Medtest Pty Ltd and Medicare Participation Review Committee and a Nor
[2003] AATA 983
•15 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 983
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1953
GENERAL DIVISION DIVISION ) Re MEDTEST PTY LTD Applicant
And MEDICARE PARTICIPATION REVIEW COMMITTEE Respondent
And
HEALTH INSURANCE COMMISSION
Joined Party
DECISION
Tribunal Justice Garry Downes, President Date15 September 2003
PlaceSydney
Decision The Tribunal directs:
1. Leave is granted to the applicant to issue summonses against the Health Insurance Commission and the Commonwealth Chief Medical Officer in the form filed with the Tribunal initialled by me dated and placed with the papers.
2. The summonses are to be returned on or before Thursday 7 October 2003.
3. List the matter for further mention and directions at 9:30 am on 16 October 2003.
4. The parties are requested to inform the President’s associate on Monday 13 October 2003 whether it will be necessary for the further directions hearing to take place noting that if the parties do not require it the Tribunal does not see the need for it.
5. The applicant to serve the respondent on or before Wednesday 15 October with such particulars as it is able to give of any claim it is making in respect of the validity of the decision to require the inspection.
6. Liberty to either party to apply on such notice as the parties agree to or in default of agreement 48 hours.
...............................................
President
CATCHWORDS
PRACTICE AND PROCEDURE – request to issue summonses – discretion to authorise refusal not exercised – Administrative Appeals Tribunal Act 1975, s 40 – material sought relating to giving of notice – validity of notice relevant to decision-maker’s jurisdiction – documents created since notice may be relevant if they record what happened in the past – production not burdensome or oppressive
Administrative Appeals Tribunal Act 1975, s 40
Minister for Immigration and Multicultural Affairs and Bhardwaj (2002) 209 CLR 597
REASONS FOR DECISION
15 September 2003 Justice Garry Downes
The applicant Medtest Pty Ltd seeks review of a decision of the Medicare Participation Review Committee relating to an inspection of the applicant's premises. The parties to the application for review were originally the applicant and the committee itself. The committee has properly decided to take no part in the review and the Health Insurance Commission has been joined as a party. The Health Insurance Committee is the active opponent to the application by Medtest Proprietary Limited before the Administrative Appeals Tribunal. The applicant seeks to issue two summonses pursuant to s 40 of the Administrative Appeals Tribunal Act 1975.
The first summons is directed to the Health Insurance Commission itself and seeks production of correspondence broadly relating to the circumstances surrounding the issue of a notice which purported to require the applicant to permit the inspection which is the subject of the application for review. The other summons is directed to the Commonwealth Chief Medical Officer and seeks correspondence relating to the decision, as well as guidelines upon which the decision may have been made, any reasons for the authorisation of the Commonwealth Chief Medical Officer for entry and inspection, and some other related documents.
The case of the Health Insurance Commission, which I have been told is not in issue, is that the applicant declined to permit inspection of its premises, pursuant to the notice given by the Commonwealth Chief Medical Officer. The applicant refused to permit inspection on the ground that inspection could only take place after the giving of a period of notice which was reasonable in all the circumstances. That claim gives rise to the principal question in the matter. However, when the matter was before the committee, it seems that some issue was raised as to the validity of the notice itself. I say this because the committee in its reasons gave as one of the issues in the application before it “whether …[t]he notice was valid - whether the inspection was for a purpose authorised by the undertaking”.
The material which the applicant seeks to have produced pursuant to the summonses relates to the circumstances surrounding the issuing of the notice. The matter before the Tribunal is a reconsideration of the decision of the committee. The question of whether a notice should have been issued is not a matter which is before the Tribunal and is not a matter which is capable of being brought before the Tribunal. However that is not to say that the decision of the committee cannot be challenged on the basis that there should never have been an inspection because the notice authorising it was invalid.
The recent decision of the High Court of Australia in the Minister for Immigration and Multicultural Affairs and Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 is authority, at least on a limited basis, for the proposition that an invalid decision is no decision at all and it is inappropriate for an authority to act on it. Given that the validity of the notice was apparently before the committee, it seems to me that one potential issue before the Tribunal is whether it has jurisdiction to review the decision of the committee because if the notice was invalid then the committee may not have had any jurisdiction.
The matters I have referred to so far represent very tentative views on my part. I have not heard any full argument on the matter; I have only the slightest understanding of the issues that are going to arise in the application for review. My tentative decisions may change markedly when I have heard the whole of the material. However, the matter is listed for hearing in approximately two months' time and I am anxious that it should be disposed of at that time. In those circumstances, all other things being equal, it seems to me to be desirable that all the material which the applicant may wish to put before the Tribunal shall be available to the applicant for that purpose. The Tribunal can rule on ultimate issues of relevance at the time the material is sought to be tendered.
It may be that the Tribunal will be satisfied at that time, as Mr Kunc appearing for the Health Insurance Commission now argues, that the material is not relevant at all, because the only issues before the Tribunal are issues associated with the question of whether the notice was reasonable. In these circumstances, a matter which has also exercised my mind is whether the material that is sought to be produced is burdensome or oppressive in the sense that it would take a long time for the material to be collected together and produced. Mr Kunc frankly concedes that that is probably not the case, and the terms of the summonses suggest to me that it is probably not the case.
Mr Kunc has complained that the summonses seek the production of documents not in existence at the time of the making of the decision leading to the giving of the notice, and that for that reason that material should not be required to be produced. However the rules of evidence do not apply in this Tribunal, and documents which record what has happened in the past, although not coming into existence until after a relevant event can be relevant to proceedings before the Tribunal.
In all the circumstances, it seems to me that the appropriate course is for me not to exercise my discretion given pursuant to s 40 of the Act to refuse the issue of the summonses but to permit the summonses to be issued and served. It would seem appropriate to me that there be a return date for the summonses well prior to the hearing so that any issues that are thrown up by the documents produced can be dealt with before the hearing.
I have in mind that requiring the documents to be produced pursuant to the summons within say three weeks might be appropriate with a view to having the matter further listed for directions if necessary about one month prior to the hearing. One issue that may arise at that stage relates to inspection of the documents and whether any claim is made to preclude the applicant from being permitted to inspect the documents.
I certify that the ten (10) preceding paragraphs are a true copy of the reasons for the decision herein of Justice Garry Downes, President
Signed: .......................................................................................
AssociateDate of Hearing 15 September 2003
Date of Decision 15 September 2003
Counsel for the Applicant P Dwyer
Solicitors for the Applicant Gadens Lawyers
Counsel for the Respondent The respondent did not appear
Counsel for the Joined Party F Kunc
Solicitors for the Joined Party Sparke Helmore
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