Thoo v Kelly

Case [2008] FCA 830

FEDERAL COURT OF AUSTRALIA

Thoo v Professional Services Committee No 446 [2008] FCA 830

ADMINISTRATIVE LAW – application for judicial review of decision of administrative body – natural justice – denial of procedural fairness – administrative body’s refusal of adjournment – application for adjournment on ground that legal advice needed – legal advice sought for first time only two days prior to date on which adjournment sought – applicant had previously participated in hearing on two earlier occasions – eleven week gap between second hearing date and third, on which adjournment sought.

Held:  refusal of adjournment did not constitute failure to accord procedural fairness.

ADMINISTRATIVE LAW – Health Insurance Act 1973 (Cth) – Professional Services Review Committee – whether Committee authorised to inquire otherwise than within terms of report of Director of Professional Services Review.

Held:  on construction of Act, yes.

Health Insurance Act 1973 (Cth) ss 81, 93, 106H, 106K, 106KA

Ali v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 41 AAR 410 cited
Kioa v West (1985) 159 CLR 550 cited
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 cited
Touma v Saparas [2000] NSWCA 11 cited

JAMES CHEE MIN THOO v BERNARD KELLY, DAVID RIVETT AND FURIO VIRANT CONSTITUTING THE PROFESSIONAL SERVICES REVIEW COMMITTEE NO 446, THE DETERMINING AUTHORITY ESTABLISHED BY SECTION 106Q OF THE HEALTH INSURANCE ACT 1973 (CTH), MEDICARE AUSTRALIA and ALAN JOHN HOLMES IN HIS CAPACIY AS DIRECTOR OF PROFESSIONAL SERVICES REVIEW

NSD 1534 OF 2007

LINDGREN J
4 JUNE 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1534 OF 2007

BETWEEN:

JAMES CHEE MIN THOO
Applicant

AND:

BERNARD KELLY, DAVID RIVETT AND FURIO VIRANT CONSTITUTING THE PROFESSIONAL SERVICES REVIEW COMMITTEE NO 446
First Respondent

THE DETERMINING AUTHORITY ESTABLISHED BY SECTION 106Q OF THE HEALTH INSURANCE ACT
1973 (CTH)
Second Respondent

MEDICARE AUSTRALIA
Third Respondent

ALAN JOHN HOLMES IN HIS CAPACIY AS DIRECTOR OF PROFESSIONAL SERVICES REVIEW
Fourth Respondent

JUDGE:

LINDGREN J

DATE OF ORDER:

4 JUNE 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The proceeding be listed at 9.30 am on Wednesday 11 June 2008 for the making of orders (including orders as to costs) in relation to the challenge on administrative law grounds to the validity of the decision of the first respondents made on 29 June 2007.

2.The parties attempt to agree on the orders to be made.

3.By 9 June 2008, the parties provide to the Associate to Justice Lindgren the agreed form of the orders to be made, or if agreement has not by then been reached, the forms of orders for which they will respectively contend and submissions in support.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1534 OF 2007

BETWEEN:

JAMES CHEE MIN THOO
Applicant

AND:

BERNARD KELLY, DAVID RIVETT AND FURIO VIRANT CONSTITUTING THE PROFESSIONAL SERVICES REVIEW COMMITTEE NO…

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Details
AGLC
Thoo v Professional Services Committee No 446 [2008] FCA 830
Case
[2008] FCA 830
Decision Date

CaseChat Overview and Summary

Dr. Thoo sought judicial review of a decision made by the Committee regarding his conduct in connection with his provision of MBS Item 23 and MBS Item 36 services. The Federal Court was tasked with reviewing the Committee's decision on administrative law grounds, particularly focusing on whether the Committee's refusal to grant an adjournment denied Dr. Thoo procedural fairness. Dr. Thoo argued that the Committee's refusal to adjourn the hearing amounted to a denial of procedural fairness. The court needed to determine whether the Committee's decision to refuse the adjournment and proceed without Dr. Thoo constituted a breach of procedural fairness, considering the specific circumstances and Dr. Thoo's actions leading up to the hearing.

The court examined Dr. Thoo's complaints about the Committee's setup and his claim that it was inappropriately constituted. It was noted that Dr. Thoo had been aware of the investigation since March 2005 and had ample time to seek legal advice. Despite his late attempt to challenge the Committee's authority just days before the hearing, Dr. Thoo participated in the proceedings on 18 November 2005. The court found that Dr. Thoo had a reasonable opportunity to present his case and that the Committee's reasons for refusing the adjournment were valid. The court concluded that Dr. Thoo's absence at the hearing on 3 February 2006 did not deny him procedural fairness as he had not provided sufficient justification for the need for an adjournment.

The court dismissed Dr. Thoo's challenge to the Committee's decision on administrative review grounds and determined that Dr. Thoo should pay the Committee's costs associated with the challenge. Given that the court found no procedural unfairness, it did not deem it necessary to consider the appropriate person to whom the matter should be remitted. The court ordered that the proceeding be listed for the making of orders, including costs, on 11 June 2008. The parties were instructed to attempt to agree on the orders to be made and to provide their respective forms of orders and submissions by 9 June 2008.

Orders

Orders of the court

1. The proceeding be listed at 9.30 am on Wednesday 11 June 2008 for the making of orders (including orders as to costs) in relation to the challenge on administrative law grounds to the validity of the decision of the first respondents made on 29 June 2007.

2. The parties attempt to agree on the orders to be made.

3. By 9 June 2008, the parties provide to the Associate to Justice Lindgren the agreed form of the orders to be made, or if agreement has not by then been reached, the forms of orders for which they will respectively contend and submissions in support.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

LINDGREN J
In my view, there is no substance in the second ground of review relied on by Dr Thoo.CONCLUSION The challenge to the Committee’s finding on administrative review grounds fails. Dr Thoo should pay the Committee’s costs of that challenge. It has not been necessary for me to consider the parties’ submissions in relation to the appropriate person to whom the matter should be remitted. The proceeding will be listed for the making of orders.

Ratio Decidendi

Legal Principle Established

Established by: LINDGREN J

The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] per Gaudron and Gummow JJ (Bhardwaj); Touma v Saparas [2000] NSWCA 11 at [27]). The procedure that will satisfy the demands of procedural fairness may differ in order “to meet the particular exigencies of the case” (Kioa v West (1985) 159 CLR 550 at 615 per Brennan J). As I stated in Ali v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 41 AAR 410 at [27]:Ultimately, each complaint of a failure to accord procedural fairness by reason of the refusal of an adjournment turns on its own facts. Whether an adjournment should be granted is a matter within the discretion of the trial Judge (or Tribunal), to be resolved according to the overall requirements of justice in the particular circumstances [citation omitted].Consideration of the second ground of review In my view, Dr Thoo had a reasonable opportunity to present his case to the Committee and the Committee’s refusal to grant the adjournment did not amount to a denial of procedural fairness. The Committee gave its reasons for refusing the adjournment, namely, that the reason given by Dr Thoo for the adjournment reflected a concern that he had ventilated with the Committee over a long period of time. He did not give any reason why he had not sought legal advice on the matter until a couple of days prior to 3 February 2006. No lawyer accompanied him on that date. He did not have anything in writing from his solicitor supporting his objection to the appointment and procedure of the Committee. Dr Thoo had known from the time he received the letter dated 30 March 2005 from the Committee Secretary that the Committee was investigating his conduct in connection with his provision of MBS Item 23 and MBS Item 36 services. The first date of hearing was 31 August 2005. It was not until 10 November 2005, just eight days before the second hearing date, that Dr Thoo, for the first time, asserted that he believed that the Committee was inappropriately set up and invalid. His complaint in his letter of that date appears to have been that the Committee’s authority was limited by reference to the allegation that he had engaged in a prescribed pattern of services by breaching the 80/20 rule. That letter also stated that he would like the matter referred to a barrister, and that it was not appropriate for him to attend the review on 18 November 2005 (see [38] above). Notwithstanding his letter, Dr Thoo did in fact attend and participate in the hearing on 18 November 2005. He conceded that he did not seek legal advice until two days prior to the hearing on 3 February 2006. In the circumstances, I do not think that Dr Thoo was denied procedural fairness by the Committee’s decision to refuse his adjournment and continue the hearing in his absence. I note, though do not rely on, the fact that Dr Thoo’s solicitors were afforded the subsequent opportunity to make submissions in respect of Dr Thoo’s complaints (see [16] above).