Tankey v Adams

[1999] FCA 683

FEDERAL COURT OF AUSTRALIA

Tankey v Adams [1999] FCA 683

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 a decision of the Professional Services Review Tribunal considering a determination made by a Determining Officer – whether the Tribunal denied the appellant procedural fairness – whether the use of sampling invalidated findings – relevance of earlier counselling by the Health Insurance Commission – whether the Tribunal misdirected itself as to the weight given to evidence of the appellant’s capacities and support from specialists and patients – roles of Tribunal, Committee and Determining Officer – discretion of Determining Officer in fixing restitution of Medicare benefits

WORDS AND PHRASES – “inappropriate practice”, “referral”, “vocationally registered medical practitioner”, “Medicare benefit”, “judicial power of the Commonwealth”, “procedural fairness”, “sampling”

The Constitution - s 51 (xxiiiA)
Judiciary Act 1903 – s 78B

Health Insurance Act 1973 (Cth)
Health Insurance (1993-1994 General Medical Services Table) Regulations 1993 No. 272

Huddart Parker & Co Pty Ltd & Appleton v Moorehead [1909] 8 CLR 330 referred to
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1985] 162 CLR 24 referred to
Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] 163 CLR 140 applied
Re Ranger Uranium Mines Pty Ltd & Ors; Ex Parte Federated Miscellaneous Workers’
Union of Australia [1987] 163 CLR 656 applied
Precision Data Holdings Ltd v Wills [1991] 173 CLR 167 referred to
Nicholas v The Queen [1998] 193 CLR 173 referred to
Re Minister for Health v Thomson [1985] 8 FCR 213 applied
Adams v Yung & Ors [1998] 83 FCR 248 discussed/applied
Collins v Minister for Immigration and Ethnic Affairs [1981] 36 ALR 598 referred to
Grollo & Howard v Bates [1994] 125 ALR 492 referred to
Peverill v Backstrom & Ors
Yung v Adams [1997] 150 ALR 436 referred to/applied/discussed
Peverill v Backstrom & Ors [1994] 33 ALD 477, on appeal [1994] 127 ALR 197
Artinian v Commonwealth & Ors [1996] 43 ALD 235 referred to

JAMES ADRIAN TANKEY V ANTHONY ADAMS

QG 53 OF 1997

THE HON JUSTICE MARCUS EINFELD AO
SYDNEY (heard in Brisbane)
31 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 53 OF 1997

BETWEEN:	JAMES ADRIAN TANKEY APPELLANT
AND:	ANTHONY ADAMS RESPONDENT
JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE OF ORDER:	31 MAY 1999
WHERE MADE:	SYDNEY (heard in Brisbane)

THE COURT ORDERS THAT:

1.   the appeal be allowed in part

2.   the Tribunal’s determination of 18 April 1997 that Dr Tankey repay to the Commonwealth the sum of $580,576.00 be set aside

3.   the respondent’s determination of 16 August 1996 that Dr Tankey repay to the Commonwealth the sum of $258,277.45 be restored

4.   the appeal be otherwise dismissed

5.   the appellant pay two thirds of the respondent’s costs

Note:   Settlement and entry of orders are dealt with in Order 36 of the Federal…