Tisdall v Blazow

Case [2005] FCAFC 190

FEDERAL COURT OF AUSTRALIA

Tisdall v Blazow [2005] FCAFC 190

DR PETER THOMAS TISDALL v JUDY BLAZOW (in her capacity as the Determining Officer appointed pursuant to section 86 of the Health Insurance Act 1973) AND THE PROFESSIONAL SERVICES REVIEW TRIBUNAL (constituted by the Honourable A R Neaves, Professor D Tiller and Dr P Joseph)

VID 45 OF 2005

HEEREY, SUNDBERG and NORTH JJ
7 SEPTEMBER 2005
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 45 OF 2005

BETWEEN:

DR PETER THOMAS TISDALL
APPLICANT

AND:

JUDY BLAZOW (in her capacity as the Determining Officer appointed pursuant to section 86 of the Health Insurance Act 1973)
FIRST RESPONDENT

PROFESSIONAL SERVICES REVIEW TRIBUNAL (constituted by the Honourable A R Neaves, Professor D Tiller and Dr P Joseph)
SECOND RESPONDENT

JUDGES:

HEEREY, SUNDBERG and NORTH JJ

DATE OF ORDER:

7 SEPTEMBER 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal and application are dismissed.

2.The applicant is to pay the respondents’ costs of the proceeding.

3.(a)  Leave is granted to the first respondent to file an application for an order that costs be awarded on a basis other than a party and party basis.

(b)Any such application is to be filed and served by 14 September 2005.

(c)The first respondent is to file and serve a brief written submission in support of any such application by 15 September 2005.

(d)The applicant is to file and serve a brief written submission in response to any such application by 21 September 2005.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 45 OF 2005

BETWEEN:

DR PETER THOMAS TISDALL
APPLICANT

AND:

JUDY BLAZOW (in her capacity as the Determining Officer appointed pursuant to section 86 of the Health Insurance Act 1973)
FIRST RESPONDENT

PROFESSIONAL SERVICES REVIEW TRIBUNAL (constituted by the Honourable A R Neaves, Professor D Tiller and Dr P Joseph)
SECOND RESPONDENT

JUDGES:

HEEREY, SUNDBERG and NORTH JJ

DATE:

7 SEPTEMBER 2005

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

  1. Before the Court is an appeal under s 124A of the Health Insurance Act 1973 (Cth) (the Act) and an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) by the applicant, Dr Peter Tisdall, a general practitioner, in relation to a determination made the Professional Services Review Tribunal (the Tribunal) on 23 December 2004. Whilst both the appeal from the Tribunal’s decision and the application for judicial review both arise in the original jurisdiction of this Court, on 16 February 2005 the Chief Justice made a direction pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth) that the jurisdiction of the Court in these proceedings would be exercised by a Full Court.

  2. The Tribunal determined that the applicant be disqualified from practice as a doctor for one year, that he be disqualified from providing certain Medicare services for two years, that he…

Continue reading Tisdall v Blazow

Sign in free to access the full text

Details
AGLC
Tisdall v Blazow [2005] FCAFC 190
Case
[2005] FCAFC 190
Decision Date

CaseChat Overview and Summary

In the case of Tisdall v Blazow, the applicant contested the decision made by the Committee, particularly focusing on the allegation that the Tribunal failed to consider the applicant's usual practice in their ruling. The matter was heard and determined by the court. The applicant argued that the Committee's reliance on the applicant’s evidence about their usual practice was erroneous, as no such evidence was provided. However, the court clarified that the applicant did indeed provide evidence regarding their usual practice, and the argument suggesting otherwise misinterprets the Committee's reference to the applicant’s practice as it "ought to have been."

The central legal issue before the court was whether the Tribunal had correctly applied the applicant's usual practice in its decision-making process. The court examined the applicant's submissions and found that the applicant's evidence about their usual practice was relevant and had been considered by the Committee. The applicant's contention that the Committee misunderstood their practice was deemed unfounded, as the reference to the applicant’s practice as it "ought to have been" was clearly intended to reflect their usual practice. The court concluded that there was no legal error in the Committee's consideration of the applicant's usual practice.

Given the court's determination that the appeal and application were without merit, the court dismissed both the appeal and the application. Additionally, the court ordered that the applicant pay the respondents' costs of the proceeding. The court also granted leave to the first respondent to apply for an alternative basis for awarding costs, with specified deadlines for filing and serving any such application and related submissions. The final orders included the dismissal of the appeal and application, an order for the applicant to pay the respondents' costs, and detailed procedural requirements for any application for a different basis for awarding costs.

Orders

Orders of the court

1. The appeal and application are dismissed.

2. The applicant is to pay the respondents’ costs of the proceeding.

3. (a) Leave is granted to the first respondent to file an application for an order that costs be awarded on a basis other than a party and party basis.

(b) Any such application is to be filed and served by 14 September 2005.

(c) The first respondent is to file and serve a brief written submission in support of any such application by 15 September 2005.

(d) The applicant is to file and serve a brief written submission in response to any such application by 21 September 2005.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant submitted that the Committee erred at [43] by basing its decision on the applicant’s evidence of what his practice ought to have been, whilst the applicant gave no such evidence. This argument does not address the ground of appeal which alleged that the Tribunal failed to take into account the Applicant’s usual practice. Nevertheless, we will address the argument raised. There is no doubt that the applicant gave evidence of his usual practice. The contention that the applicant gave no evidence about what his practice “ought to have been” depends on reading what the applicant’s practice “ought to have been” at [42] as referring to something different from the applicant’s “‘usual’ practice” referred to at [41] and [43]. Such a reading is not warranted. All three paragraphs deal with the same matter, namely, the applicant’s reconstruction of his clinical input by reference to his usual practice for a particular type of consultation. The practice as it “ought to have been” referred to at [42] is meant by the Committee to refer to the applicant’s “‘usual’ practice” as is referred to at [41] and [43]. There was no legal error on this issue. CONCLUSION It follows that the appeal and the application must be dismissed. On the basis that costs normally follow the event, we will order that the applicant pay the respondent’s costs of the proceeding. Should the first respondent wish to argue that costs be awarded on any basis other than a party and party basis, leave is granted to the first respondent to file and serve such an application by 14 September 2005 and to file and serve brief written submissions by 15 September 2005. In the event that the first respondent does adopt that course, the applicant should file and serve brief written submissions in response by 21 September 2005.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.