Crowley v Holmes

[2004] FCA 521

FEDERAL COURT OF AUSTRALIA

Crowley v Holmes [2004] FCA 521

Health Insurance Act 1973 ss 82, 92, 106KA
Health Insurance (Professional Services Review) Regulations 1999

Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 applied
Kelly v Daniel [2004] FCAFC 14 considered
Freeman v Health Insurance Commission [2004] FCA 453 followed
Daniel v Health Insurance Commission [2003] FCA 772 cited

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

V 492 OF 2004

SUNDBERG J
28 APRIL 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 492 OF 2004

BETWEEN:

DR PAUL DAVID CROWLEY
APPLICANT

AND:

DR 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

JUDGE:	SUNDBERG J
DATE OF ORDER:	28 APRIL 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for interlocutory relief be dismissed.

2.The applicant pay the respondents’ costs of the application.

3.The respondents’ motion, notice of which was filed on 22 April 2004, be adjourned to a date to be fixed by the docket Judge.

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 492 OF 2004

BETWEEN:

DR PAUL DAVID CROWLEY
APPLICANT

AND:

DR 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

JUDGE:	SUNDBERG J
DATE:	28 APRIL 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application for an interlocutory injunction restraining the members of Professional Services Review Committee No 296 (the second, third and fourth respondents) from proceeding with a hearing into the conduct of the applicant. The hearing is scheduled for 10:00 am tomorrow. The application was heard yesterday.

2. The applicant’s statement of claim alleges that in deciding to make Investigative Referral No 296 to the Director of Professional Services Review (the first respondent) in relation to the applicant’s conduct, the Health Insurance Commission (the fifth respondent) failed to consider three relevant factors. The first is that between 9 March and 13 December 2001 the applicant conformed to the 80/20 rule, and a reduction of the number of services provided by the applicant occurred, because the Queensland Government regulation of foreign doctors desiring to practise in Queensland changed, so that the applicant was able to and did employ doctors in his practice, and reduced the number of services provided by him in that period. The second factor is that the fact that between 9 March 2001 and the date of the referral (14 February 2002) the applicant had conformed to the requirements of the Health Insurance Act 1973 (the Act) and the Regulations suggested that any inappropriate practice during…