Crowley v Holmes

[2003] FCAFC 189

FEDERAL COURT OF AUSTRALIA

Crowley v Holmes [2003] FCAFC 189

ADMINISTRATIVE LAW – where medical practitioner – where investigative referral made by Health Insurance Commission – where adjudicative referral made to Professional Services Review Committee – where additional material forwarded in referral – whether inappropriate practice – whether committee could perform function with additional material – whether referral should have contained additional material – whether possession of additional material creates perception of bias.

Health Insurance Act 1973 (Cth) ss 82, 86, 86(2), 86(4)(a), 93, 93(3), 93(4), 93(6), 95, 96, 106, 106H, 106KA, 106N

Health Insurance (Professional Services Review) Regulations 1999 (Cth) regs 10, 11
Health Insurance (Professional Services Review - Content and Form of Adjudicative Referrals) Guidelines 1999 pars 4, 4(2)

Holmes v Mercado (2000) 111 FCR 160 approved
S v The Queen (1989) 168 CLR 266 cited
B v The Queen (1992) 175 CLR 599 cited
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 applied
Livesey v The New South Wales Bar Association (1983) 151 CLR 288 considered

PAUL DAVID CROWLEY v ALAN JOHN HOLMES (in his capacity as the Director of Professional Services Review), GEOFFREY HIRST, STEPHEN PHILLIPS, DAVID ROSENTHAL AND HEALTH INSURANCE COMMISSION

V 30 OF 2003

MADGWICK, FINKELSTEIN AND DOWSETT JJ
MELBOURNE
21 AUGUST 2003

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 30 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

PAUL DAVID CROWLEY
APPELLANT

AND:

ALAN JOHN HOLMES (in his capacity as the Director of Professional Services Review)
FIRST RESPONDENT

GEOFFREY HIRST
SECOND RESPONDENT

STEPHEN PHILLIPS
THIRD RESPONDENT

DAVID ROSENTHAL
FOURTH RESPONDENT

HEALTH INSURANCE COMMISSION
FIFTH RESPONDENT

JUDGES:

MADGWICK, FINKELSTEIN AND DOWSETT JJ

DATE OF ORDER:

21 AUGUST 2003

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondents’ costs of the appeal.

3.        The injunction made by the Court on 21 May 2003 be dissolved forthwith.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 30 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

PAUL DAVID CROWLEY
APPELLANT

AND:

ALAN JOHN HOLMES (in his capacity as the Director of Professional Services Review)
FIRST RESPONDENT

GEOFFREY HIRST
SECOND RESPONDENT

STEPHEN PHILLIPS
THIRD RESPONDENT

DAVID ROSENTHAL
FOURTH RESPONDENT

HEALTH INSURANCE COMMISSION
FIFTH RESPONDENT

JUDGES:	MADGWICK, FINKELSTEIN AND DOWSETT JJ
DATE:	21 AUGUST 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

MADGWICK J:

1. I agree with Dowsett J’s conclusions and with his reasoning.

2. There is one aspect on which I should comment and that is his treatment, following Holmes v Mercado, of the ostensible bias issue.  Were it not for the authority of that case and the fact that North J at first instance and now, on appeal, Dowsett and Finkelstein JJ have agreed with the approach there taken, I might well have viewed the matter differently.  I quite…