Hamor v Determining Authority - [2023] FCA 267

FEDERAL COURT OF AUSTRALIA
Hamor v Determining Authority [2023] FCA 267

File number(s): NSD 630 of 2021

Judgment of: GOODMAN J

Date of judgment: 27 March 2023

Catchwords: ADMINISTRATIVE LAW – judicial review – professional services scheme under Part VAA of the Health Insurance Act 1973 (Cth) – Determining Authority, acting on the findings of inappropriate practice by the applicant made by a Professional Services Review Committee, made decisions disqualifying the applicant for one year with respect to MBS item 12250 and requiring the applicant to pay $1,959,718.75 being the Medicare benefits that were paid for the MBS item 12250 services in connection with which the applicant engaged in inappropriate practices – decisions challenged on the bases of legal unreasonableness and findings made without evidence – application dismissed

Legislation:
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5

Health Insurance Act 1973 (Cth), ss 19, 79A, 81, 82, 85, 86, 93, 95, 101, 106K, 106L, 106SA, 106T, 106TA, 106U, 106ZPA, 106ZPR

Judiciary Act 1903 (Cth), s 39B

Health Insurance Regulations1975 (Cth), reg 13

Cases cited:
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; (2020) 277 FCR 420

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21

Hamor v Commonwealth of Australia [2020] FCA 1748

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628

Hickey v Australian Postal Corporation [2023] FCA 57

Kutlu v Director of Professional Services Review [2011] FCAFC 94; (2011) 197 FCR 177

Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Navoto v Minister for Home Affairs [2019] FCAFC 135

Norouzi v The Director of the Professional Services Review Agency [2020] FCA 1524

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497

Sevdalis v Director of Professional Services Review (No 2) [2016] FCA 433

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 150

Date of hearing: 28 March 2022

Counsel for the Applicant: M Robinson SC with J Lucy and C Brain

Solicitor for the Applicant: WorkLegal

Counsel for the First Respondent: The first respondent submitted to any order that the Court may make save as to costs.

Counsel for the Second Respondent: A Berger KC and D Forrester

Solicitor for the Second Respondent: Sparke Helmore

ORDERS

NSD 630 of 2021

BETWEEN:
GEORGE HAMOR

Applicant

AND:
DETERMINING AUTHORITY

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

ORDER MADE BY:

GOODMAN J

DATE OF ORDER:

27 MARCH 2023

THE COURT ORDERS THAT:
1.The amended originating application filed 31 July 2021 is dismissed.
2.The applicant is to pay the second respondent’s costs as agreed or taxed.

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

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.

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Details

Case: [2023] FCA 267
Decision Date: 27 March 2023

CaseChat Overview and Summary

In the matter of Hamor v Determining Authority, the Federal Court of Australia was tasked with reviewing the decision made by the Determining Authority under Part VAA of the Health Insurance Act 1973 (Cth) regarding the applicant's conduct. The applicant, Hamor, was found by the Professional Services Review Committee to have engaged in inappropriate practices related to Medicare Benefits Schedule (MBS) item 12250. Consequently, the Determining Authority disqualified Hamor from claiming benefits for MBS item 12250 for one year and ordered him to repay $1,959,718.75, the amount of Medicare benefits paid for services provided during the period of inappropriate conduct. Hamor challenged the decisions on the grounds of legal unreasonableness and the absence of evidence supporting the findings.

The court identified several legal issues to be addressed, including whether the Determining Authority's decisions were logically unsound, whether they were made for an unlawful purpose, and whether the Authority failed to consider the hardship the directions would impose on Hamor. The applicant argued that the Authority's reasoning was flawed and that the repayment direction was punitive rather than protective, as required by the Act. Furthermore, Hamor contended that the Authority did not adequately address the hardship the repayment direction would cause.

The court concluded that the Authority's decisions were both logically sound and consistent with the purposes of Part VAA of the Act. The Authority had appropriately considered the gravity of Hamor's conduct, the risk of future inappropriate practice, and the potential hardship of the directions imposed. The court found that the Authority's decisions were not legally unreasonable and were based on sufficient evidence. The application for judicial review was dismissed, and Hamor was ordered to pay the costs of the proceeding.

Orders

Orders of the court

1. The amended originating application filed 31 July 2021 is dismissed.

2. The applicant is to pay the second respondent’s costs as agreed or taxed.

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

A. INTRODUCTION

[1]

B. BACKGROUND

[2]

C. THE FINAL DETERMINATION

[28]

Summary of the Final Determination as set out by the Authority

[28]

Issues based summary of the Final Determination

[60]

(1) Concerns about the gravity of the applicant’s conduct

[63]

(2) Changes to item 12250 and to the applicant’s practice since the review period

[64]

Changes to item 12250 since the review period

[65]

Changes to the applicant’s practice since the review period

[69]

(3) The risk that the applicant would engage in inappropriate practice in the future

[75]

(4) The applicant’s submissions as to the hardship that the proposed repayment direction would cause him

[77]

(5) The availability of other practitioners to provide the services provided by the applicant during his disqualification

[78]

D. APPLICATION FOR REVIEW

[80]

Grounds of review

[80]

Legal principles

[81]

Disqualification direction

[85]

(1) Logically unsound reasoning

[87]

Changes to item 12250

[87]

Changes to the applicant’s practice

[92]

Further alleged inconsistency

[95]

Availability of other providers of item 12250 services

[98]

(2) Unlawful purpose

[107]

(3) Failure to engage with the hardship that the disqualification direction would cause to the applicant

[117]

Repayment direction

[120]

(1) The Authority erroneously assumed that it should make a direction that the full amount of the benefits paid to the applicant be repaid, unless a “reduction” in that amount could be justified

[123]

(2) The Authority otherwise employed a logically unsound process of reasoning in support of the repayment direction

[126]

(3) The repayment direction was not made consistently with the protective purpose of s 106TA and 106U of the Act and was, in effect, punitive

[133]

(4) Failure to engage with the hardship that the repayment direction would cause to the applicant

[147]

E. CONCLUSION

[150]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I am not satisfied that the repayment direction was attended by legal unreasonableness.E. CONCLUSION The Authority’s disqualification and repayment directions each had a logical and intelligible basis. The Authority was concerned as to the gravity and extent of the applicant’s inappropriate conduct as found by the Committee. It was also concerned that the applicant had not accepted or appreciated the gravity of the Committee’s findings. It concluded that there was a risk that the applicant would engage in inappropriate conduct in the future. In imposing the disqualification direction and the repayment direction, the Authority took into account the above matters, together with the objects of Part VAA of the Act. It also gave consideration to the applicant’s submissions including his submissions as to the effect that the disqualification direction and the repayment direction would have upon him. The directions that it made were open to it and the applicant has not established that either direction was attended by legal unreasonableness. The application should be dismissed, with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	NSD 630 of 2021
Judgment of:	GOODMAN J
Date of judgment:	27 March 2023
Catchwords:	ADMINISTRATIVE LAW – judicial review – professional services scheme under Part VAA of the Health Insurance Act 1973 (Cth) – Determining Authority, acting on the findings of inappropriate practice by the applicant made by a Professional Services Review Committee, made decisions disqualifying the applicant for one year with respect to MBS item 12250 and requiring the applicant to pay $1,959,718.75 being the Medicare benefits that were paid for the MBS item 12250 services in connection with which the applicant engaged in inappropriate practices – decisions challenged on the bases of legal unreasonableness and findings made without evidence – application dismissed
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5 Health Insurance Act 1973 (Cth), ss 19, 79A, 81, 82, 85, 86, 93, 95, 101, 106K, 106L, 106SA, 106T, 106TA, 106U, 106ZPA, 106ZPR Judiciary Act 1903 (Cth), s 39B Health Insurance Regulations1975 (Cth), reg 13
Cases cited:	BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; (2020) 277 FCR 420 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 Hamor v Commonwealth of Australia [2020] FCA 1748 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 Hickey v Australian Postal Corporation [2023] FCA 57 Kutlu v Director of Professional Services Review [2011] FCAFC 94; (2011) 197 FCR 177 Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Navoto v Minister for Home Affairs [2019] FCAFC 135 Norouzi v The Director of the Professional Services Review Agency [2020] FCA 1524 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 Sevdalis v Director of Professional Services Review (No 2) [2016] FCA 433
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	150
Date of hearing:	28 March 2022
Counsel for the Applicant:	M Robinson SC with J Lucy and C Brain
Solicitor for the Applicant:	WorkLegal
Counsel for the First Respondent:	The first respondent submitted to any order that the Court may make save as to costs.
Counsel for the Second Respondent:	A Berger KC and D Forrester
Solicitor for the Second Respondent:	Sparke Helmore

ORDER MADE BY:	GOODMAN J
DATE OF ORDER:	27 MARCH 2023