Li v Determining Authority

Case [2022] FCA 1448

FEDERAL COURT OF AUSTRALIA

Li v Determining Authority [2022] FCA 1448  

File number: NSD 593 of 2022
Judgment of: RAPER J
Date of judgment: 1 December 2022
Catchwords: ADMINISTRATIVE LAW – application to review a decision made by the Determining Authority to make directions that the applicant repay benefits for Medicare Benefit Schedule items for which he was found to have engaged in inappropriate practice and be disqualified for 18 months under s 106U of the Health Insurance Act 1973 (Cth) – whether the Authority had regard to an irrelevant consideration, misdirected itself, or misunderstood its task when it took into account the Director and the Committee’s statements of concerns – whether the Authority misdirected itself as to its statutory task when determining whether it should make the repayment directions – whether errors were material – application for review dismissed
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(b), 5(1)(e), 5(1)(f), 5(1)(j), 5(2)(a), 15(1), 15(1)(b)

Health Insurance Act 1973 (Cth) ss 79A, 80(2), 80(3), 80(4), 80(6), 80(10), 81, 82, 82(1), 82(1)(a), 88A(1), 88A(3), 89B, 89C, 92, 92(1)(b), 93, 93(1), 93(6), 93(8), 93(8)(a), 93(8)(b), 93(9), 101(1), 101(2), 106KD, 106L, 106L(3), 106L(3)(a), 106L(3)(b), 106L(5), 106M, 106M(1), 106M(2), 106M(2)(b), 106M(3), 106S, 106S(1), 106S(2), 106S(2A), 106S(3), 106S(4), 106SA(1), 106T(1), 106T(2), 106T(3), 106TA, 106TA(1), 106U, 106U(1), 106U(1)(cb), 106U(3)(a), 106UAA, 106UAA(1)(a), 106UAA(1)(b), 106XA, 106XA(1), 106XA(2), 106XA(3), 106XA(4), 106XB, 106XB(2), 106XB(2)

Judiciary Act 1903 (Cth) ss 39B(1), 39B(1A)

Health Insurance (Professional Services Review Scheme) Regulations 2019 (Cth) reg 10(2)(c)

Explanatory Memorandum, Health Insurance Amendment (Professional Services Review and Other Matters) Bill 2002 (Cth)

Explanatory Memorandum, Health Insurance Amendment (Professional Services Review) Bill 2012 (Cth)

Health Practitioner Regulation National Law 2009 (NSW) s 150, s 11 of Schedule 5D
Cases cited:

Adams v Yung [1998] FCA 506; 83 FCR 248

Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321

Darnell v Stonehealth Pty Ltd [2022] FCAFC 76

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24

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

Mohamed trading as Billan Family Day Care v Secretary, Department of Education, Skills & Employment (No 2) [2020] FCA 1749

Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398

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

Selia v Commonwealth of Australia [2017] FCA 7

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

Wong v Commonwealth [2009] HCA 3; 236 CLR 573

Duffy v Da Rin [2014] NSWCA 270; 87 NSWLR 495

Love v Victoria [2009] VSC 215
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 154
Date of last submissions: 4 November 2022
Date of hearing: 25 October 2022
Counsel for the Applicant: Dr J Lucy
Solicitor for the Applicant: Platinum Lawyers & Conveyancers
Counsel for the First Respondent: The first respondent filed a submitting notice.
Counsel…

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Details
AGLC
Li v Determining Authority [2022] FCA 1448
Case
[2022] FCA 1448
Decision Date

CaseChat Overview and Summary

The applicant, Dr Li, sought judicial review of a decision made by the Determining Authority under the Health Insurance Act 1973 (Cth) that directed Dr Li to repay certain Medicare benefits and disqualified him from participating in the Medicare scheme for 18 months. The Authority's decision was based on findings that Dr Li had engaged in inappropriate practice in relation to several Medicare Benefit Schedule items. The Federal Court was tasked with assessing whether the Authority had erred in its decision-making process by considering irrelevant factors or misdirecting itself in its statutory task.

The court needed to determine whether the Determining Authority had regard to irrelevant considerations, misdirected itself, or misunderstood its task when it took into account the Director's and the Committee's statements of concerns. Additionally, the court had to decide if the Authority misdirected itself as to its statutory task when determining the appropriateness of the repayment directions and whether any errors were material enough to affect the outcome. The applicant argued that the Authority was not bound to follow the decision of the Committee and that the sanctions proposed were disproportionate to the alleged findings.

The court found that even if errors in the Authority's decision-making process were established, they could not have realistically affected the result. The Authority had correctly exercised its discretion under the Act, and the applicant had not demonstrated that the errors were material. The court held that the Authority had not misdirected itself or taken into account irrelevant considerations, and the sanctions proposed were within the Authority's discretion. Consequently, the application for review was dismissed with costs.

The court ordered that the applicant's application be dismissed with costs and that the parties confer to determine any additional orders necessary to give effect to the judgment. The parties were given seven days to confer and provide their draft short minutes.

Orders

Orders of the court

1. The applicant’s application be dismissed with costs.

2. The parties are to confer as to the additional orders to be made to give effect to these reasons and to provide their draft short minutes within seven (7) days of the date of these orders.

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

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

For these reasons, I do not accept if any error were established, if could have realistically affected the result. Conclusion For these reasons, the application is dismissed with costs. By reason of the extant stay orders, additional orders will be necessary. I will give the parties seven (7) days from the date of judgment to confer as to the additional orders necessary to give effect to these reasons and provide either the consent or competing orders to the Court.

Ratio Decidendi

Legal Principle Established

By the applicant’s submission, sent by email on 16 May 2022, the applicant responded to the Draft Determination (referred to at [51] above). The applicant submitted, inter alia, that the Authority is not bound to “follow the decision of the committee” and must itself decide “what action to take”, the sanctions proposed were disproportionate to the alleged findings of fact and that the Authority must not take into account certain matters, identified as follows:Further Considerations We note the operation of section 106UAA of the Act states that the determining authority must not to [sic] take into account matters where a committee has formed an opinion that any conduct that the person under review caused was causing are likely to cause a significant threat to life or health of any other person and sent a statement of concerns to the director under section 106XA or that the person under review has failed to comply with professional standards and sent a statement of its concerns to the Dir [sic] under s106XB.Paragraph 8 of the draft determination states that the determining authority had relied upon the report of the committee dated 9 September 2021 and attached appendices in forming its opinion as to sanctions.Paragraphs 9 of the draft determination report states that the determining authority has had regard to the letter from the director dated 19 November 2021 including the provision of additional information under s106S.Paragraph 45 of the draft report indicates that the determining authority may have taken into account the referrals of Dr Li by the Director to the Medical Council in reaching its decision as to proposed sanctions.The draft determination report does not specifically exclude the referrals by the committee or the Dir [sic] to the regulatory authorities and with respect it may have been that these referrals have been inadvertently taken into account in reaching the proposed sanctions described in the determining authority’s report.Dr Li remains grateful to the determining authority for reducing the period of disqualification from the maximum of five years to 18 months however Dr Li’s patients should not be disadvantaged by the decisions of the determining authority.The determining authority is urged to reconsider the proposed sanctions against Dr Li and it is suggested that the sanctions described in the last two columns of the table above would be in all the circumstances appropriate and would alleviate the necessity to continue on with this enquiry through the judicial system.(Emphasis in original.)Final Determination The Authority provided the applicant with its Final Determination on 28 June 2022. The Authority noted that the Committee made the following findings concerning the review period between 1 May 2017 and 30 April 2018 in connection with the itemised services:The Report contains a finding that Dr Li engaged in inappropriate practice in connection with the services referred to below (the Services):(a) 90% of the MBS item 23 services,(b) 100% of the MBS item 36 services,(c) 100% of the MBS item 18234 services,(d) 33% of the MBS item 18236 services,(e) 100% of the MBS item 30192 services,(f) 100% of the MBS item 30195 services,(g) 100% of the MBS item 30203 services,(h) 100% of the MBS item 45202 services, and(i) 10 MBS item 45563 servicesrendered by Dr Li in the review period(Emphasis in original).