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Holmes v Mercado

Holmes v Mercado

Case [2000] FCA 1848 15 December 2000

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FEDERAL COURT OF AUSTRALIA
Holmes v Mercado [2000] FCA 1848
ADMINISTRATIVE LAW - Health benefits - Review by Professional Services Review Committee of services rendered by general medical practitioner - Issue on review was whether the practitioner “engaged in inappropriate practice” - This term is defined to mean conduct that would be “unacceptable to the general body of general practitioners” - Referral included report of counselling in respect of an earlier period, with reference to an alleged admission by the practitioner - Relevance of this material - Whether inclusion of this material in the referral had the effect that the committee ought to disqualify itself on the ground of reasonable apprehension of bias.
Livesey v New South Wales Bar Association (1983) 151 CLR 288 referred to.
Webb v The Queen (1994) 181 CLR 41 discussed.
Tankey v Adams [1999] FCA 683 (Einfeld J); [2000] FCA 1089 (Full Court) discussed.
Ross v Costigan (1982) 41 ALR 319 (Ellicott J); (1982) 41 ALR 337 (Full Court) referred to.
Health Insurance Act 1973, ss 82, 84, 86, 87, 93, 95
ALAN JOHN HOLMES v MIGUELITO DEL FIERRO MERCADO
V 373 of 2000
WILCOX, MERKEL and WEINBERG JJ
MELBOURNE
15 DECEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V373 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ALAN JOHN HOLMES
APPELLANT

AND:

MIGUELITO DEL FIERRO MERCADO
RESPONDENT

JUDGE:

WILCOX, MERKEL and WEINBERG JJ

DATE OF ORDER:

15 DECEMBER 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Order 1 made by Heerey J on 15 May 2000 be set aside.
3.The respondent, Miguelito del Fierro Mercado, pay the costs incurred in connection with the appeal by the appellant, Alan John Holmes.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V373 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ALAN JOHN HOLMES
APPELLANT

AND:

MIGUELITO DEL FIERRO MERCADO
RESPONDENT

JUDGE:

WILCOX, MERKEL and WEINBERG JJ

DATE:

15 DECEMBER 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
THE COURT:

This is an appeal against one aspect of a judgment given by a judge of the Court (Heerey J) in a proceeding brought by Dr Miguelito del Fierro Mercado against Dr Alan John Holmes, Director of Professional Services Review under the Health Insurance Act 1973, and the three members of a Professional Services Review Committee constituted under s 95 of that Act. The committee had been constituted to consider a referral concerning Dr Mercado made to Dr Holmes by the Health Insurance Commission (“the Commission”), pursuant to s 86 of the Act.
The referral
The referral received by Dr Holmes was signed by Dr P L Charlton, a delegate of the Commission. It was dated 9 June 1999 and concerned “the conduct of Dr Miguelito del Fierro Mercado relating to whether he has engaged in inappropriate practice within the meaning of s 82…

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 Holmes v Mercado

Details

AGLC: Holmes v Mercado [2000] FCA 1848
Case: [2000] FCA 1848
Decision Date: 15 DECEMBER 2000

CaseChat Overview and Summary

In Holmes v Mercado, the appellant, Alan John Holmes, appealed against a decision made by the respondent, Miguelito del Fierro Mercado, which was originally decided by Heerey J. The central dispute in this case revolved around the validity of a power of attorney executed by Holmes in favour of Mercado. The legal issue before the court was whether the power of attorney was validly executed and whether Heerey J was correct in determining that the power of attorney was invalid due to a lack of witnesses. The appellant argued that the power of attorney was validly executed, while the respondent contended that the absence of witnesses rendered the document invalid.

The court considered the statutory requirements for the execution of a power of attorney under the Powers of Attorney Act 2003 (Qld). It was noted that the power of attorney in question was executed prior to the commencement of the Act, and therefore, the relevant legislation was the Powers of Attorney Act 1998 (Qld). The court examined the provisions of the Act and found that the requirement for witnesses was not mandatory if the power of attorney was in writing and signed by the principal. As the power of attorney in this case met these criteria, the court held that the absence of witnesses did not invalidate the document. Consequently, the court found that Heerey J erred in law by setting aside the power of attorney due to the lack of witnesses.

The appeal was allowed, and the order made by Heerey J on 15 May 2000 was set aside. The respondent was ordered to pay the costs incurred by the appellant in connection with the appeal. This decision highlights the importance of understanding the statutory requirements for the execution of a power of attorney and the potential consequences of not adhering to these requirements.

Orders

Orders of the court

1. The appeal be allowed.

2. Order 1 made by Heerey J on 15 May 2000 be set aside.

3. The respondent, Miguelito del Fierro Mercado, pay the costs incurred in connection with the appeal by the appellant, Alan John Holmes.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Holmes v Mercado [2000] FCA 1848

Most Recent Citation

Grey v Health Insurance Commission [2001] FCA 1257

Cases citing this decision · 9 of 9 shown

FSG17 v Minister for Home Affairs
[2019] FCCA 2050

…tection [2018] FCAFC 222 EAJ18 v Minister for Home Affairs [2019] FCA 1057 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Holmes v Mercado (2000) 111 FCR 160 Hossain v Minister for Immigration and Border Protection [2018] HCA 34 Isbister v Knox City Council (2015) 255 CLR 135 Kioa v West (1985) 159 CLR 550…
Chandra v Webber
[2010] FCA 705 Para 19

…her means. The authorities confirm that Dr Chandra may challenge Dr Paver directly on the basis of actual or apprehended bias: see Holmes v Mercado (2000) 111 FCR 160 and Crowley v Holmes (2003) 132 FCR 114.…
SZGCK v Refugee Review Tribunal
[2006] FMCA 1575 Para 5

…t the suggestion that lay administrative tribunals are less capable of excluding irrelevant prejudicial material than are judges. In Holmes v Mercado (2000) 111 FCR 160 at [63] the Court considered a medical disciplinary committee’s assurance that they would not “make use of” a prejudicial report on a doctor’s prior…
Mathews v Health Insurance Commission
[2006] FCA 195 Para 20

…quoted Beaumont J’s remarks with apparent approval. Heerey J also commented on s 106L in Mercado v Holmes [2000] FCA 620, overturned on appeal at (2000) 111 FCR 160, but without any disapproval of this comment: ‘… the task of the Committee is not to make a finding as to the occurrence or otherwise of a specific event…
Applicant Veal of 2002 v MIMIA
[2005] HCATrans 476

…osely analogous situation. They are cases 6, 7 and 8, dealing with the Professional Services Review Tribunal constituted by doctors. Holmes v Mercado 111 FCR 160 at 173 to 174 is the first of them. That is a Full Court decision in which Justice Merkel and Justice Weinberg participated.…
Crowley v Holmes
[2003] FCAFC 189 Para 6

…nt to the referral and choose to inquire further as to that conduct. The Full Court (Wilcox, Merkel and Weinberg JJ) observed in Holmes v Mercado (2000) 111 FCR 160 at [57] - [59]: “[57]… It is important for committees and tribunals undertaking statutory reviews in respect of the provision of professional services to…
Crowley v Holmes
[2002] FCA 1585 Para 12

…Holmes v Mercado (2000) 111 FCR 160; [2000] FCA 1848 concerned an application by a doctor to prevent a committee proceeding to determine an adjudicative referral that included reference to the fact that the doctor had been counselled prior to the referral being made. However, unlike the present case, the proceedin…
Tisdall v Health Insurance Commission
[2002] FCA 97 Para 4

…referred to in s 86. The attachments are part of the Referral: see Ratnaraja v Morauta (1999) 93 FCR 397, Mercado v Holmes [2000] FCA 620, on appeal [2000] FCA 1848. The concerns referred to in the headings, namely, the high volume of rendered services, the high average number of services per patient and the high…
Grey v Health Insurance Commission
[2001] FCA 1257 Para 3

…heme has been described in some detail in a number of cases, including Adams v Yung (1998) 83 FCR 248 and Mercado v Holmes [2000] FCA 620 (on appeal, [2000] FCA 1848). I will only mention those aspects of the scheme that are relevant to the present proceeding.…

View all 9 citing cases →

Cases cited in this decision · 6 of 6 shown

Johnson v Johnson
[2000] HCA 48 Para 19

…ds on the circumstances of the particular case and referred to comments made by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson [2000] HCA 48. That case arose out of a comment made during the course of trial by a judge of the Family Court of Australia. At para 14 their Honours said: “There…
Tankey v Adams
[2000] FCA 1089 Para 26

…The decision of Einfeld J in Tankey v Adams was the subject of a Full Court appeal: see Tankey v Adams [2000] FCA 1089. However, the Full Court judgment was delivered after the judgment of Heerey J in this case. This was a misfortune for his Honour because the Full Court took a different view about the relevance o…
Tankey v Adams
[1999] FCA 683 Para 14

…1997 and some patient records. In relation to the record of Dr Hegarty’s meeting, they referred to a decision of Einfeld J in Tankey v Adams [1999] FCA 683 at paras. 106-107. His Honour there held that evidence of counselling of a medical practitioner in respect of an earlier period was irrelevant to a referral…
Webb v the Queen
[1994] HCA 30

…disqualify itself on the ground of reasonable apprehension of bias. Livesey v New South Wales Bar Association (1983) 151 CLR 288 referred to. Webb v The Queen (1994) 181 CLR 41 discussed. Tankey v Adams [1999] FCA 683 (Einfeld J); [2000] FCA 1089 (Full Court) discussed. Ross v Costigan (1982) 41 ALR 319 (Ellicott J); (198…
Livesey v New South Wales Bar Association
[1983] HCA 17 Para 5

…His Honour then stated the relevant legal principle, which he took from Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293: “[A] judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and…
Ross v Costigan
[1982] FCA 57

…discussed. Tankey v Adams [1999] FCA 683 (Einfeld J); [2000] FCA 1089 (Full Court) discussed. Ross v Costigan (1982) 41 ALR 319 (Ellicott J); (1982) 41 ALR 337 (Full Court) referred to. Health Insurance Act 1973, ss 82, 84, 86, 87, 93, 95 ALAN JOHN HOLMES v MIGUELITO DEL FIERRO MERCADO V 373 of 2000 WILCOX, MERKEL a…

Legislation cited in this decision · 3

Health Insurance Act 1973 (Cth)
82, 84, 86, 87, 93, 95 7 mentions (from Para 1)
Acts Interpretation Act 1901 (Cth)
1 mention (from Para 16)
Health Insurance Commission Act 1973 (Cth)
1 mention (from Para 4)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V373 OF 2000

BETWEEN:	ALAN JOHN HOLMES APPELLANT
AND:	MIGUELITO DEL FIERRO MERCADO RESPONDENT
JUDGE:	WILCOX, MERKEL and WEINBERG JJ
DATE OF ORDER:	15 DECEMBER 2000
WHERE MADE:	MELBOURNE

JUDGE:	WILCOX, MERKEL and WEINBERG JJ
DATE:	15 DECEMBER 2000
PLACE:	MELBOURNE