Peverill, R.E. v Meir

Re: RICHARD EDWIN PEVERILL
And: BERNARD ROBERT MEIR; HEALTH INSURANCE COMMISSION; DAWN MARGARET
NOLAN and GILLIAN ELIZABETH TREGONING
Nos. N G35, 83, 91-92 and 305 of 1989
FED No. 122
Administrative Law - Social Security

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.(1)

CATCHWORDS

Administrative Law - Judicial review - meaning of "decision" - determination applying statutory criteria in accordance with scheme set up by legislation - discretion of court - value and economy of decision on precise point upon judicial review - s.39B of the Judiciary Act.

Social Security - Health Insurance Act 1973 - construction of the Act and of items in Schedule 1A - entitlement of pathologist to fees for services - sufficiency of request "in writing" under s.16A - Schedule 1A items 1336, 1342, 1345, 1401, 1661, 2294 - meaning of "Australia antigen or similar antigen", "detection", "identification", "iron (including iron-binding capacity)", "cholesterol ratio", "any other substance", "quantitative estimation" of a substance, "body tissues and fluids" - effect of mistake in Act; inappropriate expression "this Part" in Schedule having no parts - whether divisions of Schedule 1A are exclusively related to separate sub-disciplines within the discipline of pathology - whether an immunoassay for antibodies to rubella is excluded from Division 2 because not properly belonging to biochemistry.

Words and Phrases - "quantitative estimation of a substance" - "including"

Administrative Decisions (Judicial Review) Act 1977, s.3

Health Insurance Act 1973, ss.3, 9, 16A, 20, 20A, 20B, Schedule 1A

Judiciary Act 1903, s.39B

HEARING

SYDNEY

#DATE 3:4:1990

Counsel for the Applicant: Mr J.J. Spigelman QC

with Dr G.A. Flick

Solicitors for the Applicant: Messrs Morris Fletcher and Cross

Counsel for the Respondents: Mr C.R. Einstein QC with

Mr D.J. McGill

Solicitors for the Respondents Australian Government Solicitor

ORDER

That the applicant be directed to bring in, on a date to be fixed, short minutes of orders to reflect the reasons of the court.

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

JUDGE1

Dr Peverill conducts a practice as a pathologist which covers an extensive area of Queensland and the Northern Territory. Patients, for whom pathology examinations are carried out in that practice, include members of aboriginal communities and many other persons who do not pay fees, but sign assignment forms on the basis that Dr Peverill will obtain payment under the Health Insurance Act 1973 (the Act).

Section 9 of the Act provides: "Medicare benefits under this Part shall be calculated by reference to the fees for medical services set out in the table", the last word being defined in s.3 so as to include the "pathology services table", itself further defined as "the table of medical services set out in Schedule 1A". It will be noted that this legislative circumambulation introduces schedule 1A as: (1) a table of fees; (2) being a table called a "pathology services table", and therefore presumably relating, in a scheme for universal medical cover, to all pathology services rendered in the normal course of their medical practices by pathology practitioners; and (3) embracing pathology services stated without other qualifying or confining words to be "medical services". There are, however, qualifications expressed by s.16A - that the service "was determined to be necessary by a practitioner ... whose patient the person (ie the person on whose behalf the service was performed) was", and that "the service was rendered by or on behalf of an approved pathology practitioner". The section also provides further qualifications, and an alternative provision for what is called "a pathologist-determinable service". It is unnecessary to set all this out for present purposes, except to note that there is a requirement that a request for a service, made to an approved pathology practitioner by a treating practitioner, be "made in writing", or be confirmed in writing within a defined period of 14 days.
By s.20, a medicare benefit is made "payable by the (Health Insurance) Commission on behalf of the Commonwealth". Section 20A authorizes assignment to a medical practitioner of the right to the payment of a medicare benefit, which thereupon becomes "payable in accordance with the assignment", though subject to certain provisions, contained in s.20B, that are presently irrelevant. By virtue of s.10(2)(b)(i), a medicare benefit in respect of any service may be taken, for present purposes, to be 85% of the appropriate fee specified in schedule 1A.
Four questions of the construction or application of schedule 1A have been brought before the court in these proceedings which, by consent, have been heard together. Although no case concerns, in itself, more than a small amount of money, a substantial sum depends on the answer to each of the questions raised. That is because the resolution of many claims awaits the court's decision. Also to be determined are contentions as to the applicability and scope of the remedies sought. Until the withdrawal of certain defences after the hearing had concluded, there were, in addition, questions as to the effect of an undertaking in writing given by Dr Peverill, pursuant to a requirement of the Minister, before he was accepted as an approved pathology practitioner. It is convenient to defer the other issues, and to come first to the interpretation of the disputed items appearing in schedule 1A, as it stood when the services were performed, i.e. as amended in 1986. I deal with the various questions under individual headings.
TRICHOMONAS - ITEMS 1336 AND 1661
On 19 September 1988, Dr Peverill received from a medical practitioner a request in writing to do a test for trichomonas. In due course, having performed the service, he submitted a claim to the Health Insurance Commission for payment. His claim was made under item 1336 of schedule 1A, which relates to a pathology service described as follows:
"Australia antigen or similar antigen,
detection of by any method including
radioimmunoassay (SP)." (The letters "SP"
refer to services rendered by or on behalf of
an approved pathology practitioner in
circumstances defined in the rules for
interpretation of the pathology services
table, with which the table commences, and
broadly exclude pathology services associated
with a hospital and certain other
institutions, or rendered by a general
practitioner, those services being identified
by the letters "OP".)
The Health Insurance Commission declined payment under item 1336, which provided for a fee of $23.00, and assessed payment under item 1661, which provided for a fee of $11.40. Item 1661 refers to a pathology service described as follows:
"Identification of pathogenic micro-organisms
using a serological technique (including the
immunofluorescent or immunoenxymic method)
(sic - there is here a clear misprint for
"immunoenzymic", the word used in the Report
of the Pathology Services Working Party of
March 1977, to be mentioned later in these
reasons) - a procedure involving one technique
(SP)."
The issue posed is which item comprehends the test. More accurately, the issue for the court is whether Dr Peverill has shown that payment should have been made under item 1336, for that is what he claimed and was refused.
It is necessary to understand the reference to "Australia antigen". An antigen is a substance which stimulates the production of antibodies or reacts with them. It may be associated with a virus. Australia antigen was so called because it was first discovered in an Australian aboriginal. Some years later it was shown to be an antigen of hepatitis B, and it is now identified as the hepatitis B surface antigen. Hepatitis B is a virus. There are other antigens associated with it, apart from the Australia antigen, and there are of course other antigens associated with other types of hepatitis. When item 1336 uses the expression "Australia antigen or similar antigen", it must be referring to the Australia antigen as an antigen having something about it to enable other antigens to be classified either as similar or as dissimilar antigens. Having regard to the width of the accepted understanding in science of what may be an antigen, the expression is curiously inexact and even enigmatic. It may refer to other antigens which are similar because also associated with hepatitis B, to other antigens which are similar because also associated with a form of hepatitis, to other antigens which are similar because they are viral surface antigens, or to other antigens because they are similar as being also viral. I may not have exhausted the possibilities. Fortunately, it is unnecessary, for the decision of this case, to make the stab in the dark which a definitive choice would in reality involve. The singular isolation of this item from any relevant context would make the task of giving it a precise construction extraordinarily difficult.
The reason why I do not have to pursue the analysis of the item to a conclusion is that, whatever else a similar antigen may be, I do not think it can possibly be an antigen associated with trichomonas. For trichomonas is neither a virus nor even a bacterium; it is a flagellate protozoan which Professor Plueckhahn, one of the respondents' experts, identified as a parasite. Professor Plueckhahn declared: "It is nothing like Australia antigen." The fundamental difference between a virus and a protozoan makes acceptance of that evidence inevitable.
Accordingly, the applicant fails in respect of this claim. It was admitted in cross examination that item 1661 would be appropriate unless that item is excluded by reason of its use of the word "identification". Dr Peverill contended that this word was not appropriate since what the procedure involved could properly be described rather as a "detection", the word used in item 1336. However, I think this attributes to the schedule a fineness of discrimination in its use of the two words which a careful reading of it simply fails to bear out. It should not be overlooked that the schedule has gone through a process of addition and subtraction of items, amendment, and reordering, which could hardly have been conducive to consistency of expression. Item 1336 being inappropriate, I think a far better guide to the construction of item 1661 is the consideration that the legislature must have intended to provide somewhere for so ordinary a test as the one in question. There is no other item that meets the case; therefore item 1661 should, if possible, (and I do not think there is really any difficulty) be understood in the broad sense which will make the schedule sufficiently comprehensive to include the procedure performed to detect trichomonas.
TRANSFERRIN - ITEMS 1342 AND 1345
Item 1342 refers to a pathology service described as follows:
"Quantitative estimation of - acid phosphatase,

aldolase, alpha foeto-proteins in serum, amylase, lipase, amylase and lipase, antithrombin 3, anti-trypsin alpha-1, bromide, BSP, caeruloplasmin, carotene, complement (total or fraction), any other specific protein (excluding immunoglobulins) (where estimated by immunodiffusion, nephelometry, Laurell rocket or similar technique), creatine, cryofibrinogen, haemoglobin F, hexosamine, lactate, lithium, magnesium, pyruvate, salicylate or xylose - each estimation (SP)"

Item 1345 refers to a pathology service described as follows:
"Quantitative estimation of - arsenic, copper,

gold, lead, mercury, strontium, zinc, any other element not specified in any other item in this Division, folic acid, vitamin B12, any other vitamin not specified in any other item in this Division, alcohol, ammonia, neo-natal bilirubin (direct and indirect), cholinesterase, coproporphyrin, erythroporphyrin, uroporphyrin or any other porphyrin factor, carboxyhaemoglobin, delta ALA, 5HIAA, iron (including iron-binding capacity), oxalate, oxosteroids, oxogenic steroids, PBG, urine oestriol, transketolase or any other substance not specified in any other item in this Division - each estimation

(SP)"

A request received by Dr Peverill in October 1988 included, under the heading "TESTS REQUESTED", the following:
"Fe Studies

(Iron//Iron Binding Capacity) (Transferrin//Ferritin etc) please."

Dr Peverill carried out the recognized procedure for estimating iron, but did not then take further steps, related to the same procedure, in order to determine iron binding capacity. What he did was to perform, in response to that part of the request which referred to transferrin, a quantitative estimation of transferrin, from which he then calculated iron binding capacity. He claimed payment in respect of the estimation of iron under item 1345, and in respect of the estimation of transferrin under item 1342. Quantification of transferrin is not specifically listed in any item in the schedule. The claim under item 1342 was made on the basis that transferrin falls within the words "any other specific protein", not being excluded by the exclusion of immunoglobulins, and being estimated by nephelometry.

The Health Insurance Commission rejected Dr Peverill's claim under item 1342 on the basis that "benefit is included in the benefit for quantitative estimation of iron under item 1345." The issue is whether Dr Peverill is entitled to separate payment in respect of the test for transferrin. An additional dispute, concerning so much of the request as referred to ferritin, is no longer a live issue between the parties.
On the evidence, the relevant test for iron is one that has been well known for a number of years. It involves a reaction with the iron, producing a change in colour which, as it is proportional to the amount of iron in the serum, enables the iron content of the serum to be quantified. (A first step is to secure the release of the iron from the serum proteins that bind it.) The protein principally concerned in the transport of iron in serum is transferrin. Normally, the transferrin is only about one third saturated with iron, so that it has a further capacity to bind iron. In order to ascertain the total iron binding capacity of the transferrin in the serum, a long established technique is to incubate the specimen of serum with excess iron (having, of course, already ascertained the amount of iron originally present in the specimen) so as to saturate all the unoccupied binding sites offered by the transferrin; to remove the free iron, that is, the iron which has not become bound to the transferrin; and then to repeat, with the transferrin in the specimen now totally saturated, the procedure for the estimation of serum iron.
However, the evidence of Associate Professor Naidoo, an associate professor in clinical chemistry at the University of New South Wales who was called on behalf of the respondents, made it plain that the purpose of calculating iron binding capacity was as an index of the amount of transferrin in the patient's serum. It was an approximate measure only, since the binding capacity of transferrin is subject to considerable variations. Associate Professor Naidoo said:
"The iron binding capacity historically was

performed really as an index of the concentration of transferrin because the techniques for measurement of transferrin were not generally applicable and not readily available to routine laboratories and therefore the iron binding capacity was a relatively simple measure of transferrin. ... The ideal is the measure of transferrin itself because that is the binding protein of interest. It is the binding protein which will provide the necessary information to properly assess clinical disorders of iron metabolism and therefore the goal should be to measure transferrin. If one has that, as one has in most laboratories, the adequate (sic - I think this is an error in the transcript for 'alternative') technique for the measurement of transferrin, which is the measurement of iron binding capacity, becomes superfluous and unnecessary. Alternatively if it is felt that the laboratory does not have the appropriate technique for the measurement of transferrin it is still legitimate to measure iron binding capacity and to use this as an approximation of the transferrin concentration."

The problem of interpretation of the items must be solved against the background of the fact that the schedule did not originally contemplate a quantitative estimation of transferrin as a procedure in common use; the procedure it contemplated was the old procedure which I have already described. When the technique for the direct estimation of transferrin became widely available, the approximation by calculation, previously performed from an estimation of iron binding capacity, became generally unnecessary in those laboratories in which the newer technique was practised. As Dr Peverill put it, the procedure to ascertain iron binding capacity by saturation of the serum with iron was "an old fashioned method"; "the transferrin test was more specific and used less serum and was less dangerous in tests and we converted to using that test as going up with a better technology and a better result."
It was not suggested there is any link in technique between the quantitative estimation of transferrin by nephelometry and the quantitative estimation of iron by the established method. There was plainly a close link between the method of estimating iron and the old procedure for estimating iron binding capacity. That consideration is a clear pointer to the meaning, in item 1345, of the words "iron (including iron-binding capacity)". A further matter not to be overlooked is the fact that the test for transferrin, though it enables iron binding capacity to be calculated approximately, yields more information than just that; it gives more accurate information about transferrin, which is what the clinician actually wants to know about, than can be obtained by extrapolation from an estimation of iron binding capacity. Since this is so, and Dr Peverill was expressly requested to do the test for transferrin, I do not think the language of item 1345 provides any justification for rejecting the claim made under item 1342.
The respondents tendered evidence of certain Quality Assurance Programmes which are maintained under the auspices of the Royal College of Pathologists of Australasia. The programmes for 1988 include a list of what are described as "constituents", for which samples are to be analysed by laboratories taking part in the programme in the general area of chemical pathology, and particularly in that of general serum chemistry. The list includes iron, total iron binding capacity and transferrin. Whether or not iron binding capacity is properly to be described as a constituent, it is clear that the estimation of transferrin is treated, at least for quality assurance purposes, as a separate matter from analysis for iron and determination of iron binding capacity.
Had the Health Insurance Commission allowed the claim in respect of transferrin under item 1342, but rejected the claim under item 1345, a somewhat different question would have been squarely posed for decision. That question is whether the insertion of the parenthesis, "including iron binding capacity", was intended to produce the result that, in order to qualify for payment, the test for iron must include an estimation of iron binding capacity, or whether the parenthetic words simply mean that if such an estimation is required it will not be regarded as a new test, and the one fee will cover it.

The word "including" is used in many places in the schedule, and it may not always be used in the same way. For present purposes, I think some guidance is to be obtained, not only from a consideration of the manner in which the relevant technology has developed, but also from the history of this portion of the schedule. Prior to the adoption of the present schedule, iron and iron binding capacity were the subject of three items in the then Schedule 1. Those items were the following:
"1294 Iron, estimation of

1296 Iron-binding capacity, estimation of 1298 Iron and iron-binding capacity, estimation of" (emphasis added).

The fees specified for these items, for New South Wales and Victoria, as at 31 March 1981, were respectively $7.00, $5.00 and $12.00. It seems plain that the separate statement of the items contemplated the possibility of one test being done without the other (there were in theory three possibilities: one test alone, the other test alone, and the two together). When it was decided, for the new Schedule 1A, to reduce these three items to one, I think the word "and" in the third item was deliberately omitted and replaced by the word "including", in order to ensure that the new item should not be confined to the meaning expressed by the old item 1298, but should continue to cover at least the old item 1294 as well. (Perhaps the old item 1296 was thought unnecessary since it is difficult, as the matter was explained to me in evidence, to envisage a case where iron binding capacity would be estimated without an estimation of iron being at least incidentally involved.)

Were I to have taken a different view of the proper construction of item 1345, the applicant's evidence in the present case would still lead to the same result. For if item 1345 requires iron binding capacity to be quantitatively estimated before a fee can be paid for the estimation of iron, the fact is that Dr Peverill did do a quantitative estimation of iron binding capacity. He did not do it by the old method, but he did it nevertheless. The fact that the result was approximate does not deprive it of the right to be regarded as a "quantitative estimation". No argument was put to me that the word "estimation" has other than its ordinary English meaning, or that in pathology it has some meaning of absolute precision. As an ordinary English word, it does not require exactitude. In a pathology schedule, which must deal with an area noted for its accelerating technological changes, it would not be sensible to construe the reference to quantitative estimation of iron binding capacity, despite the great assistance I have obtained from the history of the provision and of the technique which explains its presence in the schedule, as actually forbidding the use of a newer and better technique.
HDL CHOLESTEROL - ITEM 1401
On 13 October 1988 Dr Peverill received a request for tests described by the treating doctor as "cholesterol fasting ratio and triglyceride". Dr Peverill understood the words "cholesterol fasting ratio" as requiring him to obtain, for the patient when fasting, the ratio of HDL cholesterol to total cholesterol. In order to obtain this, it was necessary, inter alia, to do an estimation of HDL cholesterol. This was done, and a claim was made on the Health Insurance Commission for payment under item 1401, which reads as follows:
"HDL cholesterol, estimation of, in proven

cases of hyperlipidaemia - two estimations in any twelve month period - each estimation

(SP)".

The issue raised in respect of this matter is not actually one of interpretation of the item in the schedule, but of interpretation of the request for the service; however, it is convenient to deal with it here. The Health Insurance Commission refused payment for the estimation of HDL cholesterol on one basis only - because it was said the request was insufficiently specific. At the hearing, reliance was initially placed on the terms of an undertaking given by Dr Peverill under s.23DC of the Act. However, in written submissions delivered on 4 October 1989, counsel for the respondents withdrew all reliance on the undertaking - both as a matter of defence in proceedings number G305 and also as a ground on which relief had been resisted in respect of Dr Peverill's claims for services performed relating to transferrin and HDL cholesterol. Consequently, the issue in respect of HDL cholesterol is whether the service was requested. On that issue, the respondents claim that the request actually made was too ambiguous or uncertain to amount to a request for the service performed.
The relevant statutory requirement is that imposed by s.16A(3) and (4) of the Act: the request must be "made in writing", or be "confirmed in writing within the period of 14 days commencing on the day on which the request is made". Dr Peverill relies on the written request for "cholesterol fasting ratio". He admits the word "fasting" is misplaced in the order of the words, but says it is perfectly clear that what the treating doctor wanted was the cholesterol ratio ascertained from a specimen taken at a time when the patient was fasting. It would be pedantic to insist that the treating doctor should have written: "cholesterol ratio - fasting", or "fasting cholesterol ratio".
The evidence of Dr Peverill is that the only cholesterol ratio "ever done for clinical significance" is the ratio of HDL cholesterol to total cholesterol. It was also the only ratio involving cholesterol performed in his laboratory. The significance of the last fact is that the treating doctor in question had ordered a similar test on many occasions and received back the same ratio, so that he could hardly have been in doubt when he made his request that what he wrote would be understood as requiring this particular ratio. However, Dr Peverill insisted that even if the requesting medical practitioner had been entirely unfamiliar with his own practice, the request would still have pointed to no other ratio, since there was no other ratio in respect of cholesterol to which any clinical significance attached. He said: "It would be possible to express the ratio between the cholesterol and the triglyceride, but I have never heard of anyone doing it". Dr Peverill was asked in cross-examination: "Cholesterol ratio can never be understood as a reference to any ratio otherwise than the total HDL cholesterol ratio - is that the case?" He answered: "That is correct."
Dr Peverill was supported in this evidence by Dr T.R. Davis, a pathologist who is also a fellow of the Royal Australasian College of Physicians. The evidence of Dr Davis is:
"The only ratio of any particular significance

in assessing the patient's condition is the ratio of total cholesterol to HDL cholesterol. In my practice, I cannot recall ever having received a request to determine a ratio of total cholesterol to any other type of cholesterol. I do not agree that the term 'cholesterol fasting ratio' does not identify the two measurements in respect of which the ratio is to be taken. ... In fact, in my laboratory the most common form of request received is 'Lipid Studies' or 'Fasting Lipids'. In response to such a request, my laboratory performs a separate test for HDL Cholesterol in order to determine the patient's 'Cholesterol Ratio'. ... I do not agree that the usual practice is to request HDL Cholesterol expressly."

Dr Davis also expressed the opinion:

"A patient's 'cholesterol ratio' is a more

important indicator of a patient's condition than a patient's total cholesterol level. A patient's 'cholesterol ratio' is a more precise measurement of the risk factor of coronary artery disease."

In cross-examination, Dr Davis said:

"I perhaps would have expected someone to have

written 'fasting cholesterol ratio', but I would have accepted it at face value. To me it meant something and I would have proceeded accordingly."

Later in the cross-examination, he was again pressed concerning this issue, and said:

"I think cholesterol ratios do have an accepted

meaning, certainly in the minds of referring practitioners and chemical pathologists, clinical pathologists. ... (F)or me, if cholesterol fasting ratio or fasting cholesterol ratio - the only ratio we would be capable of doing and would have done would be to produce a total cholesterol and HDL cholesterol so as to produce the ratio to which some clinicians attach clinical significance of a risk factor nature."

He agreed that other ratios could be measured and could be expressed; however, he added: "But no one does except, to my knowledge, total cholesterol to HDL cholesterol". In the transcript Dr Davis is recorded as continuing: "or one lypoprotein (sic) to another lypoprotein." My own note is that the only exception he admitted was total cholesterol to HDL cholesterol; while I have no doubt some reference was made to lipoproteins, I do not think he meant that there was any additional accepted ratio of one unspecified lipoprotein to another unspecified lipoprotein. I am satisfied if he had meant to suggest some other ratio was used he would have specified it precisely.

In answer to this evidence, the respondents relied particularly on the evidence of Associate Professor Naidoo, a chemical pathologist who considered the term "cholesterol fasting ratio" was "not one having any recognized or established meaning in the field of pathology or medicine in general." This may be an unduly pedantic view, bearing in mind that undoubtedly the word "fasting" is misplaced in the expression. But Associate Professor Naidoo went on to state the opinion:
"Although the concept of a ratio is well known,

the term 'cholesterol fasting ratio' does not identify the two measurements in respect of which the ratio is to be taken. As a result for a pathology service it is in my opinion incomplete and requires clarification."

He pointed out that any of the cholesterol fractions (there is a number of them, of which HDL cholesterol is one) "can be measured and expressed as ratios of one of the other fractions, or of total cholesterol level", and that "it will be possible to express as ratio the level of cholesterol and triglyceride". But he did not suggest that any of the other ratios to which he referred was in common use in medical practice in Australia. He made an assertion which also involved a concession:

"It is only if it turns out that the referring

practitioner is requesting the calculation of the ratio of HDL cholesterol to total cholesterol that the other propositions asserted by this Applicant ... will be true. It is not possible to determine that by reading the request, although it may well be possible to infer that that is probably what the requesting practitioner has in mind, on the basis that HDL cholesterol is the fraction of cholesterol which is most commonly separately estimated."

On this issue, I find the evidence of Dr Peverill and Dr Davis convincing. Even without the special factor that the requesting doctor had made similar requests before and must have known what ratio he could expect from Dr Peverill if he made this request, I accept that common practice in the medical profession requires the conclusions: (a) that a reference to "cholesterol ratio", without further qualification, necessarily imports an HDL cholesterol ratio, and thus an estimation of HDL cholesterol; and (b) that only one ratio could have been intended, namely, the ratio between HDL cholesterol and total cholesterol. Actually, the former conclusion would be sufficient for the purposes of this case; if the request unambiguously sought an estimation of HDL cholesterol, a doubt about the ratio to be calculated later in relation to the answer could not obliterate the rendering of that service, or deny Dr Peverill's right to be paid for it. When the Act requires the request to be in writing, I think it refers to a request which, read reasonably, conveys the information that the procedure in question is to be performed. It does not invite hypercriticism. The Act was intended to be capable of practical application, not to promote an excess of semantic distinctions. Certainly, the intention is to protect the funds of the Health Insurance Commission by ensuring that the services to be paid for have been the subject of an appropriate request. But the larger aim of the Act is to promote the efficient provision of medical services to the Australian community, an aim that would be poorly served if requests were converted from practical medical documents into frustrating exercises in formalism.
In my opinion, Dr Peverill was entitled to receive payment for the estimation of HDL cholesterol pursuant to item 1401.
RUBELLA - ITEMS 1345 AND 2294
On 19 April 1988, Dr Peverill received a request from a medical practitioner for the performance of a service identified as "Rubella IGG and IGM". He carried out certain procedures, which it will be necessary to describe in some detail, and submitted to the Health Insurance Commission a claim for payment under item 1345. There is no suggestion that the request was not sufficient, but the Health Insurance Commission refused payment under item 1345, which carried a fee of $34.50, and allowed payment under item 2294 only, which carried a fee of $4.60.
Item 1345 has already been set out in these reasons in the section dealing with the claim made by Dr Peverill in respect of the estimation of transferrin. Item 2294 forms (with its "OP" version 2295) the whole of Division 8A of Schedule 1A. Division 8A is headed "Examination not otherwise covered", and item 2294 reads as follows:
"Pathology examination of any body fluid or

tissue not covered by any other item in this Part (SP)."

The word "Part", in item 2294, appears to be a mistake which occurred when the previous table of pathology services, promulgated by regulation, was in substance adopted as the new Schedule 1A to the Act. Schedule 1A has no parts, only divisions, but the schedule from which it was taken covered medical services outside the area of pathology, and its table of pathology services fell under its Part 7, containing a Division 8A in terms which, in 1986, were incorporated in the Act without any relevant alteration. (See Health Insurance (Variation of Fees and Medical Services) (No. 35) Regulations, Statutory Rules 1984.) I think the words "this Part" would have to be read in the Act as meaning "this Schedule", and that does not seem to be in dispute. The item is thus a catch-all item, as the heading indicates, in case some procedure has entirely escaped mention in the schedule. But if so, the draftsman must have considered that the words "examination of any body fluid or tissue" did not (in the context of Schedule 1A), by narrowing the broad language of the heading of Division 8A, frustrate the intention of providing for any kind of pathology examination which may have been omitted elsewhere in the schedule. That is to say these words were wide enough to cover any such examination. To ensure that the legislature's inadvertence should not lead to a pathologist being over compensated, the fee specified for this item is at the lowest level to be found in the schedule.

The request in question would be understood by any medical practitioner to require the patient's serum to be tested for rubella specific immunoglobulin G (IgG) and immunoglobulin M (IgM). Until some years ago, this would commonly have been done by means of a test known as the haemagglutination inhibition test, which is the subject of item 1823 of schedule 1A. But there were other tests. One, which is called by the name radioimmunoassay, became well known in the 1970s and won the Nobel Prize in Medicine for 1977 for one of its originators, Dr R.S. Yalow of the Veterans Administration Hospital in the Bronx, in recognition of her "spectacular combination of immunology, isotope research, mathematics, and physics". An analogous method, enzyme immunoassay, is now the preferred method. The evidence indicates that, at least by 1983, it was commonly used in Australia. I note, as an indication that it had already become an accepted procedure by 1977, that the reference to "enzyme linked immunoassay" in item 1392 derives from the report of the Pathology Services Working Party, March 1977, which formed the basis of wide ranging changes to the way in which the Health Insurance Act 1973 was administered in respect of pathology, and of amendments to the Act itself.
All the procedures I have mentioned are applicable to a number of different biochemical assays. When they are used in relation to rubella, their aim is to detect (and the applicant says also to estimate quantitatively) antibodies to rubella. The presence of rubella antibodies may indicate that the patient is suffering from rubella, or has acquired some immunity to it, perhaps through a previous attack or perhaps through immunization, and the known tendency of rubella specific IgM to drop in level over time, after an attack, may also enable conclusions to be drawn as to the recency of an infection.
Certain proteins having recognized antibody activity are called immunoglobulins. They are of five general classes, referred to as IgG, IgA, IgM, IgD and IgE. When an individual is infected or inoculated with an antigen, such as the rubella virus, the immune response leads to the production of immunoglobulins specific to the antigen. These are known as antibodies. They bind at particular binding sites to points known as epitopes on the antigen. They are structured chemically so as to do so, being, as it were, keyed uniquely to that antigen.
The procedure of enzyme immunoassay (also called enzyme linked immunoassay), carried out by Dr Peverill in the present case, is based on an understanding of the ability of antibodies to bind to antigens to which they are specific. One version of the method is as follows. First, the bottom of a vessel is coated with the particular antigen - in this case the rubella antigen. The patient's serum, to be tested for rubella antibodies, is added to the vessel. Any rubella antibodies in the serum will bind to the antigen. All excess serum is then washed away, leaving the antibodies which have bound to the antigen. The next step is to add an antibody formed in sheep or rabbits or goats, directed against human antibodies - in this case directed specifically against human IgG (when the assay for rubella specific IgG is being performed) and against human IgM (when the assay for rubella specific IgM is being performed). It will be appreciated that, so far as the antibody produced by sheep or rabbits or goats is concerned, the human antibodies are antigens. An enzyme has been attached to the animal antibody. After its addition to the vessel, it is incubated. It will, as an antibody, bind to the human immunoglobulin, to which it is specific, that has already bound to the original rubella antigen surface. When the excess animal antibody is washed away, the quantity remaining will be proportional to the amount of the particular human immunoglobulin bound to the rubella antigen surface. The final step is to add a reagent, called a substrate, which is converted from a colourless into a coloured liquid by the enzyme attached to the animal antibody. The intensity of colour will be determined by the amount of that enzyme present, and thus, ultimately, by the amount of the particular human antibody, the subject of the assay, which has bound to the rubella antigen. Once the colour reaction has occurred, the colour is measured by an instrument known as a colorimeter and the measure of colour is compared to a standard curve based on readings produced from known standards. In that way, Dr Golder, from whose evidence this description is derived, claimed the pathologist performing the procedure can ascertain "exactly how much antibody is there".

A radioimmunoassay differs in principle from an enzyme immunoassay only in so far as it substitutes, for the enzyme and substrate, a radioactive label and a measure of the amount of radioactivity. They are both immunoassays. The evidence is that immunological techniques have, since at any rate the 1970s, been very widely used in biochemistry. Enzyme linked immunoassay has been preferred to radioimmunoassay because of the special problems of radioactive isotopes, and there are a number of variants on the method of enzyme immunoassay which I have outlined.
The first question which is raised on this aspect of the case is whether enzyme immunoassays for rubella specific IgG and IgM provide quantitative estimations. Dr Peverill claims that item 1345 is applicable because he has produced quantitative estimations of these antibodies, which are substances not specified in any other item in Division 2 of Schedule 1A. One answer made is that the estimations are qualitative, not quantitative. The respondents called highly qualified experts to support the proposition that what was measured in the enzyme immunoassay procedure was not the quantity of the antibody substance, but its activity in binding to the antigen. However, they did not dispute Dr Golder's description of the way in which the procedure works. Dr Golder, for his part, asserted that a quantitative estimation is involved. He is peculiarly expert in the subject, being a research director supervising "the development of new immunoassays for the detection of antigens and antibodies in human blood serum or human urine or in tissue samples". He is supported by Dr Davis and by Dr Peverill himself, whose own laboratory manual indicates that the results of the test for rubella IgG are expressed in international units per millilitre and the results in respect of rubella IgM are expressed in enzyme immunoassay units.
Dr Golder, under cross-examination, said the colour "is directly proportional to the quantity". He said that it was "exactly correct" to say "that the colour relates to the number of these antibodies which are binding to the antigens". He was asked: "Do you agree that there are two aspects to the matter - how many there are, and secondly the extent to which they effectively bind?" He answered: "Well, they must bind effectively to be measured in the assay. If they are non-specific antibodies then they will not be measured in the assay. We are measuring, as I said, the quantity of the specifically active antibodies in this assay." Later, he repeated: "The number of second antibodies (i.e. the animal antibodies) binding ... is directly proportional to the number of first antibodies (i.e. from the sample of serum) that are bound to the antigen plate. So it is a directly proportional relationship." Dr Davis, who, it has been mentioned, has a second fellowship as a fellow of the Royal Australasian College of Physicians, made it plain that there is clinical significance to be attached to the quantification of rubella specific IgG and rubella specific IgM in a particular patient.
As I have said, the respondents contended that the test measures an activity, and not the quantity of a substance. However, their expert evidence did not accompany them the full distance of that proposition. Dr Robertson, for example, a serologist who is a principal hospital scientist, said the enzyme immunoassay "measures the reaction, but the extent of the reaction is proportionate to ... the amount of antibody that was there." He gave evidence that the enzyme immunoassay procedure "quantified the rubella specific antibody". Up to the point of full saturation, which the equipment is designed to avoid, he agreed that the enzyme immunoassay procedure "quantifies ... the amount of the antibodies". Professor Plueckhahn conceded in cross-examination that the technique "attempts to quantify". His point was that it was an indirect indication and was not precise. When it was suggested to him that the schedule does not demand absolute precision, but a "quantitative estimation", he said: "The best I can say is it is a refined semi-quantitative test. I know this comes back to all these various shades of grey. It is more active, if you like, than saying it is one plus or two plus or three plus." Asked the question: "Putting it another way, does it give you or does it not give you an approximate understanding of the quantity of IgG present?" he answered: "I would have to answer yes, sir."
Associate Professor Bell was another witness who disputed that the enzyme immunoassay procedure constituted a quantitative estimation of a substance, saying: "I believe it is an estimation of activity of a particular group or idiotypes of immunoglobulins". But he acknowledged, in cross-examination, that he would expect an expression of rubella specific IgG in nanograms to be "directly proportionate to any results expressed in international units per litre as reported in this case". He was referred to the fact that cholinesterase, which is an enzyme, is specifically mentioned in item 1345, and he conceded that an enzyme is not simply measured by weight. The units in which enzymes are expressed, he explained, "are related back to weight (of) substrate which is the thing that the enzyme is attacking, weight of substrate degraded per unit time, and this is how we express the activity of an enzyme". (To this concession should be added evidence given by Dr Davis that transketolase, another enzyme mentioned in item 1345, is also measured by its activity, not by its weight.) Another of the respondents' witnesses, Associate Professor Naidoo, was asked in chief: "If you are looking at the final measurement at the end of the ELISA (i.e. enzyme immunoassay) test for rubella antibody, in your view are you measuring something which is a chemical substance or not?" He answered: "Yes, you are measuring a chemical substance."
There is, of course, nothing in the use of intensity of colour, as a means of measuring quantity, to disqualify the estimation from being called a quantitative estimation. The same thing is done when serum iron is quantitatively estimated by a reaction of the iron with a chromagen in order to produce a coloured complex, the colour of which is proportional to the amount of iron present in the specimen.
A glossary of terms used in a report concerning accreditation of pathology laboratories in Australia, to which Professor Plueckhahn was a party, was put into evidence through the professor. He expressly assented to the definition of "radioimmunoassay", in that glossary, as "quantitative measurement of the concentration of substances by the application of radioactively labelled immunological reagents". Having regard to the fact that a radioimmunoassay differs from an enzyme linked immunoassay only by virtue of the method of labelling and quantifying the immunological reagents, not in respect of the nature of the information obtained about the substance being assayed, it is very hard to reconcile the acceptance of a radioimmunoassay as a "quantitative measurement" with the rejection of an enzyme linked immunoassay as a quantitative estimation. None of the respondents' witnesses provided any acceptable justification for this inconsistency.
Accordingly, if the question to be answered is formulated in the manner for which the respondents contend, I think the answer must be that Dr Peverill carried out a quantitative estimation. However, I do not regard the assumption which underlies the respondents' way of putting the matter as valid. The assumption is that a quantification of the activity of rubella specific IgG or IgM would not be a quantification of a substance. There is no doubt that an activity may be quantified. The word "quantitative" is defined in the fourth edition of Blakiston's Gould Medical Dictionary in the following terms: "Of or pertaining to quantity; limited to or concerned with degree as opposed to kind." In The Shorter Oxford English Dictionary (1980), the relevant meaning of the word is given as: "Relating to or concerned with quantity or its measurement; ascertaining or expressing quantity". And "quantity" is defined so as to include the following:
"That property of things which is involved in

the questions 'how great?' or 'how much?' and is determinable, or regarded as being so, by measurement of some kind; a system of relationships by virtue of which one thing is said to be greater or less than another."

These definitions are certainly not only applicable to physical things - time, energy, electricity, even, perhaps, the quality of mercy (which, Shakespeare seems to suggest in a familiar passage, is not to be squeezed through a strainer, but should drop in ample measure like the rain) may be spoken of in terms of quantity.

But a substance can only be measured meaningfully by the selection of some characteristic - weight, volume, number and activity are but aspects the measurement of which gives a quantitative estimation in respect of the substance. Quantity is often thought of in terms of the (relevantly) most important characteristic. For the storage of oil, it is volume, and there are barrels; for the shipping of coal, it is weight, and there are tonnes. So when we speak of the measure of a man, we do not refer to his height or weight. And for medical purposes, some things are measured by their activity. Enzymes are commonly quantified in this way - not by reference to their own weight, but by reference to what they do.
Applying to the rubella specific IgG, contained in a sample of serum, a system of relationships by which one thing is said to be greater or less than another, a measure of the antibody activity of the rubella specific IgG may well be regarded as its most meaningful quantity. The respondents did not dispute that at least the activity of the rubella specific IgG (and similarly the activity of the rubella specific IgM) was measured by immunoassay. On the basis that the activity was the significant thing about the particular immunoglobulin, that was a quantitative estimation of the substance expressed in appropriate units. This view of the matter is consistent with the inclusion in item 1345 of enzymes, the quantitative estimation of which will generally, in accordance with normal scientific practice, be expressed in terms of their activity.
A further objection was raised by the respondents to the applicability of item 1345. It was pointed out that this item takes its place, under the heading "Chemistry of Body Fluids and Tissues", in Division 2 of the schedule, the other divisions of which are the following: "Division 1 - Haematology", "Division 3 - Microbiology", "Division 4 - Immunology", "Division 5 - Histopathology", "Division 6 - Cytology", "Division 8 - Infertility and Pregnancy Tests", "Division 8A - Examination not otherwise covered", and "Division 9 - Simple Basic Pathology Tests". (A previous Division 7, covering cytogenetics, has been absorbed into Division 6.) The respondents draw attention to the fact that several of these headings correspond to recognized sub-disciplines within the discipline of pathology. In that context, they claim that Division 2 should be seen as the division concerned with the sub-discipline of chemical pathology or biochemistry. The next step in the argument is the contention that the expression "any other substance not specified in any other item in this Division" should be read down to comprehend only substances which are normally estimated by a chemical pathologist or biochemist, or in a biochemical laboratory. It is claimed that, although the estimation of immunoglobulins is plainly contemplated by item 1342 as falling within Division 2, the estimation of rubella specific immunoglobulins is the concern of immunology, or perhaps of microbiology, but not properly of biochemistry.
The respondents' argument has to overcome the difficulty that the words "any other substance" are qualified only by the exclusion of substances specifically dealt with in Division 2. Furthermore the expression does not stand alone; for example, in item 1330, also within Division 2, qualitative estimation by chromatography "of a substance not specified in any other item in this division" is provided for. This seems to be a method and instrument oriented item, in the construction of which it would be hard to read down the word "substance". There are other examples.
A major difficulty about an approach to construction of the schedule which seeks to compartmentalize the divisions in a rigid way, in order to make them correspond to sub-disciplines within the discipline of pathology, is that the practice of pathology is not itself rigidly subdivided. It is true that there are pathologists whose fellowships from the Royal College of Pathologists of Australasia have been obtained following training in microbiology, immunology, chemical pathology, haematology or histopathology, but it is also true that the same college issues fellowships following training in general pathology, and that all pathologists are qualified by their fellowships to practise pathology, though a particular individual might, from a practical point of view, need to acquire further learning and experience if he were to pursue his profession in a particular area. There is a wide difference between the degree of specialization which might be expected in a large teaching hospital and that which would be found in a small country hospital or in some private practices. There is also a difference in the organisation of laboratories, so that, for example, a particular biochemical laboratory might contain equipment used to carry out procedures commonly regarded as falling within the sub-discipline of immunology.
The lack, in practice, of any impassable barriers compartmentalizing the specialty of pathology is reflected in schedule 1A. No doubt, several of its divisions may be identified with sub-disciplines of the profession, though Divisions 8 and 9 are plainly in a different category. But a general allocation of items to the sub-disciplines most likely to be concerned with them is a convenient and practical arrangement of the table. It does not necessarily imply that nothing in one division may be read as extending to a matter properly (or generally, or traditionally - if there is limitation, it must be capable of precise statement, so one of these would have to be selected) the subject of study in another. There are many examples of items which would deny any such idea. One of the most striking is another item in Division 2, item 1336, which has already been quoted in these reasons. That item is concerned with an antigen, a basic subject of investigation in immunology. The particular antigen is viral, and thus the concern of microbiology. A method specifically mentioned in the item is radioimmunoassay, a method entirely analogous to the enzyme linked immunoassay with which this case is concerned. Yet the item is in Division 2. The respondents claimed that this was because of an historical circumstance, namely, the use in order to detect the antigen of equipment which was normally to be found in a biochemical laboratory. But that is to concede the point - laboratories were not and are not capable of being confined to the rigid categories the respondents' argument demands.
The very language of the heading of Division 2, "Chemistry of Body Fluids and Tissues", is significant. If the divisions had been intended to reflect precisely a group of sub-disciplines, this heading should have been either "Chemical Pathology" or "Biochemistry". That the non-technical expression "Body Fluids and Tissues" is not confined to substances the examination of which may be viewed as peculiarly the province of chemical pathology or biochemistry is made plain by the terms of Division 8A. As has already been noted, the heading of that division reveals expressly an intention to fill any gap left by any of the other divisions; yet the broad item fulfilling that function is described as referring to a "pathology examination of any body fluid or tissue ...", the very words claimed to have a limiting effect in Division 2. When Schedule 1A was enacted by the Health Legislation Amendment Act 1986, it included Division 8A6.
It was not suggested that there is some other item in the section headed "Microbiology", or in the section headed "Immunology", which would embrace the quantitative estimation by enzyme immunoassay of immunoglobulins specific to various diseases. If item 1345 was, as the respondents contend, not intended to cover all quantitative estimations of substances not specified in Division 2, the question remains, what item was intended to cover these estimations? One can hardly suppose there was an actual intention to leave them out. The estimation of rubella specific immunoglobulins has long been regarded as vitally important; the evidence in this case suggested it is recognized that the immune status, as regards rubella, of every woman of child-bearing age should be tested. Nor can it be argued that the matter was simply overlooked, for evidence was given that it was the subject of specific prior recommendations to the government which, however, did not form part of the schedule when it was enacted. Not only that, but, as will appear, at the earlier time (in 1977) when the form of item 1345 was first settled, attention had been expressly drawn (by a reference to "radioimmunoassay") to the fact that expert opinion regarded the item as suitable to cover immunoassays. The respondents' argument therefore involves that parliament used wide words capable of covering the test, being aware of the use and importance of the test, yet did not intend those wide words to embrace it, and made no other provision for it. The respondents now contend that the only applicable item is the catch-all item, item 2294, with its minimal fee which, on the evidence, would provide no profit at all, and would not even cover Dr Peverill's direct costs of the procedure.
In my opinion, to confine the word "substance", where it appears without relevant qualification in items such as item 1330 and item 1345, to substances presently tested for in particular laboratories would be to nail the schedule to past technology. It was intended to be used day by day in a living medical science; one clear purpose of adding "any other substance" in item 1345 was to keep pace with anticipated growth and diversification. When the schedule was adopted, no one knew what substances developing bioscience might require a pathologist to investigate and estimate.
The respondents' argument gains no assistance from the history of the item. Item 1345 was taken, with some changes, from the report of the Pathology Services Working Party, previously mentioned, which was submitted on 11 March 1977 to the Director General of Health. A table which was an appendix to this report, varied by a number of drafting changes, and after a pupal period of some years as part of a schedule to regulations, reached the statute book in 1986 as Schedule 1A to the Act.
In the report of the Pathology Services Working Party, there appeared, over the numbers 1339 SP and 1340 OP, an item corresponding to items 1345 and 1346 (the OP version of item 1345) of Schedule 1A. It is plain that items 1345 and 1346, of the schedule to the regulations from which Schedule 1A was taken, were based on the Working Party's draft. That draft, however, did not commence, as item 1345 does, with the words "quantitative estimation of", followed by a list of substances, but took the form of lists of substances followed by words referring to an estimation, or to a quantitative estimation. It concluded as follows: "PBG, quantitative estimation of; other quantitative estimation (including radioimmunoassay) not specified in any other item in this Division." (Urine oestriol and transketolase, the last substances mentioned in the present item, were listed earlier in the item drafted by the Working Party.) Two things will at once be apparent: radioimmunoassay was expressly recognized by this expert committee as yielding a quantitative estimation which should fall within Division 2, and within this item; and the words "any other substance", in the present item, replace the words "other quantitative estimation", in the original draft, because of the drafting change which placed the words "quantitative estimation of" at the beginning of the list of substances - it was then natural to express the final provision for other quantitative estimations as it is expressed in the present item.

If it is necessary, as I think it is not, to seek confirmation that no change of the meaning of the original draft was intended, that confirmation is to be found in the second reading speech of the Minister for Health when the bill which became the Health Insurance Amendment Act 1977 was before the House of Representatives. This Act amended the previous provisions with respect to the practice of pathology, and was followed by the promulgation of regulations adopting the substance of the Working Party's recommendations concerning the items to be included in the table of pathology services. The Minister is reported in the House of Representatives Hansard for 27 May 1987, page 2,035, as saying the Government
"has accepted and acted upon proposals

submitted by the pathology services working party, the final report of which was tabled on 25 May 1977.

. . .

Before becoming involved in the details of the Bill, I wish to emphasize that the working party has recommended that a new schedule of pathology services and fees for medical benefits purposes will replace the existing schedule. The existing schedule is totally out of date, and the Government has accepted this new schedule. The new schedule is set out in appendix A to the working party's report. It will be introduced by regulations to operate at the same time as the revised pathology benefit arrangements covered by this Bill come into operation."

It is clear from the Minister's speech, which was put before me without objection, that the changes made to the drafting of the table were not seen as significant. If that is so, it follows that the intention of item 1345 was to embrace any quantitative estimation, an intention which would require the words "any other substance" to be read in their ordinary literal meaning. It is also clear that the respondents' argument, if addressed to the original draft, would have to contend that an enzyme immunoassay is not an "other quantitative estimation" because such an assay is alien to the practice of chemical pathology. But this is simply not so; an analogous form of immunoassay, radioimmunoassay, was expressly included by the working party, and is specified in item 1336, while both radioimmunoassay and enzyme linked immunoassay are nominated as primary methods in items 1380 and 1392, which are also in Division 2.

The respondents' reliance on those headings of divisions which correspond with sub-disciplines within the discipline of pathology is, in my opinion, fundamentally misplaced because it fails to grapple with the state of flux which characterizes that area of medicine. The assignment of items to a particular sub-discipline is likely to be impermanent because what yesterday was the concern of haematology may today be the concern of immunology and tomorrow that of biochemistry. This is not just a matter of theory. The contents of the divisions and their headings actually illustrate the point. One reason why "Biochemistry" was not chosen as the heading of Division 2 is likely to have been the presence in it of items such as item 1336 (dealing with Australia antigen) and item 1342 (dealing, inter alia, with complement, a substance intimately concerned with the antibody-antigen reaction), and the overlaps it presents with haematology, microbiology and immunology. Many examples of the overlaps were referred to in the evidence and in the argument; it would burden these reasons unduly to catalogue them. The respondents' argument requires a proposition that is universal, excluding from Division 2 substances falling within the sub-disciplines other than biochemistry. The fact that an immunoassay for Australia antigen is included in Division 2 makes it impossible to draw, from the divisional structure, a limitation upon the words "any other substance" excluding the substances involved in the antibody-antigen reaction. If any distinction is to be drawn, an immunoassay for an antibody should be more plainly regarded as falling within the chemistry of body fluids and tissues than an immunoassay (of the kind referred to in item 1336) for an antigen which, by definition, is a foreign body. IgG and IgM fall squarely within the words "body fluids and tissues". Those words, according to the evidence, do not comprise a technical expression, and therefore must be understood as ordinary English words.
To conclude this part of the case: detection of an antigen by an immunoassay is within Division 2 (item 1336); quantitative estimation of complement - the substance which is involved with antibody and antigen so as to complement their interaction - is within Division 2 (item 1342); there is no good reason to exclude the third member of the trilogy which makes up the antibody-antigen reaction from the scope of the words in item 1345, "any other substance not specified in any other item in this Division". As I have already held that the procedure performed by Dr Peverill otherwise fell within the terms of the item, he succeeds in respect of the issue of categorisation of the estimation of rubella IgG and IgM.
SCHEDULE 1A AND JUDICIAL REVIEW
The respondents submit (and they sought to raise the matter as a preliminary point) that the decision of the assessing officer and, through him, of the Health Insurance Commission, in respect of each of the claims I have discussed was not "a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment" within the meaning of s.3(1) of the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act). It was, so it is said, but an application of the statute to the facts; no decision was required, since the terms of the Act dictated the answer. But this argument, in my opinion, mistakes the true nature of administration. A decision has always had to be made about facts, before a rule could be applied to them. The Judicial Review Act, as is made express in the passage I have quoted from s.3(1), is not concerned only with discretionary decisions; it is also concerned with decisions that are "required to be made". The ascertainment of the facts may lead to some ruling or determination upon some question posed by an Act. At least where the determination issues in some action, or in a refraining from some action, there may be seen to be a decision in the sense expounded in Lamb v. Moss (1983) 49 ALR 533: see Squires v. Attorney-General of the Commonwealth of Australia (1986) 12 FCR 84 at 87. The breadth of what the Judicial Review Act means by the making of a decision is further emphasized by the open-ended "definition" in s.3(2), paragraphs (a) and (g) of which could be readily applied to the present case.
The Health Insurance Act 1973 specifies detailed criteria to be fulfilled by pathologists, and creates rights to receive payments by reference to those criteria. It also regulates the operations of the Health Insurance Commission, a function of which is to make payments, in appropriate cases, on behalf of the Commonwealth (see s.20, referred to at the commencement of these reasons). The Act does not contemplate that a pathologist will always have to sue to secure a determination by a court of his rights in respect of a multitude of individual entitlements; what is implicitly contemplated by the statutory scheme is that the Commission will decide what was the character of a particular service performed and whether the requirements for entitlement to a particular fee have been satisfied. In deciding these matters the Commission exercises a "statutory function of making a determination" (see per Dawson J. in Chan Yee Kin v. Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412 at 422). When that function is exercised, the Act is "the source of the consideration given by the (Commission) and of the determination ultimately made" (per Toohey J., ibid at 429).
Where legislation endows a statutory body with the duty of administering a scheme to provide for the making to claimants of payments on behalf of the Commonwealth, in accordance with statutory criteria, the determination whether a particular claim falls within those criteria will generally be a decision of an administrative character, made under an enactment, within the meaning of the Judicial Review Act. There is nothing in the nature of such a determination to exclude it from the scope of judicial review. A decision applying, or purporting to apply, the statutory criteria is a decision "required to be made" by the legislation in question. In my opinion, these propositions are in accordance with what was said in Ioannou v. Fowell (1984) 156 CLR 328 at 335; Bond v. Australian Broadcasting Tribunal (1989) 89 ALR 185 at 209-210; and Chan (supra).
Counsel for the respondents relied on a passage in the Full Court decision in Fowell v. Ioannou (1982) 45 ALR 491 at 503, where it was said (concerning what was argued to be a decision to terminate an employment under the Public Service Act 1922):
"(N)either the statement by the Executive
Director of the Service that the employment of
the respondent with the Service 'be terminated
or dispensed with and not renewed or extended
beyond 30 June 1982', nor his action in
refusing or failing to continue or extend or
renew the employment of the respondent
constitutes a decision to which the Judicial
Review Act applied. The temporary employment
of the respondents ceased on 30 June 1982 by
operation of law. That did not depend upon
any action or decision to be taken or made by
the Executive Director."
Counsel contended that the same must be true of any "decision" by an assessor in the present case, the position being determined by the language of Schedule 1A. But the authority relied on was overruled by the High Court in Ioannou v. Fowell (supra). In the joint judgment of the High Court (at 335), it was held that the temporary employment in question had not ceased by operation of law; and accordingly the action taken, though purportedly a mere execution of the terms of the enactment, was in reality not authorized by it. In those circumstances, the joint judgment comments:
"The letter plainly conveyed that a decision

had been made to dispense with his services. That decision was, as has been seen, erroneous. It was a decision of an administrative character made in intended but mistaken pursuance of s.82 of the Public Service Act. As such, it was properly reviewable pursuant to the provisions of the Administrative Decisions (Judicial Review) Act."

Likewise, in the present case, the refusals to pay under two items, and the substitution of payment under a different item in the case of the claim relating to rubella, were decisions of an administrative character made in intended but mistaken pursuance of the statute, which was thought to dictate these results. This is perhaps clearer in the case of the substitution of an item, under which payment had never been claimed, but it is equally true of the refusal of payment in each of the other cases.
Of course, other remedies are open to the applicant. In particular, he could sue for the money due (and when objection was taken to the proceedings he had launched, he took the precaution of doing so, in the alternative), though the terms of s.20 may perhaps raise a question whether the proper party to be sued is the Commission. The respondents submit I should, as a matter of discretion, refuse relief under the Judicial Review Act, and remit the applicant to his other remedies. But, in my opinion, where rulings on the true construction of items the Commission must apply to numerous claims, and on the effect of a form of request which is also relevant to numerous claims, can conveniently be given in proceedings under the Judicial Review Act, it would be wrong to decline to exercise the jurisdiction. The Judicial Review Act focuses upon the precise point of dispute, the validity of the grounds of the decisions, and that gives it value and economy.
Accordingly, the applicant is entitled to succeed under the Judicial Review Act. This makes it unnecessary to consider whether he is also entitled to succeed under s.39B of the Judiciary Act 1903. If it were necessary to consider s.39B, I would find it hard to distinguish the position of the Commission here from that of the Commissioner of Taxation in R. v. Commissioner of Taxation; Ex parte Just Jeans Pty Ltd (1986) 10 FCR 69, a decision of Northrop J. The correctness of that decision was not challenged before me, though counsel for the respondents urged me to take a different course, on the ground (already discussed in relation to the Judicial Review Act) that the applicant should be remitted to his remedy of suing for the moneys claimed to be payable to him. The same proposition was, of course, pressed upon Northrop J.
The respondents having questioned the availability of the remedy sought by the applicant under the Judicial Review Act, a separate proceeding was launched, number G305 of 1989, in which the applicant sued for the moneys payable in respect of each of the claims to which I have referred (except that relating to transferrin). In the light of the conclusions I have reached in the proceedings under the Judicial Review Act, this separate proceeding should probably simply be dismissed, as also should be the counter-claim filed in it, but I shall hear argument as to those matters, if necessary, and also as to costs, before making final orders. For the assistance of the parties, I indicate my tentative view that the applicant was justified, by the respondents' preliminary point, in attaching to his bow the second string of a suit claiming the moneys due to him; on this basis, but allowing for the failure of his claim in respect of trichomonas, he should have two thirds of his costs of the proceeding number G305 of 1989, as well, of course, as his costs of the respondents' counter-claim. The costs of the applications under the Judicial Review Act should follow the event in each case. The only order I make at the present stage is that I direct the applicant to bring in short minutes of appropriate orders under s.16 of the Judicial Review Act to reflect these reasons.

[1990] FCA 122

03 APRIL 1990