Artinian v Commonwealth of Australia - [1997] FCA 1604

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )     No NG 1004 of 1996
  )
GENERAL DIVISION                  )

BETWEEN:DR YACOUB ARTINIAN
Applicant

AND:THE COMMONWEALTH OF AUSTRALIA
First Respondent

THE HEALTH INSURANCE COMMISSION
Second Respondent

DR R NEWTON
Third Respondent

DR ALAN JOHN HOLMES
Fourth Respondent

PROFESSIONAL SERVICES REVIEW COMMITTEE (NO 29)
Fifth Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    28 FEBRUARY 1997

REASONS FOR JUDGMENT

Dr Yacoub Artinian ("Dr Artinian") is the applicant in proceedings for judicial review of certain decisions including a decision that a Professional Services Review Committee (No 29) ("the Committee") be set up pursuant to Part VAA of the Health Insurance Act 1973 (Cth) ("the Act"). This application is in similar terms to the application made by Dr Artinian's brother, Dr Garo Artinian, the subject of my interlocutory judgment dated 27 November 1986.

All that I have been permitted to know about the substantial application is that it has been alleged that Dr Artinian has engaged in inappropriate practice either in connection with the rendering of services or in connection with the initiation of services. Dr Artinian now moves the Court for interlocutory relief restraining the Committee, the fifth respondent to the proceedings as presently constituted, from further considering the reference which was referred to it, so the notice of motion suggests on 29 November 1996.

It is common ground that the Committee met on 31 January 1997. I have been told from the bar table, and I have no reason to doubt, that the transcript of the proceedings on that day occupied some 191 pages. The Committee proposes to resume its deliberations on Saturday, 1 March 1997 and it is for this reason that the present motion has an element of urgency which has necessitated the giving of these ex tempore reasons.

The Committee comprises three persons being respectively the Chairman of the Committee, Dr Rice, and the members, Dr Stephen Phillips and Dr David Rivett. The curriculum vitae of each of these gentlemen is in evidence before me and it is evident from a perusal of them that each is eminently qualified to be a member of the Committee. No suggestion is made to the contrary. The attack made upon their participation is a suggestion of ostensible bias. No suggestion is made that any of the members of the Committee is actually biased.

The present proceedings should be seen against the statutory background of the Act which is set out in some detail in my judgment in the interlocutory proceedings concerning Dr Garo Artinian; Dr Garo Artinian v The Commonwealth of Australia & Ors (unreported, 27 November 1996). It suffices here to say that, where a referral has been made by the Health Insurance Commission to the Director of Professional Services Review pursuant to s86 of the Act into what that section refers to as "inappropriate practice" according to s89 of the Act, the Director must, within 28 days after receiving the referral,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] FCA 1604
Decision Date: 28 FEBRUARY 1997

CaseChat Overview and Summary

Dr Yacoub Artinian sought judicial review of decisions including the establishment of a Professional Services Review Committee (No 29) under Part VAA of the Health Insurance Act 1973 (Cth), alleging ostensible bias in the Committee's composition. The Committee was appointed to investigate claims of inappropriate practice by Dr Artinian. Dr Artinian argued that the Committee members, all of whom had connections to the Australian Medical Association (AMA), were biased due to the AMA's historical opposition to medical centres like the one where Dr Artinian practiced.

The court had to determine whether Dr Artinian had shown an arguable case for ostensible bias and whether the balance of convenience favoured granting the interlocutory relief he sought. The court also had to consider the discretionary factors in deciding whether to grant the relief. Dr Artinian had not challenged the Committee's composition within the seven days allowed by the Act, nor had he participated in the hearing before making his application.

The court found that Dr Artinian had not established an arguable case of ostensible bias. The court reasoned that the AMA's past opposition to medical centres, even if true, did not necessarily mean the Committee members shared those views. The court also noted the lack of direct ties between the AMA's past actions and the current Committee members. Furthermore, the balance of convenience did not favour Dr Artinian as the Committee had already begun its review. The court also considered the discretionary factors, including the failure to challenge the Committee's composition as provided by the Act, which would have allowed the issue to be resolved before the hearing began. For these reasons, the application for interlocutory relief was dismissed, and Dr Artinian was ordered to pay the respondents' costs.

Orders