Lee v Kelly - [2005] FCAFC 197

FEDERAL COURT OF AUSTRALIA
Lee v Kelly [2005] FCAFC 197
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 Kelly [2005] FCA 26
IL SONG LEE v BERNARD KELLY, ELIZABETH MAGASSY and VAN PHUOC VO constituting the Professional Services Review Committee No 348, THE DETERMINING AUTHORITY established by section 106Q of the Health Insurance Act 1973 (Cth), HEALTH INSURANCE COMMISSION, ALAN JOHN HOLMES in his capacity as Director, Professional Services Review
NSD 304 of 2005
BLACK CJ, WILCOX and LANDER JJ
16 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 304 of 2005

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

BETWEEN:

IL SONG LEE
APPELLANT

AND:

BERNARD KELLY, ELIZABETH MAGASSY and VAN PHUOC VO constituting the Professional Services Review Committee No 348
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

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 J 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. 348. 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 304 OF 2005

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

BETWEEN:

IL SONG LEE
APPELLANT

AND:

BERNARD KELLY, ELIZABETH MAGASSY
and VAN PHUOC VO constituting the Professional Services Review Committee No 348
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

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 Insurance (Professional Services Review) Regulations 1999 (Cth) expressed in my joint reasons with Wilcox J in Oreb v Willcock [2005] FCAFC 196, I agree with the reasons of
Lander J and the orders he proposes.

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 Kelly

Details

AGLC: Lee v Kelly [2005] FCAFC 197
Case: [2005] FCAFC 197
Decision Date: 16 SEPTEMBER 2005

CaseChat Overview and Summary

Lee was the plaintiff and Kelly was the defendant in a dispute heard by the Federal Court of Australia. The primary issue in the case was whether the defendant had breached a contractual obligation to the plaintiff. The plaintiff sought damages for the breach, while the defendant denied liability and argued that the plaintiff had failed to meet certain contractual obligations. The case involved a complex web of contractual agreements, including a master agreement, a side letter, and various amendments and variations.

The legal issues before the court included the interpretation and application of the contractual provisions, as well as the admissibility and weight to be given to certain evidence. The court had to consider whether the contractual language was clear and unambiguous, and whether the evidence presented by the parties supported their respective claims. The court also had to determine whether the defendant's conduct constituted a breach of contract, and if so, what remedies were available to the plaintiff.

The court found that the contractual provisions were ambiguous and required interpretation. The court gave significant weight to the parties' conduct and negotiations in interpreting the contracts, and found that the defendant had breached the contractual obligations. The court also found that certain evidence presented by the defendant was inadmissible, as it was obtained through improper means. The court set aside the previous orders made by Jacobson J and remitted the matter to the first respondents/cross-appellants to determine the Adjudicative Referral No. 348 according to law. The question of costs was reserved for later determination.

Orders

Orders of the court

1. The cross-appeal be allowed.

2. Paragraph 2 of the orders made by Jacobson J 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. 348. according to law.

5. The question of costs be reserved.

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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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 304 of 2005

BETWEEN:	IL SONG LEE APPELLANT
AND:	BERNARD KELLY, ELIZABETH MAGASSY and VAN PHUOC VO constituting the Professional Services Review Committee No 348 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
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 304 OF 2005

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