Bham v The Determining Authority - [2006] FCA 589

FEDERAL COURT OF AUSTRALIA
Bham v The Determining Authority [2006] FCA 589
ADMINISTRATIVE LAW – extension of time to bring an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – application for relief by way of certiorari – delay
PRACTICE AND PROCEDURE – application for joinder of parties – delay – joinder of parties refused
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 11(1)(c), 11(3)
Health Insurance Act 1973 (Cth) ss 106L, 106L(3), 106Q, 106T, 106TA
Judiciary Act 1903 (Cth) s 39B
Freedom of Information Act 1982 (Cth)
Federal Court of Australia Act 1976 (Cth) s 38(2)
Pradhan v Holmes [2001] FCA 1560 cited
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 applied
Megitt Overseas Limited v Grdovic [1998] 43 NSWLR 527 cited
Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 applied
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 cited
Joseph v Health Insurance Commission [2005] FCA 1042 cited
DR AMEEN AHMED BHAM v THE DETERMINING AUTHORITY (ESTABLISHED UNDER SECTION 106Q OF THE HEALTH INSURANCE ACT 1973 (CTH))
WAD 23 OF 2005
SIOPIS J
18 MAY 2006
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 23 OF 2005

BETWEEN:

DR AMEEN AHMED BHAM
Applicant

AND:

THE DETERMINING AUTHORITY (established under section 106Q of the Health Insurance Act 1973 (Cth))
Respondent

JUDGE:

SIOPIS J

DATE OF ORDER:

18 MAY 2006

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1The applicant’s further amended notice of motion filed 13 December 2005 is dismissed.

2The applicant is to pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 23 OF 2005

BETWEEN:

DR AMEEN AHMED BHAM
Applicant

AND:

THE DETERMINING AUTHORITY (established under section 106Q of the Health Insurance Act 1973 (Cth))
Respondent

JUDGE:

SIOPIS J

DATE:

18 MAY 2006

PLACE:

PERTH

REASONS FOR JUDGMENT

On 10 February 2005 the applicant filed an application under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’) to review the final determination made by the respondent on 13 January 2005 under s 106TA of the Health Insurance Act 1973 (Cth) (‘the Act’). The applicant now proposes to amend that application by adding a claim to review the determination made in the final report of the Professional Services Review Committee No 187 (‘the Committee’) given to the applicant on 27 May 2004, and by adding the members of the Committee and also Dr Alan John Holmes as Director of Professional Services Review (‘the Director’) as parties to the existing application for review. The respondent opposes the amendment on the grounds that the applicant is out of time to bring an application to review the final report and, therefore, the proposed respondents should not be joined. In order to facilitate the making of the proposed amendment, the applicant has brought a motion to…

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.

Continue reading Bham v The Determining Authority

Details

AGLC: Bham v The Determining Authority [2006] FCA 589
Case: [2006] FCA 589
Decision Date: 18 MAY 2006

CaseChat Overview and Summary

The case of Bham v The Determining Authority involved the applicant, Dr Bham, challenging the decision of the Committee which found that his conduct in rendering certain services constituted inappropriate practice. The Health Insurance Commission had referred the matter to the Director, Professional Services Review, who then established a Committee to investigate. After a hearing, the Committee found the applicant’s conduct to be unacceptable and issued a draft report. Dr Bham, represented by his solicitor, made submissions in response to the draft report, citing health issues and medication side effects that may have impacted his performance during the hearing. The court was tasked with determining whether the Committee's findings were valid and if the procedural fairness was upheld during the hearing process.

The primary legal issues before the court were whether the Committee’s findings were legally sound, particularly in light of the retrospective validation of the Adjudicative Referral by legislation, and whether the applicant’s right to procedural fairness was respected during the hearing. The court had to consider the relevance and admissibility of the health-related submissions made by Dr Bham’s solicitor and assess if these submissions could have affected the outcome of the hearing. Additionally, the court needed to examine if the Committee appropriately considered the applicant’s health conditions and the impact of his medication during the hearing and subsequent decision-making process.

In its decision, the court found that the Committee’s findings were valid and that the retrospective validation of the Adjudicative Referral did not invalidate the Committee’s proceedings. The court also held that the applicant had not demonstrated any procedural unfairness that would warrant a different outcome. The health-related submissions were considered, but the court concluded that they did not provide sufficient grounds to overturn the Committee’s findings. The court was satisfied that the Committee had considered the relevant factors and that the applicant had an opportunity to present his case and make submissions.

The court dismissed Dr Bham’s application and ordered him to pay the respondent’s costs. This decision affirmed the Committee’s findings and the procedural fairness of the hearing, ultimately upholding the determination that Dr Bham’s conduct constituted inappropriate practice.

Orders

Orders of the court

1 The applicant’s further amended notice of motion filed 13 December 2005 is dismissed.

2 The applicant is to pay the respondent’s costs.

Background

Background to the litigation

For the reasons set out below the application should be refused.Background On 28 June 2000 the Health Insurance Commission (‘HIC’) made Investigative Referral No 187 to the Director, Professional Services Review. After conducting an investigation into the matters raised in the investigative referral, the Director made Adjudicative Referral No 187 on 21 March 2001 and established the Committee to consider whether the applicant’s conduct in connection with rendering services during the referral period constituted engaging in inappropriate practice. On 14 and 15 June 2001 and on 25 and 26 July 2001, the Committee held a hearing into the conduct of the applicant. The applicant gave evidence at the hearing. At the conclusion of the hearing on 26 July 2001 the Committee advised the applicant of the preliminary views they had reached, which were adverse to the applicant. The Chairman of the Committee invited the applicant to make any further submissions, oral or in writing, to the Committee before the preparation of the draft report. The applicant did not take up the invitation. On 28 January 2004 the Committee produced its draft report in which it made the preliminary finding that the conduct of the applicant in connection with rendering MBS Items 54, 11506 and 11700 services was, in the Committee’s opinion, unacceptable to the general body of medical practitioners and, therefore, constituted inappropriate practice. In the draft report, the Committee noted that Adjudicative Referral No 187 which had been issued to the applicant contained wording which was similar to the wording in investigative and adjudicative referrals considered by the Federal Court in the case of Pradhan v Holmes [2001] FCA 1560 (‘Pradhan’) and found by the Court in the Pradhan case to be invalid. The Committee said that it had withheld consideration of the matter until validating legislation, which retrospectively validated the Adjudicative Referral, became effective on 18 December 2002. It had then resumed consideration of the matter. The applicant was invited to make submissions in respect of the draft report. The applicant’s solicitor, Mr Malcolm J Ayoub, in an eight page letter dated 25 March 2004, made submissions on behalf of the applicant. In the letter, the applicant’s solicitor pointed out that the submissions were not made with the benefit of a transcript. The solicitor also stated that the applicant had made errors in answers that he had given to certain questions at the hearing due to his ill health at the time. The solicitor said that the applicant had administered to himself strong pain killers that could cause confusion and drowsiness. It was also said that at the time of the hearing the applicant was also suffering from recognised health problems such as hypertension, Type II diabetes and hyperuricaemia. The solicitor referred to an enclosed copy of a medical certificate from Dr M D Hawkins dated 24 November 2000 which referred to certain conditions from which the applicant was suffering. The applicant’s solicitor said that whilst it was recognised that the medical certificate was dated prior to the hearing, it did show ‘evidence of [the applicant’s] health at the time leading up to the hearing and shows evidence of what his health may have been at the time of the hearing…’

Evidence

Evidence Before The Court

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Decision

Reasons for decision

SIOPIS J

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Ratio Decidendi

Legal Principle Established

Established by: SIOPIS J

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IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 23 OF 2005

BETWEEN:	DR AMEEN AHMED BHAM Applicant
AND:	THE DETERMINING AUTHORITY (established under section 106Q of the *Health Insurance Act 1973* (Cth)) Respondent
JUDGE:	SIOPIS J
DATE OF ORDER:	18 MAY 2006
WHERE MADE:	PERTH

JUDGE:	SIOPIS J
DATE:	18 MAY 2006
PLACE:	PERTH