Director, Professional Services Review v Yoong

Link copied
Case Copied 66 min read

FEDERAL COURT OF AUSTRALIA

Director, Professional Services Review v Yoong [2025] FCAFC 95

Appeal from: Yoong v Director, Professional Services Review [2023] FCA 1186
File number: QUD 488 of 2023
Judgment of: O’BRYAN, ROFE AND HORAN JJ
Date of judgment: 25 July 2025
Catchwords: ADMINISTRATIVE LAW – appeal from decision of primary judge – validity of notices given under ss 89B and 106ZPM of Health Insurance Act 1973 (Cth) – where review undertaken by Director of services provided by respondent during specified period – where notice given to respondent under s 89B requiring production of “complete clinical records” for named patients to whom services were provided by respondent during the review period – where notice required production of clinical records in relation to services provided to patients before or after the review period – whether primary judge erred in finding that notice was invalid on the basis that it exceeded the power conferred by s 89B to require production of documents that are “relevant to the review” – whether complete clinical records for named patients were relevant documents – whether notice failed to disclose that Director was entitled to require production of documents sought – appeal allowed
Legislation:

Health Insurance Act 1973 (Cth) ss 3, 19D, Pt VAA (ss 79A–106ZR)

Explanatory Memorandum to the Health Insurance Amendment (Professional Services Review) Bill 1999 (Cth)
Cases cited:

A v Independent Commission Against Corruption (2014) 88 NSWLR 240

Australian Securities and Investments Commission v Maxi EFX Global AU Pty Ltd [2020] FCA 1263

Commissioner of Taxation v Pilnara (1999) 96 FCR 82

Deveson v Australian Broadcasting Tribunal (1991) 32 FCR 124

Director, Professional Services Review v Yoong [2023] FCA 1525

Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499

Finlayson v Legal Practitioners Conduct Board (2012) 112 SASR 549

Health Insurance Commission v Grey (2002) 120 FCR 470

I-MED Radiology Network Ltd v Director, Professional Services Review [2020] FCA 1645

Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) [1980] FCA 94; 31 ALR 519

MF1 v National Crime Authority (1991) 33 FCR 449

Mosaic Brands Ltd v Australian Communications and Media Authority (2022) 294 FCR 119

National Home Doctor Service Pty Ltd v Director, Professional Services Review (2020) 276 FCR 338

Pyneboard Pty Ltd v Trade Practices Commission [1982] FCA 18; 39 ALR 565

SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357

Yoong v Chief Executive of Medicare [2021] FCA 701; 177 ALD 48

Yoong v Director, Professional Services Review [2023] FCA 1186

Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 114
Date of hearing: 20 August 2024
Counsel for the Appellant: Ms N Kidson KC with Mr A Psaltis
Solicitor for the Appellant: Australian Government Solicitor
Counsel for the Respondent: Mr M Hodge KC with Mr S Webster KC
Solicitor for the Respondent: MinterEllison

ORDERS

QUD 488 of 2023
BETWEEN:

DIRECTOR, PROFESSIONAL SERVICES REVIEW

Appellant
AND:
CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Director, Professional Services Review v Yoong and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2025] FCAFC 95
Decision Date

CaseChat Overview and Summary

In the matter of Director, Professional Services Review v Yoong, the Court addressed the appeal by the Director of Professional Services Review against a decision of the Federal Circuit and Family Court of Australia, which held that a notice given to the respondent under section 89B of the Health Insurance Act 1973 (Cth) was invalid. The crux of the dispute centred on the validity of notices issued under sections 89B and 106ZPM of the HI Act, which required the respondent to produce complete clinical records of named patients for whom services were provided during a specified period. The Federal Circuit and Family Court had ruled that the notice was invalid as it exceeded the power conferred by section 89B by requiring production of documents that were not relevant to the review period. The appeal before the High Court questioned whether the primary judge's interpretation of the scope of section 89B was correct and if the complete clinical records of the named patients were indeed relevant documents for the purposes of the review.

The High Court considered whether the primary judge erred in finding that the notice was invalid because it required the production of documents that were not confined to the specified review period. The Court examined the statutory language of section 89B and the broader context of the Act's investigative functions. It noted that the power to issue such notices should not be narrowly construed due to the public protective purpose of Part VAA of the HI Act. The Court also emphasised that the scope of the investigative power to compel the production of documents is determined by the statutory language and the context in which it is applied. The High Court found that the primary judge had misinterpreted the scope of section 89B by failing to consider the objective requirement of relevance and the temporal constraint imposed by the specified review period.

Following its reasoning, the High Court held that the primary judge erred in finding the notice invalid. The complete clinical records of the named patients were deemed relevant to the review as they pertained to services provided during the review period. The Court allowed the appeal and set aside the orders made by the primary judge, dismissing the respondent's application for judicial review. The Court further ordered that the respondent pay the appellant's costs of the appeal and the proceeding below, subject to possible variation upon application by either party.

Orders

Orders of the court

1. The appeal be allowed.

2. Order 2 of the orders made by the Court on 6 October 2023 and orders 1, 2 and 5 of the orders made by the Court on 31 October 2023 in proceeding QUD377/2021 be set aside.

3. The respondent’s application for judicial review in proceeding QUD377/2021 be dismissed.

4. Subject to orders 5 and 6, the respondent pay the appellant’s costs of the appeal and the proceeding below (proceeding QUD377/2021).

5. Within 14 days of the date of these orders, either party may apply to vary order 4 by filing and serving a written submission of no more than 3 pages in support of the variation.

6. If a party files and serves a written submission in accordance with order 5:

(a) the other party may file and serve a written submission in response within 28 days of the date of these orders; and

(b) the Court may determine the application to vary order 4 on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 30 April 2019, under s 88A of the HI Act, the Director decided to undertake the review, and gave written notice of that decision to both the respondent and the CEM. In her letter to the respondent, the then Director relevantly stated:Request to Review No. 1305 – notification of decision to undertake a review On 15 April 2019, I received a request from the Chief Executive Medicare (Medicare) to review your provision of services for the period 1 May 2017 to 30 April 2018 (Review Period).Medicare has also provided me with a copy of its letter to you dated 15 April 2019 informing you of the request to review. …In accordance withs 88A(2) of the Health Insurance Act 1973 (Act), I must decide to undertake a review if it appears to me that there is a possibility that you have engaged in inappropriate practice, within the meaning of the Act, in providing services during the review period. In general terms, ‘inappropriate practice’ involves conduct in connection with the services you rendered or initiated during the review period that a body of your peers could reasonably conclude was unacceptable to the general body of your profession.Decision to undertake a reviewI am writing to advise you that it does appear to me that there is a possibility that you have engaged in inappropriate practice as described above.Accordingly, today I have decided to undertake a review into your provision of those services in accordance with the requirements of the Act. This letter constitutes written notice of that decision for the purposes of s 88A(4)(a) of the Act. Section 88A(6) also requires me to set out for you the terms of s 89B of the Act: a copy of that section is attached.…Medicare's request outlines concerns about your rendering of level C and D consultations (Medicare Benefits Schedule (MBS) items 36, 44, 5040 and 5060), your rendering of MBS item 2713 and your initiating of MBS items 56022, 58909, 56223 and 56507. For example, you rendered MBS items 44 and 5060 in excess of 99 percent of your peers during the review period. The request also notes that you initiated MBS items 56022 and 58909 in excess of 99 percent of your peers during the review period. The variance to your peers raises concerns as to whether all the MBS requirements were met for each service and whether each service was clinically relevant.Scope of my reviewIn accordance with s 88B of the Act, you should be aware that in undertaking my review:•I may review any or all of the services you provided or initiated during the review period that attracted a Medicare or Pharmaceutical benefit•I may undertake the review in such a manner as I think appropriate – this may include arranging an initial informal meeting with you if I think it will be helpful to the process of review and•I am not limited by the reasons included in Medicare’s request for my review.…Next stepsIn accordance with s 89B of the Act, I may decide to issue a formal notice requiring you to produce any documents (including clinical or practice records) that are relevant to my review. I may also issue a notice to produce to any other person whom I believe to have possession or control of relevant documents. In the event that I decide to request relevant documents from you, I will provide you with a formal notice under s 89B.…(Footnote omitted).

Ratio Decidendi

Legal Principle Established

On 5 December 2023, Burley J made orders to suspend the review of the provision of services by the respondent until the final determination of this proceeding, so as to preserve the Director’s opportunity to conduct the review with the benefit of the documents produced in accordance with the Notice if the appeal succeeds: see Director, Professional Services Review v Yoong [2023] FCA 1525. This followed similar suspensions pursuant to orders made in the proceedings below. Section 94(2) of the HI Act relevantly provides that, if the review is suspended because of an injunction or other court order, the Director may determine that the 12-month period within which the review must otherwise be completed is extended by a specified period that is not longer than the period of the suspension. CONSIDERATIONGround 1(a) The construction of the power conferred by s 89B of the HI Act is governed by established principles, most of which are not in issue on this appeal. As a general observation, Pt VAA of the HI Act has a “public protective” purpose, which is reflected in the statutory objects in s 79A, and as such its provisions should not be narrowly interpreted: see Health Insurance Commission v Grey (2002) 120 FCR 470 at [173] (Beaumont, Sundberg and Allsop JJ). More specifically, a broad approach is often adopted to the construction of powers conferred in aid of investigative functions, where “it is not possible to define a priori the limits of an investigation which might properly be made”: see Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) [1980] FCA 94; 31 ALR 519 at 529–530 (Brennan, Keely and Fisher JJ). Of course, the scope of any investigative power to compel the production of documents turns on the particular statutory language and context, applied to the particular facts of each case. Thus, in I-MED Radiology Network Ltd v Director, Professional Services Review [2020] FCA 1645, Logan J observed (at [68]) that, while he had been taken to “numerous authorities concerning the exercise, and validity of exercise, of information gathering or document production powers conferred by various statutes”, each of those authorities “ultimately turned on the terms of the notice requiring the giving of information or production of documents and the authority conferred by the statute concerned”. In the present case, the respondent seeks to distinguish previous authorities on investigative powers under other statutory regimes, placing emphasis on the terms of s 89B which expressly impose an objective requirement of relevance and a temporal constraint by reference to the specified review period. The power to give a notice under s 89B must be exercised by the Director “[f]or the purpose of undertaking a review”, being a review under Div 3A: see s 89B(2). The Director’s decision to undertake the review will have been made on the basis that it appears to the Director that there is a possibility that the person has engaged in inappropriate practice in providing services during the review period — that is, based on “the appearance of a possibility” of inappropriate practice (see I-MED at [75] (Logan J)) — after having considered the request from the CEM and any other relevant information. The outcome to which the review is directed is a decision by the Director as contemplated by s 89C, being either to decide to take no further action in relation to the review (s 91), to enter into an agreement with the person under review (s 92), or to make a referral to a Committee (s 93). Thus, if the person under review does not enter into a written agreement involving an acknowledgment of inappropriate practice, the Director must form an evaluative judgment about whether or not there are sufficient grounds on which a Committee could reasonably find that the person under review has engaged in inappropriate practice in providing services during the review period and, if so, may make a referral to the Committee to investigate that question in relation to the services specified in the referral.