McFarlane v Batman

[2000] FCA 1663

FEDERAL COURT OF AUSTRALIA

McFarlane v Batman [2000] FCA 1663

DR JEAN FERGUS McFARLANE v GAIL BATMAN
QG 192 OF 1997

DRUMMOND J
BRISBANE
10 NOVEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 192 OF 1997

ON APPEAL FROM THE PROFESSIONAL SERVICES REVIEW TRIBUNAL

BETWEEN:	DR JEAN FERGUS McFARLANE APPELLANT
AND:	GAIL BATMAN RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	10 NOVEMBER 2000
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of and incidental to the appeal, including reserved costs, if any.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 192 OF 1997

ON APPEAL FROM THE PROFESSIONAL SERVICES REVIEW TRIBUNAL

BETWEEN:	DR JEAN FERGUS McFARLANE APPELLANT
AND:	GAIL BATMAN RESPONDENT

JUDGE:	DRUMMOND J
DATE:	10 NOVEMBER 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Professional Services Review Tribunal dated 4 November 1997. The Tribunal affirmed the final determination of a determining officer made under s 106T the Health Insurance Act 1973 (Cth) on 23 April 1997 that “Dr McFarlane be disqualified for a period of 12 months from the time when this determination takes effect in respect of the initiation of all services to which an item relates in Groups P3 and P4 of the Pathology Services Table”, and further ordered that “Dr McFarlane be fully disqualified for a period of 6 months from the time when this determination takes effect”. This is due, in part only, to resolution of the present proceedings being delayed, at the joint request of the parties, until the Full Court’s decision as to the lawfulness of the establishment of this Tribunal in Tankey v Adams [2000] FCA 1089 was delivered.

2. The appeal to this Court is limited by s 124A the Health Insurance Act 1973 (Cth) to error of law in the Tribunal’s decision. By the supplementary notice of appeal, Dr McFarlane asserts that the Tribunal’s decision is flawed with three errors of law. The first contends that the Tribunal’s decision was void because it involved exercise of the judicial power of the Commonwealth. That argument is no longer available in view of the decision of the Full Court of this Court referred to.

3. `The second ground of appeal asserts that the Tribunal’s determination was flawed with error of law constituted by its failure to give Dr McFarlane procedural fairness.  Finally, it is alleged that the Tribunal’s determination contained an invalidating error of law because it was based upon a misconstruction of the Professional Services Review Committee’s report or based on a finding by that Committee which was itself void because of the absence of material to support the finding.

4. The thrust of the findings made at all levels - by the Professional Services Review Committee, the determining officer and then the Professional Services Review Tribunal - was that Dr McFarlane had engaged in…