Christie v The Honourable A R Neaves

Federal Court of Australia|2001-10-04|Before: Conti J

THE COURT ORDERS THAT: 1. Appeal be upheld. 2. The First Respondents be prohibited from proceeding further with a review of the final determination of the Second Respondent made on 26 May 2000 involving conduct of the Appellant. 3. Issues as to further consequential relief (if any) and as to payment of costs be stood over for further hearing on a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AND: THE HONOURABLE A R NEAVES DR N J RADFORD and DR M WILLIAMS sitting as the PROFESSIONAL SERVICES REVIEW TRIBUNAL

Circumstances giving rise to dispute 1 The Appellant is a qualified medical practitioner engaged in private practice. On 10 February 1997, the Chairperson of Professional Services Review Committee No 35 ("the Committee"), constituted under Division 4 of Part VAA of the Health Insurance Act 1973 (Cth) ("the Act"), gave notice to the Appellant that upon the Committee's consideration of matters concerning conduct of the Appellant the subject of a referral by the Health Insurance Commission ("the Commission") to the Director of Professional Services Review, the Committee was of the view that the Appellant may have engaged in inappropriate practice in connection with the rendering of particular services, and that accordingly the Committee would hold a hearing into such conduct on 20 March 1997. 2 After the conclusion of the hearing, the Committee gave to the Determining Officer appointed by the Minister pursuant to instrument made under s 106Q of the Act ("the Determining Officer"), a written report dated 30 September 1997, which set out its findings in relation to the Appellant's conduct, and the Determining Officer thereupon made a draft determination on 3 October 1999 under s 106S of the Act relating to the Appellant (it would appear that the Determining Officer at that time was not the person presently named as the Second Respondent, who subsequently became the Determining Officer). Thereafter on 26 May 2000, the Determining Officer made a final determination, pursuant to s 106T of the Act, that the Committee had found that the Appellant had engaged in inappropriate practice as defined in s 82 of the Act, in that he had engaged, in effect, in "over-servicing" of his patients. Five matters of complaint against the Appellant were particularised as follows, namely, not providing an appropriate level of clinical input into his patients, not demonstrating that he had always made a proper examination of his patients, not maintaining appropriate clinical records, not accepting his failings with regard to his inadequate medical records, and managing many of his patients inadequately. The Determining Officer therefore directed by such final determination that the Director of Professional Services Review, or the Director's nominee, reprimand the Appellant, in accordance with s 106U(1)(a) of the Act, but did not disqualify him for any period of time or direct the repayment of any medicare benefits. A statement of reasons was provided with such s 106T determination. 3 The Appellant having been served with the foregoing final determination made on 26 May 2000, his solicitors requested the Minister on 29 June 2000, pursuant to s 114(1) of the Act, to refer the same to the Professional Services Review Tribunal ("the Tribunal"), such request setting out thirteen grounds of review. Such request was required by s 114(2) of the Act to be served by the Appellant on the Minister within twenty-eight days after the date upon which notification of the said determination had been served upon the Appellant, and by s 115(1) to be thereupon forwarded by the Minister to the President of the Tribunal. At least by the time of commencement of the hearing by the Tribunal, it had become common ground between the Appellant and the Second Respondent that such request had not been made within the prescribed time. The Tribunal acknowledged receipt of such request for review by letter to the Appellant, care of his solicitors, dated 1 August 2000, and by letter dated 10 January 2001, the Registrar of the Tribunal notified the Appellant's solicitors that such reference had been listed for hearing before the Tribunal on 8 and 9 February 2001. 4 By facsimile transmission of 7 February 2001, the Appellant's solicitors notified the Tribunal of the withdrawal of the Appellant's request for the Tribunal's review of the final determination, that is to say, prior to the commencement of the Tribunal hearing, in the following terms: "… We have been instructed by Dr Christie to withdraw the appeal made to the Tribunal pursuant to section 114 of the Health Insurance Act. Accordingly there is no need to convene the panel and we request that the matter be removed from the list for hearing on Thursday and Friday 8 and 9 February 2001." A similar request was sent by facsimile transmission to the solicitor for the Determining Officer. Telephone requests were made by the Appellant's solicitors on the same day to similar effect to the solicitor for the Determining Officer, and also to the Registrar of the Tribunal, and to the Assistant Secretary of the Medicare Benefits Branch of the Department of Health & Aged Care. As indicated in [3] above, the Tribunal hearing was due to take place on the following day, namely 8 February 2001. 5 On 8 February 2001, senior counsel for the Appellant and senior counsel for the Determining Officer appeared before the Tribunal consisting of the Honourable A R Neaves and Doctors N Radford and M Williams, being of course the abovenamed First Respondents. On that day, and again on the following day, there occurred lengthy dialogue between the Tribunal and senior counsel upon the implications of the Appellant's application for withdrawal of his request to the Tribunal for review, and of the circumstance that it had become common ground that the request for review of the final determination by the Determining Officer had been made out of time in any event. The Tribunal summarised the nature of the debate which had occurred on those two days in its reasons for decision of 9 March 2001 as follows: "2. When the review was called on for hearing, counsel for the applicant informed the Tribunal that the request under section 114 of the Health Insurance Act 1973 had been withdrawn by the applicant the previous day and that, in consequence, it was not open to the Tribunal to review the final determination made by the respondent. Counsel submitted that the Tribunal could do no more than direct that the matter be removed from the list of matters for hearing by the Tribunal. 3. The Tribunal was also informed that counsel for the respondent proposed to submit an argument to the Tribunal that it had no authority to review the final determination on the ground that the request on behalf of the applicant that the Minister refer the final determination to a Professional Services Review Tribunal was not served on the Minister within the period of twenty-eight days allowed by paragraph 114(2)(c) of the Health Insurance Act 1973."

Tribunal's decision on issue as to Appellant's lack of common law entitlement to withdraw the s 114 request for review by the Tribunal 6 The Tribunal's reasons for decision upon the two issues described in [5] above set out a comprehensive identification of the provisions of the Act governing the process of investigation and decision-making which was put in place in relation to the Appellant, being the process which commenced with the signing on 16 December 1996 by the Acting Medical Director and Manager, Professional Services Branch of the Commission of a document on 16 December 1996, which referred to the Director of Professional Services Review the conduct of the Appellant the subject of complaint, and continued with the signing by the Director of Professional Services Review on 14 January 1997 of an instrument establishing the Committee to consider whether the Appellant had engaged in inappropriate practice, and concluded with reference to the matters which I have already set out in [1-2] above. By reason of the date of such referral, namely 16 December 1996, the Health Insurance (Professional Services Review) Act 1999 (Cth) has no operation upon the issue the subject of the present appeal (see s 65 thereof). 7 Subsequently on 9 March 2001, the Tribunal handed down its decision upon the implications of the Appellant's purported withdrawal from the appeal, whereby it rejected the submissions of the Appellant that the Tribunal no longer had authority or jurisdiction to review the final determination of the Determining Officer, by reason of the request made on behalf of the Appellant to the Tribunal on 29 June 2000 to review the same having been withdrawn in the circumstances set out in [4] above. The Tribunal additionally determined by that decision that its jurisdiction to review the final determination of the Determining Officer did not depend upon the Appellant's request for review of the final determination being served on the Minister within the prescribed period, but rather upon the receipt by the President of the Tribunal of the Minister's request, and in that regard the Tribunal dismissed the contention of the Determining Officer, with which contention to the Tribunal the Appellant had signified his support. The Tribunal therefore ordered that the hearing of the proceedings for review of the final determination made by the Determining Officer on 26 May 2000 be adjourned for hearing by the Tribunal on a date to be fixed. Thus the Tribunal rejected the proposition that in the events which had happened, the Tribunal was no longer authorised to review the final determination of the Determining Officer referred to in [2] above.

Tribunal's reasoning on the absence of any general law entitlement of an applicant for review of a final determination of the Determining Officer to withdraw such applicant's request for review from the Tribunal 8 In rejecting the Appellant's asserted right to withdraw from the Tribunal's authority to review the final determination of the Determining Officer made on 26 May 2000, irrespective of the absence of opposition to that course by the Determining Officer (or for that matter the Minister), the Tribunal rejected the Appellant's submissions to the effect that any such right of the Appellant to withdraw required neither the assent of the Determining Officer nor the leave of the Tribunal, and held that the Appellant could not preclude the Tribunal from proceeding to review such final determination, which the Tribunal was bound to do pursuant to s 116 of the Act. The Tribunal rightly accepted that resolution of the issue so raised by the Appellant may begin with an acknowledgment of the principle of the common law that, unless constrained by statutory considerations effectively abrogating or fettering the right to unilaterally withdraw from an application in a civil matter to a statutory tribunal (or other statutory body for the matter), any such applicant has an inherent right to withdraw such application at any time before a decision is given by the tribunal. The consequence flowing from such principle is that any such application so purportedly withdrawn is no longer subsisting or effective, and the statutory tribunal is deprived accordingly of the power to make any order in connection with the application, subject to exceptions not here relevant. The Tribunal further rightly observed that the answer to the question, whether there are considerations effectively abrogating or fettering the right of withdrawal, depended upon the proper construction of the statutory provisions setting up the tribunal in question and regulating its powers and proceedings. It identified some nine Australian and United Kingdom authorities where such principles have been acknowledged. They included those cited by the Appellant in written submissions made to the Court, namely Boal Quay Wharfingers Ltd v King's Lynn Conservancy Board [1971] 1 WLR 1558, Schipp v Herfords Pty Ltd [1975] 1 NSWLR 412, re Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority (No 3) (1992) 28 ALD 368 and Uniden Australia Pty Ltd v Collector of Customs (1997) 74 FCR 190. 9 The Tribunal distilled three specific considerations which the Courts have found to potentially abrogate or fetter the right of withdrawal of an application to review administrative decision-making, in each instance reciting case law precedent: "(a) where the exercise of the right would cause consequent vexation to another party to the proceedings…; (b) where the exercise of the right would prejudice the position of persons not party to the proceedings but who have an appropriate interest in the outcome…; (c) where the dispute is one in which there is a public interest involved…" In summary, as the Tribunal emphasised, whether there are considerations effectively abrogating or fettering the right of withdrawal will normally depend upon the proper construction of the statute which establishes the relevant statutory body or authority and regulates its powers and proceedings. Thus in [31] of its reasons for decision, the Tribunal put the general principle here applicable as follows: "The answer to the question whether there are considerations effectively abrogating or fettering the right depends upon the proper construction of the statutory provisions setting up the tribunal and regulating its powers and proceedings." 10 Before examining relevant provisions of the Act for the purpose of determining whether the same expressly or implicitly operate to remove or restrict the right which the Appellant might otherwise have had according to the general law to withdraw his request for a review of the final determination made by the Determining Officer on 26 May 2000, the Tribunal extracted the following dictum of Davies J in Yung v Adams (1997) 80 FCR 453 at 459, which appear in the context of an appeal lodged pursuant to s 124A of the Act upon the ground of alleged denial by the Tribunal of procedural fairness, by way of illustration of or elaboration upon the principle cited in paragraphs (b) and (c) contained in [9] above: "The Federal Parliament has no general power to regulate the activities of medical practitioners. Therefore, under Pt VAA, the power to discipline in relation to 'inappropriate practice' must be understood as a power to discipline in relation to conduct which is related to the payments which are made by the Commonwealth under the Act by way of medical benefits and the like. Accordingly, the reference to 'inappropriate practice' in s 82 refers to conduct in relation to which Commonwealth benefits were paid or payable and in respect of which the medical practitioner failed in some way to meet the standards of the general body of the members of the profession in which the services were rendered. The Commonwealth's interest is to see that the services which are provided by a medical practitioner and for which a Commonwealth benefit is or may be claimed are services in respect of which the medical practitioner provides due care and skill, that a claim if made is brought under the correct item and that over-servicing does not occur." and at 472: "As those cases show, directions under s 106U with respect to a reprimand, counselling, the repayment of benefits and disqualification are not imposed as a punishment. They are imposed with a view to protecting patients and the Commonwealth against abuse of the system." Such reference to the protection of the Commonwealth is reflected in paragraphs (c) and (f) of s 106U(1), which appear in the extract of s 106U appearing in [11] below. 11 Thereafter the Tribunal drew attention in its decision to various provisions of Part VAA of the Act, and in particular Division 5 thereof, which relate to determinations by the Determining Officer, and I will now summarise such provisions. By s 106R of the Act, within seven days after being given the Committee's report setting out its findings as to whether the practitioner under review engaged in inappropriate practice, the Determining Officer must give a copy of such report to the practitioner. In the case of a report of the Committee adverse to the practitioner, the Determining Officer is required by s 106S to make a draft determination, in accordance with the directions of s 106U, within fourteen days after receiving the same, and invite submissions in relation thereto from the practitioner. It would appear that no such requirements are made in relation to a report favourable to a practitioner, in which case the statutory process is terminated without any right of reference on the part of the Commission to the Tribunal. Within thirty-five days after receiving the Committee's report adverse to the practitioner, the Determining Officer must make a final determination relating to the practitioner under review. In that regard, s 106U(1) to (4) in the form thereof prior to the 1999 amendments, reads as follows: "(1) A determination must contain one or more of the following directions: (a) that the Director, or the Director's nominee, reprimand the person under review; (b) that the Director, or the Director's nominee, counsel the person under review; (c) that the person under review repay to the Commonwealth the whole or a part of the medicare benefit that was paid (whether or not to the person under review) in respect of services that: (i) were rendered by: (A) the person under review; or (B) an employee of the person under review; or (C) an employee of a body corporate of which the person under review is an officer; and (i) are services in connection with which the person under review is stated in a report under section 106L to have engaged in inappropriate practice; (e) if the person under review is a participating optometrist - that the Minister's acceptance of the undertaking by the participating optometrist under section 23B is taken to be revoked, either wholly or in so far as the undertaking covers particular premises; (f) if the person under review is a medial practitioner or a dental practitioner in respect of whom a Part VII authority is in force and the service in connection with which the person is stated in a report under section 106L to have engaged in inappropriate practice involves prescribing or dispensing a pharmaceutical benefit - that the Part VII authority be taken, for the purposes of the National Health Act 1953, to be revoked or suspended; (g) if the person under review is a practitioner - that the practitioner be disqualified in respect of one or more of the following: (i) provision of specified services, or provision of services other than specified services; (ii) provision of services to a specified class of persons, or provision of services to persons other than persons included in a specified class of persons; (iii) provision of services within a specified location, or provision of services otherwise than in a specified location; (h) if the person under review is a practitioner - that the practitioner be fully disqualified. (2) Paragraphs (1)(a) and (b) do not apply if the person under review is a body corporate. (3) A direction under paragraph (1)(g) must specify a period of disqualification of up to 3 years, to start when the determination takes effect. (4) A direction under paragraph (1)(h) must specify a period of disqualification of up to 3 years, to start when the determination takes effect." In the events which happened, the Appellant was subjected only to the sanction of a reprimand, pursuant to s 106U(1)(a) extracted above. 12 Section 106V stipulates the time when a final determination takes effect, and its terms are of critical importance to the resolution of the present appeal. The full text of s 106V is reproduced below, also in the form which the same took prior to the 1999 amendments: "(1) Subject to subsections (2) and (3), the final determination takes effect twenty-eight days after the Determining Officer gives a copy of it to the person under review. (2) If a request for review of the final determination under Division 3 of Part VA is lodged within the period allowed for such a request: (a) the final determination does not take effect if it is set aside on the review; or (b) if the final determination is affirmed or varied on the review, and no appeal against the decision is brought under section 124A within the period allowed for such an appeal - the final determination takes effect, or takes effect as varied, at the end of the period. (3) If an appeal against the decision on such a review is brought under section 124A within the period allowed for such an appeal: (a) subject to subsection (4), the determination does not have effect until the appeal, and any further appeal or appeals, are determined; and (b) upon the determination of the appeal, and any such further appeal or appeals, the determination takes effect as varied, or does not take effect, in accordance with the judgment or order on the appeal or further appeal or appeals. (4) If the appeal lapses or is withdrawn, the final determination takes effect when the appeal lapses or is withdrawn." 13 The request for review of the final determination referred to in s 106V(2) above picks up s 114 of Division 3 of the Act, which is in the following terms: "(1) The person to whom a determination relates may request the Minister to refer the determination to a Tribunal for review. (2) The request by a person to whom a determination relates for the reference of the determination to a Tribunal for review: (a) shall be in writing signed by or on behalf of the person making the request; (b) shall set out the grounds on which the request is made; and (c) shall be served on the Minister within twenty-eight days after the date upon which the notification of the determination is served on the person making the request." By s 115(1), upon receipt of a request under s 114, the Minister must forward the same to the President of the Tribunal, together with certain material documents, and by s 116, when the President receives such request, the President must arrange for the determination to be reviewed in proceedings before the Tribunal. Section 118 stipulates that the parties to the Tribunal review shall be, so far as is here relevant, the practitioner and the Determining Officer. Thus it will be seen that the practitioner alone may undertake recourse to the Tribunal for review of the final determination of the Determining Officer. The reference in s 106V(3) above to an appeal against the decision on review is to an appeal from the Tribunal to the Federal Court of Australia pursuant to s 124A of the Act, which stipulates that any such appeal is governed by the Federal Court of Australia Act 1976 (Cth), and thus may be brought by the practitioner or the Determining Officer. Any such appeal is confined to a question of law. 14 Finally, I set out below s 119(1) and (3) of the Act relating to proceedings on review by the Tribunal, so far as is here applicable: "(1) A Tribunal that reviews a determination in accordance with a request: (a) shall consider the matter to which the determination relates having regard to the grounds set out in the request, the documents forwarded by the Minister with the request and any addresses made to the Tribunal during the proceedings on the review; and

(b) shall, subject to subsection (2): … (ii) if the determination consists of a final determination under section 106T - affirm or set aside the determination, or set aside the determination and make any other determination that the Determining Officer is empowered to make under that section. … (3) If the determination consists of a final determination under section 106T, the decision of a Tribunal on a review is, for all purposes (except for the purposes of this Part), taken to be a determination of the Determining Officer." 15 In the context of the Tribunal's consideration of relevant authority and of the provisions of Parts VAA and VA of the Act extracted or otherwise identified above, the Tribunal concluded adversely to the Appellant on the issue as to the Appellant's entitlement to unilaterally withdraw from the review proceedings before the Tribunal and thereby bring the same to an end. The thrust of the Tribunal's process of reasoning upon such first issue here arising, undertaken in the context of carefully framed reasoning on its part, is summarised for present purposes as follows: (i) It is necessary to be able to ascertain with precision the date when the directions the subject of a final determination by the Determining Officer are to take effect particularly where disqualification is for a period of time determined pursuant to s 106U(3) and (4); (ii) Where a final determination is made the subject of review by the Tribunal, which as earlier indicated may only occur at the instance of a practitioner and not the Determining Officer, and the review is affirmed or varied, the final determination takes effect, pursuant to s 106V(2), at the end of the period allowed for any subsequent appeal from the Tribunal to the Court, in the absence of any such appeal to the Court being subsequently brought by the practitioner or by the Determining Officer; (iii) Similarly, if an appeal is brought to the Court, and the same is determined adversely to the practitioner, the final determination takes effect, pursuant to s 106V(3), after the appeal is so determined (and so on in the case of any further appeal or appeals); (iv) In the case where an appeal to the Court lapses or is withdrawn, then pursuant to s 106V(4), the final determination takes effect when the appeal lapses or is withdrawn; (v) No such provision as to the taking effect of the final determination, as in (iv) above, is made in relation to proceedings for review brought to the Tribunal by a practitioner, where the application for review by the Tribunal lapses, or is withdrawn by the practitioner, as of course occurred in the present circumstances; to adopt the critical words of the Tribunal in [40] of its decision: "The consequence of a practitioner having an inherent right to withdraw, after the expiration of the twenty-eight day period referred to in subs 106V(1), a request made under s 114 would appear to be that the determination would never come into effect. Clearly, the Tribunal would, in the face of the provisions in s 119, have no authority to fix a date upon which the determination is to take effect." (vi) Thus if the practitioner is to be recognised as having a common law right to withdraw his or her application for review by the Tribunal, prior to the Tribunal's decision, as is asserted here by the Appellant, the final determination already made by the Determining Officer would never take effect, because the Tribunal has no authority conferred by the Act to fix the date upon which such final determination in either of those circumstances referred to in (v) above is to take effect, in contrast to the situation applying in the case of an appeal from the Tribunal to the Court, as to which see (iv) above; thus a practitioner subjected to an adverse finding by the Tribunal could avoid the consequential directions of the final determination by the simple expedient of withdrawing his or her request for review, prior to the same being determined by the Tribunal; and (vii) It follows that as a matter of the implicit requirements of the Act, and of ss 106U and 106V in particular, and in the light of the exceptions recognised by the authorities summarised by the Tribunal as explained in [9] above, the Tribunal must proceed with the review process the subject of a practitioner's purported withdrawal therefrom, and make one of the orders for which s 119(1)(b)(ii) provides (see [14] above). 16 The Appellant contends that there is no sound reason why the prima facie rule of the general law, to the effect that an applicant for administrative relief may withdraw his or her application at any time before the application is dealt with, should not apply, contrary to the Tribunal's decision summarised above. Since however no provision is explicitly made by the Act as to the time when the final determination of the Determining Officer would take effect if such an applicant was entitled to withdraw his or her request for review thereof, or if such process was otherwise to lapse, it would at least literally follow that the final determination of the Determining Officer made on 26 May 2000 would never take effect, being a situation however which surely would not have been intended by the Legislature. Before returning to an examination of the operation of s 160V, and subs (2) thereof in particular, it is appropriate that I refer at some length to the common law principle relied upon by the Appellant, and to potentially applicable principles of statutory interpretation. 17 An appropriate starting point to the resolution of the issue here arising is the extent to which the entitlement in principle of an applicant for inter alia administrative review to withdraw an application of such or similar kind has been recognised by judicial authority. Senior Counsel for the Appellant drew attention to a number of authorities, including those already identified in [8] above. In Boal Quay at 1566, Lord Denning MR said as follows: "But I think that those words only apply to an application which is still a subsisting application when the time comes for decision. An applicant has a right to withdraw it at any time before the decision is given. If an application is withdrawn, the licensing authority are under no duty, and have no power, to hear or determine the application. They cannot refuse it, because there is no subsisting application for them to refuse. There is nothing left of the application. There is no room for a refusal." At 1569, Salmon LJ said to similar effect as follows: "But quite independently of authority it seems to me to follow on principle that in the absence of a statutory prohibition, once you have made an application you can always withdraw it; and once you have withdrawn the application, it ceases to exist. I think that this application having been withdrawn, it was no longer before the Minister, and when the letter was written - not, of course, by the Minister personally - that part of the letter which stated that the application was refused was a nullity. You cannot refuse an application which is not before you, and this application was not before the Minister." The application for review there involved comprised a statutory appeal made by a wharfinger to the appropriate Minister against a bureaucratic decision imposing conditions upon the grant of a license to employ certain persons permanently for stevedoring work, such right of appeal having been conferred by statute in terms which obliged the Minister to consider and make a decision upon the issue raised by any such appeal once lodged. As I have already indicated, however, the Tribunal's decision would distinguish such reasoning as here applicable, upon the footing that withdrawal of the review application would produce the unintended consequence of the final determination itself lapsing. 18 Subsequently in Schipp, which related to the refusal by a judge of the Workers Compensation Commission to accept a worker's election, without leave, to withdraw an application for an award before the time when the Commission would come to make the award, Samuels JA (with whom Reynolds JA agreed) referred with approval to the foregoing dicta in Boal Quay, and at 422-423, his Honour traced the principles as to entitlement of a plaintiff or applicant to withdraw proceedings at common law (ie by electing to accept a non-suit), as well as in equity (ie by moving to dismiss his or her own bill). Mahoney JA at 430-431 expressed his acceptance of the same approach to principle, whilst dissenting in the outcome of construction of the legislation relevantly to the events which happened. Both Boal Quay and Schipp were applied, along with other authorities to similar effect, by the Administrative Appeals Tribunal in re Queensland Nickel Management Pty Ltd, and subsequently by this Court in Uniden. It was submitted on behalf of the Second Respondent that with one exception, the nine cases catalogued by the Tribunal in [31] of its decision (including the four to which I have above referred) involved statutory schemes where the purportedly withdrawn or discontinued applications for administrative relief were required by the applicable legislation to be made directly to the decision-maker, in contrast to the present statutory scheme where the request for review is required to be made to the Minister, albeit that the Minister is thereupon obliged by the statute to forward the same forthwith to the Tribunal (see s 115(1)). I do not think that any such distinction of itself detracts from the doctrinal force of the common law principle. 19 In seeking to construe the provisions of the Act relating to the implications of a practitioner's purported withdrawal of his application to the Tribunal for administrative review of an adverse final determination of the Determining Officer, it is appropriate to take into account the results or consequences of the construction of the legislation which the Tribunal has adopted, namely the exclusion of the long established common law entitlement prima facie arising which has been referred to in the authorities discussed in [17-18] above, and the imposition upon the Tribunal (and upon the Determining Officer) of the inconvenience of pursuit of a process no longer required but indeed eschewed by the applicant for relief, particularly where as here, the Determining Officer may also not seek the continuation of the application for whatever reason. In Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350, Gibbs J (as he then was) referred appositely as follows to an issue of construction arising in the context of workers' compensation legislation, which seems to me to arise here for similar reasons: "These considerations might not have been of importance if the words of the statute were plain and unambiguous, but where two meanings are open, as is the case with the opening words of s 64(1), it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust." 20 Such principle of statutory interpretation, which permits account to be taken of the results of consequences arising out of a particular view as to the meaning of a statute being otherwise correct, traces back earlier to the often cited judgment of the Privy Council in Brunton v The Acting Commissioner of Stamp Duties [1913] AC 747 at 759, where the following appears: "Where in a statute words are used capable of more than one construction the results which would follow the adoption of any particular construction are not without materiality in determining what construction ought to prevail…" After distilling the results of a particular interpretation of a revenue statute urged by the Respondent Commissioner, the Privy Council continued at 759 with the following observations: "These results would be curious, if not anomalous… There is no indication in the Act that any such result was intended, and the result itself is so strange that the Court may well hesitate in construing the doubtful words of the statute in such a way as to bring it about." 21 More recently in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297, a consideration of the results flowing from a particular construction was again undertaken in a revenue statutory context. In the joint judgment of Mason and Wilson JJ, the following observations were made at 320: "Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative construction more closely conforms to the legislative intent discernible from other provisions in the statute. As there emphasised, the alternative course which avoids an inconvenient or improbable course must be reasonably open as a matter of construction. 22 I should add for completeness the following allied or cognate principles or approaches to construction enunciated in judgments of the High Court, namely preference for "a construction of a statute which interferes with the legal rights of a subject to a lesser extent and produces the less hardship is to be preferred to another, having the opposite effect" (see Federal Commissioner of Taxation v Smorgon (1976) 16 ALR 721 at 729 per Stephen J), and the adoption of a construction in preference for another because of the "rather alarming consequences" of the latter (see Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327 at 333 per Windeyer J). Nevertheless if a particular construction is sufficiently intractable or compelling, the same would have to be maintained. As Lord Simon of Glaisdale said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenberg AG [1975] AC 591 at 645: "Courts of construction interpret statutes with a view to ascertaining the intention of Parliament expressed therein. But, as in interpretation of all written material, what is to be ascertained is the meaning of what Parliament has said and not what Parliament meant to say." Each of the foregoing authorities, and others to similar effect, are referred to in Pearce and Geddes, Statutory Interpretation in Australia (5th ed, 2001) pars 2.32 to 2.34 under the heading "Consequences of a particular interpretation". 23 A further facet of statutory interpretation arises in the present context as to whether the legislative scheme of s 106V is capable of yielding, in the context of ss 106T and 106 U of Part VAA, and of ss 118 and 119 of Part VA, to the implication of a statutory entitlement of a practitioner to withdraw his or her application for review of a final determination. Again I am indebted to Professor Pearce and Associate Professor Geddes for their preceding treatise in the same textbook in pars 2.27 and 2.31 under the heading "Implying words in legislation". Commencing with the often cited passage from Lord Mersey's speech in Thompson v Goold & Co [1910] AC 409 at 420, namely: "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do." and continuing with dictum of Stephen J in Marshall v Watson (1972) 124 CLR 640 at 649, namely: "Granted that there may seem to be lacking in the legislation powers which it might be thought the Legislature would have done well to include, it is no [part] of the judicial function to fill gaps disclosed in legislation…", the authors focused upon what might be described as a high water mark in the justification for implying words in legislation, which is to be found in dictum of McHugh JA (as he then was) in Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 at 302, as follows: "[I]t is not only when Parliament has used words inadvertently that a court is entitled to give legislation a strained construction. To give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved. … First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty that words Parliament would have used to overcome the omission if its attention had been drawn to the defect." Thereafter the authors cited the recent observations of Spigelman CJ in R v Young (1999) 46 NSWLR 681 at 687-688, being observations made in the context of reference to Bermingham: "The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based. … If a court can construe the words actually used by the parliament to carry into effect the parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction, and even if it is a strained construction…[s]o long as the court confines itself to the range of possible meanings or of operation of the text - using consequences to determine which meaning should be selected - then the process remains one of construction. … The references in the authorities to the court 'supplying omitted words' should be understood as a means of expressing the court's conclusion with clarity, rather than as a description of the actual reasoning process which the court has conducted." 24 As has been seen from my summary of the Tribunal's reasons for decision set out in [15] above, the Tribunal denied to the Appellant recognition of the common law principle of prima facie application, namely the right to withdraw an application for administrative review or other decision-making at any time before completion of the review or decision making process, essentially because s 106V does not address the consequence of a final determination taking effect, or otherwise, in the event of an application for review of a final determination by a practitioner to the Tribunal being withdrawn, or such application lapsing, contrary to the explicit provision made in that regard by s 106V(4) in the case of the withdrawal or lapse of an appeal from the Tribunal to the Federal Court. It is difficult to rationalise why no reference was made in s 106V, or elsewhere, to the consequences of an application for review being withdrawn or being sought to be withdrawn by a practitioner, or for that matter of such an application lapsing for non-prosecution. I should interpolate, as would have been earlier noticed that no provision is of course made in the Act for the Determining Officer to seek review by the Tribunal of his or her final determination, the review process being available solely at the instance of the practitioner, notwithstanding that a final determination is based upon the report of the Committee. 25 The absence of any explicit provision in the legislation as to the withdrawal by a practitioner of his application or request for review of a final determination does not however carry the conclusion that the right to withdraw on the part of an applicant cannot be implied as a matter of construction of the legislation. I do not think that the Tribunal was correct in its reason for its critical conclusion that "The consequence of a practitioner having an inherent right to withdraw, after the expiration of the twenty-eight day period referred to in subs 106V(1), a request made under s 114 would appear to be that the determination would never come into existence…" (see [40] of the Tribunal's decision). Whilst s 106V(2)(a) of the Act expressly provides for the circumstance when a final determination does not take effect, namely "if it is set aside on the review", and whilst s 106V(2)(b) further expressly provides for the situation where a final determination is affirmed, or varied on review (the reference to "review" being of course to the Tribunal's decision on review), it is I think implicit that s 106V(2) thereby recognises that a final determination remains on foot, albeit suspended in operation, unless and until the Tribunal wholly sets the same aside, or else the Tribunal partially sets the same aside (as the case may be), in which latter case the final determination remains on foot except to such partial extent. In either case, the common law principle as to the right of withdrawal from administrative review on the part of the applicant cannot sensibly operate in derogation of such statutory review process, since any withdrawal from such process on the part of an application for review would merely leave the final determination on foot and thereafter in full operation, that is to say, no longer suspended in operation. The same consequences would equally apply to the lapsing of an application for review. That being so, the foregoing foundation for the Tribunal's decision on this first and primary question falls away, since the withdrawal of the application for review by the Appellant duly took effect for the purposes of the Act in no different way than if the Tribunal had conducted a full hearing at the instance of the Appellant and had thereafter dismissed the same. 26 I therefore conclude that within the legitimate field of operation permitted by the authorities to which I have referred, and which I have cited in [23] above, the withdrawal by the Appellant of his request or application for review of the Determining Officer's decision, if it had been recognised by the Tribunal, did not have the effect upon the true construction of the Act, of vacating the final determination of the Second Respondent, but on the contrary, such withdrawal had the effect of crystallising thenceforth in full force and effect, as and from the date of withdrawal of such final determination, no differently than if no application for review of the final determination had ever been lodged with the Tribunal. That being so, there was no legislative fetter operating upon the entitlement of the Appellant to withdraw his application for the final determination at the time and in the manner which he did. The opinion which I have expressed as to the operation of the Act upon the circumstance of an applicant's unilateral withdrawal of his or her request for review by the Tribunal is truly "text based", to adopt the description of Spiegelman CJ in Young, in that it gives, in my opinion, appropriate effect to an underlying purpose of the legislation which the Parliament by inadvertence failed to explicitly deal with or address, that is to say, recognition of the basis upon which the common law right of withdrawal by an applicant from the pending administrative process of review by the Tribunal would operate, and thus produce conformity with the legislative scheme as to review by the Tribunal of final determinations, similarly to that of appeals to the Court from administrative decisions expressly spelt out by s 106V(4) 27 I am therefore of the opinion that the Tribunal's decision the subject of appeal, to the effect that it retained jurisdiction to review the final determination of the Determining Officer, notwithstanding the Appellant's withdrawal from the review process prior to the finalisation thereof, should not be sustained. I should formally and finally record that it was common ground between the parties that the issue of statutory construction which I have resolved above involved a question of law arising from such decision of the Tribunal which occurred in a proceeding before it under Division 3 of Part VA of the Act.

Tribunal's decision on the question whether, in the circumstances which happened, the Tribunal had jurisdiction to determine whether an application for review purportedly lodged with the Tribunal has been validly made within the time prescribed by the Act, in circumstances where both the applicant and the determining officer mutually acknowledge to the Tribunal that the same had been lodged with the Minister out of time 28 The submissions made to the Tribunal, and to the Court, in support of a positive answer to this question, were undertaken principally by the Second Respondent, the Minister being understandably concerned that practitioners who lodge applications outside the period of twenty-eight days prescribed by s 114(2)(c) of the Act should not be able to pursue the same before the Tribunal. Presumably in the ordinary course the Minister has not until now been referring any such applications to the Tribunal for review, in circumstances where the Minister has had a sufficient basis for adjudging the same to have been made by the practitioner out of time, but the availability of a sufficient basis to that end may often depend on information in the exclusive possession of an applicant for review, concerning which information the Minister may be unable to form a conclusion. The Appellant supported the submission of the Second Respondent on this second issue, since if correct, the same provided an additional or alternative basis for the Appellant to avoid the necessity of a Tribunal hearing relating to the final determination of the Second Respondent already in place. 29 It was common ground between the Appellant and the Second Respondent in the proceedings before the Tribunal, leading to its decision of 9 March 2001, that the request for review served upon the Minister on 29 June 2000 by the Appellant (see [7] above) was so served outside of the twenty-eight day period stipulated by s 114(2)(c) of the Act. The Tribunal decided however that its jurisdiction to review the final determination did not depend in any sense upon it being established that the s 114 request had been served upon the Minister within such prescribed period. Extracted below is the text of the Tribunal's reasoning in that regard: "In our opinion, the jurisdiction of the Tribunal to review the final determination does not depend in any sense upon it being established that the request by the applicant was served on the Minister within the prescribed period. We take the view that the jurisdiction of the Tribunal arose when the President received from the Minister the request made by the applicant." 30 Before expressing its conclusion set out above, the Tribunal raised the question with senior counsel for the Appellant and senior counsel for the Second Respondent as to how the necessary material could be legitimately put before the Tribunal to purportedly establish the facts upon which the submission summarised in [28] above was based. The Tribunal pointed to the absence of any statutory power to examine witnesses in relation to any disputed issue of fact, or to receive any documentary material other than the documents specified in s 115(1) of the Act, the text whereof is set out below: "(1) Upon receipt by the Minister of a request under section 114 for the review of a determination, the Minister shall forward the request to the President of a Tribunal, together with: (a) a copy of the reference that gave rise to the determination; (b) a transcript of the proceedings at the hearing conducted for the purposes of that reference; (ba) any exhibits, or copies of exhibits, received at the hearing conducted for the purposes of that reference; (c) the report on that reference and any documents sent to the Minister with that report; and (d) the determination." It was further pointed out that such documentary categories clearly did not include material relevant to the question whether the request for review was served on the Minister within the prescribed period. 31 Of course as a matter of principle, as in the case of the Administration Appeals Tribunal, the Tribunal does not exercise judicial power. To adopt the often cited dictum of Brennan J expressed in the context of the powers of the Administrative Appeals Tribunal in Re Adams and The Tax Agents Board (1976) 1 ALD 251 at 257, being powers analogous to the subject Tribunal: "[The Tribunal] has no judicial power. The relief must be sought, if at all, from a court in which the judicial power of the Commonwealth is vested." The Tribunal rightly observed that it could not therefore adjudicate upon a contested issue between the parties as to whether the application for review by the Tribunal was made within the statutory period of time. However in circumstances, such as the present, where the absence of the jurisdictional fact as to lodgment of an application for review within the prescribed time is common ground between the practitioner for relief and the Determining Officer for the time being as responding party, as was the case here, there is no reason in principle why the Tribunal is not lawfully entitled to act upon their mutual agreement as to absence of such jurisdictional fact. In that regard, there was apparently no request made to the Tribunal by the Appellant or the Second Respondent that it should go further and grant some form of declaratory relief, in a manner analogous to that provided by superior courts of record, a course which by way of contrast would constitute an exercise of judicial power: see Uniden at 202. 32 I would therefore conclude that in my opinion, the Tribunal should have accepted, at the joint request of the Appellant and the Second Respondent, that it was precluded from proceeding further by reason of the joint acceptance by those parties of the absence of the jurisdictional fact required by s 114(2)(c) of the Act (as to which see [13] above), irrespective of the effectiveness or otherwise of the Appellant's unilateral withdrawal of its request to the Tribunal for review of the final determination, which has been the first issue which I have addressed in this judgment. I do not think, with respect, that it was right for the Tribunal to hold that its jurisdiction arose irrevocably, once the President of the Tribunal received from the Minister the request of the Applicant within s 114(1) of the Act, irrespective of having been subsequently notified by the parties of their united acknowledgment of the absence of such jurisdictional fact. Accordingly I would also uphold the appeal on this alternative ground. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti .

Associate: Dated: 4 October 2001 Counsel for the Applicant: Dr G A Flick SC and Mr JD Fitzgerald

Counsel for the Respondent: Ms CA Needham SC and Miss RM Henderson

Solicitor for the Respondent: Australian Government Solicitor

Health Insurance Act 1973(Cth)ss 82, 106Q, 106R, 106S, 106T, 106U, 106V, 114, 115, 119

Health Insurance (Professional Services Review) Act 1999(Cth)

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (10)

Cited By (2)