Tankey v Adams

Case [2000] FCA 1089

FEDERAL COURT OF AUSTRALIA

Tankey v Adams [2000] FCA 1089

ADMINISTRATIVE LAW – HEALTH – referral under the Health Insurance Act 1973 (Cth) in relation to a general practitioner alleged to have engaged in “inappropriate practice” – appeal from primary judge confirming decision of the Professional Services Review Tribunal which confirmed determination made by a Determining Officer – whether Tribunal exercising judicial power of the Commonwealth – whether Tribunal’s reference to “exceptional circumstances” relevant to sustainability of determination – whether nature of referral required sampling techniques used by Tribunal to comply with legislative requirements – role of medical practitioners in considering referral – whether primary judge erred in relying on statistical evidence in considering whether error of law made by Health Insurance Committee – relevance of earlier counselling by the Committee – weight to be given by Committee to evidence of testimonials and surveys in support of appellant – whether Tribunal required to give reasons for finding that all services rendered were inappropriate– whether appellant accorded procedural fairness by Committee and effect on Tribunal’s determination.

Health Insurance Act 1973 (Cth) ss 10(1), 81(2), 82(1), 86, 87(1), 114, 106S(1), 106T(1), 106U, 124A
Acts Interpretation Act 1901 (Cth) s 33(3A)

Re RangerUranium Mines Pty Ltd;  Ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656
Re Cram;  Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140
Precision Data Holdings Ltd v Wills (1991) 173 CLR 167

The Queenv Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361
Reg v Spicer;  Ex parte Australian Builders’ Labourers’ Federation (1957) 100 CLR 277

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245
Attorney-General (Cth) v Breckler (1999) 197 CLR 83

The Queen v White;  Ex parte Byrnes (1963) 109 CLR 665
Yung v Adams (1998) 80 FCR 453

Adams v Yung (1998) 83 FCR 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Project Blue Sky v ABA (1998) 194 CLR 355
Artinian v Commonwealth (1996) 43 ALD 235
Retnaraja v Morauta (1999) 93 FCR 397
Edelsten v Health Insurance Commission (1990) 27 FCR 56
Freeman v McCubbery (1985) 5 FCR 367
Secretary, Department of Social Security v McKenzie (1993) 31 ALD 55 at 61-2

Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550

Sinja v Asher (1989) 22 FCR 423

JAMES ADRIAN TANKEY v ANTHONY ADAMS
Q185 of 1999

RYAN, O'CONNOR & WEINBERG JJ
10 AUGUST 2000

SYDNEY (HEARD IN BRISBANE)


IN THE FEDERAL COURT OF AUSTRALIA

BRISBANE DISTRICT REGISTRY

Q185 of 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JAMES ADRIAN TANKEY
Appellant

AND:

ANTHONY ADAMS
Respondent

JUDGES:

RYAN, O'CONNOR and WEINBERG JJ

DATE OF ORDER:

10 AUGUST 2000

WHERE MADE:

SYDNEY (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs.

Note:    Settlement and entry…

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AGLC
Tankey v Adams [2000] FCA 1089
Case
[2000] FCA 1089
Decision Date

CaseChat Overview and Summary

The case of Tankey v Adams involves a dispute regarding the interpretation and application of s 87(1) of a statutory Act. Dr Tankey, a practitioner, appealed against a decision that questioned the validity of a referral made concerning his conduct. The referral in question was to be assessed against the criteria outlined in s 87(1)(a) and s 87(1)(b)(i), (ii), or (iii). The central issue for the court was whether the referral met the specific criteria required by the statute, particularly in terms of specifying the class of services or persons.

The court had to determine if Dr Tankey’s referral, which broadly covered all services rendered during a specified period, complied with the statutory requirement to specify either a "specified class" of services or services provided to a "specified class" of persons. The referral did not narrowly define the services or the class of persons, instead, it covered all services and all patients during the referral period. The court noted that the referral was too general to meet the statutory requirements and found that it did not fall under any of the specified categories in s 87(1)(b). Additionally, the court considered whether the referral met the criterion of services provided within a specified location, but found that even if this were the case, it would not meet the statutory requirements.

In reaching its conclusion, the court relied on the ordinary meaning of the term "specify" as stated in the Macquarie Dictionary, which entails mentioning or naming specifically or definitely, and stating in detail. The referral was deemed too broad and non-specific to meet the statutory requirements. The court also referenced Artinian v Commonwealth (1996) 43 ALD 235, where Hill J had previously commented on the need for a referral to specify services or persons in accordance with the statutory provisions.

ORDERS:
1. The appeal is dismissed.
2. The appellant is ordered to pay the respondent’s costs.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The issue to be resolved is whether a referral in the terms in which Dr Tankey’s referral is expressed is properly to be regarded as falling within s 87(1)(a) of the Act, or as falling within one or more of s 87(1)(b)(i), (ii) or (iii).Conclusion regarding sampling It is clear that the referral concerning Dr Tankey does not relate to “services of a specified class”. It relates to all services rendered and initiated by Dr Tankey during the referral period. A referral expressed in these terms is not, for the purposes of s 87(1)(b)(i), a referral which relates to a “specified class” of services. It is also clear that the referral does not relate to “services provided to a specified class of persons”. The referral was expressed in the most general of terms. It related to services provided to all persons treated by Dr Tankey from all his practice locations, and at all institutions visited by him. A referral so expressed is far wider than one which, for the purposes of s 87(1)(b)(ii), relates to a “specified class of persons”. It was submitted on behalf of Dr Tankey that the referral relating to his conduct met the description “services provided within a specified location” within the meaning of that expression in s 87(1)(b)(iii). The location[s] said to have been “specified” in the referral were “from all his practice locations” and “all institutions visited by him”. If that submission were to be accepted, it would follow that the requirements of s 106H(2)(a) and (b) were not met. It would then be necessary to consider what consequences, if any, might flow from a failure to observe those requirements. The authorities which bear on this subject are not easily reconciled. In Artinian v Commonwealth (1996) 43 ALD 235 Hill J dealt with an application for interlocutory relief pending the hearing of an application for judicial review. The applicant challenged two decisions, one by the Commission to make a referral under s 86(1) to the Director, and a second by the Director to set up a Committee to consider whether the applicant had engaged in inappropriate practice. Hill J said at 241:“4. Whether the referral complied with s 87(1) in specifying servicesThe document of referral under s 86 of the Act described the referred services in the following terms:For the purposes of s 87(1) of the Act, this referral relates to all services rendered by Dr Artinian from his practice locations in the state of New South Wales during the period of 1 January 1995 to 31 December 1995, inclusive.It is submitted that so to define the services to which the referral relates, is to fail to comply with the provisions of s 87(1) which requires that the referral specify one or both of specified services or services of the kind referred to in s 87(1)(b). It is said that to name all the services in a period is not to specify “specified services”. It would seem fairly obvious that the referral did not seek to specify or to make a specification in accordance with s 87(1)(b).The word “specify” has its ordinary English meaning as stated in the Macquarie Dictionary of “to mention or name specifically or definitely; state in detail”. What is required, if a referral is to specify services, is that the referral be precise or particular about which services it refers to. It would probably not be a sufficient compliance with s 87(1), for example, if the referral were to be as general as to refer to all services whatsoever carried out by the practitioner.However, it is said on behalf of the respondents that the referral does not refer to all services carried out by the practitioner but rather to all services carried out by him in a particular period of time, namely the period from 1 January 1995 to 31 December 1995 inclusive.For my part, I do not see why s 87(1) should be construed as not permitting a specification of the services performed by a practitioner on a particular day, a particular week or in a particular month. If this is so, I can see no reason why it would be invalid to specify the proceedings in a particular year. Put in another way, the argument for the applicant can hardly be said to be strong, although put the other way it can hardly be said to be unarguable.” (emphasis added)

Ratio Decidendi

Legal Principle Established

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