Department of Health v Ryan, K.J. [1986] FCA 334

SECRETARY TO THE DEPARTMENT OF HEALTH v. KATHRYN JUNE RYAN No. WA G54 of 1986

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

ON APPEAL from the General Administrative Division of the Administrative Appeals Tribunal constituted by Mr J.0. Ballard

The decision of the Administrative Appeals Tribunal the subject of the appeal be affirmed.

Respondent's costs (if any) to be paid by appellant.

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

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

ON APPEAL from the General Administrative Division of the Administrative Appeals Tribunal constituted by Mr J.0. Ballard

This is an appeal by the Secretary to the Department of Health from a decision of the Administrative Appeals Tribunal made on the 2nd day of May 1986. Pursuant to sub-s.44(1) of the

Administrative Appeals Tribunal Act 1975 the appeal is restricted

On 23 April 1985 Mrs. Kathryn Ryan applied for Isolated Patients Travel and Accommodation Assistance Scheme (IPTAAS) benefits in respect of a plane journey from Carnarvon, where she

had been under medical surveillance, to her home in Exmouth. The

cost of the fare approximated $80. Mrs Ryan was denied this

She then appealed to the Secretary to the Department of Health who confirmed the decision that IPTAAS benefits were not payable. Mrs. Ryan then made application for review to the Administrative Appeals Tribunal. The Tribunal set aside the

The factual background is of importance. In April 1985 the applicant attended the hospital at Exmouth suffering from acute stomach pains. A cyclone hovered in the vicinity. The general practitioner who she consulted was concerned that her pains were symptomatic of a condition which could require early surgery, 6.9. an appendectomy. Very sensibly, being concerned that this may require the services of a specialist surgeon he decided her safety dictated evacuation to Carnarvon where such a surgeon was available at the Carnarvon hospital. A plane operated by the Royal Flying Doctor Service was in Exmouth and she flew in this to Carnarvon. Delay would have been unwise as had the cyclone struck there was a very real possibility that air and

Clearly it was the intent of Dr. Cullen, the referring doctor in Exmouth, to refer her to the care of the specialist surgeon should the need arise. On arrival at Carnarvon she- saw a general practitioner Dr. Cooper of the Carnarvon Hospital. Obviously it was anticipated that if surgery was required, he, the

doctor on the spot, would make the appropriate arrangements and

final reference to the specialist surgeon who also practiced at the hospital. Fortunately her condition, and I assume the cyclone threat, abated and she returned to her home on an Ansett flight. Subsequently under IPTAAS, application was made for the cost of that return journey, the sum of $80. The 'Application for Benefit' form was in part completed by Dr. Cullen. It was obviously completed in haste in the manner of medical men who today must be amongst the greatest 'form fillers' in our society. In nominating "the type of specialist" he referred to 'Carnarvon Hospital'. In the succeeding section he referred to the 'nominated specialist' as Dr. Cooper of the Carnarvon Hospital - the general practitioner who would assume her care and refer her if need be to the specialist surgeon. He certified that Mrs. Ryan had not previously been seen by "this specialist" and completed

the reasons for the reference as "acute abdominal pain -

If Dr. Cullen had referred her directly to the specialist surgeon there would have been no problems. It was the fact that the "nominated specialist" was a general practitioner upon which the department basically denied her the benefit. He

was not, it is said 'a specialist' and the travel allowance is not

payable for a journey to or from another general practitioner.

I must say bearing in mind the purpose of IPTAAS, that is to say to assist- people to overcome the problems and

disadvantages of isolation, it was a narrow construction.

However she was denied the travel benefit due to the

interpretation of sub-s.13(1) of the National Health Act 1953

"(1) Where a person who resides inan isolated area-

(a) has been referred by a medical practitioner to a specialist or a consultant physician;

for the rendering to the person of a _ professional service by the specialist or consultant physician in the practice of his speciality, an application, in accordance with a form approved by the Minister, may be made to the Secretary by, or on behalf of, the person for the approval by the Secretary of the person as an approved patient in relation to the rendering of the professional service."

patient' as a patient approved by the Secretary under s.13". Section 16 provides "Where the Secretary approves an application under s.13, he shall also approve and specify in the notification under s.15 to the applicant, the means of travel for any relevant journey of the approved patient ......" (s.15 relates to the notification by the Secretary to an applicant of his decision

The Tribunal set aside the decision . of the Administrative Appeals Tribunal and found that the applicant was entitled to the benefit. The unusual factual circumstances of the

case were taken into account. In regard to the criteria set down

It seems to me therefore that what occurred is within the spirit of the legislation and that the only real justification for the refusal is because the referral in terms was directed to the general practitioner on duty rather than the specialist who would have provided the service. It seems to me that this is a matter where the maxim de minimis non curat lex (the law does not concern itself with trifles) applies, that being the case the decision

I sympathise with the philosophy behind the reference to

"de minimis', but in law it can hardly apply to this situation.

(a) The Tribunal erred in law in holding that the applicant was an approved patient within the meaning of s.13 of the Act.

(b) The Tribunal erred in law in holding that a referral to a general practitioner was a referral to a specialist or a consultant physician within the meaning of s.13(1) of the Act.

(c) The Tribunal erred in law in applying the maxim

(d) The Tribunal erred in law in finding that the applicant had not claimed an amount for fares under any State lawas this was against the weight of the evidence.

(e) The Tribunal erred in law in holding that s.17(5)(b)(ii) of the Act did not apply to the

As to the first ground I take the view that Dr. Cullen did refer his patient to a specialist, 1.e. the specialist surgeon at the Carnarvon hospital. The fact that Dr. Cooper was a link in the short chain of reference does not alter the true nature of the reference, i.e. to a specialist who could operate if the need

As to the second ground I consider the material before the Tribunal merited a finding that the reference, made at Exmouth, was to the specialist, the general practitioner nominated as the 'specialist', being but a conduit by which circumstances required the reference should be made. The essential requirements of s.13(1) were fulfilled. She was referred "for the rendering" to her "of a professional service by the specialist" and he was

the specialist surgeon available at Carnarvon hospital.

The third ground of appeal argued by the appellant is that the application of the maxim, de minimis non curat lex, was inappropriate. I believe it was. The maxim that the law does not concern itself with trifling matters is a maxim principally

referred to in criminal cases and applicable in few cases of a

nature which require consideration of statutory interpretation.

Examples where it has been said to have been applied in

interpretation cases are to be found, e.g. Customs and Excise

Commissioners v. Dodd (1961) 1 WLR 144; Coleshill and District

investment Co. Ltd. v. Minister of Housing and Local Government (1968) 1 AL1.E.R. 62. (See Maxwells Interpretation of Statutes

(12th Ed.) p.103). But I read those decisions as indicating that the Statute did not apply to the actual mischief complained of, the mischief being other than that contemplated by the

But I do not consider it necessary to consider principles of interpretation, such as the 'golden rule' expressed by Lord Blackburn in River Wear Commissioners v. Adamson (1877) 2 App.Cas. 743 at 764, more recently referred to by Donaldson M.R. in British Concrete Pipe Association (1983) 1 A11.E.R. 203 at 205 and somewhat battered by judicial decisions in contemporary times when principles of public interest, legal policy, predictability and purposive construction are from time to time mooted. (See Francis Bennion's Statutory Interpretation p.285 et seq.). Here the statute is relatively clear. The essential question is whether Mrs. Ryan was referred to a specialist. The Tribunal so found in classifying the reference as being 'within the spirit of

the legislation'. I consider its conclusion was correct.

Counsel for the Department in arguing the fourth and fifth grounds of appeal submitted that the Tribunal erred in its finding that Mrs. Ryan had not "claimed" any money from State

"As to the respondent's second point the test for both paragraph 13(2)(a) of the Act and sub-paragraph 17(5)(b) (ii) is that the applicant has "received or claimed" State funds. Clearly this applicant has not received any money's (sic) from State funds. Nor, on the facts, has she claimed any. In my opinion these two provisions do not operate to prevent her applying for the IPTAAS benefit because of a possibility that a benefit may be payable if State officers review a

I consider the Tribunal was correct in its finding that it is sufficient for the purposes of that Section that no formal application was made and no benefit received from State sources. Informal enquiries by a friend or one's local representative can not constitute an application by the applicant. It could not possibly be within the intention of the statute that a concerned friend, relative or member of Parliament enquiring as to a person's eligibility for State funding could deny, by such actions, the patient's eligibility for a Commonwealth health benefit.

For the above brief reasons I consider .the. Tribunal's

Understandably she filed an appearance abiding the result.

However, in case she has incurred costs I order that the appellant

I certify that this and the eight preceding pages are a true copy of the Reasons for Judgment of his Honour Mr. Justice Muirhead.