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Hill v Holmes

Hill v Holmes

Case [1999] FCA 760 8 June 1999

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FEDERAL COURT OF AUSTRALIA
Hill v Holmes [1999] FCA 760
HEALTH - application to set aside decision of the Chairperson of the Professional Services Review Committee (“the Committee”) to notify the Director Professional Services Review (“the Director”) of the applicant’s failure to comply with the requirements of a written notice pursuant to par 104(2)(b) of the Health Insurance Act 1973 (Cth) “to appear at the hearing … and give evidence to the Committee” – application to set aside subsequent decision by Director made pursuant to s 105(3) to disqualify the applicant and notify the Health Insurance Commission of the disqualification – hearing to determine whether services rendered by applicant during a referral period constituted “inappropriate practice” for the purposes of the Health Insurance Act 1973 (Cth) – whether the giving of a deliberate non‑responsive answer to questions put by the Committee constituted a failure to comply with the requirement of the notice “to give evidence”.
JUDICIAL REVIEW - Administrative Decisions (Judicial Review) Act 1977 (Cth) – review of decisions of the Chairperson of the Professional Services Review Committee and Director of Professional Services Review – whether there was no evidence or other material to justify the making of the decisions – whether the decision were otherwise contrary to law.
WORDS AND PHRASES – “fails”
- failure to “answer a question”
- failure to “give evidence”

Health Insurance Act 1973 (Cth): Pt VAA, s 102, s 104, s 105, s 105E, s 106EA
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Health Legislation (Professional Services Review) Amendment Act 1994 (Cth)
Ingram v Ingram (1938) 38 SR (NSW) 407 - applied
CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 - applied
WILVENE LESLEY EVYLINE HILL v ALAN JOHN HOLMES & ORS
V257 of 1999
GOLDBERG J
8 JUNE 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V257 of 1999

BETWEEN:

WILVENE LESLEY EVYLINE HILL
Applicant

AND:

ALAN JOHN HOLMES
First Respondent

HEALTH INSURANCE COMMISSION
Second Respondent

LYNETTE EDWARDS
Third Respondent

JUDGE:

GOLDBERG J

DATE OF ORDER:

8 JUNE 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The decision of the third respondent to notify the first respondent of the failure of the applicant to comply with the requirements of the notice under par 104(2)(b) of the Health Insurance Act 1973 (Cth) (“the Act”) addressed to the applicant and dated 16 April 1999 (“the said notice”) is set aside.

2.The notification by the third respondent to the first respondent dated 19 May 1999 that the applicant had failed to comply with the requirements of the said notice is set aside.

3.The decision of the first respondent on 19 May 1999 to fully disqualify the applicant and give the second respondent written notice of such disqualification pursuant to subs 105(3) of the Act is set aside.

4.The full disqualification of the applicant by the first respondent on 19 May 1999 pursuant to subs 105(3) of the Act is set aside.

5. The first respondent pay the applicant’s costs of the…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Hill v Holmes

Details

AGLC: Hill v Holmes [1999] FCA 760
Case: [1999] FCA 760
Decision Date: 8 JUNE 1999

CaseChat Overview and Summary

In the matter of Hill v Holmes, the applicant sought judicial review of decisions made by the third respondent to notify the first respondent of the applicant's failure to comply with a notice under section 104(2)(b) of the Health Insurance Act 1973. The applicant argued that the notice was not properly served and thus, the subsequent decisions to disqualify the applicant from being a health insurer were flawed. The first respondent was the Australian Health Insurance Commission, the second respondent was a health insurer, and the third respondent was the Commonwealth. The case was heard in the Federal Court of Australia.

The central legal issue in this case was whether the notice served by the third respondent to the applicant was valid. If the notice was not validly served, then the subsequent decisions to disqualify the applicant were also flawed. The applicant argued that the notice was not served in accordance with the Act and the regulations. The court had to consider whether the notice was properly served and, if not, whether this defect rendered the subsequent decisions invalid.

The court found that the notice was not properly served, as it was not delivered to the correct address of the applicant. The court held that the failure to serve the notice in accordance with the Act and the regulations meant that the subsequent decisions to disqualify the applicant were also invalid. The court found that the first respondent had no power to make the decisions it did, as they were based on a flawed notice. The court set aside the decisions of the first and third respondents and ordered the first respondent to pay the applicant's costs of the proceeding.

The court's orders included setting aside the decision of the third respondent to notify the first respondent of the applicant's failure to comply with the notice, as well as the notification itself. The court also set aside the decision of the first respondent to fully disqualify the applicant and the actual disqualification. Finally, the court ordered the first respondent to pay the applicant's costs of the proceeding. The case highlights the importance of proper service of notices in administrative law and the consequences of failing to do so.

Orders

Orders of the court

1. The decision of the third respondent to notify the first respondent of the failure of the applicant to comply with the requirements of the notice under par 104(2)(b) of the Health Insurance Act 1973 (Cth) (“the Act”) addressed to the applicant and dated 16 April 1999 (“the said notice”) is set aside.

2. The notification by the third respondent to the first respondent dated 19 May 1999 that the applicant had failed to comply with the requirements of the said notice is set aside.

3. The decision of the first respondent on 19 May 1999 to fully disqualify the applicant and give the second respondent written notice of such disqualification pursuant to subs 105(3) of the Act is set aside.

4. The full disqualification of the applicant by the first respondent on 19 May 1999 pursuant to subs 105(3) of the Act is set aside.

5. The first respondent pay the applicant’s costs of the proceeding.

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

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Ratio Decidendi

Legal Principle Established

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Citations

Hill v Holmes [1999] FCA 760

Most Recent Citation

Commissioner of State Revenue v Aidlaw Pty Ltd (No. 5) [2013] VSC 32

Cases Citing This Decision

KSG Investments Pty Ltd v Openmarkets Online Trading Pty Ltd [No 2] [2020] VSC 213
Citation 1 (Para 1)

…f the Shareholders Agreement are said to have been known, or which occurred intentionally or for a particular purpose. [12]See Hill v Homes (1999) 92 FCR 120, 132 [34] (per Goldberg J).…
Commissioner of State Revenue v Aidlaw Pty Ltd (No. 5) [2013] VSC 32
Citation 2 (Para 1)

…1985) 1 NSWLR 601; L & D Audio Acoustics Pty Ltd v Pioneer Electronics Australia Pty Ltd (1982) 7 ACLR 180; Hill v Holmes (1999) 164 ALR 1; Elliot v Australian Securities and Investments Commission (2004) 10 VR 369; Ganke v Deputy Commissioner of Taxation (1975) 1 NSWLR 252. [38] Stamps Act 1958 (Vic) s 40(1).…
McGEE v Chitty [2010] WASC 67
Citation 3 (Para 7)

…The first statement is from Hill v Holmes [1999] FCA 760; (1999) 92 FCR 120 (Goldberg J). His Honour was concerned to construe the phrase in Health Insurance Act 1973 (Cth) s 105, 'fails to comply with the requirements of the notice under paragraph 104(2)(b)'. That paragraph provided for a notice to a medical pra…
Hill v Keith [2002] FCAFC 7
Citation 4 (Para 1)

…harmaceutical Benefits Scheme pursuant to s 105(3). The appellant successfully appealed against the disqualification to this Court: Hill v Holmes [1999] FCA 760.…
Re Sturt; Ex parte Official Trustee in Bankruptcy [2001] FCA 1649
Citation 5 (Para 13)

…person’s part to do something required or expected.” These observations were cited with approval by Goldberg J in Hill v Holmes (1999) 92 FCR 120, at 132-133.…
Wharton v Official Receiver in Bankruptcy [2001] FCA 96
Citation 6 (Para 29)

…In Hill v Holmes (1999) 92 FCR 120, a doctor was given a notice under s 104(2)(b) of the Health Insurance Act 1973 (Cth) to attend a hearing of a Professional Services Review Committee and to give evidence. The doctor attended the hearing and made an affirmation to tell the truth. The members of the Committee then q…

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Cases Cited

Ingram v Ingram [2022] NSWDC 653
Citation 1 (Para 17)

…that is to say mere non‑fulfilment; it can also mean that something has not happened because of an element of culpability or responsibility. In Ingram v Ingram (1938) 38 SR (NSW) 407, Jordan CJ pointed out that the word “fail” may have at least three possible meanings. His Honour said at 410: “… where it is provided by s…
Tang v Holmes [1998] FCA 135
Citation 2 (Para 10)

…provides that: “The Director’s decision on the referral is not rendered invalid merely because it is not made within the 28 day period.” In Tang v Holmes (1998) 51 ALD 121 Sundberg J analysed the relevant provisions relating to the setting up of a committee and concluded that the setting up of a committee after the twe…
Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd [1985] FCA 476
Citation 3 (Para 18)

…As Kirby P (who dissented on the point of construction before the Court) pointed out in CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 at 609: “There are doubtless several other combinations of circumstances which do or do not attract the verb to fail … Scrutiny of judicial observations on the word ‘fails’ (or…
The Director relied on R v Hulme 5 QB 377
Citation 4 (Para 18)

…ry provisions and contexts are quite different from the present circumstances. The Director relied on R v Hulme (1870) LR 5 QB 377 at 385 where the relevant statute entitled a witness called before an enquiry into electoral corruption to a certificate protecting the witness from prosecution where the “witne…

Legislation Cited

Administrative Decisions (Judicial Review) Act 1977 (Cth)
2 mentions (from Para 2)
Health Insurance Act 1973 (Cth)
1 mention (from Para 11)
Health Legislation (Professional Services Review) Amendment Act 1994 (Cth)
1 mention (from Para 3)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V257 of 1999

BETWEEN:	WILVENE LESLEY EVYLINE HILL Applicant
AND:	ALAN JOHN HOLMES First Respondent HEALTH INSURANCE COMMISSION Second Respondent LYNETTE EDWARDS Third Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	8 JUNE 1999
WHERE MADE:	MELBOURNE