FEDERAL COURT OF AUSTRALIA
Chandra v Webber [2010] FCA 705
Citation: Chandra v Webber [2010] FCA 705 Parties: SURESH CHANDRA v ANTHONY DAVID WEBBER and FRANK HAM, ROBERT PAVER AND ALAN COOPER File number(s): VID 923 of 2009 Judge: BROMBERG J Date of judgment: 6 July 2010 Catchwords: ADMINISTRATIVE LAW – Judicial Review – Decision to appoint members to Professional Services Review Committee – Whether decision maker misconstrued statutory requirements dealing with requisite attributes for appointment as a member – Decision not to revoke appointments – Alleged that decision maker failed to consider the statutory basis for revocation – Whether there was a failure in decision making process or a failure in communicating the basis for the decision – Whether failure by applicant to seek reasons for decision relevant to exercise of discretion to refuse relief – Application dismissed.
PRACTICE AND PROCEDURE – Admissibility of evidence not before the decision maker in proceedings for judicial review.
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 2, 5, 13, 16
Health Insurance Act 1973 (Cth), Part VAA; ss 3, 3D, 19B, 79A, 80, 81, 82, 84, 85, 86, 93, 95, 96, 101, 106KD, 106L, 106Q, 106TA, 106U
Judiciary Act 1903 (Cth), s 39BCases cited: Alexander v Australian Community Pharmacy Authority (2010) 265 ALR 424
Attorney-General (NT) v Hand (1988) 16 ALD 318
Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536
Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446
Brehoi v Attorney-General of the Commonwealth of Australia [2000] FCA 1747
Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49Crowley v Holmes (2003) 132 FCR 114
Ex parte Mullen; re Hood (1935) 35 SR (NSW) 289Holmes v Mercado (2000) 111 FCR 160
Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675
McCormack v The Commissioner of Taxation (2001) 114 FCR 574
Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Percerep v Minister for Immigration (1998) 86 FCR 483
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155R v Chairman of General Sessions at Hamilton; Ex parte Atterby [1959] VR 800
R v Northumberland Compensation Tribunal, Ex parte Shaw [1952] 1 KB 338
Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78
Saint v Holmes (2008) 170 FCR 262
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Telstra Corporation Ltd v ACCC (2008) 176 FCR 153
The Queen v Cohen; Ex parte Attorney-Generalfor the State of Queensland (1981) 157 CLR 331
Tisdall v Webber [2010] FCA 501Date of hearing: 12 May 2010 Date of last submissions: 20 May 2010 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 100 Counsel for the Applicant: Mr M Richardson Solicitor for the Applicant: John W Ball & Sons Counsel…
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- AGLC
- Chandra v Webber [2010] FCA 705
- Case
- [2010] FCA 705
- Decision Date
CaseChat Overview and Summary
In the case of Chandra v Webber, Dr Chandra, a dermatologist, sought judicial review of decisions made by the Director, the first respondent, concerning the appointment of members to the Professional Services Review Committee. The central dispute involved whether the Director misconstrued the statutory requirements for the requisite attributes necessary for appointment to the Committee, and whether the Director failed to properly consider statutory grounds for revoking appointments. Dr Chandra argued that the Director did not adhere to natural justice principles and failed to properly consider relevant statutory provisions and evidence, including letters from Dr Chandra's lawyer. The court had to determine whether the Director's decisions were legally sound and whether the process was fair and transparent.
The primary legal issues before the court were whether the Director misconstrued statutory requirements for appointing members to the Professional Services Review Committee, failed to properly consider statutory grounds for revoking appointments, and whether the Director's decisions were procedurally fair. Additionally, the court needed to address the admissibility of fresh evidence not before the decision-maker in the judicial review proceedings. The court examined whether Dr Chandra's failure to seek reasons for the decision was relevant to the exercise of discretion to refuse relief and whether the Director's decisions involved errors in statutory interpretation or procedural unfairness.
The court found that the Director's decisions were legally sound and procedurally fair. The court held that the Director did not misconstrue statutory requirements for appointing members to the Committee, nor did the Director fail to properly consider statutory grounds for revocation. The court also ruled that the admissibility of fresh evidence depended on its relevance to the grounds of review. In this case, the evidence was deemed irrelevant as it was not before the Director at the time of the decision. The court emphasised that ordinarily, evidence not before the decision-maker should not be considered unless it pertains directly to the grounds of review. Consequently, the court dismissed Dr Chandra's application for judicial review and ordered that he pay the respondents' costs.
In conclusion, the court upheld the Director's decisions regarding the appointments to the Professional Services Review Committee, finding no procedural unfairness or errors in statutory interpretation. The admissibility of fresh evidence not presented to the decision-maker was found to be irrelevant to the grounds of review, and thus, the application for judicial review was dismissed. The court ordered that Dr Chandra pay the respondents' costs, adhering to the usual order that costs follow the event.
The primary legal issues before the court were whether the Director misconstrued statutory requirements for appointing members to the Professional Services Review Committee, failed to properly consider statutory grounds for revoking appointments, and whether the Director's decisions were procedurally fair. Additionally, the court needed to address the admissibility of fresh evidence not before the decision-maker in the judicial review proceedings. The court examined whether Dr Chandra's failure to seek reasons for the decision was relevant to the exercise of discretion to refuse relief and whether the Director's decisions involved errors in statutory interpretation or procedural unfairness.
The court found that the Director's decisions were legally sound and procedurally fair. The court held that the Director did not misconstrue statutory requirements for appointing members to the Committee, nor did the Director fail to properly consider statutory grounds for revocation. The court also ruled that the admissibility of fresh evidence depended on its relevance to the grounds of review. In this case, the evidence was deemed irrelevant as it was not before the Director at the time of the decision. The court emphasised that ordinarily, evidence not before the decision-maker should not be considered unless it pertains directly to the grounds of review. Consequently, the court dismissed Dr Chandra's application for judicial review and ordered that he pay the respondents' costs.
In conclusion, the court upheld the Director's decisions regarding the appointments to the Professional Services Review Committee, finding no procedural unfairness or errors in statutory interpretation. The admissibility of fresh evidence not presented to the decision-maker was found to be irrelevant to the grounds of review, and thus, the application for judicial review was dismissed. The court ordered that Dr Chandra pay the respondents' costs, adhering to the usual order that costs follow the event.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the respondents’ costs.
Note:
Background
Background to the litigation
The Determining Authority is established by s 106Q of the Act. The Determining Authority is empowered to make a final determination in accordance with s 106U relating to the person under review: s 106TA. Section 106U sets out a range of consequences for the person under review which may be provided for by a final determination of the Determining Authority. Those consequences include counselling or a reprimand, or the disqualification of the practitioner either fully or in respect of particular specified services. Section 19B of the Act provides that medical benefits are not payable in respect of services rendered or initiated by, or on behalf of, disqualified practitioners. THE FACTS BEFORE THE DECISION MAKER Dr Chandra is a dermatologist who during the relevant period practiced in Victoria. On 5 January 2009, a delegate of the CEO of Medicare Australia wrote to the Director pursuant to s 86(1) of the Act and requested that the Director review the provision of services by Dr Chandra for the purposes of considering whether Dr Chandra may have engaged in inappropriate practice during the period 1 September 2007 to 31 August 2008 (“the review period”). That correspondence contained a range of information which the delegate had considered in making his decision to request a review and also contained a summary of Medicare Australia’s concerns. The information examined by Medicare Australia included statistical information relating to the number of particular services Dr Chandra had performed during the review period and a comparison of those figures against other active dermatologists in Australia during the same period. On the basis of the statistical information relied upon by Medicare Australia, Dr Chandra was placed in the 99th percentile for his total services rendered, when compared with all other active dermatologists in Australia during the same period. In relation to three particular items of service, Dr Chandra ranked the highest of all providers of that service during the review period. Medicare Australia’s expressed reasons for concern noted that it had interviewed Dr Chandra and that Dr Chandra had stated that he was a specialist dermatologist with a sub-specialty interest in skin cancer and Mohs’ micrographic surgery and that 90% of his clinical work is skin cancer related. Medicare Australia acknowledged the distinctive features of Dr Chandra’s specialty practice, however it remained concerned: As to whether the quality of clinical input into the medical services claimed would fulfil peer group standards of appropriate practice, whether the itemisation is correct for the actual services rendered to the patient, and whether some of the services provided may not have been medically necessary/clinically relevant. Medicare Australia had a particular concern about MBS item 18236. That item of service relates to the injection of an anaesthetic agent to the peripheral branch of the trigeminal nerve. In his interview with Medicare, Dr Chandra explained that the increase in item 18236 services that he had rendered equated with the rise in the number of Mohs’ procedures he had performed. It is apparent from Medicare Australia’s expressed reasons for concern that Dr Chandra had the practice of rendering a combination of seven MBS item 18236 blocks on the one occasion.
Evidence
Evidence Before The Court
The grounds of the application were specified as follows: (1) That a breach of natural justice occurred in the making of decisions numbered 1 and 4 set out above in that the first respondent failed to have proper regard to the whole Part VAA of the Act;(2) That a breach of natural justice occurred in the making of decisions numbered 1, 2, 3, 5, 6 and 7 set out above in that the first respondent failed to have proper regard to the letters dated 3 December 2009 and 11 December 2009 from the applicant’s lawyer to the first respondent, such letter setting out the matters on behalf of the applicant as to bias. A copy of each letter is attached to this application;(3) That the first respondent failed properly or at all to consider the matters set out in s96(1) of the Act in reviewing the applicant’s challenge to Dr Paver’s appointment to the Committee;(4) That the first respondent filed properly or at all to consider the matters set out in s96(1) of the Act in reviewing the applicant’s challenge to Professor Cooper’s appointment to the Committee; (5) That the decision by the first respondent to appoint Dr Ham was not authorised by the Act because Dr Ham is not a member of the same specialty as Dr Chandra;(6) That the decision by the first respondent to appoint Dr Ham was an improper exercise of the power conferred by the Act because Dr Ham is not a member of the same specialty as Dr Chandra;(7) That the decision by the first respondent involved an error of law, whether or not the error appears on the record of each decision;(8) That there was no evidence or other material to justify the making of each of the decisions by the first respondent set out above. Admissibility of Evidence Dr Chandra’s application was accompanied by his affidavit of 22 February 2010. The respondents objected to the reception of the affidavit save for paragraphs 1, 2, 14 and exhibit SC-5. The basis of that objection was that the evidence sought to be relied upon by Dr Chandra was “fresh evidence” that was not before the Director and is of no relevance to the review of impugned decisions said to have been made by the Director. At the hearing I determined that I would rule upon the objection in these reasons for judgment. Both Dr Chandra and the respondents filed written submissions addressing the admissibility of the evidence the subject of the objection. Taking those submissions into account, I turn now to determine the objection. The admissibility of evidence on an application for judicial review of an administrative decision will depend on the ground of review and the circumstances of the case: McCormack v The Commissioner of Taxation (2001) 114 FCR 574 at [38]-[40] per Sackville J. The touchstone for the determination of admissibility will usually be relevance. That is, is the evidence sought to be adduced relevant to the ground of review sought to be relied upon? Ordinarily there is no reason, in a case involving judicial review, for any evidence to be placed before the court, apart from evidence of what was before the decision-maker at the time of the decision: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [442] per Weinberg J. However, the admissibility of evidence not before the decision maker depends upon the grounds of review on which the application relies: Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540 per Lockhart J; Australian Retailers at [455]; Attorney-General (NT) v Hand (1988) 16 ALD 318 at 319-320 per Wilcox J; and Saint v Holmes (2008) 170 FCR 262 at [54] per Siopis J.
Decision
Reasons for decision
In those circumstances, and balancing the two considerations I have referred to, I would have denied relief on the s 96(1)(b) challenge.CONCLUSION For those reasons, I will make an order that Dr Chandra’s application be dismissed. The usual order is that costs should follow the event and hence be paid by the losing party. No reason has been suggested by the parties, nor do I perceive any reason as to why the usual course should not be followed in this case. I will order that Dr Chandra pay the respondents’ costs.
Ratio Decidendi
Legal Principle Established
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