Wong v Professional Services Review Committee No 339

REASONS FOR JUDGMENT Introduction 1 Last year I dealt with a number of proceedings in which medical practitioners sought judicial review of decisions taken under the peer review based Professional Services Review Scheme contained in Part VAA of the Health Insurance Act 1973 (Cth) ("the Act"). I had 10 matters in my docket and I heard several of them in September 2004, leaving a further tranche to be determined in December of last year. 2 I handed down judgment in the first of the matters Oreb v Willcock [2004] FCA 1520 ("Oreb") on 30 November 2004. I had hoped that my decision in that case would, subject to the outcome of an appeal, determine the issues remaining to be considered in some or all of the proceedings listed for hearing in December. 3 The present matter was one of the second tranche of proceedings. On 3 December 2004 the parties appeared before me and I made consent orders in six matters including the present matter. Paragraphs 3 and 4 of the orders were as follows: " 3. Subject to issues raised in the constitutional argument, and except for the 'racial issue' in the two Lee matters (N568/03 and N1430/03), all of the parties in the remaining proceedings (Wong, Do, Ho, Lee, Lee and Bartos) accept that the outcome of the proceedings turn solely upon the result of the appeal in Oreb (being an appeal of the judgment contained in Oreb v Willcock [2004] FCA 1520). 4. On the basis of this agreement, the hearings listed in the week of 6 December 2004 in the matters Wong, Do, Ho, Lee, Lee and Bartos, are vacated, with the exception of two Lee matters (N568/03 and N1430/03) which are listed on 8 December 2004." 4 The applicant applies by a notice of motion filed in court today for an order that I vacate the orders made on 3 December 2004 insofar as they relate to Dr Wong. 5 Ms Henderson appeared for the respondents and did not object to the motion being heard forthwith. 6 The motion is supported by an affidavit of Dr Wong's solicitor. The effect of his evidence is that Dr Wong wishes to run a ground of review which was not apparent to Dr Wong or his legal advisers until 13 July 2005. The ground is said to be supported by expert evidence filed on or about 4 August 2005 and it was run by another medical practitioner, Dr Matthews, for whom the same legal team appears, in proceedings before Edmonds J. His Honour reserved his judgment in that matter on 14 September 2005. 7 The proposed ground is that Professional Services Review Committee No 339 erroneously applied sampling methodology contained in the Health Insurance (Professional Services Review - Sampling Methodology) Determination 2000 (No 1). 8 The final report of the committee was handed down on 13 January 2004 and the present proceedings were commenced on 11 February 2004. 9 Dr Wong relies upon the principles stated by a majority of the High Court in SAAP v Minister for Immigration Multicultural and Indigenous Affairs (2005) 215 ALR 162 ("SAAP"). Counsel for Dr Wong submitted that the decision in SAAP is relatively new and that it is a significant precedent going directly to the failure of the committee to comply with statutory procedures that are properly to be characterised as "core" procedural fairness requirements. Counsel for Dr Wong also relies upon the decision of the High Court in State of Queensland v JL Holdings Pty Limited (1997) 189 CLR 146 ("JL Holdings"). 10 In my view JL Holdings has no application to the present case which is not concerned with pleadings or amendments to them. Rather the application involves the power of the court under Order 35 rule 7 to set aside or vary its own orders notwithstanding that the effect of so doing would be to enable the applicant to rely upon a further amended application for an order of review. I gave leave to the applicant to file a further amended application in court this morning but strictly upon the basis that the question of whether the amended application can be run would depend upon the outcome of the present motion. 11 The consent orders of 3 December 2004 were entered. They are interlocutory orders and the considerations that apply to the setting aside of final orders do not apply with quite the same force to interlocutory orders. The fact that they are consent orders does not seem to me to affect the principles which apply to the question of the court's power to set aside or vary its own interlocutory orders. 12 The principle of finality of litigation in my view applies to interlocutory orders subject to the moving party establishing that new facts have come into existence; see Adam P. Brown Male Fashions Pty Limited v Phillip Morris (1981) 148 CLR 170 ("Adam P. Brown") at 178. 13 It is true that in Adam P. Brown the High Court said that a further order will be appropriate when "inter alia" new facts come into existence or are discovered. However, in my opinion the controlling issue in today's application turns upon the desire of the applicant's legal advisers to run the procedural fairness point to which it has adverted and which is based upon SAAP and it is appropriate to consider the case upon the basis of whether there are new facts which have come into existence or are discovered. 14 In my opinion what has been put to me today cannot amount to changed circumstances within the principle stated in Adam P. Brown. The facts which are relevant to the proposed amended application are that the committee used sampling procedures as the basis for its determination under section 106K of the Act, that is in determining that Dr Wong had engaged in appropriate practice. 15 Those facts were known to Dr Wong and his legal advisers when he commenced these proceedings and when the consent orders were made on 3 December 2004. I do not consider that the decision of the High Court in SAAP can amount to a change of circumstance. If that were so it would enable orders of the court to be revisited indefinitely on every occasion when what is said to be a new legal principle is handed down. I think there is force in Ms Henderson's submission that the majority in SAAP does not state a new principle of law, rather that it turns upon questions of statutory construction. It is not necessarily confined to section 424A of the Migration Act 1958 (Cth) but in my view it does not state principles which could not have been considered by Dr Wong's legal advisers in December 2004. In any event as I have said the public interest in the finality of litigation seems to me to be against the re-opening of these proceedings to allow the new point to be raised. 16 Even if the present matter is one which turns purely upon the exercise of my discretion I would not exercise it favourably to Dr Wong. This is because there are public interest considerations against allowing the proceedings to be revived other than in accordance with a judgment on appeal in the matter of Oreb. 17 These proceedings cannot be allowed to continue on indefinitely, a decision having been taken on 3 December 2004 that the outcome of the proceedings turns solely upon the result of the appeal in Oreb. 18 Counsel for Dr Wong relied in their written submissions upon a decision of the High Court in Ruddock v Taylor [2005] HCA 48 at [32]. That is to say it was apparently put that the orders of 3 December 2004 amounted to a concession and that there was no injustice in permitting the applicant now to depart from it. 19 I do not think that this is a correct characterisation of my orders but even if it is the interest of justice are against re-opening the matter for reasons which I have given above. Conclusion and Orders 20 The order of the court will be that the motion is dismissed. The applicant is to pay the costs of the motion. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.