Chambers v Chief Executive Medicare

Case [2022] FCA 1164

FEDERAL COURT OF AUSTRALIA

Chambers v Chief Executive Medicare [2022] FCA 1164  

File number: QUD 424 of 2021
Judgment of: RANGIAH J
Date of judgment: 30 September 2022
Catchwords: SOCIAL SECURITY LAW – Application for review of decision of Chief Executive Medicare under s 20(1) of the Health Insurance Act 1973 (Cth) to refuse payment of Medicare rebate to the applicant – where decision not reviewable by the Administrative Appeals Tribunal – where Medicare rebate is not a social security benefit or social security periodic payment – where applicant alleged apprehended bias on part of President of AAT – where no such bias established – proceeding dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 42A(4), 25(1)

Health Insurance Act 1973 (Cth) Part II, ss 3, 4AA, 10, 20(1)

Health Insurance (Section 3C Diagnostic Imaging – Cardiac MRI for Myocarditis) Determination 2021 (Cth)

Health and Other Services (Compensation) Act 1995 (Cth) Health Insurance Regulations 2018 (Cth)

Health Insurance (Diagnostic Imaging Services Table) Regulations (No. 2) 2020 (Cth)

Social Security Act 1999 (Cth) s 23

Social Security (Administration) Act 1999 (Cth) ss 3, 139, 142, 144, Sch 1

Cases cited:

Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Luck v University of Southern Queensland [2008] FCA 1582

Re Adams and Tax Agents Board (1976) 1 ALD 251

Re Staats and National Archives of Australia  (2009) 50 AAR 147; [2009] AATA 58

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459

Wong v Commonwealth (2009) 236 CLR 573

Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 40
Date of interlocutory and final hearing: 14 June 2022
Counsel for the Applicant: The Applicant appeared in person via MS Teams
Counsel for the Respondent: Mr B Dube
Solicitor for the Respondent: Sparke Helmore

ORDERS

QUD 424 of 2021
BETWEEN:

TOBY CHAMBERS

Applicant
AND:

CHIEF EXECUTIVE MEDICARE

Respondent

ORDER MADE BY:

RANGIAH J

DATE OF ORDER:

30 SEPTEMBER 2022

THE COURT ORDERS THAT:

1.The appeal is dismissed.

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

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

RANGIAH J:

  1. The applicant appeals from a decision of the Administrative Appeals Tribunal (the Tribunal), dismissing his application for review pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) for want of jurisdiction.

  2. On 12 March 2020, the applicant had an MRI scan taken, and subsequently lodged a claim for a Medicare rebate for the scan amounting to $300.

  3. On 8 April 2020, the respondent notified the applicant that his claim had been rejected on the basis that, “Medicare benefits are not payable for the service/s listed on the account/s…

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Details
AGLC
Chambers v Chief Executive Medicare [2022] FCA 1164
Case
[2022] FCA 1164
Decision Date

CaseChat Overview and Summary

The applicant, Mr Chambers, sought review of a decision by the Chief Executive Medicare to refuse payment of a Medicare rebate for an MRI scan, contending that the refusal was unjust given his state of health and extended wait times for surgery. The Administrative Appeals Tribunal dismissed Mr Chambers' application for review, holding that the Tribunal did not have jurisdiction to review the decision because Medicare benefits are not social security payments and the relevant legislation did not provide for review by the Tribunal. Mr Chambers appealed the Tribunal's decision to the Federal Court, arguing that the Tribunal had jurisdiction to review the decision under section 25(1) of the Administrative Appeals Tribunal Act 1975, as the decision was made under an "enactment" that provides for review by the Tribunal. The Court found that the Tribunal correctly held it did not have jurisdiction to review the decision, as the relevant legislation did not provide for review by the Tribunal. The Court also found that the interpretation of "enactment" proposed by Mr Chambers was incorrect, as "enactment" refers to the Act itself, not rules, regulations or by-laws made under the Act. The appeal was dismissed and Mr Chambers was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal is dismissed.

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

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 8 April 2020, the respondent notified the applicant that his claim had been rejected on the basis that, “Medicare benefits are not payable for the service/s listed on the account/s you provided” (the original decision). On 10 September 2021, the applicant applied to the Tribunal for review of the original decision. The applicant contended before the Tribunal that, although the cost of an MRI scan would not ordinarily be reimbursed under Medicare, his state of health and the extended wait times for surgery required that he should be reimbursed. The applicant submitted that, “such a payment would fall under the social security law on the basis the payment of a Medicare benefit can be taken to be a social security periodic payment”. It was the applicant’s submission that the Tribunal had jurisdiction derived from s 139 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) to review the original decision. On 9 November 2021, the Tribunal dismissed the application for review on the basis that the Tribunal did not have authority to determine the application, as the decision was not reviewable by the Tribunal under s 25(1) of the AAT Act. Section 25(1) of the AAT Act relevantly provides: Enactment may provide for applications for review of decisions(1) An enactment may provide that applications may be made to the Tribunal: (a)for review of decisions made in the exercise of powers conferred by that enactment; or(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred by another enactment having effect under that enactment. The Tribunal considered the following passage from the decision in Re Staats and National Archives of Australia (2009) 50 AAR 147; [2009] AATA 598 at [12]:It is clear from the wording of section 25 of the Administrative Appeals Tribunal Act 1975 that the Tribunal can only review a decision if it is given the jurisdiction to do so by a specific provision of another enactment. It is essential to look very carefully at the provisions of the enactment said to give rise to the jurisdiction to review to make sure that the jurisdiction extends to the particular decision in respect of which a review is sought. The Tribunal held that it did not have jurisdiction to review the original decision as the application for review was not made in relation to a decision that is made under an enactment that provides for further review of that decision by the Tribunal. The Tribunal also noted that:Medicare benefit payments are not considered to be social security payments or benefits for the purposes of social security law, they are administered pursuant to separate legislation. Consequently the Tribunal does not accept the Applicant’s submission that the [Administration Act] provides jurisdiction for the Tribunal to consider his application. On 7 December 2021, the applicant filed a Notice of Appeal in the Federal Court. The applicant seeks an order that the Tribunal’s decision be varied to permit review of the original decision to refuse payment of the Medicare rebate, or some alternative remedy. The applicant was self-represented before the Tribunal and in his appeal to this Court.

Ratio Decidendi

Legal Principle Established

The applicant contended before the Tribunal that, although the cost of an MRI scan would not ordinarily be reimbursed under Medicare, his state of health and the extended wait times for surgery required that he should be reimbursed. The applicant submitted that, “such a payment would fall under the social security law on the basis the payment of a Medicare benefit can be taken to be a social security periodic payment”. It was the applicant’s submission that the Tribunal had jurisdiction derived from s 139 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) to review the original decision. On 9 November 2021, the Tribunal dismissed the application for review on the basis that the Tribunal did not have authority to determine the application, as the decision was not reviewable by the Tribunal under s 25(1) of the AAT Act. Section 25(1) of the AAT Act relevantly provides: Enactment may provide for applications for review of decisions(1) An enactment may provide that applications may be made to the Tribunal: (a)for review of decisions made in the exercise of powers conferred by that enactment; or(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred by another enactment having effect under that enactment. The Tribunal considered the following passage from the decision in Re Staats and National Archives of Australia (2009) 50 AAR 147; [2009] AATA 598 at [12]:It is clear from the wording of section 25 of the Administrative Appeals Tribunal Act 1975 that the Tribunal can only review a decision if it is given the jurisdiction to do so by a specific provision of another enactment. It is essential to look very carefully at the provisions of the enactment said to give rise to the jurisdiction to review to make sure that the jurisdiction extends to the particular decision in respect of which a review is sought. The Tribunal held that it did not have jurisdiction to review the original decision as the application for review was not made in relation to a decision that is made under an enactment that provides for further review of that decision by the Tribunal. The Tribunal also noted that:Medicare benefit payments are not considered to be social security payments or benefits for the purposes of social security law, they are administered pursuant to separate legislation. Consequently the Tribunal does not accept the Applicant’s submission that the [Administration Act] provides jurisdiction for the Tribunal to consider his application. On 7 December 2021, the applicant filed a Notice of Appeal in the Federal Court. The applicant seeks an order that the Tribunal’s decision be varied to permit review of the original decision to refuse payment of the Medicare rebate, or some alternative remedy. The applicant was self-represented before the Tribunal and in his appeal to this Court. The applicant raises the following grounds in his Notice of Appeal: 1.Section 44(1) of the Administrative Appeals Tribunal Act 1975, enables the Applicant grounds to appeal to the Federal Court on a question of law. 2.The single and only cited case by Member Mitchell in refusing to review on the grounds of jurisdiction: Re Staats and National Archives of Australia [2009] AATA 598; (2009) 50 AAR 147 at 149-150; is rather silent as to the meaning of “Enactment” and what constitutes an “instrument” as an “Enactment” for the Tribunal to have power and jurisdiction to review an administrative decision when the Act Pursuant to s 3 (Interpretation) Administrative Appeals Tribunal Act 1975 enlivens the meaning of “Enactment” to also including rules, regulations or by-laws made under an Act and not purely the Act itself. It is argued Rules, regulations or by-laws would ordinarily include a process of review and appeal to those notices and decisions as administrative decisions issued by the Chief Executive of Medicare for example.