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".
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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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.