Dr N. Romeo v Dr J. Asher

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 conduct of the proceedings and its procedures to which I shall make reference later in these reasons. There followed a period in which correspondence was exchanged between the Committee and the solicitors for the applicants which I will consider later. There was a meeting on 27 July 1989 on which occasion the proceedings were adjourned to enable this application to be made. At that point of time the transcript of the proceedings occupied 358 pages, mostly consisting of questions directed to the applicants by the Committee, in respect of the services under investigation, and the applicants responses thereto. Throughout the hearings, the applicants were represented by counsel and solicitor. Before entering upon consideration of the precise matters raised in the application, it is necessary to set out in some greater detail the course of events at the inquiry.
The course of events leading to the inquiry commenced with the forwarding of a document referred to as the "Instrument of Referral under S 82" ("the reference") to the Committee. A copy of this document is annexure B to the application. By it the delegate of the relevant Minister referred to the Committee:

"for inquiry into, and submission of a report and recommendations to the Minister of State for Community Services and Health on, matters relevant to the operation or administration of the said Act, which arise out of the rendering of professional services in the State of New South Wales after April 15 1977, namely whether each professional service rendered to a patient by Drs N Romeo and L Genua, medical practitioners, particulars of which are set out in Annexure marked 'B' numbered 1 to 20, being a service for which Medicare benefit has been paid, was an excessive service within the meaning of section 79(1B) of the said Act."

There were two annexures to the reference. Annexure A sets out details of each patient showing his or her patient identity number and name, sex, date of birth, and address. Annexure B comprises "Patient Episode Schedule and Calendar Diagrams" in respect of each patient showing his or her identity number, the date and type of each service claimed, and the Medicare benefit paid for each service. These documents are to be found in exhibit C in this application. Although somewhat formidable at first glance, they prove, on examination, to provide a clear and logical exposition in diagramatic and tabular form of the material referred to. The services are described through use of the appropriate Medicare number.
It appears that the Committee, after consideration of this material, wrote to the applicants at their Cabramatta address advising them that the Committee had resolved to conduct a hearing into the matters referred to them involving the applicants, at a particular time, date and place set out in the letter. The letter,which is annexure A to the application, also set out the terms of reference referred to above and referred to the Committee's obligation to inquire into the matters and submit a report and recommendation to the Minister. It further referred to the fact that the Committee consisted of five medical practitioners, four appointed by the Minister after consultation with the Branch Council of the Australian Medical Association and one further practitioner appointed by the Minister, apparently without such consultation. The letter contained the following request:-

"To expedite consideration of this matter, the Committee invites you to forward to us, for the Committee's information, details of the clinical conditions and treatment given in respect of the patients listed in the enclosed analysis schedules which is the Annexure marked 'B' and numbered 1 to 20, with particular reference to any episodes of acute illness, during the period 1 January 1987 to 31 December 1987. It would also be of assistance to the Committee, if you would make available any original clinical records, particularly pathology reports, x-ray reports and specialists' reports, which you have in relation to these patients."

The letter concluded by drawing the applicants' attention to the fact that they had the right to be represented, to call witnesses and to examine other witnesses appearing at the hearing. There were forwarded with this letter, as enclosures, copies of annexure A, annexure B, the reference itself, and relevant sections of the Act.
When the inquiry commenced on 2 March 1989, as already indicated, the applicants were represented by counsel and instructing solicitor. After introductions were completed, there were tendered, as exhibits, the reference, annexure A, annexure B, the letter to the applicants, which constituted a notice under s 95 of the Act, and a copy of the clinical notes for the relevant patients which had been forwarded by the applicants to the Committee as requested.
Counsel for the applicants acknowledged that he had previously seen this material. The Chairman then enquired whether the applicants had any questions to ask before the enquiry proceeded further and advised them that it was "customary at this stage" for them to be sworn or make an affirmation. Each of the applicants was sworn after which the Chairman indicated that she would like to give them "some general background about the Committee and the way it functions before we start". She then gave a brief exposition of the statutory functions of the Committee, its duty to report to the Minister, and that, pursuant to s 105 of the Act, it could recommend that the practitioners be counselled or reprimanded or required to repay money to the Commonwealth in respect of benefits paid for services found to be excessive. She said there was also "a fourth option, that we may decide at any stage during the hearing or at the conclusion of the hearing when we have heard (sic) the transcript, that there is no case to be heard and such a report may be made and if we decide this at an early stage during the hearing, the hearing is terminated at that time". She explained the meaning of "excessive services" in accordance with s 79(1B) of the Act. She noted that the clinical notes had been provided as requested. She advised the applicants of their rights to give evidence, call witnesses, examine other witnesses, or address the Committee; and further said that "before the hearing is officially concluded I will invite both doctors, either separately or together, to make any type of submission they wish to this hearing".
The Chairman went on to say that the Act required that the Committee look at each individual service referred by the Ministerial delegate, which required looking into the case-history of the patient and asking the relevant doctor questions about the case "to give them every opportunity to paint as good and as accurate a clinical picture of the patient for us as they are able to do". After some further preliminary remarks she indicated that it was necessary to obtain background information for the benefit of the Committee about the type of practice run by the applicants and a brief outline of their professional qualifications. She then commenced to ask questions about these matters which were answered on oath by the applicants.
After this preliminary information was obtained, the Committee commenced to ask questions concerning the first patient mentioned in annexures A and B, the chairman indicating that the Committee would "go through the individual services". It is worth noting that no objection was taken to this course and that counsel appearing for the applicants provided the Committee with what appears to have been a typed up version of the doctor's handwritten clinical notes relating to this patient and, presumably, other patients referred to in annexures A and B. Questioning then proceeded in relation to all the services provided by the applicants to the first three patients. Proceedings then terminated for the evening and the hearing was adjourned until the evening of 16 March.
At the commencement of the hearing on 16 March, counsel for the applicants raised a procedural matter. This led to the following exchange, which I set out in full from the transcript:-

"DR MORRISON: Madam Chairman, just one procedural matter. I wonder about your procedure at the end of the questions and the evidence, I presume that in relation to any matters about which you may have some concern, you would identify which those matters were so that we might, by way of address or explanation or further evidence, deal specifically with the particular source of concern, rather than with the issues at large. THE CHAIRMAN: Yes, the matters of concern that come to mind are not matters of decisions as to necessity or lack of necessity for the services rendered. That is a matter we address only at the conclusion of the Hearing and we have no, we have no opinion on that until the Hearing is concluded... DR MORRISON: Indeed.

THE CHAIRMAN: ...and we can look back at the transcript. However I, there may be areas of clinical practice and areas that have occurred to us as the Hearing progresses and I certainly agree that those can be indicated and you will be given ample opportunity when we look as if we're getting to the end of the line to point out any of these and to reiterate and give you full and adequate opportunity to make any submissions either on a specific or on a general basis before the Hearing is formally concluded. DR MORRISON: Thank You. My concern was simply that it would be of far more assistance to us if the issues could be identified rather than our addressing ourselves to these matters at large without any indication as to which particular services, for example, you were concerned about might be over-servicing. I appreciate you won't have made any determination... THE CHAIRMAN: That's right. No determination whatsoever. DR MORRISON: No. I, I appreciate that and that you are very proper and careful about that, but nonetheless you must form, or you must have some concern about particular matters, if any, and it would be obviously of great assistance to us if you could identify those and what your concern was, so that we might address ourselves to that rather than dealing with other matters about which you have no concern and no particular interest. THE CHAIRMAN: Well if there are matters of specifics we would certainly advise you of those so that they can be addressed."

No doubt, these remarks were made in the context that the hearing on the previous occasion had been productive of many questions and answers of a reasonably technical medical nature in relation to the need for and nature of services provided by the applicants to the three patients in question, and in light of the fact that it was obvious that the same procedure would be adopted at the hearing about to commence. The procedure, of course, was entirely consistent with the chairman's opening statement to the effect that the Committee was required to examine each service which had been referred to them for inquiry. A scanning of the transcript for that evening and the subsequent three evenings of hearing shows that this procedure was consistently followed. It was, of course, a procedure which did not involve counsel in either adducing the evidence of the medical practitioners relating to the services, or in anything akin to re-examination of them after questioning by the Committee had been completed. It does not appear that counsel sought leave to re-examine. It does appear, however, that in circumstances where the questions asked by members of the Committee might have appeared to indicate some at least mild surprise or concern at the repetition of particular services, such as the giving of particular courses of injections, that the applicants recognised that fact and sought to explain the need for the services. It further appears that they were given every opportunity to do so. Whilst this fact would not necessarily preclude the giving of further evidence on the topic by way of re-examination, it clearly reduces the likelihood of this being required. In any event, it does not appear that application was made to enlarge the area of evidence by counsel asking further questions on such topics at the conclusion of questioning by the Committee. Such a procedure would, no doubt, have been acquiesced in by the Committee had it been asked to permit it.
It appears that on 15 June 1989, the sixth hearing night, the Committee came to the end of its questioning of the applicants in respect of all twenty patients. The chairman then said:-

"Well that concludes the portion of the proceedings in which we look at the services rendered by the doctors to these patients that have been referred to us; except for the little bit of tidying up of a couple of reports that I think are still to come. What we would invite before we formally consider the services provided, we would invite either you Dr Romeo and Dr Genua or your legal representative counsel to make any submission on your behalf and to bring any points to our attention that may not have been covered during the course of the hearing. When that has been done and you've been given the opportunity to do that, we will then proceed to consider the transcript, and services rendered, make our decision and formulate our Report and forward it to the Minister. However before that occurs, of course, you have every opportunity to address us and bring, raise any matters that you see fit. That should be, that would be best of course done at the next hearing."

Counsel for the applicants then stated his position as follows:

"Madam Chairman, I don't know what the procedure has been on previous occasions, but in my respectful submission, my client would be entitled to know by way of particulars, any of the services in respect of which the Committee has a concern and to know what the nature of that concern is before my clients either ask the Committee to consider further evidence or hear submissions in relation to those matters. Otherwise what is left is for them to deal with the matters at large without knowing which services any allegations are made about or even what the nature of those allegations are and in my respectful submission, as a matter of natural justice they should know where your areas of concern are and how they relate to particular services."

Counsel then supported this submission by reference to authority. He concluded by submitting that the appropriate procedure at that juncture was for the Committee "not by way of making any determination but by way of indicating" should identify those services in respect of which the Committee has a concern and that it should indicate in general terms the nature of the concern "in relation to each service". This would avoid his addressing in respect of services in relation to which the Committee had no concern. He submitted that these particulars should be provided before any question of the calling of further evidence by the applicants or presentation of addresses on their behalf should arise.
The Committee adjourned to consider these submissions. Upon their return the Committee, through the Chairman, gave its ruling on counsel's application. What was then said is important in the determination of the present application. Accordingly I set it out in full.

"THE CHAIRMAN: I reject any suggestion that this Committee has an obligation to provide the particulars sought by yourself as Counsel and we do not provide them. However the Hearing to date has demonstrated that many of the services rendered have involved courses of therapy given by injection. The Committee would, will welcome being addressed on this question and make it clear that this ought not to preclude address on the totality of the evidence provided before this Committee.

DR MORRISON: Yes thank you Madam Chairman. Might I also enquire whether there are any services in respect of which there is any query about the length of service? THE CHAIRMAN: We haven't come into (sic) any determination about that at this stage.

DR MORRISON: Well, what I'm asking is whether, so that I know whether I'm to address in relation to any services, if there is such a query. THE CHAIRMAN: Well, I think that is covered in the general, at the end and I cannot with any honesty, with honesty answer that question, because we have not had any discussion on that matter at all. I have given you the only area that has arisen in our minds so far, from which your question of particulars could be in any way answered.

DR MORRISON: You see the practical difficulty I have and the difficulty which the Committee may be left with in the end is that as a matter of natural justice, my clients are entitled to be heard on any issue upon which you make a determination. If you make that determination without hearing submissions in relation to it, or at least affording the opportunity of submissions, then in my respectful submission, natural justice would not be done. Now, unless, a mere invitation to address on the many hundreds of matters doesn't amount to affording that opportunity. So that what I would be asking is, in relation to any specific item such as, an example I gave was the length of service. You've mentioned one matter in respect of which we will obviously deal. I would ask that no determination be made unless my attention is drawn on that matter, so that the opportunity of address arises. Otherwise I'm left to guess at what the concerns of the Committee are and as to what I should address and it's going to take me a very long time if I have to deal with every single reference, but that's the alternative I'm otherwise faced with. THE CHAIRMAN: Yes, well I may not be able to accede to that request, because we may not have an idea in our own minds. I think I have gone just about as far as I can at the moment with this request."

After some further discussion in which it was acknowledged that if the applicants wished to call witnesses the Committee would be apprised of that fact and some discussion about the bringing up to date of the transcript of the evidence given, the hearing was adjourned with the expectation that it would resume on 27 July 1989. There was a further meeting on 27 July. Prior to that meeting, however, certain events occurred to which I shall now make reference.
On 26 June the applicants' solicitors wrote to the Committee. It was obviously a considered letter and should be set out in full:

"We note that on Thursday, 15 June, 1989 our clients through their Counsel applied for particulars of the services which are alleged to be excessive and the basis upon which each such service is alleged to be excessive. We also note that the Committee refused this application without giving reasons. Accordingly, we request that you provide such reasons in writing pursuant to the requirements of Section 13 of the Administrative Decisions Judicial Review Act 1977 (as amended). Further, we note that you must earlier have made a decision to hold a hearing pursuant to Section 94 of the Health Insurance Act 1973 (as amended). We request written reasons for that decision pursuant to Section 13 of the Administrative Decisions Judicial Review Act 1977 (as amended). We further submit that our clients are entitled to particulars pursuant to Section 95 of the Health Insurance Act 1973 (as amended) and point out that the notices served fail to give such particulars. It is submitted that the notices and these proceedings are accordingly invalid. We point out that pursuant to Section 96B, our clients are entitled through their Counsel to call evidence and address the Committee. Given that the reference involves 1,038 services and 20 patients and the Committee has declined to indicate which of the services might be excessive or the basis upon which such services are alleged to be excessive then these rights are rendered incapable of being usefully exercised. Please note that at an appropriate juncture, we will be submitting that pursuant to the rule in Browne v Dunn (1894) 6 The Reports 67 the Committee is in law precluded from making an adverse finding against our clients in respect of any issue not squarely put to each of them or in respect of which they have not had the opportunity to adduce evidence or address the Committee through their Counsel. We refer you to the decision of Woodward J. in the Federal Court in Freeman v McKenzie (1988) 82 ALR 461. It is submitted that this decision, binding in law on the committee, supports the propositions advanced by our clients' Counsel. In short, the procedure adopted by the Committee is in breach of the guidelines given by His Honour in that the Committee has failed to make a preliminary decision as to which services are clearly appropriate and which require further investigation. The result is inevitably oppressive in that our clients have been required to give evidence and sit through hearings into all 1038 references. The failure now and in the past to particularise those services, said to be excessive or the way in which those services are alleged to be excessive, compounds the oppressive nature of the proceedings.

Accordingly, we submit that the proceedings should be stayed by the Committee as oppressive. Your ruling is sought and if adverse your reasons are requested in writing pursuant to Section 13 of the Administrative Decisions Judicial Review Act 1977 (as amended). We desire to make oral submissions in support of these propositions before any further step be taken."

It is to be observed, of course, that this letter goes far beyond reiterating the request for particulars which had previously been rejected. It seeks reasons in writing for that rejection pursuant to s 13 of the ADJR Act. It raises, apparently for the first time, a question as to the making of a decision pursuant to s 94 of the Act and requesting reasons for that decision. It further claims that the proceedings were contrary to "the guidelines" laid down by Woodward J. in Freeman v McKenzie (1988) 82 ALR 461 "in that the Committee has failed to make a preliminary decision as to which services are clearly appropriate and which require further investigation". It is worth remarking at this point that this particular complaint was not made at the outset when the Committee indicated the procedure it intended to follow, was never made through the six hearing nights, and was not made at the conclusion of the evidence. Nor was an application for a stay on the grounds of oppression previously made.
This letter was answered by the Committee by letter of 21 July 1989 together with a statement of reasons for the decision of 15 June. In relation to the assertion that it should supply a statement of reasons in relation to a decision to hold an inquiry pursuant to s 94 of the Act, the letter states that "it is clear that the Committee has never made a decision to hold a hearing. There is a statutory requirement of the Health Insurance Act for the Committee to conduct a hearing once any of the matters set forth in s 94 occur".
The letter rejected the submission that the notices under s 95 of the Act were defective, asserting that "the notice served clearly annexed particulars of the matters to be enquired into". The letter further stated that the Committee had decided on 20 July 1989 to reject the submission that the proceedings should be stayed. A statement of reasons for that decision was also enclosed.
The reasons given for the decision of 15 June were as follows:-

"(a) Legal advice provided by the Consultant to the Committee.

(b) The decision of the Full Federal Court in Minister for Health - v - Thompson that there is no obligation of the Committee at any stage of the hearing to explain to the practitioner or defend any tentative views it may have formed about "excessive servicing".

(c) The Committee had already provided Drs Genua and Romeo, prior to the hearing, with copies of the Instrument of Referral and Annexures A and B.

(d) Drs Romeo and Genua had been present throughout the whole Inquiry.

(e) The relevant services which are the subject of the Inquiry were clearly identified before the commencement of the Inquiry.

(f) The request presumed the Committee had formed a view on what services did or did not amount to "excessive servicing".

(g) The Committee was not required prior to completion of the hearing to form and had not formed any view on whether or not any services amounted to "excessive servicing".

(h) There was no requirement on the Committee prior to completion of the hearing to form any view or evaluation of the material put forward to the Inquiry.

(i) The Committee was not required to form any view prior to the conclusion of the hearing on the matters it had been set up to inquire into.

(j) The Inquiry is administrative and inquisitorial in character and is nor inter partes litigation.

(k) The decision of His Honour Mr Justice Woodward in Freeman v McKenzie and Others that each Committee will have to make its own procedural decisions in the light of particular circumstances of the case before it."

The reasons given for refusing the stay by decision on 20 July 1989 were as follows:-

"(a) Legal advice provided by the Consultant to the Committee.

(b) The Committee is required by section 94 of the Health Insurance Act (1973) to conduct a hearing once the prerequisites therein are satisfied.

(b) (sic) Drs Romeo and Genua were notified of the hearing by Notice and letter, dated 20 December 1988, which clearly annexed particulars of the matters to be inquired into.

(c) The hearing commenced on 2 March 1989 and resumed on 16 March 1989; 30 March 1989; 27 April 1989; 25 May 1989 and 15 June 1989. It is listed for resumed hearing on 27 July 1989 when Counsel representing Drs Genua and Romeo will be invited to make any submissions they wish to make on behalf of their clients. It was noted that Counsel representing Drs Genua and Romeo were reminded of the opportunity to make submissions at the commencement of the hearing and on subsequent dates.

(d) Drs Romeo and Genua were present throughout the whole Inquiry.

(e) After completion of the hearing the Committee is required to report to the Minister pursuant to section 104 of the Health Insurance Act (1973).

(f) There is no provision in the Health Insurance Act

(1973) granting the Committee to stay a hearing (sic).

(g) The Committee does not consider the proceedings oppressive."

The solicitors for the applicants replied on 25 July 1989. They complained that the decision on the stay application had been made without affording counsel the opportunity to address. They requested a copy of the legal advice referred to in the statements of reasons. They indicated that at the resumed hearing on 27 July 1989 counsel would seek a stay of the inquiry pending the taking of proceedings in this court.
There was a brief meeting on 27 July 1989. The Committee formally rejected the submission that the proceedings were invalid and also rejected the submission that they should make available to the applicants the legal advice upon which their reasons had been based. The proceedings before the Committee were then adjourned until the determination of this application.
I turn then to the present application. It is convenient to deal with the first three grounds together. They seek review of the following decisions:-

"A The decision to proceed to a hearing without deciding pursuant to section 94 of the Health Insurance Act, 1973 that a hearing is required or appropriate.

B The decision that no decision has ever been made by the Committee to conduct a hearing and that no such decision was necessary pursuant to section 94 of the Health Insurance Act 1973. C The decision that no reasons need be given pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977 for the decision pursuant to section 94 of the Health Insurance Act 1973 to hold a hearing."

It is necessary to set out the relevant provisions of the Act. They are as follows:-

"s 79(1B) A reference in this Division to excessive services is a reference to professional services (other than pathology services), being services in respect of which medicare benefit has become or may become payable and which were not reasonably necessary for the adequate mental or dental care of the patient concerned... s 82 A Committee shall enquire into, and submit to the Minister its report and recommendations on any matter referred to the Committee by the Minister, being a matter that:-

(a) is relevant to the operation or administration of this Act...and

(b) arises out of or relates to the rendering of a professional service (other than a pathology service), on or after 15 April 1977, in the State for which the Committee is established...

s 94 Where, after consideration of a matter referred to a Committee by the Minister and of any documents that accompany the reference supplied by the Minister, it appears to the Committee that:-

...

(c) a practitioner may have rendered excessive services;...

the Committee shall -

(j) unless paragraph (k) applies - conduct a single hearing into the matter; or

(k) if it is satisfied that it is appropriate to do so - conduct 2 or more hearings into the matter, each hearing being a hearing into the matter in so far as the matter relates to one or more of the circumstances referred to in paragraphs (a) to (h) (inclusive)... s 95(1) A Committee shall, if it proposes to hold a hearing into a matter in so far as the matter relates to a circumstance referred to in paragraph 94 (c), (d) or (e), give notice in writing of the time and place of the proposed hearing, at least 10 days before the date of the proposed hearing, to the person first referred to in that paragraph.

(2) A notice under sub-section (1) shall give particulars of the matter to which the hearing relates."

By its letter of 21 July 1989, the Committee, in response to the request to provide reasons under s 13 of the ADJR Act for its decision to hold a hearing replied, as noted before, that "it is clear that the Committee has never made a decision to hold a hearing. There is a statutory requirement of the Health Insurance Act for the Committee to conduct a hearing once any of the matters set forth in section 94 occur". The Committee maintains this stance in this application.
There is also in evidence the minutes of the relevant meeting of the Committee (exhibit 1). These read, so far as relevant, as follows:-

"BUSINESS

(i) N20

Drs. N. Romeo and L. Genua 119 John Street,

CABRAMATTA NSW 2166 The Committee considered this reference and agreed than an Inquiry was warranted."

The applicants assert that this minute is in conflict with the Committee's statement contained in the letter of 21 July 1989.
The applicants make the following submissions. They say, firstly, that the Act obliged the Committee to make the decision relied upon. If no such decision was made, then the proceedings had no valid basis. As they have proceeded in such an unsupported condition for six hearing days, with concomitant unjustified inconvenience to the applicants, they should now be permanently stayed. Alternatively if the relevant decision was made, it is a decision amenable to review under s 5 of the ADJR Act and is also one to which s 13 of that Act applies. The refusal to provide the requested reasons under that section has been prejudicial to the applicants as it has deprived them of potential grounds upon which the decision could be attacked. As I understand it, the further submission in this regard is that the proceedings have gone so far that only a permanent stay could remedy the injustice caused to the applicants.
The Committee's response to these submissions is, firstly, that they are misconceived in that the Act does not require the Committee to make the relevant decision. Further it is put that if the Act does require such a decision then what occurred at the Committee meeting to which exhibit 1 relates amounted to the making of such a decision with the result that the holding of the inquiry has been properly based. In these circumstances, it is put that the application for reasons under s 13 is well out of time (s 13(5)(a) ADJR Act) and compliance therewith was properly refused. It is further put that, in the circumstances that the applicants were from the outset advised by the Committee that it was acting pursuant to the Act, and s 94 thereof in particular, but nevertheless allowed the proceedings to commence without mounting or even foreshadowing a challenge to the decision to hold them, and then participated in the hearings until their conclusion, the court would, as a matter of discretion, withhold relief under s 16 of the ADJR Act.
It should, perhaps, be noted that the Committee in its initial letter to the applicants spoke of its having "resolved" to hold a hearing. The applicants were thus on notice of the possible existence of a decision which might potentially be the subject of review under the ADJR Act. Quite clearly, in those circumstances, an application could have been made under s 13 at that time. Instead of this being done, the applicants not only acquiesced in the commencement of the proceedings but also in the following of the procedures expounded by the chairman at the first hearing.
Does the Act require that the Committee decide to conduct a hearing? The legislation is not easy to construe. Section 95 speaks in terms of a Committee proposing to hold a hearing. On the other hand s 94 quite clearly makes it mandatory upon the Committee to conduct a hearing if any of the requirements of sub-sections (a) to (h) are made out. In the present case, the Committee would have had no option but to conduct a hearing if, after consideration of the matter referred to it relating to the applicants and of the accompanying documents, it appeared to it that the applicants might have rendered excessive services (s 94(c)).

I do not consider that the use of the word "proposes" in s 95 (1) can detract from the construction that s 94 clearly requires, namely that any "decision" involved in its application is as to whether on the material put before the Committee it appears to the Committee that there may have been a rendering of excessive services within the meaning of the Act.
Exhibit 1 makes it clear, in my view, that the only "decision" relevantly taken by the Committee on 20 December 1988 was that "an inquiry was warranted". This was equivalent to the Committee's finding that it appeared that there may have been a rendering of excessive services. The conducting of a hearing flowed from this finding and not from any separate decision to hold one.
The reference in ground A to a decision "pursuant to section 94 of the Health Insurance Act 1973 that a hearing is required or appropriate" does not appear to relate to any decision contemplated by the Act. The word "appropriate" appears in s 94(k). It does not, in that sub-section, refer to the appropriateness of conducting a hearing in all the circumstances, but to the far narrower question of whether two or more hearings rather than a single hearing should be embarked upon.
In my view, this application is not apt to raise questions related to the Committee's considerations pursuant to s 94(c). I therefore find it unnecessary to enter upon a consideration of Woodward J.'s reasons in Freeman v McKenzie (1988) 82 ALR 461 in relation to procedures that might be adopted by a Committee dealing with matters referred to it and arising under s 94(c). I note, in passing, that his Honour was there dealing with a substantially different case from the present one. The number of patients and the number of services involved were substantially greater. His Honour was not purporting to lay down hard and fast principles or procedures for the governing of Committee hearings. Indeed he emphasised that the Act requires that the procedure for the conducting of the hearing be within the discretion of the member presiding (s 97(3)).
I should add that, even if I had been persuaded that this section of the application was in fact aimed at a reviewable decision of the Committee made on 20 December 1988, I would have withheld relief on discretionary grounds, having regard to the questions of acquiescence and delay discussed above.
I therefore dismiss the application so far as it relates to grounds A to C. I turn to ground D.
Ground D relates to "the decision that notices purporting to comply with section 95 of the Health Insurance Act, 1973 did comply with that Act in that they gave the particulars required by that section".
It is most difficult to comprehend what is the "decision" of the Committee which is here sought to be challenged. I do not appear to have anything before me to suggest that that Committee ever made such a "decision". It simply issued notices in purported compliance with s 95 of the Act. I am by no means satisfied that such compliance and, perhaps, consequent invalidity through non-compliance, can properly be tested by imputing to the Committee that a "decision" which it, no doubt, never made. However, I need not pursue this question further. I am quite satisfied that the notice complied with s 95.
The section is set out above. It requires that the notice shall give "particulars of the matter to which the hearing relates". The word "matter" refers back to s 82, which is also set out above. I am satisfied that s 92 (2) requires only that the notice specify with clarity the matters which have been referred to the Committee so that they may be identified by the recipients of the notice. In the present case the Committee provided the applicants with a copy of the material forwarded to it by the Minister. Annexures A and B quite clearly detail the patients, their addresses, the dates upon which services were provided and the nature and cost of those services. It would be perfectly clear to anyone receiving such particulars that the hearing would relate to the question of whether those services were excessive within the meaning of the Act.
In my view, the section simply does not contemplate the provision of "particulars" which might be appropriate as between the parties in adversary litigation. The whole object of the hearing about to be undertaken pursuant to the notice is the determination by a Committee of experts of the question whether, in all the circumstances, the services were excessive. It is the object of the inquiry and the function of the Committee to determine this by investigation; the Committee in no way undertakes to prove a case against the practitioner involved. Its role is purely inquisitorial, as was clearly explained by the chairman at the outset of the proceedings to the two applicants. Ground D is not made out. I should add that, in any event, I would have withheld relief on the same discretionary grounds.
I turn to ground E which seeks relief in relation to "(t)he decision that the applicants were not entitled to know particulars of which of the 1,038 services involving twenty patients referred to in the notices given were services in respect of which the Committee had a concern and what the nature of that concern was before requiring the applicants to exercise their rights pursuant to section 96B of the Health Insurance Act, 1973 to call evidence and address the Committee". This ground refers to the application made by counsel for the applicants at the conclusion of the hearing on 15 June 1989, when the Committee indicated that it had finalised its questioning of the applicants.
The relevant transcript passages have already been set out above. Counsel for the applicants submitted, in effect, that natural justice required that the applicants before entering upon evidence or otherwise exercising their rights under the Act be apprised by the Committee of any "areas of concern" perceived by the Committee to exist in the material before it. It was put that the applicants were entitled to know what services they should deal with by way of further evidence or address on the basis that they were the services which might fall into areas of concern. He submitted that his clients, at that stage, were entitled to adequate particulars to be provided by the Committee of the services which were causing concern and of the matters which led to such concern. The Committee rejected the submission that it was under any such obligation, suggested one area of the evidence which might be given attention, and otherwise indicated that, obligation apart, it was simply not feasible at that stage to provide any indication of any possible areas of concern. In the course of the argument before me, at my request, a further inquiry was made of the Committee as to whether, at that stage, the Committee having had further time to consider the transcript, might then be able to give some indication of areas of concern. The answer was that it was not possible. The Committee is a committee of experts. There is not the slightest suggestion made that the proceedings are being conducted by them otherwise than in a fully responsible and bona fide manner. In these circumstances, the court can only accept that, with the best will in the world, the Committee is currently unable to assist in the narrowing of the issues of the inquiry in the way sought by the applicants.
It seems to me, that this state of fact renders most, if not all, of the arguments put to me in support of this ground beside the point. This court cannot make a totally futile order that an expert Committee do something which it cannot do. Desirable as it may be that the issues of this inquiry be narrowed, thus shortening the work remaining to be done and lightening the load upon the applicants and their legal advisors, this cannot take place if the committee is unable, at this point, to weed out of the material before it matters which it sees as having no relevance or further relevance to its inquiry. A number of authorities have been cited to me (eg. Johnson v Miller 59 CLR 467). In so far as they are based upon the assumption that the tribunal, judicial, quasi judicial, or investigative, is able to do what the court is asked to order but, for one reason or another, is declining to do so, they are of no assistance to me in the present circumstances.
Moreover, it must be steadily born in mind that the Committee's role is one of inquiry and investigation. Whilst it is perfectly true that ultimate adverse findings and recommendations by the Committee may have serious professional and social consequences for the applicants, the fact remains that throughout the investigative process they are not and cannot logically be the subject of any precisely formulated charges, accusations or allegations. As Fox J. said in Minister for Health v Thompson (1985) 60 ALR 701 at 705: "the role of the Committee was an investigative one. It would be true that the Minister had referred the matter because doubts or suspicions had been raised, and it is true that in a sense Dr Thompson was there to defend himself. It is also true that no action of a punitive or disciplinary nature could be taken against him unless it was shown that he had charged for 'excessive services'."
In my view, it would be perfectly clear to anyone that the "doubts and suspicions" that the applicants may have rendered professional services to the 20 patients which were "not reasonably necessary" for their adequate medical care (s 79(1B)) were engendered by the large number of similar services rendered in a small time period to each of the patients. The services, the number of them and the relevant times are clearly shown on the schedules in annexure B.
It is not difficult to assume that schedules of this kind are brought into existence as the result of some computer program put into place for the purpose of keeping a check on the rendering of services for which Medicare benefits are claimed. The provision of these schedules to the applicants quite obviously told them, as medical practitioners, working within the Medicare payments system, that there existed a relevant suspicion that there had been a provision of excessive services to these patients. For instance, lengthy and repeated courses of injections are demonstrated, with the concomitant question as to whether these had been "reasonably necessary".
The case, in my view, is entirely different from that considered by Woodward J. in Freeman v McKenzie where, clearly enough, in the interest of justice, something more was required than a mere investigative progression from the first to the last patient of a group of 1,600 patients. Here only 20 patients were involved, the services under scrutiny were clearly identified, and, as appears from the transcript, the patients were well known to the applicants.
The right to legal representation at the inquiry obviously carries with it the right and opportunity to confer with legal representatives before the commencement of the inquiry. Such a conference would clearly enable the applicants, being themselves medical experts, to provide explanations to their legal representatives as to why, despite an apparently large number of services provided to the individual patients these were, nevertheless, in the circumstances, not excessive. The provision of the courses of injections is clearly an example of an area which, one would reasonably expect, would have been explored between medical clients and legal representatives before the commencement of the hearing.
It is reasonable to assume that in this process there would have been an identification of at least broad areas of concern and the formulation of broad answers to those concerns. Such a process, indeed, finds some illustration in the transcript where the Committee probes the reasons why numerous injections were given to a particular patient and receives the response that the patient in question asked for them and appeared to gain some benefit from them, which response in turn provoked a further question as to whether the doctor provided this form of treatment merely because the patient asked for it.
It seems reasonable to remark that one of the problems arising from the applicants' request for particulars at the conclusion of their questioning necessarily arises from the form in which it was made. It went beyond a mere request for an indication of "areas of concern" such as Woodward J. was referring to in Freeman's case. What was sought was a particularisation of individual services which were the subject of concern. Where there is a general finding that a total number of particular services rendered to a patient goes beyond what was reasonably necessary for that patient's medical care, it will obviously be a nice question to separate out the particular services which are to be regarded as the "excessive" ones. It is hardly a task to be undertaken before the completion of the evidence. Certainly, in my view, no principle of natural justice requires that the Committee undertake such a task by way of the provision of particulars at this stage of the hearing.
In any event, in my view, a requirement that the Committee should provide such particulars runs counter to principles set forth in Minister for Health v Thompson at p 705 where Fox J. says: "there are many authorities which hold that such a Committee can act on its own views, and can do so without disclosing those views to a person appearing before it, in the role of defendant of otherwise (see 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 (1967) 2 QB 955; Kalil v Bray (1977) 1 NSWLR 256; Maloney v New South Wales National Coursing Association Ltd (1978) 1 NSWLR 161)". Reference may also be made to the statement of principle by Woodward J. in Freeman v McKenzie at p 471 where his Honour says: "there is, of course, no obligation on the Committee at this or any later stage of the hearing to explain to the practitioner, or defend, any tentative views it may have formed about over-servicing (see Minister for Health v Thompson (1985) 8 FCR 213)".
Moreover, a requirement that the Committee at this stage select out individual services as being the subject of concern could be productive of the unfortunate consequences referred to by Wilcox J. in Bond and Ors v Australian Broadcasting Tribunal (1988) 19 FCR 494 at 510, where his Honour in considering an analagous situation arising under the Broadcasting Act 1942 (Cth) said as follows: "presumably, as the evidence unfolded, the three members of the Tribunal who were conducting the inquiry each formed impressions about various matters. Their impressions may, or may not, have coincided. But these impressions ought to have been - and, no doubt, were - merely tentative impressions open to reconsideration as further evidence was adduced, and subject to whatever emerged in submissions and even in the ultimate deliberations upon the case of the Tribunal members. Under these circumstances, it would be quite mischievous to require the members of the Division to agree on, and to articulate, their tentative views in the form of particularised allegations. Were the members to take this course, a serious question would arise as to whether those members should continue in the inquiry: see 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".
I am simply unable to accept that the absence of the particulars sought "renders incapable of useful exercise the rights granted to the applicants by section 96B of the Health Insurance Act 1973 to give evidence, to call witnesses, examine other witnesses and address the Committee". Whereas the task of the applicants would undoubtedly be made easier if they could be advised by the Committee as to matters or areas where the Committee currently experiences no concern, if the Committee is unable to do this, then the applicants must simply deal with the material that has been adduced on the basis that no limitation of the task is currently possible. It may well be that, as the matter further unfolds, the Committee may legitimately and reasonably be able to give some indications which would have the effect of shortening the matter. As things stand, however, there are, in my view, no grounds established for reviewing the Committee's decision in this regard.
Grounds F and G may be considered together. They relate to the following decisions:-

"F the decision that the Committee would decline to stay the proceedings as oppressive for want of particulars;

G The decision that the Committee is without power to grant a stay of the proceedings as oppressive for want of particulars."

In my view these questions do not arise, as I have already held that the Committee cannot be found to have acted oppressively in refusing to supply the particulars.
Ground H refers to "the decision to determine the application of the applicants for a stay of the proceedings as oppressive without affording the applicant's counsel the opportunity to address the COmmittee and despite a written request for such an opportunity".
This ground is ultimately dependent upon the possibility that the applicants through their counsel, if given the opportunity of making oral representations as requested, might have swayed the Committee into staying its own proceedings on the grounds that its refusal to supply the requested particulars was oppressive. As I have already held that that refusal was not oppressive, I am of the view that this ground cannot logically be made out and does not warrant the further consideration of this court. Certainly, as a matter of discretion, in all the circumstances, I would not grant relief in respect of it.
Ground I refers to the following decision: "(t)he decision to refuse to provide a copy of 'legal advice provided by the Consultant to the Committee' when that advice was said by the Committee to constitute a reason for a determination for the purposes of section 13 of the Administrative Decision (Judicial Review) Act 1977".
The initial refusal to provide this advice to the applicants was based on legal professional privilege. This privilege was waived at the hearing before me. It is clear that the Committee sought some confirmatory advice as to the course they proposed to adopt in relation to the applicants' application for a stay. I doubt that privilege could properly be claimed in the circumstances. However, I do not find it necessary to give a final decision on this matter, as I am quite clearly of the view that, in all the circumstances, there having been no breach of the rules of natural justice in the Committee's refusal to provide the requested particulars, that I would, on discretionary grounds, withhold any relief under the ADJR Act.
The applicants have, therefore, failed to establish any basis for the granting of the relief sought. I accordingly dismiss the application with costs.
Before parting with this case I should indicate that, in my view, a breach of the rules of natural justice would arise if, prior to the Committee's making any adverse findings or recommendations in relation to the applicants (if such should be the case), the applicants were left in a state of being genuinely unaware of the possibility of such adverse findings or recommendations being made. In other words, there would be injustice if the applicants were properly in a position where they could say, in effect, "if only we had known that the Committee had those criticisms in mind we could have met them by the calling of further evidence or the making of further submissions". So much appears, in my opinion, from the decision of the Judicial Committee of the Privy Council in Mahon v Air New Zealand Limited 1984 AC 808 and, in particular, from a passage at p 821 where it is said that "any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result".

As will have sufficiently appeared from what I have said, there is, in my view, no current basis for the application of this principle to the proceedings before the Committee. One might reasonably suppose that, as the investigation unfolds and the evidence is discussed in the course of counsel's address, there will be a definition of matters of concern sufficient to exclude the possible application of this principle.
It is obviously desirable, that this principle be kept steadily in mind so that the possibility of future cost and delay may be avoided.

[1990] FCA 214

24 MAY 1990