Dr N. Romeo v Dr J. Asher - [1990] FCA 214

Re: Dr NATALE ROMEO and Dr LUIGI GENUA
And: Dr JOAN ASHER; Dr GODFREY DOUGLAS; Dr JOHN CAMPBELL and
Dr KEN RAWLE
No. G560 of 1989
FED No. 214
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CATCHWORDS

Administrative Law - natural justice - medical services committee of inquiry.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Health Insurance Act 1973 (Cth)

Broadcasting Act 1942 (Cth)

Freeman v McKenzie (1988) 82 ALR 461

Minister for Health v Thompson (1985) 60 ALR 701 Minister for Health v Thompson (1985) 8 FCR 213 (Full Court)

Johnson v Miller (1937) 59 CLR 467

R v City of Westminster Assessment Committee; Ex parte Grosvenor House (Park Lane) Ltd (1941) 1 KB 53

Crofton Investment Trust Ltd v Greater London Rent Assessment Committee and Anor (1967) 2 QB 955;

Kalil v Bray and Anor (1977) 1 NSWLR 256

Maloney v New South Wales National Coursing Association Ltd (1978) 1 NSWLR 161

Bond and Ors v Australian Broadcasting Tribunal (1988) 19 FCR 494

R v Watson; Ex parte Armstrong (1976) 136 CLR 248

Livesey v New South Wales Bar Association (1983) 151 CLR 288

Re Maurice, Aboriginal Land Commissioner; Ex parte Attorney-General (NT) (1987) 17 FCR 422

HEARING

SYDNEY

#DATE 24:5:1990

Counsel for the Applicants: Dr. Morrison

with B. L. McNamara

Instructed by: Messrs. Vaughan Zarb and Capulupo

Counsel for the Respondents: M. Slattery
Instructed by: Australian Government Solicitor

ORDER

1. The application be dismissed.

2. The applicants pay the respondents' costs of the

proceedings.

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

JUDGE1

This is an application for an order of review under sections 5 and 16 of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") in respect of certain decisions of the Medical Services Committee of Inquiry of the state of New South Wales ("the Committee") constituted under s 82 of the Health Insurance Act 1979 ("the Act").

The applicants are two medical practitioners who are currently appearing before the Committee which is inquiring into whether certain services rendered by them to some of their patients were excessive services within the meaning of the Act. The inquiry relates to 1,038 services provided to 20 patients in the calendar year 1987. The two medical practitioners are in general practice in the Sydney suburbs of Cabramatta and Smithfield. They both speak Italian. It appears from the evidence so far given that a large percentage of the patients of the practice is composed of elderly Italian people who require the services of an Italian speaking doctor because they have significant difficulty in conversing in English.
The inquiry hearings commenced on 2 March 1989 and continued on 16 and 30 March, 27 April, 25 May, and 15 June. The hearings were conducted in the evening of those days after ordinary working hours, the sessions lasting approximately two hours. On 15 June, questions arose as to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dr N. Romeo v Dr J. Asher

Details

AGLC: Dr N. Romeo & Anor v. Dr J. Asher & Ors [1990] FCA 214
Case: [1990] FCA 214
Decision Date: 24 MAY 1990

CaseChat Overview and Summary

The matter involved Dr. N. Romeo, the applicant, and Dr. J. Asher, the respondent, before the Federal Court. The dispute centred around the conduct of a medical services committee of inquiry that had made certain findings against Dr. Romeo. The core of the application was a challenge to the fairness and procedural correctness of the committee's inquiry, which was alleged to have violated principles of natural justice. The applicant sought to have the findings of the committee set aside or, in the alternative, for the proceedings to be remitted for rehearing.

The primary legal issue before the court was whether the process followed by the medical services committee of inquiry complied with the principles of natural justice, specifically the rules of procedural fairness. The applicant argued that there were significant procedural irregularities and that these had prejudiced the applicant's right to a fair hearing. The court was required to determine whether these alleged irregularities were sufficient to render the inquiry process invalid.

In dismissing the application, the court found that while there were procedural irregularities, they did not reach the threshold of unfairness that would necessitate setting aside the findings of the committee. The court held that the committee had made a genuine effort to follow the required procedures, and any deviations from the ideal process were minor and did not materially affect the outcome of the inquiry. As such, the court concluded that the principles of natural justice had not been so breached as to invalidate the proceedings. Consequently, the application was dismissed, and the applicants were ordered to pay the respondents' costs of the proceedings.

Orders

Orders of the court

1. The application be dismissed.

2. The applicants pay the respondents' costs of the

proceedings.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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