Tisdall v Kelly

Case [2005] FCA 365

FEDERAL COURT OF AUSTRALIA

Tisdall v Kelly [2005] FCA 365

HEALTH LAW – medical practitioners – Professional Services Review Scheme – investigative referral – adjudicative referral – finding of ‘inappropriate practice’ on the basis of breach of 80/20 rule – whether Acting Director of Professional Services Review and Professional Services Review Committee failed to ascertain which services rendered by applicant fell within terms of referrals – whether services rendered within specified location – whether committee obliged to exercise investigative powers – whether committee correctly construed and applied meaning of ‘exceptional circumstances’ – whether exceptional circumstances may be circumstances of an on-going nature – whether denial of procedural fairness – whether Acting Director obliged to notify applicant of his opinion that an agreement to resolve matter should only be entered into if applicant initiated discussions and acknowledged inappropriate practice

WORDS AND PHRASES – ‘exceptional circumstances’

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 11, 5
Federal Magistrates Act 1999 (Cth) s 39
Health Insurance Act 1973 (Cth) ss 10(1), 10(2), 19(6), 20(1), 20A, 80, 81(1), 82, 83(1), 86(1)(a), 86(4), 87(1), 88, 89, 89B, 91, 92, 93(6), 93(7), 94, 95(1), 95(2), 95(5), 101(2), 103, 104, 105A, 106(2), 106H(1), 106KA, 106KD, 106L, 106Q, 106T, 106U, 106TA, 93(1),
Health Insurance Amendment (Professional Services Review) Act 1999 (Cth)
Migration Act 1958 (Cth) s 427(1)(d)
Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB, 46(1)(b)
Health Insurance Regulations 1975 (Cth) reg 13
Health Insurance (1999-2000 General Medical Services Table) Regulations 1999 (Cth)
Health Insurance (Professional Services Review) Regulations 1999 (Cth) regs 10, 11

Daniel v Kelly [2003] FCA 772 (2003) 200 ALR 379 distinguished
Kelly v Daniel [2004] FCAFC 14 (2004) 139 FCR 64 distinguished
Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 (2001) 106 FCR 426 cited
Kabir v Minister for Immigration & Multicultural Affairs [2001] FCA 248 (2001) 184 ALR 295 cited
R v Alley; Ex parte New South Wales Plumbers and Gas Fitters Employees’ Union (1981) 153 CLR 376 cited
Hatcher v Cohn [2004] FCA 1548 not followed
Oreb v Willcock [2004] FCA 1520 discussed
Lee v Kelly [2005] FCA 26 discussed
Lee v Grigor [2005] FCA 25 not followed
Crowley v Holmes [2004] FCA 521 not followed
Dimian v Health Insurance Commission [2004] FCA 1615 not followed
Selim v Lele [2005] FCA 24 not followed

DR PETER THOMAS TISDALL v DR BERNARD RAYMOND KELLY (AS ACTING DIRECTOR OF PROFESSIONAL SERVICES REVIEW), DR LYNETTE EDWARDS (AS CHAIRPERSON OF PROFESSIONAL SERVICES REVIEW COMMITTEE NO. 325), DR JOHN TURNBALL (AS A MEMBER OF PROFESSIONAL SERVICES REVIEW COMMITTEE NO. 325, DR GEOFF MACFARLANE (AS A MEMBER OF PROFESSIONAL SERVICES REVIEW COMMITTEE NO. 325) AND THE DETERMINING AUTHORITY (ESTABLISHED PURSUANT TO SECTION 106Q OF THE HEALTH INSURANCE ACT 1973)
V 322 of 2003

GRAY J
8 APRIL 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 322 of 2003

BETWEEN:

DR PETER THOMAS TISDALL
APPLICANT

AND:

DR BERNARD RAYMOND KELLY (AS ACTING DIRECTOR OF PROFESSIONAL SERVICES REVIEW)
FIRST RESPONDENT

DR LYNETTE…

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AGLC
Tisdall v Kelly [2005] FCA 365
Case
[2005] FCA 365
Decision Date

CaseChat Overview and Summary

The applicant, Dr Peter Thomas Tisdall, sought judicial review of a decision made by the Acting Director to refer his case to a Professional Services Review Committee (PSRC) for review. This referral was based on an investigative referral from the Health Insurance Commission (HIC) alleging that Dr Tisdall had rendered a prescribed pattern of services, amounting to a pattern of inappropriate practice. The applicant also sought to challenge the final report of the PSRC, which found that he had engaged in inappropriate practice and recommended certain disciplinary actions. The primary legal issues in this case were whether the applicant had standing to challenge the Acting Director's decision to refer his case to the PSRC and whether the applicant could seek judicial review of the PSRC's final report. Additionally, the court had to consider whether the applicant could apply out of time to challenge the Acting Director's decision.

The Federal Court found that the applicant did not have standing to challenge the Acting Director's decision to refer his case to the PSRC, as he had not suffered or was likely to suffer any special injury as a result of that decision. The court also held that the applicant could not seek judicial review of the PSRC's final report, as the report was not a decision made under an enactment, and therefore not subject to judicial review under the ADJR Act. Furthermore, the court found that the applicant could not apply out of time to challenge the Acting Director's decision, as he had not demonstrated any sufficient reason for the delay in making the application.

As a result, the applicant's application for judicial review was dismissed. The court ordered that the applicant pay the respondent's costs of the proceeding. This decision highlights the importance of timely legal action and the need for applicants to demonstrate sufficient reason for any delay in seeking judicial review.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the application.

Background

Background to the litigation

Section 106Q establishes the Determining Authority. By s 106T, if a PSR Committee’s final report contains a finding that a person has engaged in inappropriate practice, the Determining Authority must, within one month, make a draft determination in accordance with s 106U and give copies of it to the person under review and to the Director. There is then a period of 14 days during which the person under review may make written submissions, suggesting changes to any directions in the draft determination. Pursuant to s 106TA, within one month after the end of the 14-day period, and after taking into account any submissions, the Determining Authority must make a final determination in accordance with s 106U. Section 106U requires a draft determination or a final determination to contain one or more of a number of directions. These may involve reprimand of the person under review, counselling of the person under review, withholding of medicare benefit, repayment of medicare benefit already paid, or disqualification, either wholly or in respect of some services, some persons or classes of persons, or some locations. Disqualification can be for up to three years. The facts By instrument dated 19 December 2001, the HIC provided an investigative referral to the Acting Director, in respect of the applicant. As to the services referred, the investigative referral said:‘Pursuant to subsection 87(1) of the Act, this Investigative Referral relates to all services rendered by Dr Peter Thomas Tisdall which were rendered:i. within specific location or locations, namely:Private Consulting Rooms Rodney Chambers 178/D Allan Street KYABRAM VICTORIA 3620; andii. within a specified period, namely on and from 5 January 2000 to andincluding 21 August 2000 (the referral period).’ The investigative referral made it clear that there was evidence that some of the applicant’s professional attendances constituted a prescribed pattern of services for the purposes of s 106KA of the Health Insurance Act and reg 10 of the 1999 Regulations. In particular, it was suggested that the Commission’s records for professional attendances rendered by the applicant during the referral period showed that he rendered 80 or more professional attendances per day on 66 occasions on and from 5 January 2000 to and including 21 August 2000. It may be noted that the referral period chosen was shorter than the maximum twelve-month period allowed by reg 10. By letter dated 20 December 2001, the Director notified the applicant of the investigative referral. The letter referred to the Director’s obligation to carry out an investigation of the referral. It continued:‘Following the investigation, I have the option to:· dismiss the referral for the reasons set out in section 91 of the Act,· enter into an agreement with you as set out in section 92 of the Act, or· refer the matter to a Professional Services Review Committee as set out insection 93 of the Act.’ The letter also invited submissions from the applicant within 14 days. The Commission also sent a notice, dated 19 December 2001, to the applicant, inviting submissions to the Director within 14 days. The applicant made submissions, by letter from his then solicitors, dated 4 January 2002. The letter invited dismissal of the investigative referral, pursuant to s 91 of the Health Insurance Act. It relied heavily on the proposition that all of the referred services were rendered or initiated under exceptional circumstances, within the meaning of reg 11 of the 1999 Regulations. It described the circumstances of the applicant’s practice in Kyabram in some detail. The submissions suggested that the applicant expected to be able to provide further material in support of his submission from a number of people, including the Chief Executive Officer of the Kyabram Hospital.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
As I have said, this ground was raised at a late stage in the proceeding’s history. The applicant would require an order pursuant to s 11(1)(c) of the ADJR Act, to give him the right to apply out of time in relation to the decision of the Acting Director to make an adjudicative referral. Because the applicant cannot succeed on that ground, there is no point in giving leave for him to raise it. Conclusion The applicant has therefore failed in respect of each of the three grounds he raised, or sought to raise, in relation to the report of PSRC 325. Because the grounds on which he proposed to attack the adjudicative referral of the Acting Director cannot be sustained, there is no occasion for enlarging the time limit to enable him to make an application to challenge that decision. His application must be dismissed. No reason was advanced, and none appears, for departing from the usual rule that costs follow the event. The applicant will therefore be ordered to pay the respondent’s costs of the proceeding.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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