FEDERAL COURT OF AUSTRALIA
Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859
ADMINISTRATIVE LAW – judicial review – approved pathology authority alleged to have breached undertaking given to Minister – referral of allegation by Minister to Medicare Participation Review Committee (MPRC) for hearing and determination – adequacy of particulars provided by Minister to applicant in notice given under s 23DL(1) of Health Insurance Act 1973 (Cth) - adequacy of particulars provided by Minister to MPRC in notice given under s 23DL(4)(c) - whether failure to provide adequate particulars renders each notice invalid – whether invalidity of notice prevents MPRC from continuing hearing - allegation that applicant’s conduct in providing false answers in application to Minister breached undertaking not to take any action that would constitute a relevant offence – provision of information that is false or misleading in a material particular an offence under s 129(2) – whether Minister can require undertaking which obliges an applicant for approved pathology authority status not to contravene the general criminal law - whether judicial power of the Commonwealth vested in MPRC ––whether continuation of hearing amounts to interference with administration of justice – whether Minister actuated by improper or collateral purpose – whether erroneous construction of undertaking gives rise to jurisdictional error
Health Insurance Act 1973 (Cth) ss 16A(5AA), 23DF, 23DL(1), 23DL(4)(c), 23DL(5), 23DG(3), 124E(3), 124FC and 129(2) and (3)
Judiciary Act 1903 (Cth) ss 39B(1) and 39B(1A)Deputy Commissioner of Taxation v Woodhams (2000) 199 CLR 370 at 384 considered
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 258 and 269 referred to
Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 referred to
Gouriet v Union of Post Office Workers [1978] AC 435 at 499-500 considered
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 576-578 referred to
Rees v Crane [1994] 2 AC 173 referred to
R v Pharmacy Board of Victoria; Ex parte Broberg (1983) 1 VR 211 applied
Johnson v Miller (1937) 59 CLR 467 applied
R v Magistrates’ Court at Heidelberg; Ex parte Karasiewicz [1976] VR 680 applied
R v Solicitors’ Disciplinary Tribunal; Ex parte L (a solicitor) [1988] VR 757 applied
Kanda v Government of Malaya [1962] AC 322 at 337 considered
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 389 applied
Tasker v Fullwood [1978] 1 NSWLR 20 at 24 referred to
Scurr v Brisbane City Council (1973) 133 CLR 242 at 254-255 referred to
Websdale v S & JD Investments Pty Ltd (1991) 24 NSWLR 573 at 577-578 referred to
Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71 at 79 referred to
Sandvik Australia Pty Ltd v The Commonwealth (1989) 89 ALR 213 at 226 referred to
S v The Queen (1989) 168 CLR 266 at 274-275 referred to
Peverill v Backstrom (1994) 54 FCR 410 at 436 referred to
Bannerman v Mildura Fruit Juices Pty Ltd (1984) 2 FCR 581 at 591 referred…
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- AGLC
- Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859
- Case
- [2002] FCA 859
- Decision Date
CaseChat Overview and Summary
Gribbles Pathology (Vic) Pty Ltd brought an application before the court to prevent the Medical Practitioners Disciplinary Committee (MPRC) from further hearing a matter. Gribbles claims that the MPRC lacks jurisdiction to proceed with the hearing, asserting that a criminal conviction is a necessary precondition for the MPRC to take action against an approved pathology authority. The application hinges on the interpretation of statutory provisions, specifically sections 23DL(1) and 23DL(4)(c) of the relevant Act, which outline the procedure for referring matters to the MPRC when there are grounds to believe that an approved pathology authority has breached an undertaking.
The key legal issue before the court was whether a criminal conviction was a necessary prerequisite for the MPRC to have jurisdiction over an approved pathology authority. Gribbles argued that the MPRC could only act if there had been a criminal conviction, citing principles of natural justice and the need for procedural fairness. The court had to determine whether the statutory framework allowed the MPRC to proceed with inquiries and hearings based on allegations of breaches of an undertaking without a criminal conviction.
The court found that the MPRC did have jurisdiction to proceed with the hearing, rejecting Gribbles' argument that a criminal conviction was a necessary precondition. The court held that the MPRC's role was not to determine criminal guilt but to assess whether an undertaking had been breached. The undertaking required Gribbles not to engage in conduct that would constitute a relevant offence, which the MPRC was entitled to examine. The court noted that the MPRC was not a criminal court and that its function was not to impose criminal sanctions but to determine if there had been a breach of the undertaking. Furthermore, the court held that the statutory framework allowed the MPRC to proceed with its inquiries based on the Minister's notices, without requiring a criminal conviction. The court concluded that the MPRC's jurisdiction was triggered by the Minister's notices, and it was not necessary for there to have been a criminal conviction before the MPRC could hear the matter.
The orders of the court were that Gribbles' application be dismissed, with costs to be paid by Gribbles.
The key legal issue before the court was whether a criminal conviction was a necessary prerequisite for the MPRC to have jurisdiction over an approved pathology authority. Gribbles argued that the MPRC could only act if there had been a criminal conviction, citing principles of natural justice and the need for procedural fairness. The court had to determine whether the statutory framework allowed the MPRC to proceed with inquiries and hearings based on allegations of breaches of an undertaking without a criminal conviction.
The court found that the MPRC did have jurisdiction to proceed with the hearing, rejecting Gribbles' argument that a criminal conviction was a necessary precondition. The court held that the MPRC's role was not to determine criminal guilt but to assess whether an undertaking had been breached. The undertaking required Gribbles not to engage in conduct that would constitute a relevant offence, which the MPRC was entitled to examine. The court noted that the MPRC was not a criminal court and that its function was not to impose criminal sanctions but to determine if there had been a breach of the undertaking. Furthermore, the court held that the statutory framework allowed the MPRC to proceed with its inquiries based on the Minister's notices, without requiring a criminal conviction. The court concluded that the MPRC's jurisdiction was triggered by the Minister's notices, and it was not necessary for there to have been a criminal conviction before the MPRC could hear the matter.
The orders of the court were that Gribbles' application be dismissed, with costs to be paid by Gribbles.
Orders
Orders of the court
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Background
Background to the litigation
By this application, brought pursuant to ss 39B(1) and 39B(1A) of the Judiciary Act 1903 (Cth), Gribbles seeks to restrain the MPRC from further hearing this matter. It claims that the MPRC has no jurisdiction to proceed with the hearing. BACKGROUND On 21 June 1995, Gribbles applied to the Minister for approval as “an approved pathology authority”. That expression is defined in s 3 as meaning “a person in respect of whom there is in force an undertaking given by the person, and accepted by the Minister under section 23DF”. Section 23DF(1) requires, as a condition of granting that approval, that the person seeking it give to the Minister, together with that person’s application for acceptance of the undertaking, an undertaking in accordance with the appropriate approved form prescribed by the Minister and approved by Parliament: see s 23DB. On the same date, 21 June 1995, Gribbles gave the undertaking as required by s 23DF(1)(a) (“the June undertaking”). On 30 June 1995, the Minister accepted the undertaking on behalf of the Commonwealth. However, he determined, in accordance with s 23DF(1)(c), that it would have effect only from 1 July 1995 to 30 September 1995. On 14 September 1995, Gribbles applied again to the Minister for approval. In support of that application, it proffered an undertaking in identical terms to that earlier given (“the September undertaking”). For reasons that are not immediately apparent, the Minister did not accept the September undertaking and, it seems, has still not done so. In the result, Gribbles had continued, and still continues, as an approved pathology authority. Its June undertaking, given in support of its first application, is deemed by s 23DG(3) to continue in force. THE RELEVANT LEGISLATIVE SCHEME The most common procedure under the Act for referring matters to an MPRC for hearing and determination is the notification of a Chairperson, pursuant to s 124D, that a practitioner has been convicted of a relevant offence. However, in the case of an approved pathology authority, an alternative procedure is available. If the Minister has “reasonable grounds” for “believing that such an authority has breached an undertaking”, given for the purpose of s 23DF, he must give notice in writing to that authority “setting out particulars of those grounds” and inviting it to make submissions as to why further action should not be taken against it. Such a notice is given pursuant to s 23DL(1) (“the first notice”). The approved pathology authority then has 28 days within which to make any submissions: see s 23DL(2). If the Minister, having had regard to any such submissions, remains satisfied that there are reasonable grounds “(being grounds that were specified in the notice referred to in subsection (1))” for believing that there has been a breach of the undertaking, he must, pursuant to s 23DL(4)(c), give notice in writing to a Chairperson of an MPRC setting out particulars of those grounds (“the second notice”).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
WEINBERG J
With regard to the issue of a criminal conviction being a precondition to the MPRC’s jurisdiction, the delegate submitted:“Gribbles has assembled a number of authorities relevant to the determination of criminal guilt. These authorities are not relevant to the Committee’s tasks. The Committee is not asked to determine that a person has committed a criminal offence. It goes without saying that the Committee would not have such powers. For that reason it is unnecessary to examine in detail the authorities referred to by Gribbles. The Committee is asked to determine whether an undertaking has been breached. It does not impose criminal sanctions nor does it make a final and binding finding of criminal guilt. Indeed it does not make a finding of criminal guilt at all. The terms of the undertaking are that Gribbles will not engage in conduct which would amount to an offence under the Act. There is nothing to stop a tribunal or civil court inquiring into such questions.The undertaking must be read to mean conduct which if proved by admissible evidence in a court of criminal jurisdiction is capable of supporting a criminal conviction. That is a very different question from determining criminal guilt. Such questions are regularly agitated before medical boards or for that matter in courts of civil and not criminal jurisdiction where none of the protections referred to by Gribbles are present or many of those protections are absent. For example, it would be possible to have and, regularly there has been, agitation in the civil courts of allegations of criminal conduct in actions for defamation. The cases which refer to interference in criminal process are irrelevant since there is no criminal process in existence in relation to this matter nor is there any pending. The Committee is not asked to exercise criminal jurisdiction nor is there anything in its finding which would bind a criminal court. Indeed the law is to the contrary: even were the Committee to be a court of civil jurisdiction exercising judicial power any findings made would not be admissible for the purpose of criminal proceedings. That is trite law. The factual matrix from which a breach of the relevant undertaking could be found is from the point of view of an expert committee relatively straightforward. It does not involve complex questions of law but is well within the Committee’s expertise.”REASONS FOR DECISION OF THE MPRC On 4 January 2001, in a careful and comprehensive statement of reasons for decision, the MPRC determined that it had jurisdiction to entertain the reference in respect of the first, second, third, and fifth alleged breaches in the first notice. However, insofar as the first and fifth alleged breaches relied on misstatements on the part of Gribbles in the answers to questions 10 and 11 in its application for approved provider authority status, only those misstatements contained in the later application, that of 14 September 1995, could be relied upon. The MPRC’s reasons may be summarised as follows:·it accepted Gribbles’ submission that its jurisdiction depended upon the giving by the Minister of a valid notice pursuant to s 23DL(1) to the approved pathology authority. In accepting that submission, it rejected the Minister’s contention that the first notice was “not vital”, but that the important matter so far as jurisdiction was concerned, was the second notice. It found that “the notice under s 23DL(1), together with the notice required by s 23DL(5), serves the important function of initiating the reference to the [MPRC] and appraising [sic] the [approved pathology authority] of the complaints made against it”. ·it considered that the first notice adequately particularised the grounds upon which the Minister believe that Gribbles had breached its undertaking. It observed that this notice had referred specifically to the two undertakings proffered by Gribbles, the June and the September undertakings. It also observed that this notice had identified the particular paragraphs of those undertaking said to have been breached, and set out the manner in which those breaches were alleged to have occurred. In the MPRC’s view, the notice gave sufficient information about these allegations to enable Gribbles to make any submissions it thought appropriate, pursuant to s 23DL(2).·it accepted that the second notice served an important function. It was, in effect, the complaint or pleading by which the breach alleged against the authority was brought before the MPRC set up to deal with it. It found that the annexure of the first notice, coupled with the Minister’s express consideration of Gribbles’ submissions pursuant to 23DL(2), satisfied the requirements of s 23DL(4)(c). It went on to make three observations about the effect of the second notice:(i)it appeared to be limited to the June undertaking. It did not, on its face, allege that the Minister was satisfied that the September undertaking had been breached. That was a departure from the first notice.(ii)it would not have been competent for the Minister by the second notice to refer breaches which had not been specified in the first notice. However, the Minister had not purported to do so.(iii)if the Minister concluded, after carrying out his obligation to consider submissions made under s 23DL(2), that there had been a breach of an undertaking, he had no discretion but to refer the matter to a Chairperson. ·in relation to the third notice, this too was an important aspect of the procedure to bring the Minister’s complaint before an MPRC. Together with the first notice, it fulfilled the requirements of procedural fairness which entitled an approved pathology authority to particulars of the allegations against it, and the opportunity to answer those allegations. The third notice “picked up” the first notice, informed Gribbles that its submissions had been considered and, “using the present tense, that the Minister believes that the undertaking has been broken”. However, as with the second notice, the third notice referred only to the June undertaking. That too was a departure from the first notice, and a most serious one. On its face, the third notice was saying that the Minister had considered Gribbles’ submission, and still believed that there had been a breach of the June undertaking. There were major difficulties with the reasoning leading to that conclusion.·the delegate’s letter of 20 September 2000 to the Chairperson and to Gribbles, had said in part:“For the avoidance of doubt and to provide clarity I confirm that it was, and remains, our intention to refer the matter to you in respect of both the undertaking dated 21 June 1995 and the undertaking dated 14 September 2000 [sic] as detailed in the section 23DL(1) Notice issued on 24 December 1999.” (emphasis added)This letter was obviously intended to cure the omission in both the second notice, and the third notice, each of which referred only to the June undertaking. It was the MPRC’s view that, at least in relation to the second notice, it could not do this. That notice had to be valid when given. It could not later be amended or amplified. However, the MPRC considered that it was possible to regard the delegate’s letter of 20 September 2000 as a fresh reference of the breaches alleged of the September undertaking. That was because the Chairperson appointed the MPRC a week after receiving that letter. The notification to Gribbles of the reference, which was required by s 23DL(5), was effected, on this analysis, by sending a copy of the letter to Gribbles on the same day. The date of the September undertaking had, of course been misstated. However, the mistake was so obvious, and the reference should so plainly should have been to 14 September 1995, and not 14 September 2000, that it could not have confused the recipient. In the result the MPRC regarded the allegations of breach of the September undertaking as being properly before it.·it did not accept Gribbles’ submission that a criminal conviction was a precondition to any inquiry by the MPRC. That submission was said to fail to recognise either the nature of the proceeding before the MPRC, or its true function. Moreover, the undertaking had not been “not to commit a relevant offence”, but rather, “not to take any action that would constitute a relevant offence”. A finding that an approved pathology authority had breached that undertaking could not, in any relevant sense, be equated to a conviction for a criminal offence. ·it rejected Gribbles’ submission that the proceeding before it was criminal in nature. It was the function of the criminal law to punish offenders. That was no part of the function of an MPRC. ·it accepted Gribbles’ submission that the undertaking not to engage in conduct which constituted a relevant offence had to be read prospectively. When an approved pathology authority made its application, it was required to submit two documents which were stapled together in book form. One was the application and the other the undertaking. They appeared in that order. Gribbles’ first application and its June undertaking, were both made and given on the same day. The same was true of its second application and its September undertaking. It was clear that neither undertaking could operate until accepted by the Minister. That did not occur, in the case of the June undertaking, until 30 June 1995, nine days after the allegedly false statements in answer to questions 10 and 11 had been made. It had not yet occurred in the case of the September undertaking which had never been accepted. It followed that the alleged misstatements in the June application could not constitute a breach of the June undertaking. The remedy for the making of false statements in an application given at the same time as an undertaking must be, not for breach of the undertaking, but prosecution under one of the sections of the Act and, upon conviction, reference to an MPRC, pursuant to s 124D. ·however, the alleged misstatement in the application of 14 September 1995 was capable of amounting to a breach of the June undertaking. By September, that undertaking had been accepted, and was in force. Thus, the first alleged breach, as set out in the first notice, could be relied upon insofar as it alleged a breach, on 14 September 1995, of the June undertaking.·in relation to the second alleged breach, that is, the undertaking not to cause or permit any person to make a claim for Medicare benefits which it knew or ought to have known were not payable because of the nature of the procedure, or the clinical circumstances in which it was performed, the MPRC concluded, contrary to Gribbles’ submission, that the identity of the collector of pathology specimens was part of the clinical circumstances in which collection was made and analysis undertaken. ·finally, the MPRC construed the fifth alleged breach, that is, that Gribbles failed to take all reasonable measures to ensure that its employees and agents would comply with the undertaking, as being an alternative to, and not inconsistent with, the earlier alleged breaches. THE APPLICATION BEFORE THIS COURT
Ratio Decidendi
Legal Principle Established
Established by: WEINBERG J
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