Department of Health v Ryan, K.J

Administrative Law.

Appeal from Administrative Appeals Tribunal

- ciaim

under

Isolated

Patients

Travel

and

Accommodation

Assistance Scheme (IPTAAS).

Administrative Appeals Tribunal Act 1975 sub-s.44(1) National Health Act 1953 sub-ss.l3(1) and 17(5)(b)(ll)

No. WA G54 of 1986

ON -PEAL

from the General Administrative Division

of the

Administrative Appeals Tribunal constituted by Mr

J.O. Ballard

SECRE!IARY TO THE DEPARTMENT OF HEALTH v. KATHRYN JUNE RYAN

No. W G54 of 1986

MUIRHEAD J.

PERTH

1 August 1986

IN THE FEDERAL COURT

)

OF AUSTRALIA

)

WESTERN AUSTRALIA

)	No. hlA G54 of 1986

DISTRICT

REGISTRY

)

j ,

GENERAL DIVISION

! '

. I.

ON APPEAL from

the

General

Administrative Division of the

Administrative Appeals Tribunal

constituted by Mr

J.O. Ballard

B E T W E E N :

SECRETARY TO THE DEPARTMENT OF HEALTH

Appellant

:'.

and

KATHRYN JUNE RYAN

Respondent

!	MINUTE OF ORDER
i

JUDGE MAKING ORDER: MUIRHEAD

DATE OF ORDER:	1 AUGUST 1986
WHERE MADE:	Perth

THE COURT ORDEXS THAT:

1. Appeal is dismissed.

2.	The decision of the Administrative Appeals Tribunal the subject of the appeal be affirmed.

I	I. I
I
I
I ..	i

3. Respondent's costs (if any) to be paid by appellant.

Note:

Settlement and entry of orders is dealt

with in Order 36 of the Federal Court Rules.

L-

1 .

I '

IN THE FEDERAL COURT

)

OF AUSTRALIA

~ ~ ~~~ ~~~~~ ~~ .

WESTERN AUSTRALIA

)	No. WA G54 of 1986

DISTRICT REGISTRY

)

GENERAL DIVISION

)

ON APPEAL

from

the

General

Administrative Division of the

Administrative Appeals Tribunal

constituted by

Mr J.O. Ballard

B E T W E E N :

I	SECRETARY TO THE DEPARTMENT OF HEALTH

Appellant

and

KATHRYN JUNE RYAN

Respondent

CORAM:	M U I R W J.
1 August 1986

REASONS FOR JUDGMENT

This is an appeal by the Secretary to the Department

Health from

a decision of the Administrative Appeals Tribunal made

on the 2nd day of May

1986.

Pursuant to sub-s.44(1)

of the

Administrative Appeals Tribunal Act	1975 the appeal is restricted
to questions of law.

On 23 April 1985 Mrs. Kathryn Ryan applied for Isolated

2 , '

Patients

Travel

and

Accommodation

Assistance

Scheme

(IPTAAS)

I - :

benefits in respect of a plane journey from Carnarvon, where she

had been under medical surveillance, to her home	in Exmouth.	The	!
1.

! .

I	cost of the	fare approximated $80.	Mrs Ryan was denied this
!
benefit.

She then appealed to the Secretary to the Department of

Health who confirmed the decision that IFTAAS benefits were not payable. Mrs. Ryan then made application for review to the

Administrative

Appeals

Tribunal.

The

Tribunal

set

aside

the

decision under review.

The factual background is of importance. In April 1985

the applicant attended the hospital at Exmouth suffering from

acute stomach pains.

cyclone hovered in the vicinity.

The

general practitioner who she consulted

was concerned that her

I ,

pains were symptomatic of a

condition which could require early

!L'

surgery, e.g.

an appendectomy. Very sensibly, being concerned

that this may require the services

a specialist surgeon

decided her safety dictated evacuation to Carnarvon

where such a

surgeon was available at the Carnarvon hospital.

A plane operated

by the Royal Flying Doctor Service was

in Exmouth and she flew in

this to Carnarvon. Delay would have been unwise

as had the

L I

cyclone struck there was

very real possibility that air and

other services would

have been disrupted.

Clearly it was the intent

Dr. Cullen, the referring

,:.

doctor in Exmouth, to refer

her to the

care of

the specialist

surgeon should the need arise. On arrival at Carnarvon

she-saw

general

practitioner Dr. Cooper

the

Carnarvon

Hospital.

Obviously it was anticipated that if surgery was required, he. the	!
doctor on the spot, would make the appropriate arrangements and
! .

3 .

final reference to the specialist surqeon who also practiced

the hospital. Fortunately her condition, and I assume the cyclone

threat, abated and she returned to her home on an Ansett flight.

Subsequently under IPTAAS, application was made for the cost of

that

return

journey,

the

sum

$80.

The

'Application

for

Beneflt'

form

was

part

completed

Dr. Cullen.

was

obviously completed in haste in the manner

medical men who

today must be amongst the greatest 'form fillers' in our society.

In nominating "the type of specialist"

he referred to 'Carnarvon

Hospital'. In

the

succeeding

section

he referred

the

'nominated specialist' as Dr. Cooper of the Carnarvon Hospital -

the general practitioner who would assume

her

care and refer her

if need be to the specialist surgeon. He certified that

Mrs. Ryan

had not previously been seen by "this specialist" and completed

the

reasons

for

the

reference

"acute

abdominal

pain

appendicitis".

If Dr. Cullen

had

referred

her

directly

the

specialist surgeon there would have been

no problems. It was the

fact that the "nominated specialist" was a general practitioner	I -
I'
upon which the department basically denied her the benefit. He

was not, it is said

'a specialist' and the travel allowance

is not

payable for a journey to

or from another general practitioner.

I must say bearing in mind the purpose of

IPTAAS, that

say

assist-

people

overcome

the

problems

and

disadvantages of isolation, it was

a narrow construction.

However she was denied the travel benefit due to the	, .
...

interpretatlon of sub-s.l3(1) of the National Health Act	1953
which provides inter alia:

"(1)	Where a person	who	resides	in	an isolated
area-

(a) has been referred by

a medical practitioner to

a specialist or a consultant physician;

(b) ........ ..... a

specialist.

being

ophthalmologist; or

for the rendering to the person of

professional

service by the specialist or consultant physician in the

practice

his

speciality,

application,

accordance with

a form approved by the Minister,

may be

made to the Secretary by,

or on behalf of, the person

for the approval by the Secretary of the person as an approved patient in relation to the rendering of the professional service."

I ,

The National

Health

Act

1953

defines

an 'approved

patient' as

a patient approved by the Secretary under

5.13".

Section 16

provides "Where the Secretary approves

an application

under 5.13, he shall also approve and specify

in the notification

under s.15 to the applicant, the means of travel for any relevant

journey of the approved patient	........ (s.15 relates to the
notification by the Secretary to	an applicant of his decision

following an application for benefit under

5-13).

The

Tribunal

set

aside

the

decision

. of

the

Administrative Appeals Tribunal and found that the applicant was	t :
1,:
I,

entitled to the benefit.

The unusual factual circumstances

of the

case were taken into account. In regard to the criteria set down

by s.13(1) the Tribunal said:

"11. It seems to me therefore that what occurred

within the spirit of the legislation and that the

only real justification for the refusal is because

the referral in terms was directed to the general

practitioner on duty rather than the speclalist who

would have provided the service. It seems to me

that this is a matter where the maxim

de minimis

non curat lex

(the law does not concern itself with

I ,

trifles) applies, that being the case the decision

in this matter should be set aside."

I sympathise with the philosophy behind the reference to

"de minimis', but in law it can hardly apply to this situation.

I .

The Department sets out the grounds

for

appeal as

follows:

"4 . (a) The Tribunal erred in law in holding that the

applicant was

approved patient within the

meaning of s.13 of the Act.

(b) The Tribunal erred in law in holding that

referral	to a general practitioner was a
referral	to a specialist or a consultant

physician within the meaning of	s.13(1) of the
Act.

(c)	The Tribunal erred in law in applying the maxim de minimis non curat lex.

6 .

td)

The Tribunal erred in law in

fmding that the

applicant had not claimed an amount

for fares

under any State law as this was against the

weight of the evidence.

(e)	The Tribunal erred in law in holding that

s.l7(5)(b)(ii) of the Act did not apply to the

applicant.

As to the first ground

I take the view that Dr. Cullen

did refer his patient to

a specialist, 1.e. the specialist surgeon

at the Carnarvon hospital. The fact that Dr. Cooper

was a link in

the short chain of reference does not alter the true nature of the

reference, i.e. to a specialist who could operate if the need

arose, as obviously

Dr. Cullen believed it may.

As to the second ground I

consider the material before

the Tribunal merited

a finding that the reference, made at

Exmouth. was to the specialist, the general practitioner nominated

as the 'specialist', being but

a conduit by which circumstances

required the reference should be made. "he essential requirements

of s.13(1)

were fulfilled. She was referred

"for the rendering"

to her

"of a professional service by the specialist" and he was

the specialist surgeon available at Carnarvon hospital.

The third ground of appeal argued by the appellant is

that the application of the maxim,

de minimis

non curat lex, was

inappropriate.

I believe it was. The maxim that the

law does

not concern itself with trifling matters is a

maxim principally

referred to in criminal cases and applicable

in few cases

of a

7 .

nature whlch require consideration of statutory interpretation.

Examples

where

has

been

said

have

been

applied

interpretation cases are to be found, e.g. Customs and Excise Commissioners v. (1961) 1 WLR 144; Coleshill and District

Investment Co. Ltd. v. Minister

of Housinq and Local Government

(1968) 1 A11.E.R. 62.	(See Maxwells Interpretation of Statutes
(12th Ed.) p.103). But	I read those decisions as indicating that

the Statute did not apply to the actual mischief complained of,

the

mischief

being

other

than

that

contemplated

the

legislation.

But I do not

consider

necessary

to consider

principles of interpretation, such as the 'golden rule' expressed

by Lord Blackburn in River Wear Commissioners

v. Adamson (1877) 2

App.Cas. 743

at 764, more recently referred to by Donaldson

M.R.

in British Concrete Pipe Association

(1983) 1 A1l.E.R.

203 at 205

and somewhat battered by judicial decisions in contemporary times

when principles of public interest, legal policy, predictability

and purposive construction are

from time

to time mooted. (See

Francis Bennion's Statutory Interpretation p.285 et

seq.) .

Here

the

statute

relatively

clear.

The essential

question

whether Mrs. Ryan was referred to a specialist.

The Tribunal so

found in classifying the reference as being 'within the spirit of

the legislation'.

I consider its conclusion was correct.

Counsel for the Department

arguing the fourth and

fifth grounds of appeal submitted that the Tribunal erred in its

finding that

Mrs.

Ryan had not "claimed" any money from State

funds

i . c

8 .

I '

The Tribunal stated as follows"

"As to the respondent's second point the test for both

paragraph

13(2)(a)

the

Act

and

sub-paragraph

17(5)(b)(ii) is that the applicant has "received or

claimed" State funds. Clearly this applicant

has not

received any money's

(sic) from State funds. Nor, on

the facts, has she claimed any. In my opinion these

two provisions do not operate to prevent her applying

for the IPTAAS benefit because

of a possibility that a

benefit may be payable if State officers review

contrary decision.

I consider the Tribunal was correct in its finding that it is sufficient for the purposes of that Section that no formal application was made and no benefit received from State sources. Informal enquiries by a friend or one's local representative can

not constitute

an application by the applicant. It could not

possibly be within the intention of the statute that

a concerned

friend, relative or member of Parliament enquiring as to

person's

eligibility

for

State

funding

could

deny, by such

actions, the patient's eligibility for	a	Commonwealth health
benefit.

For the above brief reasons

I consider .the.Tribunal's

decision was correct and it is affirmed.

The appeal is dismissed.

9 .

Mrs Ryan

was

not

representcd

upon

the

appeal.

Understandab1.y

she

filed

an appearance

abiding

the

result.

However, in case she

as incurred costs I order that the appellant

pay her costs of appeal (if

any) .

I certify that thls and the eight preceding pages are a true copy of

the Reasons

f o r Judgment of his

Honour Mr. Justlce Mulrhead.

Assoclate

Dated: 1 August 1986

[1986] FCA 334

8 Jan 1986