Yoong v The Chief Executive of Medicare
[2021] FCA 701
•25 June 2021
FEDERAL COURT OF AUSTRALIA
Yoong v The Chief Executive of Medicare [2021] FCA 701
File number: QUD 443 of 2019 Judgment of: RANGIAH J Date of judgment: 25 June 2021 Catchwords: ADMINISTRATIVE LAW – Health Insurance Act 1973 (Cth) – application for judicial review of exercise of power by Chief Executive’s delegate under s 86(1) and by Director under s 88A(2) – whether decisions reviewable under Administrative Decisions Judicial Review Act 1977 (Cth) s 5 and Judiciary Act 1903 (Cth) s 39B – whether certiorari available – whether procedural fairness requirement applied to exercises of power – whether delegate failed to provide procedural fairness – materiality of failure – whether decision-makers failed to take account of mandatory relevant considerations – whether decision-makers took account of irrelevant considerations – whether exercise of power legally unreasonable – grounds of application dismissed – applicant to pay costs Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5 and 6
Health Insurance Act 1973 (Cth) ss 3, 6, 79A, 80, 81, 82, 86, 87, 88A, 89, 89C, 91, 92, 93, 94, 101, 102, 103, 106H, 106KD, 106KE, 106L, 106QB, 106R,106RB, 106S, 106SA, 106T, 106TA, 106U, 106UA and 106ZPM
Health Insurance Amendment (Professional Services Review and Other Matters)Act 2002 (Cth) s 30
Health Insurance Amendment (Professional Services Review) Act 2012 (Cth) s 86
Human Services (Medicare) Regulation 2017 (Cth) reg 27(1)(b)
Judiciary Act 1903 (Cth) s 39B
Health Insurance Commission Regulations 1975 (Cth) (Repealed) reg 3(2)(b)
Legal Profession Act 2004 (Vic)
Cases cited: Adams v Yung (1998) 83 FCR 248
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Annetts v McCann (1990) 170 CLR 596
AustralianBroadcasting Tribunal v Bond (1990) 170 CLR 321
Byrne v Marles (2008) 19 VR 612
Daniel v Kelly (2003) 200 ALR 379
Eastman v Australian Capital Territory (2008) 163 ACTR 14
Edelsten v Health Insurance Commission (1990) 27 FCR 56
George v Rockett (1990) 170 CLR 104
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Kelly v Daniel (2004) 134 FCR 64
M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Minister forAboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister of Immigration and Border Protection v SZVFW (2017) 248 FCR 1
National Home Doctor Service Pty Ltd v Director of Professional Services Review (2020) 276 FCR 338
Phan v Kelly (2007) 158 FCR 75
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
South Australia v O’Shea (1987) 163 CLR 378
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZTDD v Minister of Immigration and Border Protection [2016] FCA 136
Yung v Adams (1997) 80 FCR 453
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 180 Date of hearing: 15 December 2020 and 2 February 2021 Counsel for the Applicant: Mr D O’Brien QC with Ms L Clark Solicitor for the Applicant: MinterEllison Counsel for the First Respondent: Mr G del Villar QC with Ms J MacDonald Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr AG Psaltis with Mr D Freeburn Solicitor for the Second Respondent: Clayton Utz ORDERS
QUD 443 of 2019 BETWEEN: MATTHEW YOONG
Applicant
AND: THE CHIEF EXECUTIVE OF MEDICARE
First Respondent
DIRECTOR, PROFESSIONAL SERVICES REVIEW
Second Respondent
ORDER MADE BY:
RANGIAH J
DATE OF ORDER:
25 JUNE 2021
THE COURT ORDERS THAT:
1.The proceeding is dismissed.
2.The applicant pay the first respondent’s costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
The facts
[9]
The legislation
[37]
Ground 1: Denial of procedural fairness
[46]
The Submissions
[48]
Whether the Chief Executive is under an obligation to provide procedural fairness when making a request that the Director review the provision of services
[59]
Whether Dr Yoong was provided with a reasonable opportunity to make submissions
[112]
Ground 2: Improper exercise of power
[125]
Irrelevant and relevant considerations
[129]
Unreasonableness
[142]
Reviewability under the ADJR Act
[152]
Reviewability under the Judiciary Act
[167]
Summary
[175]
RANGIAH J:
The applicant, Dr Matthew Yoong, is a medical practitioner who operates a general practice in Brisbane.
On 15 April 2019, a delegate of the first respondent, the Chief Executive of Medicare (the Chief Executive), requested that the second respondent, the Director, Professional Services Review (the Director), review the provision of services by Dr Yoong for the purpose of considering whether he may have engaged in inappropriate practice. On 30 April 2019, the Director decided to undertake the review.
Dr Yoong applies under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s 39B of the Judiciary Act 1903 (Cth) for judicial review of the decisions of the Chief Executive and the Director.
Dr Yoong also applies for judicial review of a further decision of the Director made on 21 May 2019 to issue a notice to produce documents.
The Director has made submissions, but has abided by the Hardiman principle. The Chief Executive has actively opposed the application.
The grounds of the application are that Dr Yoong was denied procedural fairness, that the respondents failed to take into account relevant considerations and took into account irrelevant considerations, and that the decisions were unreasonable.
The submissions of the parties make it necessary to consider:
(1)Whether the making of the Chief Executive’s request under s 86(1) of the Health Insurance Act 1973 (Cth) (the HI Act) that the Director conduct a review is a decision reviewable under the ADJR Act, and whether it is susceptible to a grant of certiorari.
(2)Whether the exercise of that power is conditioned upon the provision of procedural fairness.
(3)Whether there was a failure to provide procedural fairness, and whether any such failure was material.
(4)Whether the Chief Executive and the Director failed to take into account relevant considerations, or took into account irrelevant considerations.
(5)Whether the Chief Executive’s exercise of power was legally unreasonable.
Although the first of these issues naturally falls for consideration first, the parties commenced their addresses with, and focussed upon, the second and third issues. As a matter of convenience, I will follow the same order. Before addressing the issues, I will describe the relevant facts and legislation.
The facts
On 7 August 2017, a representative of the Chief Executive, Dr Peter Baker, wrote to Dr Yoong offering him the opportunity to meet to discuss three particularised “concerns” about specific MBS Items. The letter stated that, “given your variance to peers in the rate and pattern of itemisation of these services, there is concern as to whether all MBS Item requirements were met for every service, and whether each service was clinically relevant”.
On 12 October 2017, Dr Yoong attended an interview with Dr Baker. On 31 October 2017, Dr Baker wrote to Dr Yoong indicating that he retained his concerns.
On 5 July 2018, Dr Baker wrote to Dr Yoong stating that a delegate of the Chief Executive would be reviewing Dr Yoong’s Medicare servicing and would determine if a request would be made to the Director to review the provision of services.
On 19 February 2019, the Chief Executive’s delegate, Dr Amanda Favilla (the delegate), wrote to Dr Yoong setting out her concerns and inviting Dr Yoong to provide written submissions in response.
Dr Yoong provided written submissions on 1 April 2019. He submitted, inter alia, that the concerns were based upon misuse of statistical data and that the use of statistics as a basis for the concerns was flawed. He complained that the delegate had failed to provide information he had requested about how the statistical processes, data sets and calculations were applied to arrive at her conclusions. He stated that the failure to provide that information had adversely affected his ability to make submissions. Dr Yoong said that the delegate had not considered his interview with Dr Baker in relation to his clinical practice.
On 15 April 2019, the Chief Executive, through her delegate, exercised the power under s 86(1) of the HI Act to request that the Director review Dr Yoong’s provision of services in the period from 1 May 2017 to 30 April 2018 for the purpose of considering whether he may have engaged in inappropriate practice.
The Chief Executive’s letter of request to the Director referred to three “concerns”, described as “Concern A”, “Concern B” and “Concern C”. These concerns were generally consistent with the concerns expressed in the previous correspondence to Dr Yoong.
The Chief Executive’s letter referred to “percentiles”. These percentiles ranked the number of services provided by Dr Yoong against the numbers provided by all general practitioners active under Medicare for the period from 1 January 2017 to 31 December 2017.
The letter stated that during the review period, Dr Yoong had rendered 4,759 services (within the 53rd percentile) to 857 patients (within the 23rd percentile).
Concern A dealt with the level of services provided by Dr Yoong to patients under MBS Items 36, 44, 5040 and 5060. The letter went on to note that Dr Yoong had provided:
·Item 36 on 1,830 occasions (97th percentile);
·Item 44 on 516 occasions (99th percentile);
·Item 5040 on 152 occasions (95th percentile); and
·Item 5060 on 67 occasions (99th percentile).
The letter expressed the reason for concern as being that Dr Yoong was at variance with his peers in respect of these Items.
The letter noted that Dr Yoong’s submissions had explained that since 1996, he worked as a solo general practitioner, full-time, five days a week in Brisbane’s central business district. Dr Yoong had explained that those consultations which had taken 20 or 40 minutes reflected the time required to take a thorough history, perform an examination, make a diagnosis, decide on investigations and referrals, determine a treatment plan and discuss his conclusions and management plan with the patient. His consultations also included the provision of counselling and advice to the patient with their friends and family present. Dr Yoong had explained that he would provide after-hours appointments if patients were not able to attend during work hours. He referred to his practice being consistent with a 2017 MBS Review Task Force recommendation.
The Chief Executive’s letter went on to set out a table comparing “Dr Yoong’s ratios” with the corresponding “national ratios”. The “ratios” compared the proportion of services provided under particular Items. These comparisons were as follows:
·for Item 23 compared to Item 36, Dr Yoong’s ratio was 0.45:1, compared to a national ratio of 5:1;
·for Item 36 compared to Item 44, Dr Yoong’s ratio was 3.5:1, compared to a national ratio of 10.8:1;
·for Item 23 compared to Item 44, Dr Yoong’s ratio was 1.6:1, compared to a national ratio of 54.3:1;
·for Item 5020 compared to Item 5040, Dr Yoong’s ratio was 0.1:1, compared to a national ratio of 7.4:1;
·for Item 5040 compared to Item 5060, Dr Yoong’s ratio was 2.3:1, compared to a national ratio of 12.9:1;
·for Item 5020 compared to Item 5060, Dr Yoong’s ratio was 0.2:1, compared to a national ratio of 96.4:1.
The letter commented that approximately 75% of Dr Yoong’s patients were provided with a service under Item 36 and that these patients were provided with an average of three services each under Item 36. Approximately 33% of all patients had a service under Item 44 and on average were provided with two services each under Item 44.
The letter observed that some features of Dr Yoong’s patient population and the nature of health problems he encountered went some way to explaining his rendering of Items 36, 44, 5040 and 5060. The letter stated that Dr Yoong manages a relatively low number of patients, yet the volumes of the Items of concern when compared to other general practitioners appeared disproportionate. His ratios of these Items were also at variance with the proportion of the Items as a national average.
The letter stated that the delegate had concerns about whether or not Item descriptors, including the time requirements of those Items, were in fact met. She also had concerns that Dr Yoong may have rendered some services that were not clinically relevant.
Concern B related to MBS Item 2713, which dealt with GP mental health care. The letter stated that during the review period, Dr Yoong rendered MBS Item 2713 services on 658 occasions (within the 99th percentile) to 211 patients. The letter noted that Dr Yoong had commented that consultations with patients in relation to mental health disorders can take 20 minutes, that he would spend the appropriate amount of time with patients and that doing so obviated the need for a series of short consultations.
The Chief Executive’s letter said that Dr Yoong’s total number of patients was in the 23rd percentile, but Item 2713 was rendered on 658 occasions (99th percentile) to 211 patients. A quarter of his patients were rendered an Item 2713 service. The letter said that the nature of Dr Yoong’s practice did not fully explain his variance to peers with respect to services under Item 2713.
The letter said that the services under Item 2713 appeared disproportionately high when compared to the volume of total patients. The delegate had concerns that Dr Yoong may have rendered some services that were not clinically relevant, or which did not fulfil Item requirements.
Concern C related to MBS Items 56022, 58909, 56223 and 56507. These Items dealt with diagnostic imaging.
The letter noted that within the review period, Dr Yoong initiated:
·Item 56022 on 26 occasions (99th percentile);
·Item 58909 on 25 occasions (99th percentile);
·Item 56223 on 23 occasions (87th percentile);
·Item 56507 on 23 occasions (94th percentile).
The letter said that Dr Yoong was at variance with his peers with respect to these Items. It was noted that Dr Yoong had explained that it was his role to determine if an investigation was necessary in order to make a diagnosis to determine or change the patient’s treatment. Dr Yoong said that the specialists to whom he referred patients agreed that his referrals were appropriate.
The letter stated that the delegate’s concern was not only in regard to the percentile rankings, but also in regard to Dr Yoong’s overall use of CT scan Items. Having regard to the level of variance with his peers, the delegate was concerned that Dr Yoong may have initiated some diagnostic imaging services that were not clinically relevant.
By a letter dated 30 April 2019, the Director informed Dr Yoong that she had received a request from the Chief Executive to review Dr Yoong’s provision of services for the period from 1 May 2017 to 30 April 2018. The Director advised that it appeared to her that there was a possibility that Dr Yoong had engaged in inappropriate practice. The letter notified Dr Yoong that the Director had decided to undertake a review into his provision of those services. The Director’s letter went on to outline the concerns that had been raised by the Chief Executive.
On 21 May 2019, the Director wrote to Dr Yoong enclosing a formal notice to produce documents in accordance with s 89B of the HI Act.
On 23 July 2019, the Director wrote to Dr Yoong noting that Dr Yoong had received a notice to produce documents on 22 May 2019 and that he had been subsequently provided with two extensions of time to produce the documents, but that he had not complied with the notice. The Director noted that, as provided for in s 106ZPM of the HI Act, Medicare benefits would not be payable for services rendered or initiated by Dr Yoong.
It should be noted that on 25 July 2019, upon the provision of certain undertakings by Dr Yoong, I made orders that the decisions of the Director to undertake the review and to issue the notice to produce be stayed until further order of the Court; that the Chief Executive be restrained from taking any steps pursuant to or consequent upon the notice to produce until further order of the Court; and that the decision pursuant to s 106ZPM of the HI Act be set aside.
The progress of the matter was delayed. The matter was initially set down for hearing on 23 and 24 March 2020. Following the outbreak of the pandemic, the parties requested that the hearing be adjourned. The hearing commenced on 15 December 2020, but failed to finish within the estimated time and was eventually completed on 2 February 2021.
The legislation
The HI Act provides, inter alia, for the calculation and payment of Medicare benefits for medical and other services.
Part VAA of the HI Act establishes a Professional Services Review Scheme (the PSR Scheme).
The objects of the PSR Scheme are described in s 79A of the HI Act:
The object of this Part is to protect the integrity of the Commonwealth medicare benefits, dental benefits and pharmaceutical benefits programs and, in doing so:
(a)protect patients and the community in general from the risks associated with inappropriate practice; and
(b)protect the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice.
The PSR Scheme is concerned with “inappropriate practice” by “practitioners”. Under s 81 of the HI Act, “practitioners” include medical practitioners.
In respect of general practitioners, “inappropriate practice” is defined in s 82 of the HI Act to mean, “conduct in connection with rendering or initiating services…such that a Committee could reasonably conclude that … the conduct would be unacceptable to the general body of general practitioners”.
In National Home Doctor Service Pty Ltd v Director of Professional Services Review (2020) 276 FCR 338 (NHDS), Griffiths J observed that the PSR Scheme has four tiers, each tier providing for decisions to be made by different administrative decision-makers. Those tiers are as follows:
(a)Tier 1—a request by the Chief Executive to the Director to review the provision of services: Div 3, ss 86–87;
(b)Tier 2—a decision by the Director as to whether or not to undertake the review, the undertaking of any review, and then a decision as to whether to take no further action, enter into an agreement, or make a referral to a Committee: Div 3A, ss 88–94;
(c)Tier 3—a referral by the Director to a Committee to investigate whether the person engaged in inappropriate practice, and investigation by the Committee: Divs 3A and 4, ss 93 and 95–106N;
(d)Tier 4—the imposition of sanctions by the Determining Authority if the Committee makes a finding that the person engaged in inappropriate practice: Divs 5 and 5A, ss 106Q–106XB.
The decision of the Chief Executive under review was made at Tier 1, under Div 3 of Part VAA. That Division provides, relevantly:
86Requests by Chief Executive Medicare to Director to review provision of services
(1)Subject to subsection (1A), the Chief Executive Medicare may, in writing, request the Director to review the provision of services by a person during the period specified in the request.
…
(1A)If the Chief Executive Medicare becomes aware that the circumstances in which services were rendered or initiated by a person constitute a prescribed pattern of services, the Chief Executive Medicare must make a request under subsection (1) in relation to the services.
(2)The period specified in the request must fall within the 2 year period immediately preceding the request.
(3)The request must include reasons for the request.
…
87Chief Executive Medicare must notify person of request
(1)If the Chief Executive Medicare requests the Director to review the provision of services by a person, the Chief Executive Medicare must, within 7 days after making the request, give the person written notice of the request.
(2)Failure to comply with subsection (1) does not affect the validity of the request.
The decision of the Director to undertake the review was made at Tier 2, under Div 3A of Part VAA. That Division provides, relevantly:
88ADirector must decide whether to review
(1)If the Chief Executive Medicare requests the Director to review the provision of services by a person, the Director must, within 1 month after receiving the request, decide whether or not to undertake the review.
(2)The Director must decide to undertake the review if, after considering the request and any other relevant information the Director has obtained, it appears to the Director that there is a possibility that the person has engaged in inappropriate practice in providing services during the review period.
(3)If the Director does not make a decision under subsection (1) within the period of 1 month specified in that subsection, the Director is taken to have decided, at the end of that period, to undertake the review.
(4)The Director must give written notice of the decision to:
(a) the person; and
(b) the Chief Executive Medicare.
(5)The notice must be given within 7 days after the decision is made but failure to give the notice within that time does not affect the validity of the decision.
(6)If the Director decides to undertake the review, the notice given to the person under review under paragraph (4)(a) must set out the terms of section 89B.
(7)Failure to comply with subsection (6) does not affect the validity of the decision.
(8)If the Director decides not to undertake the review, the notice given to the Chief Executive Medicare under paragraph (4)(b) must include the grounds for the decision.
88B Scope of Director’s review
If the Director decides to undertake the review, he or she:
(a)may review any or all of the services provided by the person under review during the review period; and
(b)may undertake the review in such manner as he or she thinks appropriate; and
(c)in undertaking the review, is not limited by the reasons included in the request under subsection 86(3).
89 When Director must review
If:
(a)the Chief Executive Medicare makes a request (the current request) to the Director to review the provision of services by a person; and
(b)the Director decided not to undertake a review in relation to the most recent previous request made by the Chief Executive Medicare in relation to the person;
the Director must undertake a review in relation to the current request, and subsections 88A(4) to (6) and section 88B apply as if the Director had decided to undertake the review.
…
89C Director’s action following review
(1)Following a review of the provision of services by a person, the Director must either:
(a)make a decision under section 91 to take no further action in relation to the review; or
(b)give the person under review:
(i)a written report setting out the reasons why the Director has not made a decision under section 91; and
(ii)an invitation to make written submissions to the Director, within 1 month, about the action the Director should take in relation to the review.
(2)If the Director gives the person under review a report and invitation under paragraph (1)(b), the Director must, as soon as practicable after taking into account any submissions made as mentioned in subparagraph (1)(b)(ii):
(a)decide to take no further action in relation to the review in accordance with section 91; or
(b)enter into an agreement with the person under review under section 92; or
(c)make a referral to a Committee under section 93.
…
91 Decision to take no further action
(1)The Director may decide to take no further action in relation to a review if he or she is satisfied that:
(a)there are insufficient grounds on which a Committee could reasonably find that the person under review has engaged in inappropriate practice in providing services during the review period; or
(b)circumstances exist that would make a proper investigation by a Committee impossible.
(2)Within 7 days after making a decision to take no further action in relation to a review, the Director must give the Chief Executive Medicare and the person under review:
(a) written notice of the decision; and
(b) a written report setting out the grounds for the decision.
…
It is unnecessary to specifically set out the provisions of Divs 4, 5 and 5A of the HI Act, since the process has not reached Tier 3 and Tier 4.
Ground 1: Denial of procedural fairness
Ground 1 of the Second Further Amended Originating Application alleges that a breach of the rules of natural justice occurred in connection with the making of the Chief Executive’s decision to make a request to the Director, and the Director’s decision to undertake the review. These allegations are of denial of procedural fairness.
However, in oral submissions, Dr Yoong’s counsel indicated that it was no longer alleged that procedural fairness had to be afforded in respect of the Director’s decision to undertake the review.
The Submissions
Dr Yoong submits that he was denied procedural fairness by the Chief Executive in exercising her power under s 86(1) of the HI Act to request that the Director review his provision of services in two respects. The first is that the Chief Executive failed to provide information which Dr Yoong had requested and needed in order to make informed submissions in response to the delegate’s concerns. The second is that the Chief Executive failed to give Dr Yoong all the information on which the concerns were based.
The delegate’s letter of 19 February 2019 had indicated that the concerns were based principally upon services provided by Dr Yoong under nine MBS Items being at statistical “variance to peers”. Dr Yoong had requested further information about the data sets, statistical processes and calculations relied upon by the Chief Executive. Dr Yoong had also asked for an explanation as to why his practice had been compared with all general practitioners active under Medicare, when a more appropriate cohort would be vocationally-registered general practitioners working full time in the CBD of a State capital city. The Chief Executive did not provide the requested information.
The Chief Executive disclosed material under discovery in the proceeding that had not been provided earlier to Dr Yoong. That material included additional percentile data used to analyse Dr Yoong’s practice. For example, the new data shows that some Items were rendered on a very small number of occasions over the review period. Dr Yoong submits that if he had been provided with this material, he would have made submissions about its significance.
The delegate’s letter of 19 February 2019 had stated, “You are invited to provide a written submission in relation to the concerns detailed below…If you choose not to provide a written submission, I will make my decision based on the information currently available”. Dr Yoong was invited to make a submission addressing each concern, and to include information which might be relevant to the concerns. In the Guide to preparing written submissions which accompanied the letter, there was a statement to Dr Yoong that “If we have provided you with data, consider using it to help illustrate your response”.
Dr Yoong initially submitted that the delegate’s conduct and communications gave rise to a legitimate expectation that he would be afforded procedural fairness and, having made that commitment, the Chief Executive was obliged to act accordingly. However, Dr Yoong’s counsel indicated in the course of addresses that this submission was not pursued.
Dr Yoong submits that the Chief Executive has an obligation to provide the relevant practitioner with a reasonable opportunity to persuade the Chief Executive not to make a request pursuant to s 86(1) of the HI Act. Dr Yoong relies upon the principle that in the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness, and submits that such an obligation is consistent with the PSR Scheme as a whole.
Dr Yoong seeks to distinguish earlier cases which held that there is no requirement of procedural fairness at the stage of referral to the Director on the basis that the current statutory scheme is quite different. Dr Yoong relies upon the judgment of Griffiths J in NHDS for the proposition that the Director has an implied obligation under s 89C of the HI Act to provide a reasonable opportunity to the practitioner to persuade the Director not to refer the matter to a Committee. Dr Yoong submits that, by parity of reasoning, there is a similar obligation upon the Chief Executive before making a request pursuant to s 86(1) of the HI Act.
Dr Yoong’s counsel accepted in the course of addresses that:
The points that we make about the first decision are exactly the same as the points we make [about] the second decision. So… if your Honour finds against us on the first decision, then we lose on the second decision and the third decision as well.
Dr Yoong’s counsel also stated that, “We don’t say that procedural fairness had to be afforded in relation to the acceptance of the referral”.
Accordingly, Dr Yoong accepts that if the Chief Executive’s decision under s 86(1) of the HI Act is held to be valid, then he would also fail upon his challenge to the Director’s decision under s 88A(2) to undertake the review.
The Chief Executive submits that consideration of the PSR Scheme as a whole demonstrates that procedural fairness is excluded at the stage of decision-making under s 86(1). They submit that earlier cases which held that there is no obligation of procedural fairness at the stage of referral for investigation continue to be relevant and applicable. They submit that the relevant passages in NHDS have no application to s 86(1) of the HI Act.
Whether the Chief Executive is under an obligation to provide procedural fairness when making a request that the Director review the provision of services
On 15 April 2019, the Chief Executive requested, pursuant to s 86(1) of the HI Act, that the Director undertake a review of Dr Yoong’s provision of services for the period from 1 May 2017 to 30 April 2018.
The Chief Executive’s delegate had earlier notified Dr Yoong on 19 February 2019 of her concerns and given him an opportunity to respond, but had not provided him with all the relevant documents available to her, nor all the information he had requested. Dr Yoong alleges that the failure to provide those documents and that information deprived him of a reasonable opportunity to make submissions about why the request should not be made.
The first issue is whether the Chief Executive owed Dr Yoong any obligation of procedural fairness when considering the exercise of her power under s 86(1) of the HI Act.
Section 86(1) of the HI Act provides that, “the Chief Executive Medicare may, in writing, request the Director to review the provision of services by a person during the period specified in the request”.
Section 86(1) was brought into a form close to its current form under s 30 of the Health Insurance Amendment (Professional Services Review and Other Matters) Act 2002 (Cth) (the 2002 Amending Act). The Explanatory Memorandum for the Bill introducing that provision stated:
New Section 86 provides that the Commission may request the Director to review the provision of services by a person. The request by the Commission relates to the provision of services during the period specified in the request. The request emanates from an examination by the Commission of the person’s Medicare and Pharmaceutical benefits claiming profile. On the basis of inferences drawn from the statistical data, the Commission may request a review by the Director. The Commission’s request is merely an initiating step within the PSR review process, following which particular aspects of the services provision (in other words, conduct) by a person may be reviewed by the Director and investigated by a Committee. The concept of the request by the Commission replaces the current ‘investigative referral’.
Section 86(1) of the HI Act does not expressly limit the circumstances in which the power may be exercised by the Chief Executive. The provision omits the requirement contained in an earlier iteration of s 86 that the Chief Executive consider whether the person under review, “may have engaged in inappropriate practice”. However, s 88A(2) requires the Director to undertake the review if it appears to the Director that, “there is a possibility that the person may have engaged in inappropriate practice during the review period”. On this basis, it may be inferred that the intention of s 86(1) is to require that the Chief Executive at least suspect that there is a possibility that the practitioner has engaged in inappropriate practice. However, since it is literally possible that any practitioner may have engaged in inappropriate practice, the “possibility” referred to in s 88A(2) must be understood to be one that is, not merely speculative, but based upon facts that reasonably ground the possibility. The same limitation must apply under s 86(1). I consider that s 86(1) requires that the Chief Executive must suspect on reasonable grounds that there is a possibility that the practitioner may have engaged in inappropriate practice during a specific period.
It may be observed that reg 27(1)(b) of the Human Services (Medicare) Regulation 2017 (Cth), provides that a prescribed function of the Chief Executive is to investigate the conduct of a person to decide whether to make a request under s 86(1) of the HI Act, “if there are reasonable grounds to suspect that a person has engaged in inappropriate practice”. That investigation occurs at a stage anterior to making a request to the Director to conduct a review under s 86(1). A regulation cannot generally be used to interpret a statutory provision, but the regulation is consistent with my construction of s 86(1).
The requirement that the Chief Executive suspect on reasonable grounds that there is a possibility that the person may have engaged in inappropriate practice is a fairly low barrier. In George v Rockett (1990) 170 CLR 104, the High Court held at 115:
Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam [1970] AC 942, at p. 948, “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’” The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.
The High Court also held at 112:
When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
It is unsurprising that the barrier is a fairly low one, given that a request under s 86(1) of the HI Act merely enlivens the power of the Director to undertake a review, or investigation. The request requires the Director to decide under s 88A(1) whether to undertake a review, and to conduct a review in the circumstances described in ss 88A(2) and 89.
It is well established that a person whose rights and interests may be affected by an administrative decision made under a statutory power is entitled to procedural fairness unless there is a clear contrary legislative intention. In Annetts v McCann (1990) 170 CLR 596, Mason CJ, Deane and McHugh JJ held at 598:
It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.
That statement of principle was affirmed in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [74].
To similar effect, in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, Kiefel, Bell and Keane JJ held at [30]:
[I]n the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions.
A decision by the Chief Executive to make a request to the Director under s 86(1) of the HI Act does not directly affect the rights or interests of the practitioner concerned, but triggers a process that may eventually result in financial and reputational harm to the practitioner. The parties proceeded on the tacit basis that the principle from Annetts v McCann applies to a decision under s 86(1) even though the potential affectation of rights or interests is remote from the decision. In the absence of argument upon the issue, I will proceed upon the assumption that the principle is engaged.
Section 86 of the HI Act does not expressly exempt the Chief Executive’s exercise of power from a requirement to provide procedural fairness. If a clear statutory intention to exclude procedural fairness is to be discerned, it must be from the language, context, structure and purpose of the provisions comprising the PSR Scheme.
An important matter of context and structure is that the PSR Scheme provides a staged system of decision-making. The PSR Scheme has, as Griffiths J observed in NHDS, four tiers, each providing for different decisions to be made by different administrative decision-makers on the way towards a possible determination that a practitioner has engaged in inappropriate practice and of the consequences.
The PSR Scheme exposes practitioners to a process involving serious allegations with the potential for serious consequences, including findings of inappropriate practice, cessation of Medicare benefits and damage to personal and business reputation. In this context, it is unsurprising that the PSR Scheme has in place a carefully calibrated regime with inherent checks and balances to ensure a thorough and fair process. At various stages in the process, decision-makers are expressly required to take measures designed to provide procedural fairness.
However, as McHugh J observed in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [146]:
…Natural justice requirements are less likely to attach to decisions that are preliminary in nature. Examples are decisions to lay charges or commence disciplinary proceedings. The closer a decision is to having finality and immediate consequences for the individual, however, the more likely it is that natural justice requirements apply. …
In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 the plurality, quoting from South Australia v O’Shea (1987) 163 CLR 378 at 389, observed at 578:
It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if “the decision-making process, viewed in its entirety, entails procedural fairness”.
Until this case, there has been no judicial consideration of whether the Chief Executive owes a practitioner obligations of procedural fairness when making a request under the current iteration of s 86(1) of the HI Act. However, several cases have held that that there is no such obligation under provisions concerning referral of possible inappropriate practice to the Director or to a Committee for investigation under earlier versions of the HI Act. Those cases have held, in the context of obligations of procedural fairness being provided for at later stages of a sequentially-stepped decision-making process, that procedural fairness does not apply at the initial stage of referral for investigation.
The first of these cases was Edelsten v Health Insurance Commission (1990) 27 FCR 56. In NHDS, Griffiths J at [147] distinguished Edelsten on the basis that since that decision, the PSR Scheme has been introduced and provides a significantly different process. In particular, His Honour noted that there are now the four tiers and that the second tier includes s 91 which gives the Director an express power to terminate a review. In NHDS, Griffiths J was concerned with s 89C, which applies following the conduct of a review by the Director, and requires the Director to choose between taking no further action, or entry into an agreement with the practitioner, or referral to a Committee. Edelsten was concerned with two decisions to make a referral to a Committee, which was at that time the step that initiated the review process. The current s 86(1) was inserted by the Health Insurance Amendment (Professional Services Review) Act 2012 (Cth) as a new initiating step, which precedes any referral to a Committee. The analysis in Edelsten as to whether any obligations of procedural fairness applied at the initiating step is instructive when considering the current s 86(1). In contrast, NHDS was concerned with procedural fairness at the later s 89C stage, so that Edelsten had much less relevance to that case.
In Edelsten, the Full Court considered s 82 of the HI Act, which gave the Minister, or delegate, an implied power to refer a matter to a Committee for investigation where there were reasonable grounds to suspect that a practitioner may have rendered excessive services. Section 94 then required the Committee, where it considered that the practitioner may have rendered excessive services, to conduct a hearing into the matter. The Full Court held that the rules of natural justice did not apply to either the delegate’s referral or the Committee’s decision. Justices Northrop and Lockhart held at 71:
We see no warrant for importing into any anterior stage of the matter, including the deliberations and decisions, if any, of the Minister’s delegate or the Committee at the s 94(c) stage, a requirement that procedural fairness be afforded to Dr Edelsten.
Justice Davies held at 73:
[The delegate’s] action did not breach principles of procedural fairness. [The delegate’s] reference merely initiated an inquiry; it did not decide or formally recommend anything. It would be inconsistent with the Act to imply any requirement as to notice to Dr Edelsten or as to giving to Dr Edelsten of a right to be heard at that stage of the proceedings. The Act lays down a complicated procedure protective of the position of medical practitioners…These provisions are lengthy and detailed and it is inconsistent with them that the Minister or his delegate should, at the initiating stage, be required to give particulars to the medical practitioner concerned or make extended inquiries of the medical practitioner concerned or of the patients of the medical practitioner.
The PSR Scheme commenced in 1994. In Yung v Adams (1997) 80 FCR 453, Davies J was concerned with s 86 of the HI Act, which then provided that, “The Commission may…refer to the Director the conduct of a person relating to…whether the person has engaged in inappropriate practice”. The scheme provided for the Director to dismiss a referral or set up a Committee (s 89), and for the Committee to hold a hearing if it considered that the practitioner may have engaged in inappropriate practice (s 101). Referring to s 86(1), Davies J held at 461:
The Health Insurance Commission was not obliged to provide Dr Yung with procedural fairness at that stage. What was done was simply to refer an issue to the Director for consideration.
On appeal, in Adams v Yung (1998) 83 FCR 248, this ruling was not challenged.
In Phan v Kelly (2007) 158 FCR 75, it was alleged that the applicant was denied procedural fairness in respect of a decision by the Director to set up a Committee. That argument was rejected by Tamberlin J, who held:
44 Accordingly, it is permissible to have regard to the scheme as a whole. Looking at the process in the present case in its entirety, the contested decisions of the Director and Committee were clearly part of, and directed to, the ultimate determination by the Determining Authority. They may be characterised as part of a single, sequentially-stepped decision-making process leading to a final outcome. This consideration leads to the conclusion that the legislative scheme is sufficiently exhaustive to indicate a legislative intent to exclude the application of additional measures to achieve procedural fairness.
…
46 In this case, I am satisfied that the statutory scheme, considered as a whole, exclusively provided for procedural fairness principles to the extent that the legislature intended those principles to apply.
The description given by Tamberlin J of “a single, sequentially-stepped decision-making process leading to a final outcome” remains apt. However, as I will later discuss, the express requirements of procedural fairness under the HI Act in its current form cannot be regarded as providing an exclusive or exhaustive code for procedural fairness.
In Daniel v Kelly (2003) 200 ALR 379, Ryan J was concerned with a form of s 86(1) of the HI Act that provided, relevantly, “[t]he Commission may, in writing, refer to the Director the conduct of a person relating to…whether the person has engaged in inappropriate practice in connection with rendering of services”. Section 88 required the Commission to send a copy of the investigative referral (after the referral had been made) to the person under review, accompanied by a notice inviting the person to make written submissions to the Director stating why the referral should be dismissed without setting up a Committee. In that case, the applicant’s principal complaint was that the Commission had applied a policy of “automatic referral” without consideration of the merits of his individual case. In the course of considering that ground, Ryan J stated at [26]:
Given that the process under consideration is an investigative one which may result in serious consequences for a medical practitioner, including the cancellation or suspension of rights conferred by statute, there is a presumption, not disputed by counsel for the respondents, that the practitioner will be accorded procedural fairness….
His Honour went on to hold that the Commission, in making the investigative referral, had failed to take into account relevant considerations.
In Kelly v Daniel (2004) 134 FCR 64, the Full Court dismissed an appeal from the judgment of Ryan J. The Full Court held at [82]:
…Section 86 confers upon the Commission a broad discretion to refer the question whether a practitioner has engaged in inappropriate practice to the Director. The Commission is obliged to take into account any explanation offered by the practitioner for what may be a temporary, and perhaps understandable breach of the rule. Its task is to consider not merely whether the number of services exceeds the number permitted under that rule, but whether the practitioner’s conduct is capable, potentially, of falling within the definition of “inappropriate practice” in s 82(1)(a). The Commission is certainly entitled, in our view, to exercise its discretion having regard to the fact that the practitioner has been counselled, and his conduct subsequently reviewed, without any apparent repetition of the breach, or likelihood of that breach recurring.
The Full Court’s view that the Commission was required to take into account any explanation offered by the practitioner suggests that the Full Court considered that procedural fairness must be provided in the exercise of the power under s 86(1) of the HI Act.
In Daniel v Kelly, it was conceded at first instance that s 86(1) of the HI Act in its extant form imposed obligations of procedural fairness upon the Commission, and the question does not seem to have been argued on appeal. That may have been because the relevant ground of review was whether the Commission had applied a policy without consideration of the merits of the case, not whether the practitioner had been denied procedural fairness. In any event, that case is distinguishable. The present iteration of s 86(1) allows the Chief Executive only to request that the Director review the provision of services, not to refer conduct to the Director for investigation. A referral under the iteration considered in Daniel v Kelly required the Director, under s 89(1), to conduct an investigation unless persuaded by the practitioner to dismiss the referral. Under the current iteration, a request by the Chief Executive does not compel the Director to undertake the review (subject to the exception under s 89 which is not relevant in this case). Accordingly, a referral by the Commission under the previous version of s 86(1) had a more direct impact upon the rights and interests of a practitioner than the current version.
A number of provisions under the PSR Scheme expressly require the taking of steps intended to provide a measure of procedural fairness. The content of these requirements, and the potential consequences of non-compliance, vary between provisions. The express requirements are:
·Section 87: If the Chief Executive requests the Director to review the provision of services, the Chief Executive Medicare must give the person written notice of the request within seven days (but failure to comply does not affect the validity of the request).
·Section 88A: The Director must give written notice of the decision as to whether to accept the request to the relevant person within seven days and, if the Director decides to undertake the review, the notice must set out the terms of section 89B (but failure to comply does not affect the validity of the decision).
·Section 89C(1): Following a review, if the Director does not make a decision under s 91 to take no further action, the Director must give the person under review a written report setting out the reasons why the Director has not made a decision under s 91 and an invitation to make written submissions to the Director about the action the Director should take.
·Section 89C(2): The Director must take into account any submissions made by the person under review in deciding whether to take no further action under s 91, or to enter into an agreement under s 92; or to make a referral to a Committee under s 93.
·Section 93(7): The Director must give to the person under review, the report prepared for the Committee within seven days (but failure to comply does not affect the validity of the referral).
·Section 102(1) and (2): If a Committee proposes to hold a hearing, it must give the person under review written notice of the time and place at least 14 days before the hearing.
·Section 103(1)-(3): The person under review is provided with express entitlements, including to attend the hearing, be accompanied by a lawyer or other person, call witnesses, question witnesses and address the Committee.
·Section 106H(4): A Committee must notify the person under review of any intention to make a finding of inappropriate practice, provide its reasons and give the person an opportunity to respond.
·Section 106KD(3): A Committee must give the person under review a written draft report of its preliminary findings and a notice inviting the person to provide written submissions suggesting changes to the draft report.
·Section 106KE: If the draft report does not contain a unanimous or majority finding of inappropriate practice, the Committee must provide the person with a written notice stating, inter alia, that no further action will be taken.
·Section 106L(3)-(5): The Committee must give its final report to the person under review and a written notice stating that a copy will be given to the Determining Authority, but if there is no unanimous or majority finding that the person engaged in inappropriate practice, a notice that, inter alia, no further action will be taken.
·Section 106QB(1)-(3): If the Director or the Determining Authority decides and gives notice that it would be impossible for an action specified in the agreement to take effect, the notice must set out the circumstances and the Director must, within seven days of giving or receiving the notice, give a copy of the notice to the person under review.
·Section 106R(3)-(4): The Determining Authority must give notice in writing of its decision (either ratifying or refusing to ratify the agreement) to the person under review within seven days after the decision is made or taken to have been made, and in the case of a refusal decision, the notice must set out the reasons for the refusal (but failure to comply with these requirements does not affect the validity of the decision).
·Section 106RB(1)-(3): If the Director or the Determining Authority decides and gives notice that it would be impossible for a proper draft determination or a final determination to be made by the Authority in relation to the person under review, the notice must set out the circumstances and the Director must, within seven days of giving or receiving the notice, give a copy of the notice to the person under review.
·Section 106S(3): If the Director gives the Determining Authority any information that the Director considers is relevant to the Authority making its draft determination or final determination, the Director must also give the information to the person under review at the time.
·Section 106SA(1)-(5): The Determining Authority must invite the person under review to make written submissions to the Authority about directions the Authority should make in the draft determination, and if the Director gives the Determining Authority further information after such an invitation has been made, the Authority must invite the person under review to make further submissions.
·Section 106T(1)-(2): The Determining Authority must take into account any submissions made by the person under review and give a copy of the draft determination to the person under review within one month of the draft determination, together with an invitation to make written submissions suggesting changes to any directions.
·Section 106UA: As soon as practicable after making a final determination, the Determining Authority must give a copy of it to the person under review.
It may be seen that where a decision-maker is required to provide procedural fairness, the PSR Scheme tends to specify the steps that must be taken to fulfil the obligation. In contrast, s 86 does not specify any requirement or content of procedural fairness.
Against this, it may be accepted that the PSR Scheme in its current form does not constitute an exhaustive code of procedural fairness. In NHDS, Griffiths J observed at [146]:
As noted, the Director did not submit that the PSR Scheme in the HI Act constituted an exhaustive procedural code which precluded the implication of any additional requirements of procedural fairness. Nor would I have accepted any such submission. The richness of the statutory procedural requirements in the multi-stage process under the PSR Scheme are not exhaustive. In particular, the procedural fairness rights and obligations under tier three do not deny the need for procedural fairness at the tier two level...
An example of an unstated obligation of procedural fairness is, as Griffiths J held at [142]-[146], that the Director’s obligation under s 89C of the HI Act to provide a practitioner with an opportunity to make a submission is an obligation to provide a reasonable opportunity. Another example is that s 106(1) provides that the procedure for the conduct of a hearing by a Committee is within the discretion of the presiding member, but there obviously exist implied requirements of procedural fairness, including providing the practitioner with a reasonable opportunity to make submissions upon contentious matters of procedure and upon the substantive issues.
Nevertheless, where a decision-maker is positively required to give the person under review an opportunity to be heard as to whether a particular decision should be made, the PSR Scheme tends to make the requirement express, and does not leave it to implication. For example, ss 89C(1), 103(1)(g) and 106H(4) specify that the practitioner must be permitted to make submissions before the relevant decision is made. This is reinforced by s 80(11) which states that, “[p]rovision is made throughout the scheme for the person under review to make submissions before key decisions are made or final reports are given.” The fact that s 86 of the HI Act does not expressly provide for a right to make submissions as to why the Chief Executive should not make a request to the Director, while not of itself determinative, strongly suggests that no obligation of procedural fairness is implied.
The Chief Executive’s request under s 86(1) of the HI Act is the step that initiates the PSR review. Such a request does not itself affect any substantive rights. To adopt the language of Northrop and Lockhart JJ in Edelsten at 70, the request is no more than a step in an administrative process that may lead to an ultimate or operative determination, and is remote from any such consequences. And, to adopt the language of Davies J in that case at 73, the request does not decide or formally recommend anything.
The Chief Executive’s powers of investigation under the HI Act are limited, and do not include coercive powers. In contrast, the Director’s powers are wider, and include the power to require a practitioner to provide documents and give information (s 89B). The powers of a Committee are wider still, and include conducting hearings (s 101). As Griffiths J observed in NHDS at [27]:
It should also be noted that the Chief Executive Medicare has limited investigative powers to obtain information that may be relevant to his or her consideration of whether or not to make a request to the Director to review the provision of services by a person or a practitioner. It is evident that a decision whether to make such a request will generally be based upon the Chief Executive Medicare’s review of statistical data concerning a practitioner’s Medicare billing and any other information which the Chief Executive Medicare obtains by other means, including a voluntary interview with one or more practitioners, as occurred in this case.
This is the context in which the Chief Executive makes a request under s 86(1) of the HI Act initiating consideration by the Director as to whether to undertake a review. The context demonstrates why a fairly low barrier is imposed for the Chief Executive’s decision. The Explanatory Memorandum for the Bill introducing the 2002 Amending Act indicated that a review may be requested on the basis of inferences drawn from the statistical data. This context also demonstrates that the Chief Executive’s decision is envisaged to be made without substantial investigation of the kind required at later stages.
A practitioner’s rights and interests may be directly affected at the second, third and fourth tiers of the PSR Scheme, culminating in a Determining Authority making a final determination under ss 106TA and 106U, which may have direct financial and reputational consequences. In that context, the PSR Scheme expressly imposes increasing requirements of procedural fairness at various stages under those tiers. In view of the opportunities at Tiers 2, 3 and 4 for a practitioner to make submissions that may head off any further progression of an inquiry, it is unsurprising that there would be no requirement to provide any such opportunity at the initiating stage.
In the context of the imposition of substantial obligations of procedural fairness at later stages, is seems unlikely that the legislative intention is that a practitioner should have an opportunity to try to persuade the Chief Executive to not make a request under s 86(1) of the HI Act. A requirement of this type would be administratively cumbersome and significantly repetitious. It is unlikely that such a requirement would be implied, rather than being expressly stated.
As McHugh J observed in Miah at [146], natural justice requirements are less likely to attach to decisions that are preliminary in nature. His Honour gave examples of such preliminary decisions as being the laying of charges or the commencement of disciplinary proceedings. A decision under s 86(1) to request a review occurs at an even more preliminary stage.
In addition, it may be noted that under s 86(1A) of the HI Act, if the Chief Executive becomes aware that the circumstances in which services were rendered or initiated constitute a prescribed pattern of services, the Chief Executive must make a request under s 86(1) in relation to the services. In view of the obligation to make such a request, there cannot be any implied requirement to allow a practitioner to make submissions before the request is made. That there is no implied obligation of procedural fairness under s 86(1) in one circumstance tends to support the view that there is no general obligation of that kind.
The circumstances of Marles are analogous to the present situation. The Chief Executive’s request under s 86(1) of the HI Act does not itself affect a practitioner’s rights and is only indirectly and remotely connected with those decisions under the PSR Scheme that do affect rights. A request by the Chief Executive does not have any direct effect upon any later decision that a practitioner has engaged in inappropriate practice. While such a decision is a condition precedent to the exercise of power by the Director which may affect rights, like in Marles, the connection between the request and such exercise of power is too remote.
Further, I do not accept that the Director’s decision under s 88A of the HI Act affects a practitioner’s rights, or is sufficiently connected with decisions that do affect rights. As in Marles, such a decision only means that an investigation is conducted, which may lead to no further consequence. It is not until and unless the Director uses her powers to compel production of information and documents, or the Director comes to make a decision in accordance with s 89C, that rights may be affected.
I consider that the decisions of the Chief Executive and the Director are not susceptible to certiorari.
Summary
I have held that the decisions of the Chief Executive under s 86(1) and of the HI Act and the Director under s 88A(2) are not amenable to review under s 5 of the ADJR Act or susceptible to certiorari under s 39B of the Judiciary Act.
Even if I am wrong in this conclusion, I have found that Dr Yoong was not denied procedural fairness by the Chief Executive. Dr Yoong conceded that if he failed in his allegation that he was denied procedural fairness by the Chief Executive, his allegation that he was denied procedural fairness by the Director must also fail. Accordingly, Ground 1fails.
I have held that neither the Chief Executive nor the Director took into account irrelevant considerations, or failed to take into account relevant considerations. I have also held that neither of the decisions was legally unreasonable. Accordingly Grounds 2 and 3 fail.
Grounds 2A, 2B and 3A depend upon the success of the other grounds and must also fail.
Therefore, each of Dr Yoong’s grounds has failed. The application must be dismissed.
I do not understand the Director to seek costs. Dr Yoong should pay the Chief Executive’s costs.
I certify that the preceding one hundred and eighty (180) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah. Associate:
Dated: 25 June 2021
9