FEDERAL COURT OF AUSTRALIA

Lawendy v General Practice Recognition Appeal Committee [2000] FCA 946

JUDICIAL REVIEW – Vocational Regulations Appeal Committee – medical practitioners past training and experience outside Australia – eligibility for vocational register – extension of time for AD(JR) Act review – discretion – blamelessness of claimant and responsibility of solicitor – substantive merits of application conceded

HEALTH LAW – general practitioners – refusal of application for registration on vocational register – criteria for vocational registration – requirement of specified time spent in general practice – whether overseas experience relevant

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 16

Reid v Vocational Registration Appeal Committee (1997) 73 FCR 43 followed

Tan v Vocational Registration Appeal Committee (1996) 71 FCR 405 followed

Milad v Vocational Registration Appeal Committee (1999) 92 FCR 549 followed

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 applied

Sophron v The Nominal Defendant (1957) 96 CLR 469 at 474 applied

Kumar v Minister for Immigration and Multicultural Affairs [2000] FCA 243 mentioned

RAFAT LAWENDY v GENERAL PRACTICE RECOGNITION APPEAL

COMMITTEE & ANOR

NO S 11 of 2000

HEEREY J

4 JULY 2000

ADELAIDE

THE COURT ORDERS THAT:

1.         The time for the applicant to bring an application for review of the decision of the Vocational Registration Appeal Committee made on 31 March 1995 be extended to 22 February 2000.

2.         The application be allowed.

3.         The said decision be set aside and the application of the applicant for vocational registration be remitted to the first respondent for consideration according to law.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant seeks an order for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act).  The application has a number of unusual features.  The order sought to be reviewed was made as long ago as 31 March 1995 and thus an extension of time under s 11(1)(c) is necessary.  Moreover the substantive merits of the review application are conceded.  The only contest has been as to whether the extension should be granted.

2                     The applicant is a medical practitioner who obtained his qualifications in Cairo in 1978 and came to Australia in December 1985.  After supervised practice in a number of hospitals in New South Wales he passed the Australian Medical Council examinations and was registered as a medical practitioner in that State in 1992.

3                     On 28 November 1994 he applied to the Vocational Registration Eligibility Committee for general practice vocational registration (VR).  His application was refused and was reviewed automatically by the Vocational Regulation Appeal Committee (the Committee).

4                     On 31 March 1995 the Committee refused his application.  In essence it did so because it considered that the applicant did not have sufficient general practice experience.  By a letter of that date the Committee wrote to the applicant saying, amongst other things:

“The committee specifically found that you did not meet criterion 4 (ie, you have not been in general practice as defined for at least two sessions a week for at least five years by 1 January 1995) as you had insufficient general practice experience.  The committee is unable to assess Egyptian experience and recommends that you complete the Fellowship [of the Royal Australian College of General Practitioners].”

5                     The applicant says, and I accept, that until he received legal advice from his solicitors in July 1999 he was not aware that he had any grounds for seeking review by this Court, nor that there was any limited twenty-eight day period in which to do so.  He says also that because of his cultural background prior to coming to Australia he was used to a regime where authorities were more strict and one did not question their decisions.  He deposed:

“When I received the Letter of Rejection I understood it to have come from an eminent authority and as such, I did not question the same.  I accepted the assertion that I did not qualify for Vocational Registration as absolute.  It never occurred to me that it might be possible to challenge the decision of such an esteemed organisation as I had assumed it had absolute authority over granting Vocational Registration.”

6                     However, other medical practitioners who were more attuned to their legal rights commenced litigation challenging similar decisions of the Committee and were successful.  On 21 February 1997 O’Loughlin J handed down his decision in Reid v Vocational Registration Appeal Committee (1997) 73 FCR 43.  His Honour held, following an earlier decision of Carr J in Tan v Vocational Registration Appeal Committee (1996) 71 FCR 405, that the Committee was obliged to have regard to an applicant's past training and experience both inside and outside Australia: 73 FCR at 53.

7                     In about July 1997 the applicant was told by a colleague, Dr Fernando, that the Committee had been replaced by a new committee (the first respondent) which was reconsidering applications for VR by doctors who had been initially rejected because their overseas experience was not taken into account.  At this time the first respondent was promoting by way of press release in medical journals the lodging of appeals by doctors who might be eligible in the light of the Reid decision.  For example, in the Australian Doctor of 4 July 1997 an article appeared under the heading, “Non-VR GPs offered Quick Fix” referring to the Reid case and reporting a comment by a member of the first respondent, Dr Joe Kosterich, in these terms:

“GPREC member Dr Joe Kosterich said no move was planned by the HIC [Health Insurance Commission] to publicise the decision.  Instead, GP representatives on the committee had been asked to spread the word.  ‘If you lose a court case you don’t want sing it from the roof tops’, he said.  ‘The previous committee got it wrong  …  It’s a little bit of egg-on-face for the HIC, obviously’.  A HIC spokesman was unable to comment before Australian Doctor went to press.  However, Dr Kosterich said although not all GPs who have been refused would be suitable for VR, he expected several hundred would be in a position to re-apply.”

Later in the Australian Doctor of 25 July 1997 it was said:

“GPs can apply to the HIC for a reconsideration of their case if they lost an appeal that was lodged with the appeals committee before 24 December 1996.”

8                     However, a sea change took place.  Further legal advice was taken and in the Australian Doctor of 29 August 1997 under the heading “HIC Reneges On VR Review Undertaking”, it was said:

“The HIC has performed a backflip over eligibility for the vocational register – a move one doctor predicts will prompt a flood of lawsuits against the commission.  In a letter to Australian Doctor the HIC indicated that in the light of fresh legal advice it would renege on its previous undertaking to review the case of any doctor who had applied for vocational registration and had their appeal rejected before 24 December, 1996.”

9                     To return to the case of the applicant, he forwarded a letter to the first respondent on 28 July 1997.  The letter stated inter alia:

“I feel that my overseas experience in general practice could be considered alongside my local experience.”

10                  He enclosed a curriculum vitae.  On 1 September 1997 the Health Insurance Commission wrote to the applicant, referring to the previously mentioned letter, and stating amongst other things:

“The Appeal Committee has received advice from eminent senior counsel that the Committee cannot, as a matter of law, give further consideration to your request.  The substance of that advice is that the Committee, in relation to matters previously heard and determined by it and/or its predecessor, the Vocational Registration Appeal Committee had, and has, no power to reconsider appeals. 

In view of this advice, the Health Insurance Commission has had no option other than to instruct the Committee’s Secretariat not to supply papers to the Appeal Committee in cases concerning doctors requesting a review of their appeals where the matter has previously been considered by the Appeal Committee and dismissed. 

This means, in your case, that there is currently no live application before the HIC or the Committee which it is able to consider.  Should you wish to reapply for vocational registration at any time you are, of course, at liberty to do so. 

I should point out, however, that the only avenue for vocational registration after 24 December 1996, is being awarded the Fellowship by the Royal Australian College of General Practitioners.”

11                  The applicant understood that letter to be absolute in its terms.  It made no mention to review under the AD(JR) Act.  As a consequence he did not pursue the matter.  He said amongst other things that he was very sensitive about the fact that he was an overseas doctor and was “concerned not to create a fuss”. 

12                  In July 1999, however, he read an article in the Medical Observer, another weekly medical journal.  The issue dated 23 July 1999 (although apparently in circulation a few days earlier) contained a reference to the decision of the Full Court of the Federal Court handed down on 6 July 1999 in Milad v Vocational Registration Appeal Committee (1999) 92 FCR 549 which, according to the article, “reconfirmed the right of 50 doctors to challenge refusal of vocational registration”.  In that case the Full Court held that an order could be made under the AD(JR) Act remitting a matter to the first respondent notwithstanding that the matter had been the subject of a decision by the Committee, which had ceased to exist.

13                  The applicant obtained the phone number of the Adelaide solicitors for Dr Milad and telephoned them on 20 July 1999.  He spoke to Mr Anthony Allen who said he would post a pro forma questionnaire to the applicant to complete and return.  The applicant received the questionnaire, completed it and returned it to Mr Allen’s firm where, according to a date stamp, it was received on 27 July 1999.  But the completed questionnaire was misfiled in Mr Allen’s office. 

14                 Mr Allen’s firm had acted for Dr Reid and fourteen other applicants.  Of these fifteen applicants, fourteen were granted review by this Court and were subsequently granted VR by the first respondent.  Subsequent to publicity concerning those cases a further fifty medical practitioners who had been denied VR in comparable circumstances instructed Mr Allen’s firm to file applications for review in the Federal Court.  The leading case in that group of cases was Milad.  The last of the applications in that group was filed in the Court by Mr Allen’s firm in about September 1998.

15                  Rather than proceed to a full hearing, as occurred with the Reid cases, the respondents consented to extensions of time being granted to all applicants in which to seek review and consent orders.  Those orders were made by O’Loughlin J on 9 December 1999 referring forty-four members of the Milad group back to the first respondent for reconsideration of the applications for VR.  The first respondent convened to reconsider such applications on 26 February 2000 and 41 members of the group were duly granted VR.

16                  It was only on 20 January 2000, in the course of sorting out papers in the conclusion of those matters, that Mr Allen discovered the present applicant’s questionnaire.  He had not seen it before but it bore his office’s date stamp of 27 July 1999.  Immediately upon reading the questionnaire it was apparent to Mr Allen that an application for review should have been filed with the applicant so that he could have joined in with the Milad group.  Had Mr Allen read the questionnaire at any time prior to the making of the consent orders by O’Loughlin J he would have immediately caused an application to be filed on behalf of the applicant on the basis that the applicant’s relevant circumstances were comparable with those of applicants in the Milad group.

17                  On 24 January 2000 Mr Allen wrote to the Australian Government Solicitor seeking consent orders.  On 9 February 2000 the Australian Government Solicitor replied, indicating that consent would not be forthcoming.  The present application was filed on 22 February 2000.

18                  The general principles to be considered in an application for extension of time for AD(JR) Act applications are not in dispute.  The case that has been referred to very frequently is the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348.

19                  A number of factors influence me in coming to the conclusion that this is an appropriate case to exercise my discretion in favour of the applicant.  Probably the most important is the fact that the merits of the substantive application are admitted.  Of course this does not mean that the respondents admit that the applicant should be entitled to VR.  That is a factual issue which will have to go back to the first respondent; the merits of that question are not a matter for this Court to decide in any event.  All this Court can do is to decide whether there has been a legal error infecting the decision complained of.  It is not disputed that there has been, so I am not concerned with what is usually a major question in an application for an extension of time namely, the prospects of success on the substantive case.

20                  Then there is the factor of what must be accepted as the negligence of the solicitor in misfiling the applicant's questionnaire.  This is relevant, but it is neither a cure-all for the applicant, nor is it a case of him being fatally bound by the negligence of his solicitor.  As the High Court said in a similar context in Sophron v The Nominal Defendant (1957) 96 CLR 469 at 474, the blamelessness of the claimant and the responsibility of his solicitor are very material.  The effect of those factors will depend on the particular circumstances of the case. 

21                  Questions of the negligence of solicitors in allowing limitation periods to elapse usually arise in the context of common law claim for damages for death or personal injuries.  In modern times solicitors are insured and there is a ready and effective remedy for such a plaintiff by way of action for negligence against the solicitor.  The measure of damages will be the value of the action lost, usually a matter capable of quantification in money terms.  When we are concerned, however, with an administrative decision and not merely whether that decision should have been made but whether a particular factor should have been taken into account, it is by no means clear that there would be a practically effective remedy against the solicitor.

22                  Counsel for the respondents very properly put before the Court arguments as to the public interest.  While she conceded that there was no prejudice in the forensic sense of missing witnesses, fading recollections etc, she did argue that there was a public interest in bringing finality and in particular giving effect to the more rigorous VR scheme which came into effect at the beginning of 1997.

23                  However, those arguments, valid in themselves, nevertheless need to be considered in the light of the very unusual history of the matter where the respondents consented to a large number of applications being allowed out of time and where, as I have mentioned, the great bulk of those were subsequently successful on the merits before the first respondent.  This is a regrettable situation where there has been some fundamental administrative law error which has affected a great number of medical practitioners and no doubt, amongst other things, resulted in a lot of public expense.  I do not think considerations of administrative finality and neatness should in the end outweigh the merits of this particular applicant’s case.

24                  I should say that I have not ignored other authorities which counsel for the respondent relied on, and in particular the decision in Kumar v Minister for Immigration and Multicultural Affairs (2000) FCA 243, but if there is one thing the authorities do make clear, it is that ultimately each case is a discretionary decision depending on its merits, and on the merits of this case I think the application should be granted.

25                  After debate between counsel it was agreed that no order for costs should be made.

Associate:

Dated:              12 July 2000