FEDERAL COURT OF AUSTRALIA

Doan v Health Insurance Commission [2002] FCA 1357

DR TUAN NGOC DOAN  -v-  THE HEALTH INSURANCE COMMISSION  and 

DR ALAN JOHN HOLMES (in his capacity as the Director of Professional Services Review)

V 202 of 2002

RYAN J

31 OCTOBER 2002

MELBOURNE

THE COURT ORDERS THAT:

1.         The application by motion on notice dated 30 October 2002 be refused.

2.         The applicant pay the respondent’s costs of the motion.

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

REASONS FOR JUDGMENT

1                     There is before the Court a motion for interlocutory relief pending an appeal from an order of a Judge of the Court pronounced on 18 September this year.  That order dismissed an application for review of a decision by the first respondent to refer the conduct of the applicant, Dr Doan, for investigation by the second respondent (“the Director”).  That investigation was to be conducted on a referral pursuant to s 86 of the Health Insurance Act 1973 (“the Act”) as amended.

2                     Pursuant to s 89B of the Act, the Director has given a notice to Dr Doan requiring production of documents being, I have been told, the patient histories of some 93 patients who, I infer, were treated by the applicant in the period the subject of the investigative referral which is the calendar year 2000.  The notice of motion relevantly seeks;

“(2)     An order that the operation of the Notice given by the second respondent to the applicant dated 11 March 2002 in purported pursuance of section 89B of the Health Insurance Act 1973 ("the Notice") be suspended until the determination of the applicant's appeal herein to the Full Court of this Honourable Court or further order.

(3)       Alternatively, an order that the second respondent extend time for compliance with the Notice until the determination of the said appeal or further order.

(4)       Alternatively, an order that until the hearing and determination of the said appeal or further order, the second respondent be restrained from inspecting documents produced by the applicant pursuant to the Notice or taking any further action or step in respect of Investigative Referral number 312.”

3                     In the course of discussion this morning, Mr Monotti of Counsel for the applicant indicated that the alternative relief formulated in par 4 just quoted is no longer sought. 

4                     I have come to a clear view that to grant relief in terms of either par (2) or par (3) would not be an appropriate exercise of this Court's discretion.  In the first place, there is a presumption in favour of the correctness of the judgment at first instance.  As well, having read the reasons below and examined the relevant legislation for myself, I regard the applicant’s prospects of success on the appeal as slight. 

5                     Secondly, in the absence of an intimation by the Director that he would extend time for compliance on terms that the period available for his investigation would be extended for a corresponding period, the relief sought by the applicant would have to be cast in the form of a mandatory injunction.  The reasons which have made courts traditionally reluctant to frame interlocutory injunctions in that way apply, I consider, to the present case.

6                     Thirdly, the balance of convenience, in my view, is strongly against the grant of interlocutory relief.  The only inconvenience to which Dr Doan can point is the burden of extracting and collating from his records the 93 patient histories concerned.  Section 89B(6) provides:

“If a document is produced pursuant to the notice, the Director or a person nominated by the Director:

(a)       may inspect the document;  and

(b)       may retain the document in his or her possession for such reasonable period as he or she thinks fit;   and

(c)        may make copies of, or take extracts from, the document.”

7                     There is no suggestion that the retention of the relevant records for the limited period contemplated by par (b) of that subsection would seriously incommode Dr Doan.  On the other hand to postpone the Director’s prima facie entitlement to inspect those documents for something like a further five months at least could well prejudice the investigation as some patients may die and memories of what happened up to two years before the examination of the records will inevitably fade.  For these reasons the motion will be refused with costs. 

Associate:

Dated:              31 October 2002