Peverill v Backstrom

Case [1994] FCA 996


RICHARD EDWIN PEVERILL v. DAVID LEON BACKSTROM; CHARLES AKRILL MITCHELL;
ERNEST HUMPHREY CRAMOND; STEWART JAMES BRYANT and MINISTER FOR HEALTH, HOUSING
AND COMMUNITY SERVICES
No. NG377 of 1994
FED No. 996/94
Number of pages - 28
Administrative Law - Medicine
(1994) 127 ALR 197
(1994) 54 FCR 410

(1994) 38 ALD 14

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
LOCKHART, GUMMOW AND LEE JJ

CATCHWORDS

Administrative Law - natural justice - Wednesbury unreasonableness - pathology services - Medical Services Committee of Inquiry - expertise of committee - excessive services - particulars of matters to which hearing relates - severity of penalty.


Medicine - pathology services - excessive services - "personal fault" of practitioner - meaning thereof - whether services "not reasonably necessary for the adequate medical care of the patient".


Health Insurance Act 1973
Health Insurance Amendment Act 1977
Health Legislation Amendment Act 1986
Community Services and Health Legislation Amendment (No. 2) Act 1990
Health and Community Services Legislation Amendment Act 1991
Health Insurance Amendment (No. 2) Act 1991
Health, Housing and Community Services Legislation Amendment Act 1992


Tiong v Minister for Community Services and Health (1990) 93 ALR 308
Minister of State for Health v Peverill (1991) 29 FCR 262
Minister for Health v Thomson (1985) 8 FCR 213
Cunliffe v Commonwealth of Australia (1994) 124 ALR 120

HEARING

SYDNEY, 26-27 September 1994
#DATE 19:12:1994


Counsel and solicitors Dr G.A. Flick SC and
for the appellant: Mr A. Robins instructed

by Minter Ellison Morris Fletcher.


Counsel and solicitors Mr J.S. Hilton SC and
for the fifth respondent: Ms R.M. Henderson

instructed by Australian Government Solicitor.


The first, second, third and fourth respondents filed a submitting appearance.

ORDER

The Court orders that:

(1) Orders 2 and 3 made by the primary Judge on 16 June 1994 be set aside.

(2) The appeal otherwise be dismissed.

(3) The appellant pay the costs of the respondents of the appeal, and of the motion referred to in order 7 made by the primary Judge on 16 June 1994.

(4) The costs of the first, second, third and fourth respondents provided for in order 3 be those of a submitting party.

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

JUDGE1

LOCKHART, GUMMOW AND LEE JJ This appeal from a Judge of this Court (Einfeld J) involves important questions of construction of provisions of the Health Insurance Act 1973 ("the Act") relating to over-servicing. In particular, it concerns the position of specialist pathologists who have been requested to perform unnecessary procedures by medical practitioners.

  1. The appellant, Dr Peverill, is a specialist pathologist operating a number of practices in Queensland and the Northern Territory. During the relevant time, Dr Peverill operated 7 laboratories and 50 related surgeries. Dr Peverill was personally responsible for supervising 4 of the laboratories (Springwood, Gold Coast, Alice Springs and Darwin) and he employed other pathologists to supervise the laboratories at Ipswich and Cairns. The seventh…

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Details
AGLC
Peverill, R.E. v. Backstrom, D.L. & Ors [1994] FCA 996 ((1994) 127 ALR 197; (1994) 54 FCR 410; (1994) 38 ALD 14)
Case
[1994] FCA 996
Decision Date

CaseChat Overview and Summary

Peverill v Backstrom is a case heard by the High Court of Australia that revolves around the provision of pathology services and the administrative decisions made by the Medical Services Committee of Inquiry (MSCI). The appellant, Dr. Peverill, a medical practitioner, was investigated and found to have provided excessive pathology services, leading to an inquiry and subsequent penalties. Dr. Peverill appealed against the findings and penalties imposed by the MSCI, arguing that the procedures followed during the inquiry did not adhere to the principles of natural justice and that the penalties imposed were excessive. The respondents, including the MSCI and various officials, defended the actions taken by the committee.

The central legal issues in this case involved whether the MSCI had the requisite expertise to make the decisions it did and whether the procedures followed by the committee were in line with the principles of natural justice. Furthermore, the case examined whether the penalty imposed on Dr. Peverill was excessive and whether the particulars provided to him regarding the matters to which the hearing related were sufficient. The Court also considered whether the penalty's severity was disproportionate to the alleged misconduct.

In its decision, the Court found that while the MSCI did not have the requisite expertise to make the decisions it did, this did not necessarily mean that the decisions were unreasonable. The Court emphasised that the test for unreasonableness is the Wednesbury test, which assesses whether the decision was so unreasonable that no reasonable person could have made it. The Court concluded that the penalty imposed on Dr. Peverill was not excessive, as it was proportionate to the severity of the misconduct. The Court also found that the particulars provided to Dr. Peverill were sufficient for the purposes of the inquiry.

The Court set aside the orders made by the primary Judge regarding the appeal and dismissed the appeal in all other respects. Dr. Peverill was ordered to pay the costs of the respondents, and specific costs were allocated for the first, second, third, and fourth respondents. The settlement and entry of orders were governed by Order 36 of the Federal Court Rules.

Orders

Orders of the court

The Court orders that:

(1) Orders 2 and 3 made by the primary Judge on 16 June 1994 be set aside.

(2) The appeal otherwise be dismissed.

(3) The appellant pay the costs of the respondents of the appeal, and of the motion referred to in order 7 made by the primary Judge on 16 June 1994.

(4) The costs of the first, second, third and fourth respondents provided for in order 3 be those of a submitting party.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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