Director, Professional Services Review v Yoong

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FEDERAL COURT OF AUSTRALIA

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

Appeal from: Yoong v Director, Professional Services Review [2023] FCA 1186
File number(s): QUD 488 of 2023
Judgment of: BURLEY J
Date of judgment: 5 December 2023
Catchwords: ADMINISTRATIVE LAW – Health Insurance Act 1973 (Cth) (HIA) – appeal – whether review of professional services be suspended until final determination of the proceeding pursuant to s 94(2) of the HIA – application granted.
Legislation: Health Insurance Act 1973 (Cth) Part VAA, ss 86, 88A, 88B, 89C, 89C(1), 94, 94(1), 94(2), 94(2)(b), 94(2A), 94(2A)(b), 94(3), 106ZPM(2)
Cases cited:

Barnes v Director of Professional Services Review [2023] FCA 129

CIP Group Pty Ltd v So (No 3) [2023] FCA 518

National Home Doctor Service Pty Ltd v Director of Professional Services Review [2020] FCA 1016; 276 FCR 382

Norouzi v Director of Professional Services review Agency [2020] FCA 1524

Yoong v Chief Executive of Medicare [2021] FCA 701

Yoong v Director, Professional Services Review [2021] FCA 1445

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: 61
Date of last submission/s: 30 November 2023
Date of hearing: 27 November 2023
Counsel for the Appellant: Mr A G Psaltis
Counsel for the Respondent: Mr P Dunning KC

ORDERS

QUD 488 of 2023
BETWEEN:

DIRECTOR, PROFESSIONAL SERVICES REVIEW

Appellant
AND:

MATTHEW YOONG

Respondent

ORDER MADE BY:

BURLEY J

DATE OF ORDER:

5 DECEMBER 2023

THE COURT ORDERS THAT:

1.The appellant’s review of services of the respondent commenced on 30 April 2019 be suspended until the final determination of this proceeding.

2.The costs of the appellant’s interlocutory application of 13 November 2023 be costs in the appeal.

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


REASONS FOR JUDGMENT

1       INTRODUCTION

[1]

2       BACKGROUND

[10]

3       RELEVANT STATUTORY PROVISIONS

[27]

4       THE SUBMISSIONS

[39]

5       CONSIDERATION

[46]

5.1      Addendum

[57]

5.2      Disposition

[62]

BURLEY J:

1.                 INTRODUCTION

  1. Before the Court is an interlocutory application filed by the Director, Professional Services Review (appellant), seeking orders that the appellant’s review of professional services of the respondent commenced on 30 April 2019 (Review) be suspended until the final determination of the proceedings.  The appellant relies on an affidavit affirmed on 13 November 2023 by Andrew Shelley, Special Counsel, Professional Services Review Agency, in support of the application.

  2. The proceedings have a lengthy history and arise from a request made by the Chief Executive of Medicare to the appellant to review the provision of services by the respondent, Matthew Yoong, pursuant to s 86 of the Health Insurance Act 1973 (Cth) (HIA). The appellant decided, pursuant to s 88A of the HIA, to undertake the Review and subsequently issued a Notice to Produce pursuant to s 89B requiring that Dr Yoong produce various patient medical records.  

  3. Dr Yoong has challenged each of the…

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Details
Case
[2023] FCA 1525
Decision Date

CaseChat Overview and Summary

In the case of Director, Professional Services Review v Yoong, the primary issue before the court was whether the review of the respondent's professional services should be suspended until the final determination of the proceedings under section 94(2) of the Health Insurance Act 1973 (Cth) (HIA). The appellant, the Director of Professional Services Review, had initiated a review of the respondent's services in April 2019. The proceedings have been protracted, with significant periods of suspension due to judicial review applications and other legal challenges, including disputes over the validity of a Notice to Produce documents. These delays have prevented the appellant from completing the review within the statutory 12-month period.

The legal issues revolved around the interpretation and application of section 94 of the HIA, which provides for the automatic cessation of a review if it is not concluded within 12 months unless certain conditions are met, and the appellant's discretion to extend this period when the review is suspended by court order. The court had to determine if the appellant's review should be further suspended pending the final outcome of the appeal, and if so, for how long. The court also considered the implications of the disqualification of the respondent from receiving Medicare benefits under section 106ZPM of the HIA, which was contingent on the validity of the Notice to Produce.

The court granted the application for suspension, finding that the prolonged judicial review proceedings and the inherent delays in the legal process justified extending the period for the review. The court recognised that the statutory 12-month period was insufficient given the complexities of the case and the necessity of judicial oversight. The court also highlighted the importance of preserving the appellant's ability to complete the review without being prejudiced by the statutory time limits, especially in light of the respondent's challenges to the procedural aspects of the review.

In conclusion, the court ordered that the review be suspended until the final determination of the appeal. The costs of the interlocutory application were ordered to be costs in the appeal. The decision underscores the court's role in balancing the statutory requirements with the practical realities of conducting complex administrative reviews in a judicial setting.

Orders

Orders of the court

1. The appellant’s review of services of the respondent commenced on 30 April 2019 be suspended until the final determination of this proceeding.

2. The costs of the appellant’s interlocutory application of 13 November 2023 be costs in the appeal.

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

Background

Background to the litigation

For the reasons set out below, the application is allowed.2. BACKGROUND Below is a brief chronology of events relevant to the proceedings. On 15 April 2019, the Chief Executive of Medicare requested the appellant to undertake a review pursuant to s 86 the HIA. On 30 April 2019, the appellant decided to commence a Review under s 88A of the HIA. On 21 May 2019, the appellant issued the Notice to Produce under s 88B of the HIA. On 24 July 2019, the respondent sought judicial review of the referral to the appellant under s 86 of the HIA and of the appellant’s decision to conduct the Review. He did not at that stage challenge the validity of the Notice to Produce. On 25 July 2019, Rangiah J ordered that the decision of the appellant to undertake a review pursuant to s 88A of the HIA be stayed until further order of the Court. On 25 June 2021, Rangiah J dismissed the application for review; Yoong 1. On 29 September 2021, the appellant suspended the Review for 789 days pursuant to s 94(2)–(3) of the HIA based on the period of the suspension of the Review ordered by Rangiah J plus two days based on the purported failure of the respondent to comply with the Notice to Produce. On 8 November 2021, the appellant purported to disqualify Dr Yoong from receiving Medicare benefits based on his non-compliance with the Notice to Produce pursuant to s 106ZPM of the HIA (Disqualification). On 16 November 2021, the respondent commenced proceedings challenging the Notice to Produce (Notice to Produce proceeding) and also challenging the Disqualification. On 19 November 2021, Collier J made orders suspending the Review pending determination of the Notice to Produce proceeding. On 29 June and 25 July 2022, Perry J heard the Notice to Produce proceeding. On 29 September 2023, the appellant determined under s 94(2) that the Review period be extended by 678 days. On 6 October 2023, Perry J delivered Yoong 3 and found that:(1)the Notice to Produce was invalid ([104]); and(2)the Disqualification under s 106ZPM(2) was invalid ([182]). On 31 October 2023, Perry J made a declaration that the Notice to Produce was invalid and ordered that upon the appellant undertaking, unless orders 1 and 2 made on 31 October 2023 are set aside, in short, not to access or review the documents produced, the review period be suspended until 30 November 2023. On 3 November 2023, the appellant filed a Notice of Appeal. On 13 November 2023, the present interlocutory application was filed. 3. RELEVANT STATUTORY PROVISIONS The Professional Services Review Scheme is established in Part VAA of the HIA. Its object is to protect the integrity of the Commonwealth medical benefits program, and in doing so protect patients and the community in general from the risks associated with inappropriate practice and also protect the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice; s 79A; Barnes v Director of Professional Services Review [2023] FCA 129 (Burley J) at [5].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 94 provides:Director taken to have made a decision after 12 months(1) If:(a)the Director decides to review the provision of services by a person; and(b)before the end of the period of 12 months after making the decision, the Director has not:(i)made a decision under section 91 to take no further action in relation to the review; or(ii)entered into an agreement with the person under section 92 (whether or not the agreement has been ratified by the Determining Authority); or(iii)referred the provision of one or more of the services to a Committee;then, the Director is taken to have made a decision at the end of that period to take no further action in relation to the review.Note:Sections 92A and 106R set out time limits for the ratification of agreements made under section 92.(2) If the review is suspended:(a)under paragraph 89A(2)(b); or(b)because of an injunction or other court order;the Director may determine, in writing, that the period of 12 months referred to in subsection (1) is extended by a specified period that is not longer than the period of the suspension.(3)If a notice is given under subsection 89B(2) to the person under review, or to another person, and the person concerned fails to comply with a requirement of the notice, the Director may determine, in writing, that the period of 12 months referred to in subsection (1) is extended by a specified period that is not longer than the period during which the person fails to comply with the requirement.(4)This section does not apply in relation to a review undertaken because of section 89. Section 106ZPM provides:(1) If:(a)a person under review is required to produce a document or give information by a notice given under subsection 89B(2) or 105A(2); and(b)the person intentionally refuses or fails to comply with the requirement within the period specified in the notice;a medicare benefit or dental benefit is not payable in respect of a service rendered or initiated by the person under review, by a person employed or otherwise engaged by the person under review, or by a person employed or otherwise engaged by a body corporate of which the person under review is an officer, at a time after the end of the period specified in the notice and before the document is produced or the information is given, as the case may be.(2)If the Director considers that subsection (1) prevents medicare benefits and dental benefits from being payable in respect of services rendered or initiated by the person under review, the Director must give a notice to that effect to the person.(3)The Director must give a copy of a notice under subsection (2) to the Chief Executive Medicare.(4)If:(a)subsection (1) prevents medicare benefits and dental benefits from being payable in respect of services rendered or initiated by the person under review at a time; and(b)the Director gave a notice under subsection (2) to the person before that time;the person is taken to be:(c) fully disqualified at that time for the purposes of section 19D; …4. THE SUBMISSIONS

Ratio Decidendi

Legal Principle Established

Dr Yoong submits that a refusal to grant the suspension sought would not render the appeal nugatory, because there is nonetheless a public interest in determining the validity of the Notice to Produce, which was in a standard form, adopted by the appellant, and accordingly its validity goes beyond the present controversy. Furthermore, he submits that the appellant will not suffer prejudice merely because a statutory time limit expires in circumstances where the appellant ought to have completed the Review within the 12 months allowed.5. CONSIDERATION There is no doubt that in the absence of a suspension, the appellant stands at risk of a decision being made by default pursuant to s 94(1) of the HIA. Section 94(1) imposes a strict time limit of 12 months after making the decision to conduct a review, following which the appellant is taken to have made a decision to take no further action in relation to the Review. As the chronology set out in section 2 above indicates, the present proceedings have a long history. The Review commenced in April 2019 and the Notice to Produce was issued on 21 May 2019. Since then, the proceedings leading to Yoong 1 were heard during the pandemic months of December 2020 and January 2021 and determined in June 2021. According to calculations made by Mr Shelley, the suspension ordered by Rangiah J lasted for some 789 days. During that period, the appellant was unable to take steps in the conduct of the review. Shortly thereafter, on 15 November 2021, Dr Yoong commenced proceedings to challenge the Notice to Produce and the Disqualification. As a result, on 19 November 2021, Collier J made an order suspending the appellant’s review of services until determination of the proceedings, which occurred on 6 October 2023. That led to a further period of 686 days during which the appellant was unable to take steps in the review. It is apparent that these events have precluded a more expeditious determination of the Review. To the extent that time was required in order for the curial process to be completed, it cannot be said that the delay was the fault of the appellant or Dr Yoong. Section 94(2)(b) contemplates suspension of a review by Court order. As Collier J noted in Yoong 2 at [46], this creates the critical legislative machinery permitting the rights of the Director to remain intact while a challenge to a decision of the Director takes place. It has been enacted for the benefit of the Director and to facilitate the performance of the statutory functions and powers of the Director in circumstances of a challenge to a review decision; Yoong 2 at [49]. Dr Yoong in his submissions contends that there is a regrettable absence of evidence from the appellant, explaining what steps were taken during the 155 days of the Review period that have been expended thus far. However, as the decision in Yoong 3 records at [33] to [58], that time was taken up with disputes between the parties concerning the production of documents in response to the Notice to Produce. I do not accept that further evidence was necessary to explain how it is that the appellant has not completed the steps required to complete the Review in the time available. It is apparent that the appellant sought, by the production of documents, information that he considered was necessary for the conduct of his enquiries.