FEDERAL COURT OF AUSTRALIA

Crowley v Holmes [2003] FCA 331

PAUL DAVID CROWLEY v ALAN JOHN HOLMES (IN HIS CAPACITY AS THE DIRECTOR OF PROFESSIONAL SERVICES REVIEW), GEOFFREY HIRST, STEPHEN PHILLIPS, DAVID ROSENTHAL AND HEALTH INSURANCE COMMISSION

V259 OF 2002

NORTH J

25 MARCH 2003

MELBOURNE

THE COURT ORDERS THAT:

1.                  The second, third and fourth respondents, as members of the Professional Services Review Committee 296, are restrained from proceeding to hear the matters which are the subject of Adjudicative Referral Number 296, dated 14 February 2002, until 4.15 pm on 21 May 2003.

2.                  The notice of motion is otherwise dismissed.

3.                  Each side bear their own costs of and incidental to the notice of motion.

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

REASONS FOR JUDGMENT

1                     On 18 December 2002 I dismissed an application by Dr Crowley challenging an Adjudicative Referral No 296 directed to the Professional Services Review Committee (Committee 296) constituted by Doctors Hirst, Phillips and Rosenthal, the second, third and fourth respondents.  The Referral related to the period from 1 January to 31 October 2000.  Subsequently, a second adjudicative referral, namely, Adjudicative Referral No 366, has been made in relation to the period 2 January to 6 March 2001.  Adjudicative Referral No 366 was made on 20 December 2002 and involved the establishment of a further Professional Services Review Committee (Committee 366) comprising Doctors John Ingram, John Kiss and Christopher Brown, who were named as respondents to the present application.

2                     Each Committee intends to conduct the hearing that has been referred to it.  In the case of Committee 296, the hearing is fixed for 11 April 2003, and in the case of Committee 366, the hearing is fixed for 2 May 2003.  An appeal against my decision is listed for hearing before the Full Court on 21 May 2003.  On 12 March 2003, Dr Crowley filed a notice of motion seeking orders to restrain Committee 296 from proceeding with the hearing until the hearing and determination of the appeal or further order.  He also sought orders that Doctors Ingram, Kiss and Brown, be joined as respondents to the appeal, and that Committee 366 be restrained from proceeding to hear the subject of Adjudicative Referral No 366.

3                     It is convenient to begin with the applications in relation to Committee 366.  In my view, the applications are misconceived.  Dr Bleechmore, who appeared with Mr Hayden as counsel for Dr Crowley, contended that Committee 366 was to consider matters which were essentially the same as, or at least formed part of a seamless narrative with, matters to be considered by Committee 296.  An affidavit in support of the motion, sworn by Dr Crowley’s solicitor Mr Mulcahy, describes the linkage between the two matters as follows:

“Perusal of the submissions shows that effectively the same case, in relation to exceptional circumstances, is relevant.  It is a single account in which the Referrals are linked by a common range of circumstances, and, in particular, the absence of assisting doctors, and by contrasting circumstances during the interregnum or interim period of October to December 2000, in which there was assistance and therefore a reduced number of attendees.  Therefore, Dr Crowley’s testimony will cover both Referral periods, and the period between them, in a single narrative.”

4                     It was argued that it follows from this linkage that the two matters should be considered together.  The orders sought in the motion were designed to advance that cause.  In effect, the argument raised by Dr Bleechmore is a challenge to the establishment of Committee 366 on the ground that it would be considering a matter so similar to the matter under consideration by Committee 296 that, if the two committees were to proceed in parallel, it would be inconvenient, embarrassing and potentially productive of inconsistent decisions.  I accept the argument raised by Ms Hampel, who appeared with Mr Moloney on behalf of the respondents, that for Dr Crowley to achieve his aim the proper course is to bring an application to challenge the decision which established Committee 366 separately from Committee 296.  Such an application must include an allegation of legal error in the decision.  In the present application no legal error has been identified in any decision made.  Consequently, there is no basis to impugn the establishment of Committee 366 and no basis for the joinder of the members of Committee 366.  I also accept the argument put by the respondents that, in the absence of a cause of action against the members of Committee 366, there is no jurisdiction to restrain them from proceeding with the hearing. 

5                     I now turn to the question of whether Committee 296 should be restrained from proceeding until the hearing and determination of the appeal.  The jurisdiction of a single judge, exercising original jurisdication, includes power to make such an order under s 23 of the Federal Court of Australia Act 1976 (Cth):  see Bercove v Hermes (1983) 51 ALR 105, Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87 at par 11; Doan v the Health Insurance Commission [2002] FCA 1357; and William Hollier v Australian Maritime Safety Authority and Ors [1998] 428 FCA.  Section 23 provides that:

“The court has power in relation to matters in which it has jurisdiction to make orders of such kinds, including interlocutory orders, and to issue or direct the issue of writs of such kinds as the court thinks appropriate.”

6                     The cases referred to do not exhibit any general practice that an application under s 23 should be heard by the trial judge or by some other judge.  Given that one consideration relevant to the grant or refusal of an injunction pending an appeal is whether the appellant has an arguable case on the appeal, in my view, it is preferable that a judge other than the trial judge should hear the application.  Judges have traditionally expressed the view that a judge against whom an appeal is taken has sufficient capacity to assess the chances of success of the appeal rationally and objectively.  I do not doubt that capacity, but I do have regard to how a litigant, who is the subject of a refusal to grant an injunction, might view the position.  It is desirable in most cases to preserve the integrity of the legal process that a judge other than the trial judge hear such an application.  It is almost inevitable that a litigant who fails to obtain an injunction pending appeal from the trial judge will feel that the trial judge had a vested interest in asserting the correctness of the decision under appeal.

7                     The authorities referred to above make it clear that the factors to be considered in deciding such an application are the factors that ordinarily govern the grant of interlocutory injunctions.  They are whether there is a serious issue to be tried on the appeal and whether the balance of convenience favours the grant of an injunction.  There may be a connection between the two considerations: see Bullock v Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464.  In some cases, the Court has observed that an injunction pending appeal should be considered on a similar basis to the grant of a stay pending appeal.  In that area of discourse, consideration begins from a presumption that the judgment appealed from is correct: see Rules of the Federal Court, Order 52 Rule 17;  Hollier at 4).   

8                     In applying the test to the present case, it is useful to commence with consideration of the balance of convenience.  Dr Bleechmore argued two matters in relation to this issue.  He contended that if there was no injunction, Dr Crowley would be put to the expense and difficulty of preparing his case for the hearing before Committee 296 on 11 April and, if he were successful on the appeal, those costs would be wasted.  Furthermore, there would be great inconvenience in securing the attendance of doctors and other witnesses at that hearing.  Secondly, and less persuasively, it is argued that it would be an embarrassment for Dr Crowley to give evidence before Committee 296, because that evidence would then be available in the future.  The essence of this point seems to be the unfairness to Dr Crowley in having to reveal matters that might never have to be revealed should he succeed on the appeal. 

9                     The second matter has little weight in the assessment of the balance of convenience.  The former matter does have a clear element of inconvenience, but must be seen in the context of all the facts of this case.  The inconvenience and wasted energy in preparation of the case is much reduced in the circumstances of these proceedings because of the asserted overlap in the testimony to be given to both Committees (see the extract from the affidavit of Mr Mulcahy set out in par 3 of these reasons).  Therefore, there will be very little preparation required for the hearing before Committee 296 that will not be required, in any event, for the hearing before Committee 366.  There remains the inconvenience involved in Dr Crowley’s attendance and the securing of witnesses for the hearing on 11 April.

10                  Dr Bleechmore also argued that, if the hearing by Committee 296 was not restrained, the appellant would be denied the benefit of success on the appeal.  That is to say, the appeal would be rendered nugatory. 

11                  I turn now to consider the convenience of the respondents.  Ms Hampel relied upon the length of time taken to resolve this matter.  She pointed out that by the time the appeal is heard and determined it will have been over 14 months since the proceeding was commenced in May 2002, and nearly 18 months since Committee 296 was convened.  She argued that there was a public interest in the prompt determination of the matter, evidenced by the strict time limits set out in the statutory provisions governing the establishment and conduct of the Committees.

12                  Whilst I accept that argument, I also take into account that the delay that would be incurred by the grant of the injunction would be from 11 April until the hearing and determination of the appeal.  That would be perhaps three months – a period which is not a particularly prolonged extension of the overall period taken to conclude the matter.

13                  As to whether there is a serious issue to be tried on the appeal, I consider that the grounds of appeal raised do not have a substantial chance of success.  However, I am not able to say that they are unarguable. 

14                  In the end, the matter is finely balanced.  I am persuaded, but only by a hair's breadth, to grant a limited injunction on the basis that there is a slight preponderance of inconvenience to Dr Crowley in having to bear the cost of attending the hearing on 11 April, secure witnesses and undertake some additional preparation.  The injunction will not extend beyond the day of the hearing of the appeal, namely 21 May 2003.  If Committee 296 has determined to set a further hearing date proximate to 21 May, the Full Court will be in a position to determine any application made by Dr Crowley for a continuation of the injunction.

Associate:

Dated:              16 April 2003