Tisdall v Webber

Case [2010] FCA 501

FEDERAL COURT OF AUSTRALIA

Tisdall v Webber [2010] FCA 501

Citation: Tisdall v Webber [2010] FCA 501
Parties: PETER THOMAS TISDALL v DR TONY WEBBER, GWEN ASTEN, TIM FLANAGAN, PAUL HANSON, MEDICARE AUSTRALIA and DETERMINING AUTHORITY
File number(s): VID 580 of 2009
Judge: RYAN J
Date of judgment: 26 May 2010
Date of hearing: 15 March 2010
Place: Melbourne
Division: GENERAL DIVISION
Category: No Catchwords
Number of paragraphs: 31
Counsel for the Applicant: Dr J Bleechmore
Solicitor for the Applicant: Coulter Roache Lawyers
Counsel for the Respondents: Ms R M Henderson
Solicitor for the Respondents: Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 580 of 2009
BETWEEN:

PETER THOMAS TISDALL
Applicant
AND:

DR TONY WEBBER
First Respondent

GWEN ASTEN
Second Respondent

TIM FLANAGAN
Third Respondent

PAUL HANSON
Fourth Respondent

MEDICARE AUSTRALIA
Fifth Respondent

DETERMINING AUTHORITY
Sixth Respondent

JUDGE:

RYAN J

DATE OF ORDER:

26 MAY 2010

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The amended application filed 28 August 2009 be dismissed.

2.The applicant file and serve, by 4 June 2010, written submissions as to the orders which he contends should be made in respect of the costs of the application.

3.The respondents file and serve, by 4 June 2010, written submissions as to the orders which they contend should be made in respect of the costs of the application.

4.The applicant file and serve, by 18 June 2010, written submissions in reply on the question of costs.

5.Liberty to apply on not less than three days’ notice in writing to the other party be reserved to each party.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 580 of 2009
BETWEEN:

PETER THOMAS TISDALL
Applicant
AND:

DR TONY WEBBER
First Respondent

GWEN ASTEN
Second Respondent

TIM FLANAGAN
Third Respondent

PAUL HANSON
Fourth Respondent

MEDICARE AUSTRALIA
Fifth Respondent

DETERMINING AUTHORITY
Sixth Respondent

JUDGE:

RYAN J

DATE:

26 MAY 2010

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. “Inappropriate practice” by a general medical practitioner may be constituted by, amongst other things, the practitioner’s provision of 80 or more services on 20 or more days during a 12-month period. This is known as the “80/20 rule”, and is the effect of s 106KA of the Health Insurance Act 1973 (Cth) (“the Act”), read with Reg 10 of the Health Insurance (Professional Services Review) Regulations 1999 (Cth) (“the Regulations”). Dr Peter Tisdall, the applicant now before the Court, was found to have engaged in inappropriate practice of that kind. That finding was made in the final report, dated 9 July 2009, of Professional Services Review Committee Number 325, which found, first, that Dr Tisdall, in relation to his rendering of professional services between 5 January and 21 August 2000, had engaged in inappropriate practice and that, secondly, that there were no exceptional circumstances…

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Tisdall v Webber [2010] FCA 501
Case
[2010] FCA 501
Decision Date

CaseChat Overview and Summary

In the case of Tisdall v Webber, Dr. Tisdall sought judicial review of a decision made by a Committee appointed under the Health Insurance Act 1973 (Cth). Dr. Tisdall argued that the Committee erred in its interpretation of "exceptional circumstances" under s 106KA(2) of the Act, which led to an incorrect finding that no such circumstances existed during the period in which he allegedly breached the "80/20 rule". The case was ultimately dismissed by the Court, which held that the Committee had not made any legal errors in its interpretation of the term "exceptional circumstances".

The central legal issue in this case was whether the Committee had properly understood and applied the term "exceptional circumstances" in s 106KA(2) of the Act. Dr. Tisdall contended that the Committee had failed to appreciate the true meaning of this phrase, leading to an incorrect finding that no exceptional circumstances existed during the relevant period. The Court was required to determine whether the Committee's interpretation of "exceptional circumstances" was legally sound and whether any errors had been made in the application of this concept.

In dismissing the application, the Court held that the Committee had correctly interpreted and applied the term "exceptional circumstances" under s 106KA(2) of the Act. The Court found that the Committee had carefully considered each of the circumstances put forward by Dr. Tisdall as "exceptional" and had concluded that they were not exceptional for reasons unrelated to their episodic or intermittent nature. The Court also held that it was not necessary for the Committee to examine every possible combination of patient characteristics to reach its conclusion, as Dr. Tisdall had not claimed that his practice consisted entirely of a specific group of patients with particular needs.

In light of the above findings, the Court dismissed the amended application and ordered the parties to file further written submissions on the issue of costs. The Court reserved the right to grant liberty to apply for costs on at least three days' written notice to the other party for each party.

Orders

Orders of the court

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Background

Background to the litigation

Before this Court, Dr Tisdall’s primary contention was that the Committee had failed properly to understand and to apply what is meant by “exceptional circumstances” as that phrase appears in s 106KA(2) of the Act. Consequently, he contended, the Committee’s decision is affected by legal error so as to entitle him to the relief outlined above. Before moving to analyse whether that is so, it is convenient to set out the somewhat convoluted factual and procedural background to the application.Factual and procedural background Section 86 of the Act, as it was in force at the relevant time, conferred on the Health Insurance Commission (“the Commission”) a power to make an investigative referral to the Director appointed pursuant to Pt VAA, Div 2 of the Act. The Commission acted under that power by issuing such a referral, dated 13 December 2001. The Director, performing his investigative function under s 89 of the Act, had invited Dr Tisdall to make submissions about what course the Director ought take. By his submissions dated 4 January 2002, Dr Tisdall sought to persuade the Director to dismiss the investigative referral (as the Director is empowered to do by s 91 of the Act). The Director was not persuaded to do so. Acting under s 93(1) of the Act, the Director then made an adjudicative referral, which was dated 14 February 2002, establishing Committee 325 (“the First Committee”) and referring to it the investigation of the matters specified in the investigative referral. On 5 June 2002, the First Committee held its hearing. Having provided a draft report to Dr Tisdall for his comment, the First Committee published its final report on 23 January 2003. On 19 February 2003, Dr Tisdall commenced proceedings in the Federal Magistrates Court; those proceedings were then transferred to this Court, and came on for hearing before Gray J on 19 October 2004. Dr Tisdall’s case before his Honour was substantially the same as his case before me: namely that the Committee (the First Committee before Gray J, and, as shall appear, the Second Committee before me) had erred in its finding that there were no exceptional circumstances in the period in which he was said to have breached the “80/20 rule” and that had the concept of “exceptional circumstances” been properly applied, the First Committee should have found that circumstances of that type had obtained at the relevant time. Dr Tisdall then, as now, attacked the findings of the First Committee insofar as it had accepted, generally, his submissions as to factual matters pertaining to the general circumstances of his practice, but had declined to accept that those matters amounted to “exceptional circumstances” in the relevant sense. By his decision of 8 April 2005, Tisdall v Kelly (2005) 219 ALR 152, Gray J accepted the First Committee’s reasoning as to the lack of exceptional circumstances. His Honour expressed his conclusion on the issue at 172-4 of that report, where the following key passages occur;… I am of the view that PSRC 325 did not fall into error in the present case in adopting the view that it adopted about the meaning of “exceptional circumstances”. In my view, PSRC 325 was correct in the conclusions it reached. It then proceeded to apply its view to the circumstances that the applicant had advanced as exceptional. It accepted that there was an on-going shortage of doctors in the Kyabram district and found that this was common in rural and some urban areas and not unique to Kyabram. It referred to the fact that other doctors in town had been able to make practice management decisions that did not involve them seeing the same large number of patients as the applicant. It believed that the applicant was similarly capable of limiting his patient numbers had he wished to do so. It referred to the fact that he had mentioned closing his books, but had not in fact done so. It did not accept that a shortage of doctors was exceptional on the facts of the case, because the applicant could have limited his patient numbers through more effective practice management. In addition, it took the view that the shortage was not an exceptional occurrence on particular days.…This examination of PSRC 325’s approach to the issues raised by the applicant as exceptional circumstances makes it clear that, in this respect, PSRC 325’s report was not tainted by any error of law. Even if it took the wrong view about the meaning of reg 11(b) of the 1999 regulations (and I do not accept that it did), PSRC 325 still looked in detail at every circumstance put forward by the applicant as an exceptional circumstance. In the case of those which were on-going circumstances, PSRC 325 found first, in each case, that the circumstance was not exceptional for reasons other than its on-going nature, and added as an additional reason that the circumstance was of a long-standing nature. In other words, in each case, PSRC 325 found as a fact that the circumstances advanced were not exceptional without resort to its view that exceptional circumstances were most likely to be episodic or intermittent. Only when it had reached the conclusion that, for reasons other than this view, the circumstances concerned were not exceptional, did it then turn to the fact that the circumstances were not episodic or intermittent. In the case of each circumstance advanced, the findings of PSRC 325 were capable of standing quite apart from its view based on considerations of time. Those findings of fact cannot be overturned in this court. They are not tainted by any error of law.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Second Committee took a similar approach in par 51 of its reasons when it examined another cohort of patients claimed to have collectively a particular characteristic, namely, those of Aboriginal, Turkish or Italian ethnicity, towards whom Dr Tisdall showed a special empathy. As appears expressly from par 51 of the Second Committee’s reasons, it did consider that postulated cohort of patients cumulatively with the different cohort characterised by its need or preference for bulk-billing. Nevertheless, it remains clear that, however the characteristics of any particular group of patients might have been accumulated, the Second Committee found itself unable to be satisfied that the needs of that group had contributed to an excess above 80 of services rendered by Dr Tisdall on a particular day. It was not incumbent on the Second Committee to exclude as having contributed to each relevant excess every possible combination of the characteristics of his patients which had been propounded by Dr Tisdall. As Ms Henderson submitted;Had the application claimed that his practice consisted entirely of Turkish patients of lower socio-economic status who required psychiatric counselling, it might have been appropriate for the Tribunal to consider all of those matters cumulatively. He did not make such a claim, so it was appropriate for the Committee to consider separately each of the individual factors that the applicant raised in support of his argument that his circumstances fell within reg 11.I indicate parenthetically that it is far from obvious that, had each possible combination of the suggested characteristics been examined, the factual conclusion reached by the Second Committee would have been different. In any case, that was a matter for the Second Committee and not this Court. Conclusion For the reasons which I have endeavoured to explain, I am unable to perceive in the Second Committee’s final report any of the errors of law for which Counsel for Dr Tisdall has contended. It follows that the declarations sought in the amended application should not be made and that the consequential relief is unavailable. Given the nature of the case, I shall receive further written submissions from each party on the issue of costs. The orders of the Court will be: 1. The amended application filed 28 August 2009 be dismissed. 2.The applicant file and serve, by 4 June 2010, written submissions as to the orders which he contends should be made in respect of the costs of the application.3.The respondents file and serve, by 4 June 2010, written submissions as to the orders which they contend should be made in respect of the costs of the application.4.The applicant file and serve, by 18 June 2010, written submissions in reply on the question of costs.5.Liberty to apply on not less than three days’ notice in writing to the other party be reserved to each party.

Ratio Decidendi

Legal Principle Established

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