Ageing, to be joined as a party; I so order. 14 I was informed - not only without objection, but with support from the respondents, represented by Ms Henderson of Counsel - that there are other cases at varying stages of disposition before the Court in other registries of the Court. One such case is that involving a Dr Clarke, NSD 745 of 2010. That case, I understand, is presently on the docket of Rares J. I was also informed by Mr Robinson, counsel for Dr Condoleon, that his solicitor was aware of yet further cases. 15 I understand from information so provided that Rares J is disposed to order in the case involving Dr Clarke a separate question, termed the "committee consultation" question, be determined. I also understand that his Honour is considering whether to refer that separate question to a Full Court. It is obviously desirable, in the interests of justice, that the question, insofar as it is common, be determined but once, and soon. In those circumstances, it would be of assistance for the solicitors for Dr Condoleon to send forthwith to the District Registrar a letter detailing the cases of which he is aware in which this point or points of a similar kind are raised. 16 As to this particular case, there has been also foreshadowed the seeking of further discovery; on this occasion, discovery by the Minister. I am not disposed to make any order in that regard today, for that would be to make an order without hearing from the Minister, who has, obviously enough, not been served as yet with the further amended application. One might, though, hope, given the stance to date displayed by existing respondents, that the question of discovery in relation to the Minister could be resolved informally. 17 For the present, I propose to grant leave to Dr Condoleon further to amend his application for an order of review in terms of the proposed further amended application as to additional grounds. Obviously enough, in light of the joinder order which I have made, the document concerned will need yet further to be amended so as to take account of the joinder of the Minister. 18 It is desirable, to say the least, not to give judgment today, but, rather, to adjourn this matter for mention at 8 am Brisbane time, 9 am New South Wales time, on Friday, 4 February 2011. 19 The other orders that I make are that Dr Condoleon file and serve upon the Minister and the other respondents the further amended application in the terms in respect of which leave to reopen and leave to join has been granted. That filing and service should occur not later than close of business on Friday, 24 December 2010. 20 In between now and 4 February it is desirable that there be consultation between those representing Dr Condoleon - and, insofar as they may represent other applicants, those representatives in that capacity as well - with those who come to represent the Minister, with a view to presenting, on 4 February, a particular proposal for the disposition of this case, be it in the form of an agreed order in respect of the separate determination of a particular point and a proposal for its referral to a Full Court in conjunction with other matters, or in such other manner as the parties may be advised. In the meantime, I shall, in anticipation of such discussions occurring between the parties, also initiate discussions within the Court in relation to the coordination of cases involving these points. 21 The costs of today, including those in respect of the application for reopening and the application for joinder of the Minister, are reserved. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.