Tiong v Minister for Community Services and Health

[1991] HCATrans 154

tr,

• "I

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B44 of 1990

B e t w e e n -

DR THUNG SING TIONG

Appellant

and

MINISTER FOR COMMUNITY

SERVICES AND HEALTH

Respondent

MASON CJ DAWSON J TOOHEY J GAUDRON J

McHUGH J.

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 25 JUNE 1991 AT 10.23 AM

Copyright in the High Court of Australia

Tiong(2) 1 25/6/91

MR W. SOFRONOFF, OC:  May it please the Court, I appear with

my learned friend, MISS E.M. O'REILLY, for the

appellant. (instructed by Corrs Chambers

Westgarth)

MR R.W. GOTTERSON, OC: If it please the Court, I appear

with my learned friend, MRS D.A. MULLINS, for the

respondent. (instructed by Australian Government

Solicitor)

MASON CJ:	Mr Sofronoff.
MR SOFRONOFF:	Your Honours, I hand up copies of our outline

of submissions.

MASON CJ: Thank you.

MR SOFRONOFF:  Your Honours, the Health Insurance Act,

copies of which have been provided to Your Honours,

provides for a scheme by which, among other things,

excessive servicing can be investigated by

tribunals and committees. Can I give Your Honours

an overview of the scheme before going to the Act a

little bit later on.

The scheme involves the referral by the Minister in the first instance of matters to a

committee. The committee has a preliminary look at

those matters and considers whether it is worth

going on to have a hearing. If it considers that

it is worth going on to have a hearing it gives

notice of that to the practitioner concerned.
There is then a hearing; particulars are required

to be given; the practitioner is entitled to be there and to examine.witnesses. At that hearing

then, the committee hears evidence in relation to
the particular services in question. At the end of

the day it can recommend to the Minister that,

among other things, the practitioner be reprimanded

or be counselled and that the practitioner refund

any benefits that he might have received as a

consequence of over servicing.
In the event of an adverse finding, the Minister then can make a determination.	The

determination is that he be reprimanded or

counselled as the case may be and that he refund

moneys. He has the right, the Minister, to gazette

that determination and in this case he has already

said he is going to do that.

There are three available modes of review from an adverse finding.	Two are under the Health
Insurance Act and one is under the AD(JR) Act.	The
first is a rehearing de novo before a district
court judge.	The second is under the AD(JR) in
appropriate cases.	The third is by way of review

Tiong(2) 25/6/91

to a tribunal, a tribunal that has a rehearing on
the papers only, a tribunal that is precluded from

hearing new evidence, and that is what happened

here.

The examination here was concerned with not only the appellant but Dr S.J. Tiong as well.	The
appellant is an ENT specialist.	Dr S.J. Tiong is a
radiologist.	The number of patients concerned were
large.	The number of services numbered over 2000

that were to be examined and the committee decided

to examine only some of them - about half of them -

first at one hearing and then at some later stage

to go on and have another hearing in relation to
the rest.

Could I take Your Honours first then, against that background, to page 10 of the large appeal

book. At page 10, Your Honours, paragraph 3.2

shows part of the background to the committee's

deliberations. Paragraph 3.2.1 is a quote from a

letter from the Minister to the committee after the

committee said words to the effect "Did we have to

look at all these cases?" and the Minister said:

'The Committee need not examine all cases

referred to it, but should be satisfied that

it has examined sufficient evidence on which

to base its recommendation. Should the

Committee choose to consider, for example,

only 100 of the 270 cases referred then, as

you suggest, no recommendation may be made in

relation to those ~ervices not examined.

And then the committee goes on to say:

The Committee is satisfied that evidence,

sufficient to make a meaningful

recommendation, has been heard.

If Your Honours then go to page 32 which is

part of the transcript of the proceedings before
the committee.	As I have said, the appellant is an

ENT specialist and the other practitioner was a

radiologist to whom the appellant referred patients

from time to time for CT scans and for x~rays and

the committee was concerned with what it thought

was an excessive number of CTs and X-rays that had

been ordered by the appellant from the other

doctor. At the top of the page, Your Honours,

about 10 lines down, after having referred to the

fact the process is going to be long, there is a

sentence beginning with the words "If we could",

where the chairman says:

If we could, between us, agree on what the

diagnosis was and why you ordered the C.T.

Tiong(2) 25/6/91

scan which is the, or why you ordered the

particular radiology investigation and take it

from there. If we could just concentrate on

that aspect, because that's the main aspect
we're interested in. If there are any other

aspects of the cases that we want to bring up

we shall do so. Is that clear?

Then, presumably having got an	affirmative
indication, some questions are	asked by a committee
member and they are answered.	Then over the page,
at page 33, the chairman says:

Just a bit more explanation. From the

Committee's viewpoint we cannot pass or give

an opinion on whether a service was necessary

or unnecessary unless we ask you about it so I

am afraid there is going to be a lot of

repetition about it, but we have got to go

through it to get your answer about that, do

you get, is that clear again?

And the appellant says:

Yes.

Chairman says:

If we don't ask you about it well obviously we

can't give an opinion and being the same type

of service all the time there will be a lot of repetition with it, that's the way things are.

So, he has been asked to concentrate his mind

on CT scans and X-rays, that being what the

committee said they were most interested in and, as

matters turned out, that formed the bulk of the

services under examination. He has been told that

if they are interested in other things they will

ask. Then he is told that if they do not ask

questions, well, they cannot form an opinion so

there will be a lot of repetitive questioning.

The hearing was conducted and, at the end of the day, there were adverse findings made in

relation to a lot of CT scans and X-rays that had

been ordered and the determination that was

ultimately made was made against the other

practitioner - the radiologist. That was set aside

by the Full Federal Court for reasons which are not

material here. But as against the appellant there

were 11 services which were the subject of adverse

findings and they are listed at page 11.	I mention
that just for convenience.	They are not

informatively listed there; they are just listed

there.

Tiong(2) 4 25/6/91

Having identified 11 services which the

committee considered were unnecessary within the

meaning of the Act, the Minister, at page 123 of
the record, wrote, as he was obliged to do,

notifying the appellant of his determination.

Having referred to the total amount refundable, on

the second page of his letter, at page 124, the is required, laying a statement setting out

particulars of the determination before each House

of Parliament and also that the Act, as it does,

gives him a right to publish in the gazette details

of that statement and that he intended to act upon

that and to do that.

The appellant, and also Dr S.J. Tiong, sought

a review before the tribunal set up under the Act.

Could I take Your Honours then to section 119 of

the Act? I handed up copies of the relevant

provisions. Section 119 says what it is that the

tribunal is to do:

A tribunal that reviews a determination in accordance with a request -

(a) shall consider the matter to which the

determination relates having regard to the

grounds set out in the request, the documents

forwarded by the Minister with the request and

any addresses made to the Tribunal during the

proceedings -

And then, having done that, it can, relevantly, in subsection (b)(ii):

affirm, set aside or vary the determination.

And section 119(2) provides that:

The decision of a Tribunal -

is then -

deemed to be a determination.

Dr S.J. Tiong and the appellant, as I have

said, sought a review before the tribunal and a

number of grounds were agitated by both of them.

Some of those went to the merits of particular findings and the tribunal, which consists of two

doctors and a lawyer, considered those. The

appellant raised the four adverse findings with

which this Court is concerned and they are four

findings made adversely to the appellant but in

respect of which no questions were asked. Could I

take Your Honours to the submissions of the

Tiong(2) 25/6/91

appellant's counsel before the tribunal. In the

second book - - -

MASON CJ: Could you take us first to the request -

Dr T.S. Tiong's request?

MR SOFRONOFF:  Yes, page 119, Your Honour. There were three

grounds relied upon: that the committee had:

erred in failing to address, or properly

address, the question whether -

the appellant -

had rendered services which were not

reasonably necessary -

(b) That the Committee erred in failing to

appreciate whether the services rendered by

the appellant -

were reasonably necessary for the adequate

medical care of the patients concerned is to

be determined by reference to professional

standards -

and -

(c) That the Committee erred in concluding on

the evidence before it ..... that the services

rendered by -

the appellant -

were not reasonably necessary for the adequate

medical care -

So, they were broadly framed.

TOOHEY J: Well, that request draws no distinction between

the four particular services which were not

referred to and the other seven.

MR SOFRONOFF:  Yes, that is so.

TOOHEY J: Presumably, that distinction was drawn later in

the proceedings before the tribunal.

MR SOFRONOFF: Yes. Could I take Your Honour to that. It

was raised at the outset of submissions in the

appellant's case before the tribunal. But, before

I go to that, could I take Your Honours to the

place in the second booklet, at page 56, where an

attempt was made to put evidence before the

tribunal. The evidence that was sought to be led

consisted of some hospital records that were

Tiong(2) 6 25/6/91

relevant to a number of the adverse findings, one

of which was one of the findings with which this
Court is concerned in respect of a patient called

Earnshaw. If Your Honours go to page 56 of the

little book which is a substitution for tab 3 in

the appeal book - the wrong part of the transcript was included - in the middle of page 56, the large

paragraph in the middle by Miss O'Reilly, she says:

So the position is that it was not as appears

to have been the case in some of the cases

when new evidence has been disallowed, a case

of evidence available and for the fault of the

practitioner, not adduced. This is a

situation where in respect of 6 patients -

she names them, including Earnshaw, which is one of

the ones we are concerned with -

they were in hospital and it was their
hospital records which explained the answers

to the questions and the reasons for the

procedures. Now Dr. T.S. Tiong, and I'll take

you to the relevant parts in the transcript, said in parts of .the transcript, 'Without my hospital notes I can't tell'.

Could I pause there to put that into context,

Your Honours? He was asked questions about these

patients - not Earnshaw - and the submission of counsel before the tribunal was that he had not

brought his hospital records with him because he

had been told by the secretary of the committee

that he need not do so,·bnly his clinical notes

were necessary. So the complaint was being made at

this point by Miss O'Reilly that, having been put

in that position by the secretary of the committee,

he ought to be placed in a position where that

evidence could be led. It is in that context,

against that background, that this submission was

made. The President then says:

Where is that reference please?

Meaning where is the reference to what Dr Tiong

said, and Miss O'Reilly says:

Oh just the fact that there was relevant

evidence that if the Committee had had it,
such evidence before it, might well have come,

indeed if you look at the hospital records,

you will see I'm sure, would have come to a

different conclusion.

If Your Honours then skip over the next page which deals with the law, over to page 58. At the

Tiong(2) 7 25/6/91

foot of page 58, Miss O'Reilly is persisting in her

submission:

Yes but Mr. President the difficulty is that

the gentleman is not Australian, he asked the

Secretary of the Committee if he could produce

the hospital records, he was told no. I have

seen the hospital records, I know what's in

them. There are 3 surgical procedures which

the doctor was disallowed. Now naturally

without the hospital record, because it wasn't

on his clinical notes, naturally without the

hospital record, the doctor was not able to

explain why he performed those 3 operations or

more precisely what he did.	To give you an
example -

I pause there, Your Honours. It is clear from the

transcript that the example she is giving, one with

respect to a laryngoscopy, is applicable to

Earnshaw, one of the cases that Your Honours are

concerned with -

To give you an example, one of the operative

procedures that was not allowed was a direct

laryngoscopy. Now he could not recall without

the hospital notes, but immediately recalled

on looking at the hospital notes that there

was bleeding in the larynx which he required

to do diathermy, he could not do the diathermy

without direct laryngoscopy. Now the

explanations are simple one liners like that

that he was not able to give to the Committee

because he didn't have the hospital record

there.

Now, the committee thought about it and

ruled - over the page at page 60 - that new

evidence could not be led and we do not challenge

that; that was laid down in Thomson's case. She
then began her submissions with respect to the

substance of the review and, in the second

paragraph of her address, she says:

There are 5 broad categories as you see.

The first category is 4 services in which respect ..... no questions whatever were asked

by the Committee.

Could I leave that aside for the moment and just

summarize the others, Your Honours.	Group 2 is a
set where she needed the hospital records;	Group 3
are surgical procedures where she needed the

hospital records. There is an objection that is

made, over the page. On page 61, half-way down the

page, Miss O'Reilly says:

Tiong(2) 25/6/91

The fourth category is where the Committee failed to take into account clinical notes -

and that is one that goes on the merits for review

by the tribunal which consists as to two-thirds of

doctors.

And the fifth category concerns an amount

which ..... was not for an excessive service at

all but for wrong item number -

and that, also, is, if I could call it that, on the

merits. So she raises squarely the four services

in respect of which no questions were asked. If

Your Honours go to page 71, she is dealing there

with her third category of review.	In the second
paragraph on page 71:

I'm in category 3 the surgical procedures.

For Earnshaw I can't go to the hospital

records but for Earnshaw you'll note that it's

the same procedure in group 1 -

She means the same procedure as was under complaint

in category 1, the no questions category -

No questions asked anyway as to why he did the

direct laryngoscopy, so that won't be a

problem if you find if you allow that in group

1 .

And then she refers to another patient, Bennett.

The President says:

It's not the same service as in group 1, it's the same answer.

I'm sorry?

It's not the same service, but the same answer

as in group 1 mainly that no questions were

asked.

No it is in fact also Mr. President, for

Earnshaw, the very same service.

And so she put Earnshaw into two categories:

one is that no questions were asked; the second is
that there were hospital records which might have

answered the problem that the committee saw in that

particular service. She then goes through the

transcript before the committee to demonstrate to

the tribunal that in respect of those four - could they appear from time to time: McDonald, Vella,

Earnshaw and Bartlett. She goes through the

transcript in her submissions and shows to the

Tiong(2) 9 25/6/91

tribunal where the questioning with respect to
these patients occurred and why it is submitted

that no questions were asked about these particular

services, although questions were asked about the

patients. Without giving Your Honours reference to

that, unless Your Honours wish it, could I take

Your Honours then to page 79, where counsel for the

Government makes his submission upon this category

- category 1 - the four services where no questions

were asked.

MASON CJ:  What was the submission that was made in relation to these four services? We can see quite clearly

that the attention of the tribunal was drawn to the

fact that no questions were asked, but what was the

actual submission?

MR SOFRONOFF: Excuse me, Your Honour, I will find it. It

is at page 64. She has just dealt with one of the

patients, the first such patient, and then she

refers the tribunal to the chairman's comment and

reads from it:

'Just a bit more explanation. From the

Committee's viewpoint we cannot pass -

and so on. She reads that to them and about eight

lines down that paragraph:

So not only was it the Committee's own view

that the Committee could not make an adverse

finding in respect of a particular service

unless they asked questions about it but that

appears to be consistent with authority.

For the purposes of Section 94 of the Act when

the Committee's deciding whether to have a
hearing or not it appears that they can have

regard to a number of services generally -

that is the preliminary hearing that I mentioned to

Your Honours before -

to determine whether or not there may have
been excessive servicing.

However, there is no case which suggests that the Committee can order recovery in respect of

a service or make a finding that any

particular service was excessive unless there

are questions asked on it. And that with

respect is completely consistent with report has not only to find that the

practitioner has rendered an excessive service

but must identify the service, that's 105(2A)
before recommending recovery in respect of

Tiong(2) 10 25/6/91

that service. I'm sure I needn't place

greater emphasis on that as a proposition.

MASON CJ: Yes, thank you.

MR SOFRONOFF: If I could take Your Honours then to - and

she does not repeat that submission at the end of

her treatment of the four patients. At page 79,

counsel for the Government was Mr O'Gorman. In the

middle of the page, the large paragraph beginning

there:

Firstly in relation to the first grouping,

that is, the grouping where it's alleged that

no questions were asked. In my submission,

Section 105(2) sub-paragraph (a) requires that the Committee need only identify the service,
that is all the Committee is required to do,

to identify the service. It is not required

to ask specific questions in relation to each

particular service and an example, or a number

of examples of what I'm saying is contained in

relation to patients McDonald, Vella and

Bartlett. In relation to the audiograms

referred to in that grouping, number 1, while

the Committee may not have directly put the question in relation to the audiogram, they did in each particular case in the pages of the transcript as outlined, deal with the

condition, symptoms etc. of the patients.	And
in my submission, it was able to make an
assessment, after having ascertained the

conditions symptoms etc. as to the need for an

audiogram. In addition to that the Committee

dealt with audiograms generally -

and then he refers to the evidence. If Your Honours

skip the evidence, over to the next page, in the

second paragraph on page 80 he says:

So what I'm submitting in relation to patients

McDonald, Vella and Bartlett in the first	grouping is that, while they may not have
dealt with, or put this specific question as
to why the audiogram was done, they had dealt with the condition and symptoms and being a Committee of medical practitioners, they were
then, upon knowing the condition etc. of the
patients were able to make an assessment as to
the need or otherwise for an audiogram.
Your Honours, the submission seems to be - and

I mention it because it seems to have been accepted

by the tribunal and then later by

Mr Justice Pincus - that one has regard to the

problem, from the point of view of the committee,

does the committee have enough material before it

Tiong(2) 11 25/6/91

for it, with its own peace of mind, to think it

understands whether something was a necessary

service or not. Whereas we would submit the
question has to also be addressed from the other
perspective: has the committee also had the other

side of the story, the explanation by the

practitioner for the treatment that he has given

and that is under investigation.

TOOHEY J: Well, Mr Sofronoff, the situation, as you have

explained it, is not one in which the committee
made findings for which there was no material at

all or in respect to which no questions had been

asked at all but rather the complaint is that

although the condition of the patients in question
was canvassed the need for the particular service

was not canvassed with the applicant. Is that the

complaint?

MR SOFRONOFF:  Yes, and we would submit that the significant

thing is the need for the particular service. That

is the precise thing which the committee is

concerned to inquire into. So, while the condition

of the patient is a necessary thing to be informed

about, the reason for the particular service is the

precise thing that the committee is inquiring into

and so to ask no question about, "Why did you

perform that service then?" is a fundamental flaw.

TOOHEY J: Is it a matter for the committee to ask the

question direct of the practitioner or to, as it

were, open the matter up and then give the

practitioner an opportunity to explain if the

practitioner wishes to give an explanation?

MR SOFRONOFF:  We would submit that it is incumbent on the

practitioner to, in some fashion, direct the

practitioner to the particular service and give him

an opportunity, which he could take or not as he

chooses, to explain. The way it happened here,

however, is that he was told they were interested

else arose that they were interested in they would	in CTs and X-rays principally but that if anything
raise it. Then they reinforced that by saying, "Of
course we can't form any opinion if we don't ask
you about it so there will be a lot of repetitive
questioning". Now, there would be a number of ways
in which a committee hearing such cases could
address the question of how to ensure that it has
the practitioner's version or at least has given the practitioner a real opportunity to give his version. But in the circumstances of this
particular case they have failed to do that because
of the matters I have just mentioned.

TOOHEY J:  Would it be enough if the committee had said to the doctor, "Look, we are concerned about these

Tiong(2) 12 25/6/91

patients" - naming them - "and about the need for

the services that appear to have been rendered" and

then left the matter to the practitioner to

explain?

MR SOFRONOFF:  It might have been enough if that is all that

they had done in the circumstances of this case.

What they did was to go on and say, "We are going

to ask you questions about anything we are

concerned about. We can't form an opinion". He

then is entitled to think, entitled to expect that
that procedure is going to be followed and then,

with no warning - Earnshaw is a good example

because not a single question was asked about the

laryngoscopy - adverse finding is made about

something that was not touched upon.

TOOHEY J: So, the real complaint is about the committee's

failure to follow the procedure which it itself had

indicated would be followed?

MR SOFRONOFF:  Yes, because it led to a situation where the

practitioner was not given a real opportunity to
put his version to the committee so the committee

went on to make findings without having that

version at all.

TOOHEY J: Perhaps not so much not given an opportunity as

not alerted to the need to make an explanation in
respect of those particular matters, they not

having been the subject of questions?

MR SOFRONOFF:  The reason I say ''not given an opportunity"

is because he was not given a real opportunity - he
is there so he has a theoretical opportunity; he
is there with a solicitor - but, having been told

to expect a question about anything that they are

interested in, it is no real opportunity to say at

the end of the day, "And, by the way, you could

have raised anything else that you might have

wanted to; it was not for us to ask questions."

but to renege, in effect, on the procedure that
they had initiated.	Have I been responsive to what

Your Honour wanted to know?

TOOHEY J: Yes, thank you.

MR SOFRONOFF: Could I take Your Honours then to the

tribunal's decision on this aspect at page 103 of

the other book? At page 103, the tribunal is

considering this point and they quote the passage

from the chairman's address. Then, towards the

foot of the page after the quote, they say:

In our view this attitude is too restrictive.

Obviously if a member of the Coµunittee at the

time the practitioner is giving evidence has a

Tiong(2) 13 25/6/91

doubt regarding the necessity of a particular

service it is desirable that the doubt be

raised with the practitioner but we do not

accept that merely because no question is

asked of the practitioner the Committee is

precluded from ultimately deciding that a

service was excessive. For example the doubt

may only arise on the subsequent examination

of the evidence and in those circumstances if
the Committee decides ultimately that a
particular service is excessive it is not

required to re-open proceedings to put its

emerging view to the practitioner.

And over the page:

The Chairman's statement refers to a general

and desirable rule but not to a condition

precedent to the exercise of the Committee's service the Committee found to be excessive.

function. In any event, the task of the

We add that there will also be cases where

questions raised by the Committee when considering services rendered to other patients or on other occasions should alert

the practitioner to the possibility that the

Committee may think that a particular service

under review was excessive.

We would remark, Your Honours, about those

passages, that it regards the problem solely from
the point of view of the committee being satisfied

that it has at least sufficient material before it

upon which an adverse finding would be open when

the complaint is that it failed to ensure that the

practitioner had an opportunity, if he wanted to

and if he could, to put his version of the

treatment and the reasons for it to them.	So,
while it may be true - - -

DAWSON J: Did the Committee ask about each of the

particular four patients, for instance, Earnshaw,

did they ask what was his condition?

MR SOFRONOFF:  They did, yes, Your Honours.

DAWSON J: But they did not got on to ask the further

question, "And why was the treatment that you

prescribed necessary?".

MR SOFRONOFF:  No. What they did - could I tell Your Honour

this - with a number of them, audiograms were in

issue and in some cases there was an audiogram done

before an operation and then two done afterwards.

And so they said, "Well, why did you· do this

Tiong(2) 14 25/6/91

audiogram before this operation?" and the appellant

said, "Well, I do it because I want to measure

hearing in case the hearing is worse after the

operation or the patient complains so that we have

a benchmark to measure it against". Having said

that then, and there having been expert evidence
before the committee that that is a reasonable sort
of thing to do, there was no question directed to -

I think Vella was the patient - Vella in

particular, "Why did you do this audiogram on

26 February?".	But the committee went on to find
that that audiogram was unnecessary.	So there
was -

DAWSON J: But they would have had evidence of Vella's

condition?

MR SOFRONOFF:  They had evidence of Vella's condition; they

knew that audiograms had been done on the

particular dates but no specific question was asked

of the appellant, "Why did you do that audiogram on

Vella?". So, what they had before them obviously,

in their minds, justified an adverse finding there

being no contrary explanation forthcoming and no

reason forthcoming for what, it appears on the

evidence to them, was an unnecessary service.	But
that is the very vice that we point to.	Of course,

on the evidence before you, you would make an

adverse finding if you are satisfied that one is

open and ought to be made.	But that is not the
point.	The point is: what about his explanation?

Against what appears to be an unnecessary service

there may well be a gooq explanation and unless you

can be satisfied - - -

DAWSON J:  What would it be; some aspect of his condition

that was not then before the committee?

MR SOFRONOFF: Yes. Rather than speculate about the

audiograms, could I say with respect to Earnshaw,

for example, we can see from the transcript a

laryngoscopy was performed. There was also some

other procedure performed at that time that

involved looking down this person's throat; he had

a chop bone stuck in it. So it appeared to the

committee that there were two procedures involved

in looking down his throat and they found that the

laryngoscopy in question was therefore excessive.

And the tribunal, having looked at just that, was

also of the view that that was excessive. The

hospital records that were sought to be tendered

were to the effect that - for some reason that is

it not clear, given the cryptic nature of the

references - there was a need for this extra

laryngoscopy; he had to do a diathermy and there

was bleeding and so he had to do this.

Tiong(2) 15 25/6/91

Now, whether that is good or not I do not

know; whether that is a good explanation or not I

do not know. But, while it appeared to the

committee, on the face of it, that there were two

services and therefore one was repetitive, there

may well have been a good explanation that could be

backed up by a hospital note and by the

practitioner's own evidence. So, it is true that

on the material these findings were open but the

material was deficient because the one thing that

was fundamental to a true understanding was to ask

the practitioner, "If appearing to be deficient,

well, why did you do this?".

TOOHEY J:  The hospital record is ~omething of a red herring

though, is it not, because no complaint, as I

understand you, was made in respect of the - - -

MR SOFRONOFF: Others?

TOOHEY J: 

- - - of allowing the doctor to produce the

records? Its only relevance would be if he was
provided with an opportunity to answer a question

in regard to the servicing that the question of
hospital records would arise? Unless you can jump

the first hurdle the second one, really, is nothing

to do with it?

MR SOFRONOFF:  Yes. Your Honour, it is a red herring in the

sense that we do not complain that hospital records

could not be put up. I mention it because it is

the one clear example that emerges from the

transcript of something.that was available that -

this is not a speculative proposition that, in

theory, he might have said something - here, on the

material before the tribunal, was something that

was pointed to as capable of furnishing an answer

to this. Whether ultimately it did or not is

another matter.

TOOHEY J:  I am just having a bit of trouble, Mr Sofronoff,

in identifying the precise complaint that is being

made. Say, for instance, the committee had said,

"Look, doctor, we are concerned about six

patients" - naming them - "and about the treatment

that they received and the need for that treatment"

and it then left it to the doctor to justify the

treatment that was carried out.	Would you have any
complaint in that situation?

MR SOFRONOFF : No • _

TOOHEY J: So, perhaps put another way, it is accepted that

some questions were asked about the four patients

of a general nature?

MR SOFRONOFF:  Yes.

Tiong(2) 16 25/6/91

TOOHEY J: So, the complaint then is what, that although

questions were asked of the general nature, it was
not made clear to the doctor that an adverse

finding might be made in respec~ of those patients?

MR SOFRONOFF:  No, it is more than that. It was made clear

to the doctor that no opinion would be formed

unless he was asked a question.

TOOHEY J: About the services?

MR SOFRONOFF: About the services; the particular

treatment; not the patient but the services and,

what is more, that the committee was interested

largely in CTs and X-rays - they being the

referrals for the radiologist, the other doctor -

and that that is what they would ask the appellant

to concentrate upon, "and if anything else arises

that we are interested in, well, we will let you

know". So, having been put in that frame of mind

where the battle ahead of him before the committee

is to concentrate on CTs and X-rays, to be assured

that if anything else was of interest to them that

might form an adverse finding he would be asked, he

is then not asked and they make an adverse finding.

TOOHEY J: So, it is a very narrow area of complaint. That

says nothing about its merits but it really lies in

that statement made by the committee:

we cannot pass or give an opinion on whether a

service was necessary or unnecessary unless we

ask you about it .. ~ .. If we don't ask you about

it well obviously we can't give an opinion.

MR SOFRONOFF:  Yes, and that earlier passage that I read,

yes.

TOOHEY J: Or taken in context. But that is really the crux

of the complaint?

MR SOFRONOFF: That is the crux of it, yes, because, as I

have said in the outline, it is common ground that

the rules of natural justice apply. As I

understand, the respondents would submit that there

was no breach of those rules. We would submit

there was because although there are many ways in

which the committee could accord natural justice

they failed to here because of those factors that

Your Honour just mentioned. Could I then go,

Your Honours, to - - -

MASON CJ:  What is the consequence before the tribunal of a

breach of natural justice on the part of the

committee? Now, normally, of course, if you were
complaining of a breach of natural justice by or in

the context of an application to a court for

Tiong(2) 17 25/6/91

prerogative or other relief, the decision would be declared to be void - I leave aside voidable - but

that would not prevent the committee from pursuing

the matter again. Now, what do you say is the

result here if the tribunal gives effect to your

complaint?

MR SOFRONOFF:  The effect would be that they - what they

ought to have done was to vary the determination by

deleting any references to these four matters. And
the result would be that the committee, no
determination having been made in respect of them,
could consider them again along with all the

hundreds others that they have yet to consider.

MASON CJ: Yes.

TOOHEY J:  What if the committee had thought that - those

four aside - the over servicing in respect of the
other seven patients warranted a finding adverse to

the practitioner and the giving of a reprimand?

MR SOFRONOFF:  Your Honours, we are not complaining about

the determination in toto; only these four. So,

the position of the committee will be that they

have made adverse findings about seven and these

four and that will stand. We are not challenging

that. We are challenging the justification of the
tribunal in concluding that they, in circumstances

where the committee had not inquired into the

practitioner's reasons for a service, where the

tribunal, not having that material before it,

determined that notwithstanding the absence could

find adversely to the practitioner on those - or

three, as it turned out, because they allowed one

in a way we will see.

McHUGH J:  Do you not have another difficulty in the case,

which I think was put against you on the special leave application? That is, that the tribunal's function is quite limited and does not address any

before the committee and if you have a complaint questions of breach of the rules of natural justice	about the rules of natural justice then your choice
is to go by review by way of rehearing to the
district court under section 122 or to the Administrative Decisions (Judicial Review) Act.

MR SOFRONOFF: 

Your Honour, could I answer that at a bit of

length. There were two practitioners here; they
had a number of grounds of complaint only one of

which was this one, some were on the merits.
Dr S.J. Tiong had complaints on the merits and

other bases. The services were interrelated. At

the point at which the committee decided to make an

adverse recommendation to the Minister they had, as

Your Honours pointed out, three choices or perhaps

Tiong(2) 18 25/6/91

four but one can forget prerogative writs, I

suppose - three choices.	One is to go to the
district court.

Now, that would be a hearing de novo and it

would be, perhaps, interesting to the appellant in

respect of these four to go to the district court

and thereby cure any failure to hear him before the

committee. But in respect of the others it may not

have been necessary to go to the trouble of having

a hearing de novo. He could have gone and she

could have gone to the Federal Court under the

AD(JR) Act but that is only open, relevantly, for a

breach of natural justice here. So, he could have

gone on these four but the others would have had to

have gone elsewhere. Or they could have gone - as

they did and as, we submit, they are entitled to do

- to the tribunal on all of them and, relevantly,

with respect to this matter, to say to the
tribunal, "You have to look at the material before

the committee and ask whether the committee was

entitled to make an adverse finding on the evidence

before it". Now, that can be sometimes a question

of whether the evidence was adequate or whether the

evidence was justified in adverse finding or, as

here, whether there was enough evidence when nobody

bothered to ask the doctor what his reason was.

McHUGH J: But that is the point, is it not, there was

enough evidence. It may well be that the decisive

consideration in this case is the nature of the

review by the tribunal under section 114 of the

Act. Does it extend to examining breaches of the

rules of natural justice·before the committee?

MR SOFRONOFF: Well, could I take Your Honour to

Mr Justice Burchett's reasons in a moment to see

how His Honour answered that? We would submit

that, although the tag "natural justice" has been

applied throughout this case as the nature of the

thing that occurred before the committee - a breach

of the rules of natural justice - relevantly,

before the tribunal, the question was: on the
materials before it - the documents sent to it by

the Minister in the grounds and the addresses -

what was the proper determination to make: ought

it be an adverse one in respect of these four or
ought it not? Because no questions were asked, in
our submission, the determination ought not to have

been an adverse one.

TOOHEY J: 

The use of the term "proper" really obscures the

question, does it not? As I recall
Justice Burchett's judgment, he would put it in

terms of the statutory function of the tribunal, as

discerned from the Act, which would not have
permitted it to make adverse findings in respect of

Tiong(2) 19 25/6/91

matters about which the practitioner had not been

questioned.

MR SOFRONOFF: Yes. It would be, we would submit, a very

narrow - could I take an extreme case: a case

where the practitioner was refused entry into the

room; there is one service being inquired into and

he is simply refused entry into the room.	It goes
to the tribunal.	The tribunal is not concerned

with declaring void the adverse finding of the

committee but it is concerned to see that, on the

evidence before the committee, all the committee

had was half the story; it did not have the other

half of the story and knowing that it only had half

the story. Notwithstanding that an adverse finding

is open on half the story, as it often is, there

simply was not enough evidence to justify an

adverse finding. That is how we would put our case

with respect to its functions. Could I take

Your Honours to Mr Justice Burchett's reasons?

McHUGH J: Before you do so, just remind me of this: the

review tribunal itself has got no power to remit

back to the committee has it?

MR SOFRONOFF No, it does not.

McHUGH J: Well, is that not a telling point against you in

terms of dealing with this question of natural

justice?

MR SOFRONOFF:  No, because what they can do - they can vary

a determination, they can affirm it as they did
here, or they can s~t it aside. There is no
question of setting it aside here because the

determination involved 11 in our seven matters but

they can vary it by deleting from it any adverse

finding with respect to these ones that we complain

about.

McHUGH J: But what happens to those matters?

MR SOFRONOFF: There is no issue estoppel so the Minister,

if he wants to, can refer them back to the

committee and the committee can, this time, ask the

doctor why he did them.

TOOHEY J: But that seems to concede that, subject to the

precise amount ordered by way of repayment, the

finding of unprofessional conduct, if that is the

right - - -

MR SOFRONOFF: Excessive servicing.

TOOHEY J:  - - - excessive servicing, that the consequent

penalty of a reprimand would stand? So, is what

we are concerned about in the end not the making of

Tiong(2) 20 25/6/91

a reprimand against the practitioner but the

finding adverse to him in respect of these

particular services?

MR SOFRONOFF:	Yes.
TOOHEY J:	And the only practical, and I am not

underestimating the overall consequences of those
findings, but in practical terms it would relate

only to the amount ordered to be repaid?

MR SOFRONOFF:  I do not know whether that is correct,

Your Honour. It certainly would relate directly to

that but whether there is any other consequence

because of the nature of the services that remain,

I do not know.	I would be speculating if I
suggested anything.	The only thing I can point to

is what Your Honour has mentioned.

TOOHEY J: But any rate you do not challenge that the making

of a reprimand will stand even if this appeal is

successful?

MR SOFRONOFF: That is right, I do not challenge that.

Could I take Your Honours then to

Mr Justice Burchett's reasons, at page 182 of the

book? Having restated the submission that was

being made, at line 15 at page 182:

Since it was not open to him to put any

further evidence before the Review

Tribunal ..... in my opinion the Review Tribunal

was required to face up to this problem. It

was not a matter of'asking whether Dr T.S.

Tiong had been denied natural justice by the

committee. The Review Tribunal was not a

Court exercising a supervisory jurisdiction

over the committee; its function is to review

the actual decision on the merits, though upon

evidence restricted to that which had been

before the committee.	The relevant ground set
out in the request therefore correctly

directed itself to the issue when it went

straight to "the question whether (Dr T.S.

Tiong) had rendered services which were not

reasonably necessary for the adequate medical

care of the patients concerned." The issue

was whether, upon that material which was

before the Review Tribunal, it could lawfully
be found that the doctor had rendered such

unnecessary services. There was not then any

question of denial of natural justice by the

committee; but of the evidence upon which the

Tribunal was entitled to act. The Tribunal

had to observe the requirement that Dr T.S.

Tiong "must be afforded an adequate

opportunity of being heard" -

Tiong(2) 21 25/6/91

and then His Honour deals with the fact that that

can be satisfied in a number of ways. If

Your Honours would go to page 184, after

making - - -

McHUGH J: Is it not the point is that the tribunal can

lawfully act on the evidence and the decision

stands unless there is some challenge made to it.

I know there is some dispute in the authorities as

to whether decisions made in breach of the rules of
natural justice are void or voidable, but the fact

is that a breach of the rules of natural justices

enables you to challenge the decision but why

cannot the tribunal act on a body of evidence which

is before them, notwithstanding that they have not

given somebody an opportunity to lead other

evidence?

MR SOFRONOFF:  We would submit that the position of the

tribunal is that it looks to see what the evidence

is before the committee and asks itself, on a

rehearing, whether that evidence justifies a

particular finding or not. And when it sees that

the evidence is deficient because it does not
include anything from the practitioner because he

was not given an opportunity to be heard, then the

tribunal is bound to conclude that there is not

evidence justifying - - -

McHUGH J: That seems a contradiction in terms because you

can see that there is evidence which, standing

alone, does support the decision; it is just that

you were not given an opportunity to contradict it.

MR SOFRONOFF: 

Yes, and for that reason, on the material

before the committee which is the material before
the tribunal, there is no justification for making

any finding at all.

MASON CJ: 

I do not see, at the moment, why you are tying to

to no evidence.	I can understand that a decision
may be vitiated, having regard to the way in which

proceedings have been conducted so that, in a

sense, the decision is one that should not be
endorsed, but you seem to be tying it to the notion

of no evidence.

MR SOFRONOFF:  We would submit that the function of the

tribunal is to come afresh, on a rehearing, to a

decision whether to affirm, vary or set aside and, having seen that the material that was led before the committee was deficient for these fundamental procedural reasons, it would not hesitate to vary a

determination or, in an appropriate case, setting

it aside if the whole of the determination was

tainted in that way; if it saw that no opportunity

had been given to a practitioner to put the other

Tiong(2) 22 25/6/91

half of the story which might well result in the

committee or the tribunal finding the other way.

MASON CJ: Yes, the trouble there is it gets you perilously

close to saying that the tribunal is exercising a

jurisdiction such as a court would do in setting

aside a decision for denial of natural justice.

MR SOFRONOFF: It results, in practical terms, in the same

thing because, given the procedure that has been

dealt with, the matter will - if the Minister

wanted it to - go back before the committee but it

does not involve any finding that the committee's

recommendation was wrong or was void. I am sorry,

let me put that again. It does not involve any determination that the committee's decision was void.

MASON CJ: But it brings you back, does it not, to what is

the jurisdiction of the tribunal; just what can

the tribunal do in circumstances of this kind?

MR SOFRONOFF: Yes, it does.

McHUGH J: It may be unfortunate but, at the moment, it

appears to me that maybe you proceeded along the

wrong path.

MR SOFRONOFF:  Your Honour, it ought not, assuming the

statute provides for it. One would think, before

looking at the statute, that it ought not matter

which way you go:	AD(JR) review to a district
court judge or to the tribunal.	We submit that

when one looks at the statute in fact it does not

matter because either way one gets to the same

result with the exception of going to the district

court because, there, one substitutes review by a

judge, a lawyer, for what one was entitled to: an

examination by one's peers - doctors - with their

particular expertise. So, if one starts from the

proposition that my client was entitled to be heard

by the panel of doctors with respect to his

explanation, if any, if one starts with that, he

has not had that. To go to the district court will

not give him that, although it will give him

perhaps something as good; to go to the AD(JR) it

can give him that and he will be back before the

committee; to go the tribunal will give him that,

if the Minister so wants it, if it is the

tribunal's function to reject an adverse finding in

circumstances like these. We submit it is and

that, therefore, one comes back to the same
position.

The alternative would have been to, with respect to this aspect, go to the Federal Court on

an AD(JR), perhaps, or to the district court; with

Tiong(2) 23 25/6/91

respect to the others, remain before the tribunal
as a neater more expert procedure because of the

presence of doctors on the tribunal.

TOOHEY J:  I am still concerned as to where this is all

taking us, Mr Sofronoff. You start with a

proposition that the committee made a decision that
there had been excessive services rendered by the

applicant - put to one side for the moment the

detail - and that the committee, in consequence,

recommended that there be a reprimand and a
repayment of moneys overpaid. Put to one side the

moneys overpaid, as I understand it, no attack is

made upon the finding of the committee that there

was excessive servicing.

MR SOFRONOFF: In respect of certain

TOOHEY: Well, yes, I understand that, but, see, you only

appear to be challenging the findings made in

respect of the four patients in question.

MR SOFRONOFF:  Yes.

TOOHEY J: But, you do not, as I understand it, take the

next step and say, "Therefore, the finding of

excessive servicing made by the committee is

vitiated".

MR SOFRONOFF: Because, Your Honour, the finding is not,

"There was excessive servicing and these are the

particulars". The finding is, "There were

excessive services in r~spect of service

such-and-such on this date. There was excessive

servicing in respect of service so-and-so on that

date".	The Act requires the committee to identify
the excessive services.	So it is not, as it were,

a global finding of excessive services backed up by

particulars.

TOOHEY J:  I understand that, and if there were no other findings, of course, the situation would be

different. But, given the fact that there were

other findings made of excessive servicing which

are not the subject of attack, and given that the

reprimand is not the subject of complaint before

this Court, if the appeal is successful the finding

of excessive servicing remains, albeit not in respect of the four patients in question, the

reprimand remains, the order for repayment remains, although perhaps qualified in respect of those four

persons.

MR SOFRONOFF:  Yes.

TOOHEY J: Well - - -

Tiong(2) 24 25/6/91

MR SOFRONOFF:	Why are we here?
TOOHEY J:	- - - where are we going?
MR SOFRONOFF:	Your Honour, the tribunal looked

at 11 services and in respect of four - not

these - varied the determination by deleting them,

indeed, by allowing those amounts. What we submit

it ought to have done was - what it did, and in

addition, with respect to the additional ones -
vary the determination not by allowing the amounts
but by saying that no finding of excessive

servicing could be made in respect of these

particular ones. Now, that would leave a

determination that is positive in respect of 4,
negative in respect of, I think, 5 and no

determination at all in respect of 3. Then, if the

Minister wanted, it would be open to him to say to

the committee, "Please have a look at these three",

and it would or it would not, as the case may be,

but the determination would have been reduced in

its adverse respects that much.

TOOHEY J: But we are not being offered an argument along

these lines, that had the committee not found
excessive servicing in respect of the four patients

in question, no one can say whether they would have

thought that a reprimand was appropriate in the
circumstances and, therefore, that finding cannot

stand. That is not your argument?

MR SOFRONOFF:  No. Could I take Your Honours then to the

next passage from Justice Burchett's reasons at

page 184 at line 18. His Honour says:

What is plain is that Dr Tiong was told in

clear language that the only services to be

examined would be those about which he would

be asked questions; that the Tribunal

subsequently held against him in respect of

services about which he had been asked no

question; and that the Tribunal justified this

course, not by suggesting that Dr Tiong had

not in each of these particular instances been

denied an opportunity of making his answer,

but by criticizing the appropriateness of the
chairman's ruling. In my opinion, the

Tribunal was, as a matter of law, precluded

from examining services in respect of which

the doctor had had no opportunity to make his

answer. This conclusion is based, not only

upon the principle of natural justice as

applied to the functioning of the Tribunal

itself upon its review or the committee's

decision, but (as is generally the situation

in cases where that principle has been

discussed) upon the true interpretation of the

Tiong(2) 25 25/6/91

Tribunal's statutory charter under

s.119 - which places on it the duty to

consider whether a determination against a

practitioner should properly be made upon the

particular material submitted to it. If the

contention was that, in all the circumstances and despite the chairman's ruling, the doctor

had had an opportunity to make an answer, an

express finding to that effect was required,

and the question would then have arisen, as to

each specified service, whether there was any
evidence upon which this finding could have
been made.

Your Honours, we submit that is, with respect, correct and that the tribunal is entitled, indeed bound, to say when a situation like this has arisen

where a doctor has not presented his side of the

story because he has not been given a real

opportunity to do so, that it cannot make an

adverse finding to him upon material which is in

that state.

MASON CJ:  Has this question been explored in authorities

dealing with appellate tribunals, review tribunals?

MR SOFRONOFF:  No, Your Honour. The fact that the rules of

natural justice apply has been and it has been

found that they do.

MASON CJ: But this is a slightly different principle. This

is saying you should not act on evidence when the

evidence stands in a particular category because of

lack of opportunity. ·

MR SOFRONOFF:	No, it has not.
McHUGH J:	I thought it had been dealt with in some of the trade union or club cases where somebody has been denied natural justice by a committee of a trade
union or club and then there had been an appeal to
a general meeting of the union or club.

MR SOFRONOFF: Perhaps what Your Honour is thinking of are

cases where there has been a denial at first
instance in some such circumstance and the nature
of the appeal is one where there is a fresh

opportunity to put all the matters that were

denied - - -

MASON CJ: But that is a rehearing case that stands in a

different position.

MR SOFRONOFF: Yes, and in those circumstances it appears

that the defect, if any, has been cured. You may not have got exactly what you are entitled to but it is just as good, but we have not been able to

Tiong(2) 26 25/6/91

find any case which deals with this particular
problem in the way that we are addressing

it.Your Honours, those are our submissions.

MASON CJ: Thank you, Mr Sofronoff. Yes, Mr Gotterson.

MR GOTTERSON:  If the Court pleases, may I hand up a

requisite number of copies of an outline.

MASON CJ:  Thank you. Yes.

MR GOTTERSON:  At point 4 - I think the Court really has

become apprised with what the substance of this

appeal is about. We take point 4, really, from

page 192 which is the notice of appeal - or the

commencement of the notice of appeal - and at

page 194 the relief sought is set out.

Paragraph (c), perhaps, expresses it best. The

objective is to have varied the recovery of
benefits to the sum of $247.35 by excluding three

services which, together, amount to $80.90.

The three services are for the patients,

Earnshaw, McDonald and Vella. We, in fact, in our

outline, as emerges from paragraph 2, confine our

submissions really to three of them. What happened

about Bartlett, the other case of which our learned

friend spoke, was that the tribunal, in fact,

allowed the appeal and no question of a reduction

on account of Bartlett emerges.

So, it really is three items. I think two of

them are of $17.90 and the other one is of $46. In

due course, if the Court-will bear with us, we will
take the Court to the summary of material which we

have attached principally for the purpose of

demonstrating to the Court that at the committee
stage there was a wealth of examining about the
subjects or about like conditions which explains
really why the case has been determined by the

committee and the tribunal in the way that they

have.

MASON CJ: What is the total of the amount that is involved

in the services in respect of Earnshaw, Vella and

McDonald?

MR GOTTERSON:  Earnshaw: $46, if Your Honour pleases. The

other two: $17.90 each, the same service.

MASON CJ:  The figure of $247.35 arises because the Bartlett

service has been included in it?

MR GOTTERSON:  No, Bartlett was excluded.

MASON CJ: Well, how is the figure of $247.35 arrived at?

Tiong(2) 27 25/6/91

MR GOTTERSON: That is the balance of the 11 services which

the tribunal found were excessive, as we understand

it.

MASON CJ:	I see.
MR GOTTERSON:	I think the total for the 11 services - and I

do not know that I can readily put my finger on

it - was approximately $700 but the tribunal

reduced it to the total of $80.90 plus the $247-odd

and now it is sought to cut off a further $80.90.

Even if this appeal were to succeed, it would have no effect on reprimand -

MASON CJ: That has been conceded.

MR GOTTERSON:	That has been conceded. We really need not trouble the Court with point 1 of our outline.
That is common ground and we will not delay to read
from the passages that are referred to. They will
be fresh in the Court's mind.
Paragraph 2 takes up the point that none of the proceedings before the committee, nor its
report, nor the recommendations, have been
challenged judicially for lack of procedural
fairness of the kind that our friends have really
reduced their argument to, or any other ground. We
contained references to the provisions in the also to, perhaps the most recent of the examples,
of the readiness with w~ich this kind of procedure
is used and its availability.  Romeo v Asher is a
decision of the Full Court of the Federal
Court - - -
MASON CJ:	What is it going to establish, Mr Gotterson?

MR GOTTERSON: Only, Your Honours, at this point that it is

an example of one of many examples of occasions

where parties who complain about procedure before

the committee resort to the AD(JR) proceedings for

relief.

MASON CJ: Well, there is little point in taking us to that

case.

MR GOTTERSON:  No. At the end of paragraph 2, we do not

concede that there has been a lack of procedural

fairness.

Paragraph 3 - I really do not wish - and it is

unnecessary to enter into a debate as to the void

or voidability question of - - -

Tiong(2) 28 25/6/91

McHUGH J: Well, Calvin treats it as void, does it not, if I

remember rightly?

MR GOTTERSON:	I think Calvin v Carr says "voidable".
McHUGH J:	I do not think - - -
MR GOTTERSON:	I think Forbes says voidable too.
MASON CJ:	I think there are two interpretations of Calvin v

Carr. There seems to be authority to support

whatever proposition you want.

MR GOTTERSON:  We rather suspected at the special leave

proceeding that the Court may have in the back of

their minds regarding this case as an opportunity

to have a look at Calvin v Carr - - -

MASON CJ:	The more we hear about this case, the less suitable a vehicle it seems to be for expounding
any of the questions that arose in Calvin v Carr.
MR GOTTERSON:	Yes, it seems so. Paragraph 5 of the outline

takes up what we understand to be critical to our

learned friend's arguments and that is an adoption

of the proposition expounded by Mr Justice Burchett

at page 184 about line 25 where he posited that:

the Tribunal was, as a matter of law,

precluded from examining services in respect

of which the doctor had had no opportunity to

make his answer.

The other proposition in (b), I think, advances

that here the appellant had not had such an

opportunity before the committee.

In regard to proposition (a), in our

submission, that is false. It really elevates the

tribunal to a position which was never intended.

putting it perilously close or, indeed, we would That is, as Your Honour the Chief Justice said,	say, on the same footing of a court of review and
ought not to be entertained.

We have given the Court references to Twist

and to Calvin v Carr. We would concede that the,

perhaps, weight in the cases has been of instances

where there has been a review or an appeal - a

fully fledged one - rather than an instance of this

kind but - - -

MASON CJ: They do not bear on this question, do they?

MR GOTTERSON:  No, they do not. They are perhaps

illustrative though - one finds, for example, in

Calvin v Carr a useful collection of the cases but

Tiong(2) 29 25/6/91

we, like our friends, cannot assist the Court with

anything that is immediately apposite or analogous,

but we would really rest the submission on the

footing that it is an error to treat, or to advance
a proposition of law, that the tribunal - really

putting it on a jurisdictional footing - is

precluded from examining services in respect of

which the practitioner had no opportunity to make

answer.

GAUDRON J: Is that really the proposition, Mr Gotterson?

Is it not a simpler proposition as to whether the

tribunal can affirm, if you like, to a decision or

a finding when it appears that the evidence may

have been deficient by reason that the doctor

failed to elucidate it because of the procedures

adopted?

MR GOTTERSON:  Your Honour, that moves some little way from

the proposition that we understood our friends to

be advancing. They seem to take the passage from

Mr Justice Burchett but if it be that the
proposition in fact they rely on is, as Your Honour

has stated it now, we would submit that the correct

approach is as we have set out in paragraph (b)

and, in fact, it is not a matter necessarily that

the tribunal either cannot deal with the matter or

must vary from a finding of excessive servicing or

reverse it to one in which - - -

GAUDRON J: But, does not the tribunal go further? Does it

not go further and say, "Well, we can't take into

account that the evidence may have been

incomplete?". Is that not the effect of the

majority decision in the Federal Court and of the

tribunal ruling, "We can't take it into account."?

MR GOTTERSON: It seems, Your Honour, that

Mr Justice Davies - whereas in a case to which we
would refer you - McIntosh's case - earlier may

have taken the view that what the tribunal would do

make its assessment of the adequacy of the in those circumstances is hear the submissions and	evidence. It is possible to interpret his reasons
in the Full Court as stating, in fact, that that
matter cannot be taken into account.

GAUDRON J: That is also the effect of the tribunal decision here, is it not? Even if not said in those precise

terms, that is the effect and the effect that you

contend for.

MR GOTTERSON:  The effect is that they, of course declined,

as they had to, a request that further be adduced.

Now, they did not then, of course, say "Well, on

that footing we can't entertain a review of these

services". They embarked upon that.

Tiong(2) 30 25/6/91

GAUDRON J: Yes. But on the basis of the material before

the tribunal without taking into account the

quality of that evidence, namely, that it may have

been incomplete.

MR GOTTERSON:  I would not concede, Your Honour, that they

did not take into account that it may have been

incomplete. In fact, the tribunal was - and they

could hardly have done that. We would take

Your Honours to extensive submissions about this

before the tribunal. They were much aware that

Dr Tiong contended that there had been no specific

questioning on these services. So, it was not a

matter of putting it out of mind at all but rather,

we would submit, of embarking upon an examination

of the evidence that was there having had the

benefit of a submission that there may have been

other evidence that could have been adduced, but

was not sought to be adduced either by way of a

hearing de novo, or a request to reconvene the

committee, or whatever.

DAWSON J: In other words, the appellant had the opportunity

to say before the tribunal, "Look, you ought not to

make any findings on this evidence. It is

deficient. It is deficient because it is only half

the story", and notwithstanding that submission the

tribunal said, "Well we are in a position to make a

finding on that evidence and will do so".

MR GOTTERSON:  Indeed, Your Honour. It has never been

suggested that there was procedural unfairness

before the tribunal. It could not have been.

There was an ample opportunity to make the

submissions that the - - -

DAWSON J: So, really, the complaint is that the evidence

before the tribunal was insufficient to support its

finding?

MR GOTTERSON: Well, perhaps that is putting it another way,

and perhaps they say it got there because there had

not been a specific questioning upon these

services. So perhaps that is another way of

looking at what they put. But that, of course,

does not answer it, because it is a specialist

tribunal and really a matter for the specialists on

it- to determine that question, as it seems. In

fact, that is why we put our proposition in

paragraph 6(b), that the tribunal may examine a
service which it sought to impugn because of the

lack of questioning and in the exercise of its

powers, of course, it may vary the determination.

We have referred to McIntosh. That is a decision

of Mr Justice Davies, that single instance.	We
have given the Court - - -

Tiong(2) 31 25/6/91

DAWSON J:	Can I just interrupt you there again?
MR GOTTERSON:	Yes.

DAWSON J: Did not the tribunal, and correct me if I am

wrong, say, "Well look, the chairman below did give

this undertaking. He should not have given that

undertaking because one can determine whether the

service was necessary or not without necessarily

asking the practitioner why he did it. Now,

although we disapprove of what happened below, we

have the evidence now before us. We think we can

make a determination on that evidence and we do,

and you can try and convince us that we are wrong

in doing so, but in the end you have not".

MR GOTTERSON:  Yes, that is so, Your Honour. That that is a

permissible or the appropriate way for the tribunal

to proceed really accords with what
Mr Justice Pincus said, at first instance, at

page 145 of the book, at lines 5 to 15 and, in our

submission, he articulates correctly the role and

position of the tribunal. He says:

The central task of the Tribunal, as I read
the Act, is to determine whether, on the

evidence before the Committee, its conclusions

are factually correct. But in performing that

task, it may take into account the opportunity
or lack of opportunity for explanation of his

or her actions accorded to the doctor

concerned. If the Tribunal was satisfied, as

to a particular service, that the doctor whose

conduct was in question had had no reasonable

opportunity to explain his or her case, then

in my opinion it would have power to vary the

Minister's determination accordingly.

MASON CJ:  Do you accept that proposition, the proposition

in the last sentence?

MR GOTTERSON:	Yes, if it is of the opinion that there was no reasonable opportunity, it has power to vary.
We would accept that.
MASON CJ:	And this on the footing that there was before the

tribunal sufficient evidence to justify the finding

of excessive services in the particular case, but

none the less, no reasonable opportunity had been

granted to the doctor concerned?

MR GOTTERSON:  We would not concede and we do not take

His Honour to be saying that there was no

reasonable opportunity to explain his case.

MASON CJ: Not in the particular case, no, but he is putting

a hypothetical case.

Tiong(2) 32 25/6/91

MR GOTTERSON:  As a hypothetical case we would accept that

if the tribunal, taking all things into account,
concluded that there had been no reasonable

opportunity to explain the case, then it could, not

must - (a), it could entertain reviewing the

service and (b), it could vary it, but that its

powers were not confined, either by excluding

it - - -

MASON CJ: What, you say it is just discretionary and not

mandatory in the event that the tribunal comes to

the conclusion that no reasonable opportunity was

afforded?

MR GOTTERSON:  Yes.

TOOHEY J: Well, that statement is prefaced by what appears

at line 5 in the passage that you read to us:

The central task of the Tribunal ..... is to

determine whether, on the evidence before the
Committee, its conclusions are factually

correct.

I take Justice Pincus to be saying that in

determining whether the conclusions are factually

correct, the committee, or the tribunal, may have

regard to the absence of evidence from the medical

practitioner.

MR GOTTERSON:  Yes, we

TOOHEY J: It may be satisfied that notwithstanding the

conclusion is factually correct, or it may decide

that it is not factually correct, in which case it

would vary the determination.

MR GOTTERSON:  Yes. It seems to us that there has been

something of a conflating of notions in which it is

said, necessarily, that if there is no questioning

specifically on a particular service, then it

follows that there has been a failure to accord
procedural fairness.	We would not accept that for

a moment, and that really is taken up in

paragraph 7, which leads us to the procedures, in

fact, before the committee. We have made

references to Haoucher and to Romeo in 7(a). Might

we include a reference also to Kioa at the judgment

of Your Honour the Chief Justice at page 587, at

about point 8.

In this respect recent decisions

illustrate the importance which the law

attaches to the need to bring to a person's

attention the critical issue or factor on

which the administrative decision is likely to

Tiong(2) 33 25/6/91

turn so that he may have an opportunity of

dealing with it.

We would submit that in the instances here it is

not necessary to question specifically on each

service.

It seems to be said against us that as a

matter of law it is necessary to question on each

one. But if we can take the Court to the

proceedings before the committee and the tribunal,

we do have a summary of it at the end of the

submissions, and the first patient dealt with is

Mrs Earnshaw and the questioning concerning her is

to be found at page 34, beginning at about line 48.

MASON CJ:  How long is this going to take us, Mr Gotterson,

to go through these materials that are referred to

in the summary?

MR GOTTERSON:  I did not want to labour the Court with it.

I wanted to make a point, I suppose - and this may

be satisfactory for the purposes - that in the case

of Earnshaw the tribunal, as had the committee,

concluded that really there was a duplication of a

service. They allowed one service which involved

inspection of the larynx; he claimed the two
inspections of the larynx on the same day, and they

disallowed the second and, I should say, less

expensive, one. So that really was a matter for

conclusion for experts rather than anything else. reserved for experts to . _determine whether the one

encompasses the other.

In the case of McDonald and Vella, I think I am correct in saying this briefly, that both of

those patients had a number of audiograms. The

initial one was disallowed in both instances by the

tribunal. The point was this: ought an audiogram

be performed when a patient's ear is occluded by

infection.

We have given references in the first of the

items to extensive questioning, in fact, of

patients called Boland and Anstey, about a

procedure of audiogram when the ear is occluded.

There was questioning by the committee, there was

questioning by, in fact, the committee 1 s expert, Dr

Mccafferty, who gave evidence on the point, by the appellant's solicitors, and we have given the

references to that.

So in the end, the issue, if you like, of

audiogram when the ear is occluded and when surgery

is not in prospect, was well canvassed. Now it was

in the case of McDonald and Vella that those two

Tiong(2) 34 25/6/91

audiograms were disallowed, though it is true that

there was not any specific questioning on it.

One can see perhaps readily why the committee reached a decision on the McDonald and Vella

services, and one can see why the tribunal felt

sufficiently equipped to make a decision upon them,
notwithstanding a specific questioning on them,
because the issue had been traversed extensively

with regard to other patients.

I should say, of course, that there was

extensive questioning about each of these patients.

It is not as though there was no questioning about

them at all. They were dealt with individually.

What happened was that there were one or two - in

the case of McDonald and Vella, one service each

not asked about but fell into the same category

as -

MASON CJ: In other words there was extensive questioning

about the condition of the patients.

MR GOTTERSON:  Yes.

MASON CJ: But not about the necessity for the service

provided, and that is the audiogram.

MR GOTTERSON:  Audiogram, yes, with the occluded ear. These

patients received other services as well which were subject to review, and we would make the point that

in regard to McDonald and Vella the issue of

audiogram when the ear was occluded was traversed

at length by Dr Tiong, by his legal representative,

by Dr Mccafferty, in regard to, as we have given

the references, to patients Boland and Anstey.

DAWSON J: In other words, that was where he said, "Well,

even though the ear is occluded, the audiogram is useful because it provides a benchmark". He gave

that explanation.

MR GOTTERSON:  Yes, he gave his answer, and obviously they

did not -

DAWSON J: But not in relation to this particular patient?

MR GOTTERSON:  Yes, but obviously they were not persuaded

that, as a general proposition, that was not so. And Earnshaw, as we have submitted, was really a

matter of medical knowledge whether one procedure

encompasses the other.	They made their conclusion
about that, as they were entitled to do.	We have
no further submissions.

MASON CJ: Yes, thank you, Mr Gotterson. Mr Sofronoff?

Tiong(2) 35 25/6/91

MR SOFRONOFF:	We have no reply, Your Honour.
MASON CJ:	The Court will take a short adjournment in order

to determine what course it will take in this

matter.

AT 11.59 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.30 PM:

MASON CJ: 

Mr Sofronoff, we have given consideration to the

case and I should give you the opportunity, I
think, having regard to possible deprivation of
opportunity earlier, of persuading us that in the

light of what we have heard this morning we should

not now rescind the order granting special leave.

MR SOFRONOFF: 

Your Honours, the position now is that there

is a majority judgment of the Full Federal Court in

which it is said, in effect, that any breach of

natural justice at the committee stage does not

matter.

MASON CJ: Yes. I follow that you say that there is an

important principle at stake, and for the purpose

of considering the matter at this stage I am
content to assume that there may be a general
principle, not unimportant, at stake. But this
case no longer appears to be a suitable vehicle for
the determination of that question. After all,

there is very little involved, in terms of money.

The reprimand will still stand; there will still

be a finding of the rendering of excessive

services.

So far as two of the patients are concerned,

from what we have heard, it is difficult to

establisn that you were denied the opportunity of

answering and meeting the charges, and in the case

of a third patient, well, you succeeded.

MR SOFRONOFF:  Yes, we succeeded on Mr Bartlett.

MASON CJ: So, after all, what is left?

MR SOFRONOFF:  Your Honour, I can only say that

notwithstanding the small amount of money and the

lack of consequences to the reprimand, that as this

Court said in Stead, one is entitled to put one's

case fairly to a judge or, as in this case, the

committee. One is entitled to that, and my client

Tiong(2) 36 25/6/91

is here because he wishes to have that to which he

is entitled.

If that, in the other circumstances that Your

Honour has mentioned, is not enough to sway the

Court, then it is not enough. But that is why we

are here, as we apprehended.

MASON CJ: Yes, thank you. Having had the benefit of a full

examination of the issues in this case since

argument on the hearing of this appeal commenced

this morning, we have come to the conclusion that

the case is not a suitable vehicle for the

determination of any question of general principle

concerning the powers and jurisdiction of a Medical

Review Tribunal under the Health Insurance Act.

We should mention very briefly the elements in

the case that have led us to that conclusion.

First, it appears that the appeal, if successful,

would not affect (a) the existing reprimand to the

appellant, the subject of the Minister's
determination, and (b) an adverse finding of

rendering excessive services in cases not the

subject of this appeal. The appeal, if successful,

would at most affect the finding that excessive

services were rendered to three patients involving

a liability on the part of the appellant to repay a

sum of $81 approximately in total.

Secondly, the appellant's case rests on

establishing the proposition that the Medical

Services Committee of Inquiry conducted the hearing before it in such a way as to deprive the appellant of a reasonable opportunity of answering and

meeting the charge of rendering excessive services

to the four patients. The appellant then submits

that the Review Tribunal was in error in acting

upon evidence of excessive services before the

Committee in circumstances where the appellant had

been deprived of that opportunity.

We are not persuaded by the appellant that in

the case of at least two patients, Vella and

McDonald, the way in which the hearing was

conducted resulted in a denial of the opportunity of answering and meeting the charges made against

the appellant. Furthermore, the appeal is

academic, in so far as it relates to the rendering

of services to a third patient, Bartlett, because

the appellant succeeded before the review tribunal

in relation to those services on other grounds.

For these reasons we consider that the case is

not a suitable vehicle for the grant of special
leave to appeal and we further consider that the

grant of special leave to appeal should be

Tiong(2) 37 25/6/91

rescinded. Accordingly, the order of the Court is

that the grant of special leave to appeal be
rescinded.

Mr Sofronoff, do you want to present any argument against the making of an order for costs

against the appellant?

MR SOFRONOFF: No, Your Honour.

MASON CJ: There will be an order that the appellant pay the

respondent's cost of the proceedings in this Court.

AT 12.35 PM THE MATTER WAS ADJOURNED SINE DIE

Tiong(2) 38 25/6/91