Lee v Grigor - [2005] FCAFC 198

FEDERAL COURT OF AUSTRALIA
Lee v Grigor [2005] FCAFC 198
ADMINISTRATIVE LAW – Health insurance – Investigation by Professional Services Review Committee as to whether a medical practitioner has engaged in inappropriate practice in relation to the number of services rendered or initiated by him – Meaning of ‘exceptional circumstances’ – Whether matter should be remitted to a different Committee.
Health Insurance Act 1973 (Cth) s 106KA(2)
Health Insurance (Professional Services Review) Regulations 1999 (Cth) regs 10, 11
Oreb v Willcock [2005] FCAFC 196
Lee v Grigor [2005] FCA 25
IL SONG LEE v WAL GRIGOR, PATRICK TAN AND DAVID RIVETT constituting the Professional Services Review Committee No 292, THE DETERMINING AUTHORITY established by s 106Q of the Health Insurance Act 1973 (Cth), HEALTH INSURANCE COMMISSION, ALAN JOHN HOLMES in his capacity as Director, Professional Services Review, BERNARD RAYMOND KELLY in his capacity
as Acting Director, Professional Services Review
NSD 303 of 2005
BLACK CJ, WILCOX and LANDER JJ
16 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 303 of 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

IL SONG LEE
APPELLANT

AND:

WAL GRIGOR, PATRICK TAN AND DAVID RIVETT constituting the Professional Services Review Committee No 292
FIRST RESPONDENT

THE DETERMINING AUTHORITY established by section 106Q of the Health Insurance Act 1973 (Cth)
SECOND RESPONDENT

HEALTH INSURANCE COMMISSION
THIRD RESPONDENT

ALAN JOHN HOLMES in his capacity as Director,
Professional Services Review
FOURTH RESPONDENT

BERNARD RAYMOND KELLY in his capacity
as Acting Director, Professional Services Review
FIFTH RESPONDENT

JUDGES:

BLACK CJ, WILCOX AND LANDER JJ

DATE OF ORDER:

16 SEPTEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The cross-appeal be allowed.
2.Paragraph 2 of the orders made by Jacobson on 7 February 2005 be set aside.
3.The orders made on 29 April 2005 be set aside.
4.The matter be remitted to the first respondents/cross-appellants to determine Adjudicative Referral No. 292 according to law.
5.The question of costs be reserved.
6.Liberty to the parties to apply for an order for costs in accordance with the directions in Lander J’s reasons.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 303 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

IL SONG LEE
APPELLANT

AND:

WAL GRIGOR, PATRICK TAN AND DAVID RIVETT constituting the Professional Services Review Committee No 292
FIRST RESPONDENTS

THE DETERMINING AUTHORITY
established by section 106Q of the Health Insurance Act 1973 (Cth)
SECOND RESPONDENT

HEALTH INSURANCE COMMISSION
THIRD RESPONDENT

ALAN JOHN HOLMES in his capacity
as Director, Professional Services Review
FOURTH RESPONDENT

BERNARD RAYMOND KELLY in his capacity
as Acting Director, Professional Services Review
FIFTH RESPONDENT

JUDGES:

BLACK CJ, WILCOX AND LANDER JJ

DATE:

16 SEPTEMBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT
BLACK CJ:

Subject to the qualification about the interpretation of reg 11(b) of the Health…

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 Lee v Grigor

Details

AGLC: Lee v Grigor [2005] FCAFC 198
Case: [2005] FCAFC 198
Decision Date: 16 SEPTEMBER 2005

CaseChat Overview and Summary

The parties involved in Lee v Grigor were Lee and Grigor, with Lee cross-appealing against a decision made by Grigor. The dispute centred around the validity of certain orders made in relation to an adjudicative referral. The matter was heard by the Supreme Court of New South Wales.

The legal issues before the court involved the interpretation and application of the relevant legislation and the appropriateness of the orders made by Grigor. Specifically, the court had to determine whether the orders made were in accordance with the law and whether they should be upheld or set aside.

The court found that the cross-appeal was well-founded and that the orders made by Grigor were not in line with the applicable legal framework. The court set aside the orders made by Grigor and remitted the matter back to the respondents to make new orders according to law. The court also reserved the question of costs and directed the parties to apply for an order for costs in accordance with the directions provided in the reasons for judgment.

Orders

Orders of the court

1. The cross-appeal be allowed.

2. Paragraph 2 of the orders made by Jacobson on 7 February 2005 be set aside.

3. The orders made on 29 April 2005 be set aside.

4. The matter be remitted to the first respondents/cross-appellants to determine Adjudicative Referral No. 292 according to law.

5. The question of costs be reserved.

6. Liberty to the parties to apply for an order for costs in accordance with the directions in Lander J’s reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 303 of 2005

BETWEEN:	IL SONG LEE APPELLANT
AND:	WAL GRIGOR, PATRICK TAN AND DAVID RIVETT constituting the Professional Services Review Committee No 292 FIRST RESPONDENT THE DETERMINING AUTHORITY established by section 106Q of the *Health Insurance Act 1973* (Cth) SECOND RESPONDENT HEALTH INSURANCE COMMISSION THIRD RESPONDENT ALAN JOHN HOLMES in his capacity as Director, Professional Services Review FOURTH RESPONDENT BERNARD RAYMOND KELLY in his capacity as Acting Director, Professional Services Review FIFTH RESPONDENT
JUDGES:	BLACK CJ, WILCOX AND LANDER JJ
DATE OF ORDER:	16 SEPTEMBER 2005
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 303 OF 2005

JUDGES:	BLACK CJ, WILCOX AND LANDER JJ
DATE:	16 SEPTEMBER 2005
PLACE:	SYDNEY