Tiong v Minister for Community Services and Health

[1990] HCATrans 309

-!.) AUSTRALIA l!'

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B20 of 1990

B e t w e e n -

DR THUNG SING TIONG

Applicant

and

MINISTER FOR COMMUNITY

SERVICES AND HEALTH

Respondent

Application for special
leave to appeal

MASON CJ TOOHEY J MCHUGH J

TRANSCRIPT OF PROCEEDINGS

Tiong 1 7/12/90

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY. 7 DECEMBER 1990. AT 9.35 AM

Copyright in the High Court of Australia

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

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

applicant.	(instructed by Chambers McNab Tully &
Wilson)

MR R.W. GOTTERSON, QC:  May it please the Court, I appear

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

respondent. (instructed by the Australian

Government Solicitor)

MR SOFRONOFF:  Your Honours, the Health Insurance Act

provides a scheme whereby the Minister may refer

matters arising from the rendering of medical

services to a committee. It is by that means that

over-servicing by doctors, among other things, is

dealt with.

The scheme involves, first, a referral to what

is called the medical services committee of
inquiry. That committee conducts a hearing and
then reports to the Minister. In the event of an

adverse finding by the committee, the Minister is

entitled to gazette the name of the practitioner.

The recommendation from the committee can involve a

recommendation that the practitioner be reprimanded

and the Minister is entitled to table the report

and consequently, in effect, name the practitioner

in Parliament. In this particular case, the

Minister has indicated in a letter that is in the

record book that he intends to do just that.

There is a right of appeal to a body called

the Medical Services Review Tribunal but that right
of appeal is an appeal by way of rehearing on the

papers. There is no right to lead further

evidence. That was decided in Minister for Health

v Thomson, (1985) 8 FCR 213, a case on our list of

authorities. There is a further right of appeal on

questions of law only to the Federal Court.

Your Honours, the applicant is a medical

practitioner and the Minister referred for inquiry

Two hundred and seventy separate patients were	by the committee certain services rendered by him.	referred and there were, of course, many many more services. Only 99 of these patients have so far been dealt with by the committee; the rest have yet to be heard.
Your Honours, at the commencement of the hearing before the committee, the chairman
indicated the course that was proposed to be
followed and if Your Honours to go page 91 of the
record the statement by the chairman is set out
there in the reasons of Mr Justice Davies in the
Full Federal Court. Towards the foot of the page
the chairman said:

Tieng 2 7/12/90

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 doctor said:

Yes.

And the chairman said:

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.

McHUGH J: There is a slightly more favourable statement

from your point of view, is there not, in the

extract which is set out at page 34 of the appeal

book which proceeds it where the chairman said:

so that's in general terms so we will be

concentrating on that and trying to cut down

the time for each case.

MR SOFRONOFF:  Yes, Your Honour. Thank you, Your Honour.

Your Honours, in fact no questions were asked by

the committee about certain services and yet

adverse findings were made against the applicant in

respect of those services. The dollar amounts in

respect of repayment of what he received is small,

but we submit that a number of consequences flow

that are important from this decision. The first

is, of course, that notwithstanding that the amount

is small, the consequences to reputation can be
great, but more significantly for these

proceedings, there is the rest of the patients to

be dealt with as well as, as we put it in the

affidavit, the matter of other medical

practitioners who have yet to be dealt with in the
future.

Your Honours, the applicant appealed to the tribunal, as he was entitled to do in relation to

these and other findings, and the tribunal held, on

this particular point, that it was not precluded

from making an adverse finding that the committee

was not precluded from making an adverse finding

simply because no questions were asked about a

particular service. That appears at the foot of

page 34 where the tribunal said, after the quote

that Justice McHugh referred me to:

Tieng 7/12/90

Obviously if a member of the Committee at the

time the practitioner is giving evidence has a

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.

MASON CJ: Did the committee have a power to reopen?

MR SOFRONOFF:	The committee?
MASON CJ:	I am sorry, the review tribunal?
MR SOFRONOFF:	No, Your Honours, it had a power to review

the findings of fact on the record before it.

MASON CJ: 

So that if you be right in your contention that

there was a denial of natural justice before the
committee, there was no effective remedy available
to you in the review tribunal?

MR SOFRONOFF: There was, Your Honour.

MASON CJ: What was that?

MR SOFRONOFF:  The remedy was that the tribunal was entitled

to say that on the evidence before the committee

the committee was not entitled to conclude and the

tribunal on its review of the facts was not

entitled to conclude that the services were

excessive because the evidence did not go to the

extent of hearing the practitioner's side. That

was the view that Mr Justice Burchett took in the

Full Federal Court.

MASON CJ:	I follow.
MR SOFRONOFF:	Your Honours, the applicant then appealed on

this and other bases that the present application

is not concerned with to the Federal Court and

Mr Justice Pincus heard that appeal and he

determined that the problem was really one which

involved the question whether the evidence

justified adverse findings and concluded that he

was not satisfied that the course adopted caused

the applicant to refrain from giving evidence that

was likely to have affected the committee's

conclusions.

Tiong 4 7/12/90

Can I take Your Honours to page 76 of the record, three lines from the foot of the page:

In my opinion, that practice -

that is the chairman's indication of what practice

would be followed -

was not rigorously followed, but the Committee

formed, in the end, adverse views on some

services without asking specific questions

relating to them; it formed such views in
reliance upon other evidence and, no doubt,

upon the Committee's own medical knowledge. And then, if we skip that paragraph, His Honour

then goes on to consider a particular example and,

at the foot of page 77:

As I read the transcript, the explanation

given by Dr T.S., which was fairly detailed,

as to his assessment of the patient's

condition included information about that the respondent) pointed out, the Committee
condition on the day the audiogram was done.

must have been assisted by detailed evidence

given earlier concerning similar work done in

similar circumstances.

Then, over the page, Your Honours, in the middle of page 78, at about point 4, His Honour said:

I am by no means satisfied that the course

taken by the Committee, while it did not

accord precisely with what the Chairman said

should happen, was unfair to the appellants or

caused them to refrain from giving evidence

likely -

and for our submissions we emphasize the word

"likely" -

to have affected the Committee's conclusions.

To revert to the case of patient no 82 just

mentioned, it was not, in the circumstances,
essential that each one of a number of

audiograms, done within a period of a few

weeks, be the subject of specific questioning.

Your Honours, the applicant then appealed on

this and other grounds to the Full Federal Court

which, by a majority, dismissed his appeal. Could

I take Your Honours to the reasons of

Mr Justice Davies at page 96.

Tiong 5 7/12/90

MASON CJ:  Did anyone in the Full Federal Court endorse the

ground taken by Justice Pincus?

MR SOFRONOFF:  No, Your Honour. The Full Federal Court, by

a majority, went on a different basis.

MASON CJ:	Yes.
MR SOFRONOFF:	Your Honours, at page 96 at the top of the

page, His Honour said:

On the material before it, the Review Tribunal

concluded that the subject items were

instances of excessive servicing. The Review

Tribunal complied with the procedural

requirements to which it was subject. I do

not see any basis for holding that its

decisions were flawed by procedural unfairness

on its part, even had that ground been relied

upon, which it was not.

Of course, the ground relied upon was procedural

unfairness at the committee stage, Your Honours.

Then in the next passage:

Nor do I see any basis for holding that its

decisions were unreasonable or otherwise in

error. The Tribunal had evidence before it

and its conclusions were open on that

evidence.

So His Honour concludes that, firstly, there was

nothing that affected the validity of the

tribunal's proceedings; secondly, there was

evidence before it that justified an adverse

finding ·against the applicant; thirdly, in the

next sentence:

The Tribunal's findings were within the ambit

of its expertise -

and His Honour went on:	Further, as I have mentioned, the Tribunal's
decisions were not invalidated by procedural unfairness at the Committee stage.

McHUGH J:  But Mr Justice Davies thought that the review

tribunal's decision was the operative decision, did

he?

MR SOFRONOFF: 

Yes, and in our submission it was not the

operative decision because there is no right to
call further evidence before it. Had there been

such a right, then at the stage of coming before it

further evidence could have been called by the

doctor, if he chose, to answer the adverse findings

Tiong 6 7/12/90

in respect of which no questions were asked.Indeed,

Your Honours, further evidence was sought to be led

before the tribunal. If Your Honours go to page 29

of the record - - -

MASON CJ: And the tribunal rejected that application on the

ground that it did not have power to receive

further evidence?

MR SOFRONOFF:  Yes, and correctly, in our submission. appears at page 29. Could I take Your Honours That

there briefly. At the top of the page 29, part of the transcript before the tribunal, counsel having

applied to lead further evidence, the president
said:

The view which the Tribunal takes is that the information now sought to be tendered is

evidence; that we cannot look at it without

admitting it. The authority I think is clear,

the full court of the Federal Court in
Thomson's case that we are restricted to
consideration of the matters set out in
Section 119 of the Act.

If Your Honours would then go to page 95 of

the record, back to Mr Justice Davies' reasons,
half-way down the page after the reference to

Thomson, His Honour said:

When the practitioners' legal representative

addressed the Tribunal with respect to these items, the case was put on the basis that no

specific question about the items had been

asked by the Committee. The transcript before

the Tribunal records that counsel for the

practitioners said:

"I have become aware of Thomson's case to

the effect that fresh evidence cannot be
addressed before the Tribunal and I've

already stated that Dr T.S. Tiong no

longer seeks to reconvene the Committee

for that purpose."

In effect -

His Honour concluded -

therefore, counsel opted to or was content to

proceed on the evidence that was before the

Review Tribunal.

Your Honours, counsel really had no choice in the

matter and to the extent that His Honour relied

upon that as justifying the adverse conclusion to

Tiong 7 7/12/90

the applicant, His Honour, we submit respectfully,

was wrong.

TOOHEY J:  Mr Sofronoff, if you go back to the committee

stage, the practitioner was represented by counsel

as I understand it.

MR SOFRONOFF:  Yes.

TOOHEY J: And, although you have referred us to - - -

MR SOFRONOFF:  I am sorry. He was represented by a

solicitor at the committee stage.

TOOHEY J:	He had legal representation?
MR SOFRONOFF:	Yes.

TOOHEY J: And, did the evidence of the practitioner take

the customary form of evidence led by his

representative or did the practitioner simply

respond to questions asked of him by the committee?

MR SOFRONOFF:  That is the manner in which the proceedings

were conducted, yes. He responded to questions.

TOOHEY J: Well, then, what was the role of his

representative?

MR SOFRONOFF:  I am not sure, Your Honour. I cannot answer

that because the manner in which the proceedings

were conducted was that specific questions were

asked about specific treatments that were given.

The doctor responded, dealt with it as best he could and that is how it went. It was not - - -

TOOHEY J:  I ask that question because there is a suggestion

in some of the judgments to which you have referred

us that the practitioner's representative might in

any event have taken him through any or all of the

matters that were the subject of inquiry.

MR SOFRONOFF: That was open. There is no doubt that was

open before the committee. The practitioner could

have, himself, volunteered to explain particular matters if he wanted to but given the chairman's

ruling at the beginning, there was no need to

volunteer matters in respect of which it was not

thought - there would have been no reason to think
the committee was interested, in respect of

particular services, so while there was a right to

lead further evidence, to put it in those terms,

the chairman's ruling gave every reason to believe

that that right need only be exercised in respect

of services about which questions were asked.

Tiong 8 7/12/90

MASON CJ:  Mr Sofronoff, at this stage it may be more

helpful if we call on the respondent. Now, that is

not necessarily to indicate that we are minded to

grant special leave at this stage but in the event

that we call on you, you will have an extended

opportunity in reply to develop points that

otherwise you would have been developing in your

address in-chief.

MR SOFRONOFF:	Thank you, Your Honour.
MR GOTTERSON:	If the Court pleases, the respondent contends

that the opinion of the majority in the Full Court,

as articulated by Mr Justice Davies, is correct.

It is not in issue that the rules of natural

justice apply to committee proceedings or to

proceedings before the tribunal.

MASON CJ: No, but could I indicated to you that at this

stage we would like to hear you in the first

instance on how you come to justify the procedure

that, in fact, was adopted by the committee at the

committee stage?

MR GOTTERSON: Well, if one can turn to that and, perhaps

before I do, make the point that it is the decision

of the tribunal under section 124A, that is subject

of appeal, can I then address Your Honour's

question by submitting this, and this we submit is

the kernel to understanding what Mr Justice Davies

says? He says that a party, who considers that he

has been denied natural justice in the committee

proceedings and that the minister's decision is

thereby vitiated, may apply to the court to have
the decision reviewed on that ground. The court

may then remit the decision to the committee with

directions; though he does not in terms refer to

the Act, we take him to be referring to the

Administrative Decisions (Judicial Review) Act,

section 16(1)(b) gives the power to direct.

Now, this is a course that is frequently

taken.	We put on our list a reference to Freeman v
McKenzie, (1988) 82 ALR 461.	I may add that

His Honour may have been referring to proceedings

also under section 39B of the Judiciary Act so far

as proceedings of a prerogative writ nature against

Commonwealth officers are concerned.

TOOHEY J:  Mr Gotterson, just so I can understand that

submission, are you saying that it was open to the

practitioner simply to by-pass the tribunal?

MR GOTTERSON: Yes, indeed.

TOOHEY J: And sought a review of the decision of the

committee?

Tiong 9 7/12/90

MR GOTTERSON: Indeed, that is what we understand

Mr Justice Davies to be saying. If we may take the

Court to page 92 of the record, in the second

paragraph, His Honour says:

It is unnecessary for me to discuss or to

form a concluded view on that point.

And the point that he is speaking of is the one

whether the committee had afforded - or denied, I

should say - natural justice. His Honour says:

the application before the trial Judge did not

seek to set aside the decisions of the

Committee in respect of the three challenged items or to have the matter remitted to the

Committee for its reconsideration -

and so on. He continues to point out that the

decision of the review tribunal does not vitiate

the Minister's decision, and so on. But, perhaps

more fully at page 96, about half-way down the

page, His Honour says:

Further, as I have mentioned, the Tribunal's decisions were not invalidated by procedural unfairness at the Committee stage.

MASON CJ: But the basis for a conclusion of that kind

arises out of a second review proceeding by way of

review or appeal, where there is no denial of

natural justice, so that the second hearing can be

said, in effect, to cure the defect that existed in

the first proceedings. But if you start here with

the assumption that there was a denial of natural

justice before the committee, how is that remedied

when the matter goes to the review tribunal when

the review tribunal has no power to receive further

evidence?

MR GOTTERSON:  It is cured, if the Court pleases, by the

party who feels aggrieved, applying first, not for

a review, but for judicial review, to have the

Court consider whether there has been a denial of

natural justice and if it so finds, for the matter

to be remitted to the committee, with a direction

that it proceed in a particular way which will cure

it. Now if the committee were perverse and refused

to follow the directions then, again, there would

be another judicial review but, of course, if it

accorded, there is a full complement of evidence on	follows the directions and natural justice is
which presumably the practitioner is satisfied.
The committee makes its recommendation, the
Minister determines and, if the practitioner is
dissatisfied, he can go by way of review to the
review tribunal.

Tiong 10 7/12/90

But, of course, he must make his decision

about whether to go to a tribunal at a point where

he is conscious whether he is satisfied of the

evidence at the committee stage and the proceedings

at the committee stage. If he is dissatisfied he

must go by way of judicial review and if he is

satisfied he can then take it on to the tribunal.

MASON CJ: But is it the only avenue he has? Is it not open

to the review tribunal to say, "On looking at what

happened before the committee, the applicant was

not given a fair opportunity of presenting his case

against the charges on which, in effect, he has

been found to have been guilty of misconduct and in

those circumstances, having regard to that, we will

set aside the decision of the committee." Was it

not open to the review tribunal to take that

stance?

MR GOTTERSON: Indeed, Your Honour, that is the role for the

tribunal as articulated by Mr Justice Pincus and

approved by Mr Justice Davies at page 93 of the

record. That is exactly what they did and one

follows - I shall not read it to the Court - that

mid-way down page 93 Mr Justice Davies approves of

what Mr Justice Pincus has said and then goes on to

say, "Well, in regard to these particular

procedures, the subject of complaint, the tribunal

had material on which it could decide them."

TOOHEY J:  I am having difficulty with that submission,

Mr Gotterson, if we start, for the purposes of the

exercise, with the assumption that there was a

denial of natural justice before the committee, and

by reason of that denial of natural justice a

review of the committee's decision is sought from

the tribunal, and if it be accepted that there is

no way in which the tribunal could itself cure any

denial of natural justice because it does not have

the power to receive further evidence and if the tribunal has wrongly assessed the question as to whether there was a denial of natural justice, why

is not that matter then a live issue before the

Full Court of the Federal Court?

MR GOTTERSON:  The way it appears to have been raised is a

jurisdictional point. The appeal contends that the

tribunal, as a matter of jurisdiction, may not

review and thereby determine any matter on which a

specific question may not have been asked at the

committee stage.

Our contention is that that simply is wrong

and that the role for the tribunal is, as
Mr Justice Pincus says, to look at the material and

decide whether on all of it the matter was dealt

with properly.

Tiong 11 7/12/90

TOOHEY J: If the tribunal makes a wrong assessment, in the

sense that you have described it, is the suggestion

that there can be no further avenue of appeal if

the practitioner has not earlier taken out an

application for judicial review under the

Administrative Decisions (Judicial Review) Act?

MR GOTTERSON:  If the point he wants to take is one going to natural justice, yes.

TOOHEY J: If you look at the notice of appeal - perhaps I

am looking at the notice of appeal from the

tribunal. Do we have the notice of appeal?

MR GOTTERSON:  The proposed notice of appeal, if the Court

pleases, is at page 143.

TOOHEY J:  No, I did not mean that, Mr Gotterson. I meant

the document which brought the matter before the

tribunal.

MR GOTTERSON: That is at page SO, if the Court pleases.

MASON CJ: 26, is it not?

MR GOTTERSON:  Yes, thank you. One will see there that in

that notice of request no point now sought to be

articulated was in terms raised.

TOOHEY J:  You mean there is no complaint of denial of

natural justice?

MR GOTTERSON:  No complaint. The committee made

recommendations in respect of these three matters

on which no specific question was asked, yes.	The
law is, as my learned friend mentioned to the
Court, that the committee is confined to the

material before it and to the grounds raised before

it.

TOOHEY J: The committee or tribunal?

MR GOTTERSON:  I am sorry, the tribunal, yes, my error.

Thus it was that Mr Justice Davies and

Mr Justice Spender considered that there was no

need to inquire whether there had been a denial of

natural justice at the committee stage. Those who

ventured upon it were Mr Justice Pincus, who said

there had not been, and Mr Justice Burchett, who

said that there had been. ·

We ask the Court to consider this, that

Mr Justice Burchett did not, in a blanket sense,

make that observation. He did it in a confined

narrow sense which, in our submission, will lead

not to anything of general application.

Tiong 12 7/12/90

If one looks at page 119, in the second

paragraph, His Honour Mr Justice Burchett deals

with the point and makes extensive reference, in

effect, to the words of the chairman.	He says
about six lines down:

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 -

et cetera. Then, he concludes:

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.

So, his conclusion really is confined to

circumstances where a committee perhaps embarks

with those opening words and not generally and,

therefore, we conclude that whatever view he has is

so confined.

TOOHEY J: Mr Gotterson, is the argument this, that if the

tribunal is invited to assume jurisdiction in the

matter, then it is simply asked to conduct its own

review based on the material before it but

questions of denial of natural justice before the

committee do not arise because an independent

review is being conducted, albeit limited by the

material available to the committee; that that was

what was done in t~is case and that the question of

natural justice really had disappeared from the

scene?

MR GOTTERSON: Precisely so, Your Honour, and in context,

too, of the availability of relief in respect of

the committee's proceeding per the AD(JR) Act,

those sorts of proceedings.

TOOHEY J: Yes. Is it the position, though - I am not

asking for any detail, but is it the position that

the tribunal in fact reached a conclusion in

respect of various services different from the

conclusion reached by the committee?

MR GOTTERSON: In some cases, yes.

MASON CJ: Yes.

TOOHEY J: Yes, so - - -

Tiong 13 7/12/90

MASON CJ: And, it reduced the number of matters found as

misconduct on the part of the applicant.

MR GOTTERSON: It did, Your Honour, yes.

TOOHEY J:  I put that to you, really, perhaps to point up

the notion of an independent review.

MR GOTTERSON:  Yes.

MASON CJ: But, Mr Gotterson, notwithstanding the limited

grounds raised in the application for review to the

review tribunal, which appears at pages 26 and 27

of the application book, it is abundantly clear, is

it not, that the principal issue in the review

tribunal was whether or not the review tribunal

could make adverse findings against the applicant

in relation to matters about which he was not

questioned?

MR GOTTERSON:  It was a matter that was raised, yes.

MASON CJ: But it was the principal issue, was it not? If

you look at page 34, it is obvious that the

applicant was pressing the point that it was not

open, either to the committee or the review

tribunal, to make adverse findings against him in

relation to matters that were not the subject of

questions.

MASON CJ: And the review tribunal's answer to that is, "Oh

well, that is too restrictive a limitation."

MR GOTTERSON:  Yes. That may not have been perhaps the

correct answer. The correct answer may have been,

"Well we are confined to these papers. If you had

complaints about that you should have taken them

elsewhere.

MASON CJ: Well that is precisely what the review tribunal

does not say.

MR GOTTERSON:  But eventually, when the issue is

crystallized and, in our submission, they did not
crystallize until the hearing before the Full Court

in the Federal Court, but that - - -

MASON CJ: Well it may be a very important question whether

the review tribunal has powers that are limited by reference to the considerations of natural justice

or whether, on the other hand, a remedy, in cases
of this kind, can only be obtained by other means,

for example, through recourse under the AD(JR) ACT.

MR GOTTERSON: Well, in our submission, the availability of

that recourse and the fact that it is taken - we

have given instances of it - really undermines any

Tiong 14 7/12/90

general importance in it. This happens to be a

case where, perhaps regrettably for the doctor, the

proceedings went the wrong way and that is that.

There is one other matter that I should raise

and it was suggested that so far as the doctor was

concerned, matters of reputation were involved.

Even if these three alleged overservicings were set

aside by virtue of the appeal - there are a number

which still remain unchallenged and the basis for

the reprimand remains - so far as he is concerned

then there is no real question of undermining a

reprimand out of these precedings. I do not know

if I can assist the Court any further.

MASON CJ:  Yes, thank you Mr Gotterson. The Court need not

trouble you, Mr Sofronoff.

MR SOFRONOFF:  Thank you, Your Honour.

MASON CJ: There will be a grant of special leave to appeal

in this case.

AT 10.09 AM THE MATTER WAS ADJOURNED SINE DIE

Tiong 15 7/12/90