Lindsay v Director of Professional Services Review

DETERMINING AUTHORITY ESTABLISHED BY SECTION 106Q OF THE HEALTH INSURANCE ACT 1973 (CTH)

JUDGE: EDMONDS J DATE: 24 MARCH 2011 PLACE: SYDNEY

Background 1 This is an application for an extension of time, beyond the respective prescribed periods, for the applicant ('Dr Lindsay') to lodge in a registry of the Court an application for review of various decisions of the respondents in reliance on s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the AD(JR) Act'). 2 At the time the original application was lodged on 28 September 2010, 'the prescribed periods' in respect of the decisions sought to be reviewed had all expired. That, however, is no impediment to the present application: see s 11(1) of the AD(JR) Act. 3 An amended application for review was lodged in the Sydney registry of the Court on 24 December 2010 and on 3 February 2011, I gave Dr Lindsay leave to file in Court a 'Second Further Amended Application for an Order of Review'. 4 In an affidavit sworn 7 February 2011 and filed the same date (Ex 1) in support of the present application, Dr Lindsay deposed that he sought an extension of time to file and serve an application for review of the following decisions: (1) The Request to Review No. 468 dated 21 March 2007 sent by the delegate of the third respondent to the first respondent pursuant to s 86(1) of the Health Insurance Act 1973 (Cth) ('the Act'); (2) the Referral dated 2 October 2007 by the first respondent to the second respondent under s 93 of the Act; (3) the Referral dated 22 September 2008 by the second respondent to the first respondent pursuant to s 106XA of the Act; (4) The Final Report of the second respondent dated 20 November 2009 pursuant to s 106L of the Act; (5) the Final Determination of the fourth respondent dated 3 August 2010 pursuant to s 106TA of the Act. 5 My review of the Second Further Amended Application for an Order of Review filed in Court on 3 February 2011 does not disclose that the first decision, the Request to Review No. 468 dated 21 March 2007, is the subject of that application. Be that as it may, I propose to treat the present application on the basis that it seeks an extension of time to lodge an application for review of that decision as well as the other decisions referred to in [4] above after the expiration of the prescribed periods in respect of all those decisions.

Grounds in Support of Application for Extension of Time 6 The only grounds that were relied on by Dr Lindsay in support of his application were: (1) That he did not know that an application for review had to be lodged within 28 days of the day on which he was furnished with the decision; (2) that he was repeatedly advised by the Secretariat of the Professional Services Review that 'I should not lodge an [application] until I received the Final Determination of the Determining Authority', which he received on or about 3 August 2010. (See Ex 1.) 7 A number of other matters were referred to by Dr Lindsay in Ex 1 but they have no relevance to the present application. 8 In submissions Dr Lindsay also referred to a large number of irrelevant matters but it is unnecessary to repeat them in these reasons. 9 Evidence (Ex A) was relied on by the respondents which would suggest that what was deposed to by Dr Lindsay as to repeated advice given to him by the Secretariat of the Professional Services Review (see [6(2)] above) was not true and, indeed, even absent that evidence, I would be sceptical about the truth of what Dr Lindsay deposed to in that regard. The contemporaneous documents (Ex 2) be relied on certainly do not support any such conclusion.

Matters to be Taken into Account 10 Section 11 of the AD(JR) Act does not contain any criteria by reference to which the Court's decision to extend time for an application for review under s 5 is to be exercised. Quite early in the life of the AD(JR) Act, Wilcox J in Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 at 348 - 349 reviewed decisions of judges of this Court, all sitting at first instance, and distilled from them the following principles to guide, not in any exhaustive manner, the exercise of the Court's discretion: '1. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of twenty-eight days is not to be ignored (Ralkon Agricultural Co. Pty Ltd v. Aboriginal Development Commission (1982) 43 A.L.R. 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v. Nolan (1982) 45 A.L.R. 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff [v Freijah (1982) 62 FLR 280] at [285]; Chapman v. Reilly unreported (Federal Court of Australia, Neaves J., 9 December 1983) at 7). 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) 47 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. 3. Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at 287, Duff at [284-285], Hickey at 525-527 and Wedesweiller at 533-534. 4. However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas, Lucic at 416, Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application. 5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417, Chapman at 6. 6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion: Wedesweiller at 534-535.' 11 His Honour was not attempting to set anything down in concrete; indeed, it is to be inferred from the nature and diversity of the principles his Honour distilled from the cases, that applications for extensions of time in different cases will not necessarily engage a consideration of common principles. What principles are engaged will depend on the facts of each case. Moreover, as his Honour indicated, the principles are not intended to be exhaustive.

Consideration 12 One principle not referred to by his Honour but undoubtedly relevant is the extent of the delay. Here, the delay in making applications for review of all the decisions other than the last was substantial. The decision referred to in [4(1)] above was more than three and a half years old when the original application was lodged; the decision referred to in [4(2)] above was nearly three years old; the decision referred to in [4(3)] above was over two years old; and the decision referred to in [4(4)] above was over ten months old. 13 Dr Lindsay has not given an acceptable explanation for the delay and while that alone may not be fatal to his application, it too is undoubtedly a relevant factor. It weighs heavily in my mind against being satisfied that an extension of time should be granted, when considered along with the extent of the delay. 14 This leaves the last decision referred to in [4(5)] above. The delay here is not so substantial and while Dr Lindsay's explanation for the delay - he did not know that the application had to be lodged within 28 days of being furnished with the decision - is not, in my view, adequate, I would, but for the matter referred to in [15] below, be disposed to grant him an extension of time to lodge the application for review of that decision beyond the prescribed period in respect of that decision. 15 The matter which militates against that course is that the Second Further Amended Application for an Order of Review filed in Court on 3 February 2011 contains no grounds upon which Dr Lindsay seeks to review the Final Determination. Moreover, the relief claimed in respect of it - an order restraining the fourth respondent from taking any action as a result of the Committee's Final Report - would be futile by reason that such action has already been taken in the form of the Final Determination. 16 For these reasons, the application for an extension of time in which to lodge the application for review of the five decisions set out in [4] above is refused. It follows that the application for review must be dismissed and the applicant must pay the respondents' costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.