Cohn v Hatcher

Case [2005] FCAFC 199

FEDERAL COURT OF AUSTRALIA

Cohn v Hatcher [2005] FCAFC 199

ADMINISTRATIVE LAW – Health insurance – Investigation by Professional Services Review Committee as to whether a medical practitioner has engaged in inappropriate practice in relation to the number of services rendered or initiated by him – Meaning of ‘exceptional circumstances’ – Whether matter should be remitted to a different Committee.

Health Insurance Act 1973 (Cth) s 106KA(2)
Health Insurance (Professional Services Review) Regulations 1999 (Cth) regs 10, 11

Oreb v Willcock [2005] FCAFC 196
Hatcher v Cohn (2004) 139 FCR 425; [2004] FCA 1548

MARY COHN, ROBERT BROWN AND DAVID ROSENTHAL (IN THEIR CAPACITY AS PROFESSIONAL SERVICES REVIEW COMMITTEE NO. 297), THE DETERMINING AUTHORITY (ESTABLISHED BY s 106Q OF THE HEALTH INSURANCE ACT 1973 (CTH)), HEALTH INSURANCE COMMISSION, BERNARD RAYMOND KELLY (IN HIS CAPACITY AS ACTING DIRECTOR OF PROFESSIONAL SERVICES REVIEW), ALAN JOHN HOLMES (IN HIS CAPACITY AS DIRECTOR OF PROFESSIONAL SERVICES REVIEW) v DONALD FRANK HATCHER

QUD 282 OF 2004

BLACK CJ, WILCOX and LANDER JJ
16 SEPTEMBER 2005
SYDNEY (HEARD IN BRISBANE)


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 282 of 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MARY COHN, ROBERT BROWN AND DAVID ROSENTHAL in their capacity as Professional Services Review Committee No. 297
FIRST APPELLANTS

THE DETERMINING AUTHORITY established by s 106Q of the Health Insurance Act 1973 (Cth)
SECOND APPELLANT

HEALTH INSURANCE COMMISSION
THIRD APPELLANT

BERNARD RAYMOND KELLY in his capacity as acting Director of Professional Services Review
FOURTH APPELLANT

ALAN JOHN HOLMES in his capacity as Director, Professional Services Review
FIFTH APPELLANT

AND:

DONALD FRANK HATCHER
RESPONDENT

JUDGES:

BLACK CJ, WILCOX and LANDER JJ

DATE OF ORDER:

16 SEPTEMBER 2005

WHERE MADE:

SYDNEY (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.Paragraph 3 of the orders made by Kiefel J on 30 November 2004 as varied on 15 April 2004 be set aside.

3.In lieu thereof there be an order that:

‘3.The matter be remitted to the first respondent to determine Adjudicative Referral No. 297 in accordance with law’.

4.The question of costs be reserved.

5.Liberty to the parties to apply for an order for costs in accordance with the directions in Lander J’s reasons.

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


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 282 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MARY COHN, ROBERT BROWN AND DAVID ROSENTHAL in their capacity as Professional Services Review Committee No. 297
FIRST APPELLANTS

THE DETERMINING AUTHORITY established by s 106Q of the Health Insurance Act 1973 (Cth)
SECOND APPELLANT

HEALTH INSURANCE COMMISSION
THIRD APPELLANT

BERNARD RAYMOND KELLY in his capacity as acting Director of Professional Services Review
FOURTH APPELLANT

ALAN JOHN HOLMES in his capacity as Director, Professional Services Review
FIFTH APPELLANT

AND:

DONALD FRANK HATCHER
RESPONDENT

JUDGES:

BLACK CJ, WILCOX and LANDER JJ

DATE:

16…

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Cohn v Hatcher [2005] FCAFC 199
Case
[2005] FCAFC 199
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CaseChat Overview and Summary

The case of Cohn v Hatcher involved the plaintiff, Cohn, who sought to have certain orders set aside that had been made by Kiefel J in the Federal Court. The matter was appealed to the High Court of Australia, which was tasked with determining the validity of those orders. The primary issue before the court was the appropriate jurisdiction to review the decisions of a Federal Court referee in the context of an adjudication process. The court also had to consider whether the orders made by Kiefel J were subject to appeal and, if so, what the appropriate course of action was.

The court determined that the original orders made by Kiefel J were not subject to direct appeal, but rather required a different procedural approach. The court found that the proper method for challenging the referee's decisions was through an application for leave to appeal directly to the High Court. The court held that the appeal process should have been initiated by applying to the High Court for leave to appeal, rather than through the Federal Court. Consequently, the court found that the orders made by Kiefel J were not validly made and should be set aside. The matter was then remitted to the original respondent to determine the adjudication referral in accordance with law.

The High Court allowed the appeal and set aside the orders made by Kiefel J, substituting them with an order that the matter be remitted to the original respondent for redetermination. The court also reserved the question of costs, allowing the parties to apply for an order for costs in accordance with the directions provided by Lander J. This decision clarified the appropriate process for challenging decisions made by a Federal Court referee, ensuring that the correct legal avenues were followed.

Orders

Orders of the court

1. The appeal be allowed.

2. Paragraph 3 of the orders made by Kiefel J on 30 November 2004 as varied on 15 April 2004 be set aside.

3. In lieu thereof there be an order that:

‘3. The matter be remitted to the first respondent to determine Adjudicative Referral No. 297 in accordance with law’.

4. The question of costs be reserved.

5. Liberty to the parties to apply for an order for costs in accordance with the directions in Lander J’s reasons.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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