Dimian v Health Insurance Commission

REASONS FOR JUDGMENT Introduction 1 This is an application by a medical practitioner for review of decisions made by the second respondent ("the Director") and the third respondent ("Committee 169") under the peer review-based Professional Services Review Scheme ("the Scheme") contained in Part VAA of the Health Insurance Act 1973 (Cth) ("the Act"). 2 I described the Scheme in my decision in Oreb v Willcock [2004] FCA 1520 ("Oreb") handed down on 30 November 2004. I also set out most of the relevant provisions of the Act. I will not repeat what I said in Oreb about the Scheme or the Act. As in Oreb, the relevant provisions are those in the Act as it stood in 1999. 3 The applicant ("Dr Dimian") seeks review of the decision under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and s 39B(1A) of the Judiciary Act 1903 (Cth)("the Judiciary Act"). 4 On 17 May 2000 the first respondent ("the Commission") made Investigative Referral No 169 ("the investigative referral"). The referral period for Dr Dimian's services was 1 July 1998 to 30 June 1999. Dr Dimian does not seek review of the Commission's decision to make the investigative referral. Accordingly, the Commission was joined unnecessarily as a party to these proceedings. 5 Dr Dimian seeks review of an adjudicative referral ("the adjudicative referral") made by the Director on 15 February 2001. I will set out details of the adjudicative referral below. 6 Dr Dimian also seeks review of the decision made by Committee 169 in its final report that Dr Dimian's conduct in connection with the rendering of some of his services during the referral period would be unacceptable to the general body of medical practitioners and, therefore, constitutes inappropriate practice under s 82 of the Act. The adjudicative referral and the finding of inappropriate practice were not based upon a breach of the "80/20 rule", contained in Regulation 10 of the Health Insurance (Professional Services Review) Regulations 1999 (Cth) ("the Regulations") which Ryan J described in Daniel v Kelly (2003) 200 ALR 379 ("Daniel") at [8]. Rather, they were based upon Dr Dimian's high volume of services and lack of clinical input. 7 The final report of Committee 169 was dated 6 January 2004. The application was filed on 5 February 2004. The application for a review of the decision of Committee 169 was filed within the time limited by ss 11(1)(c) and 11(3) of the ADJR Act. An extension of time under the ADJR Act or an exercise of my discretion under the Judiciary Act is required for any order of review of the adjudicative referral. That decision was made almost three years before the date of the application. 8 Dr Dimian relies on an amended application for an order of review filed on 28 October 2004. The amended application raises, in addition to the grounds of judicial review, three Constitutional questions. I made an order on 28 October 2004 severing the Constitutional questions and providing for the hearing of the claims for judicial review before the hearing of the Constitutional questions. 9 On 24 November 2004, I granted leave to Dr Dimian to file a further amended application which adds claims for relief on the Constitutional issues. The further amended application does not relate to the questions which were heard on 28 October 2004. 10 Dr Dimian raised two questions for determination. The first may be described as "the s 92 question". It is similar to the question on which I found against the applicant in Oreb. 11 Dr Dimian's contention is that the Director erroneously construed s 92 of the Act as requiring Dr Dimian to make an admission of guilt and requiring him to invite recourse to s 92 as a precondition of the exercise of the Director's discretion. The jurisdictional error is therefore said to be an error of law going to jurisdiction or a denial of procedural fairness by reason of the Director's failure to put those views to Dr Dimian. 12 The second question is whether Committee 169 denied Dr Dimian procedural fairness by failing to give him an opportunity to comment upon what may be described as an adverse credit finding contained in the final report. Dr Dimian relies upon the second rule of procedural fairness stated by the Privy Council in Mahon v Air New Zealand [1984] 1 AC 808 at 821 ("Mahon"). Dr Dimian also relies upon s 106KD of the Act which required Committee 169 to prepare a draft report of its preliminary findings and to provide Dr Dimian with a copy of the draft and the opportunity to suggest changes. 13 In order to make good the s 106KD submission, Dr Dimian relies upon differences between the contents of the draft report supplied to him and the contents of the final report. The Facts 14 Dr Dimian is a general practitioner who conducts a practice in Merrylands. He is a graduate of the University of Cairo. Prior to commencing practice in Australia, he had been an ear, nose and throat surgeon in Egypt for twenty years. 15 In December 1997, about six months before the referral period, Dr Rick Newton, a medical advisor to the Commission, counselled Dr Dimian about the high volume of his services. It is not necessary to record any of the details of the counselling. 16 The Commission conducted a follow up review of Dr Dimian's practice profile. On 29 June 1998, the Commission's Case Management Committee determined that it was not necessary to forward the matter to the Commission's Manager of Professional Services for consideration of referral to the Director. Dr Dimian was informed of this in a letter dated 9 July 1998. 17 The Commission conducted a further review of Dr Dimian's practice but, on 16 February 1999, it determined not to forward the matter for consideration of possible referral to the Director. Dr Dimian was informed of this by letter dated 22 February 1999. 18 However, on 8 October 1999, the Chairman of the Case Management Committee of the Professional Services Review Branch of the Commission wrote to Dr Dimian stating that a decision had been taken to refer the matter to another officer of the Commission for consideration of referral to the Director. 19 On 16 May 2000, the Commission made the investigative referral. The delegate who made the referral stated that:- "During the referral period Dr Dimian rendered 70 or more services per day on 99 occasions. There has been a significant increase in Dr Dimian's daily servicing since counselling. The Health Insurance Commission believes that Dr Dimian may not be able to provide care and advice appropriate to patients' needs when they are seen at this daily rate." 20 The delegate also stated:- "The Health Insurance Commission is concerned that Dr Dimian may be practising inappropriately in that he may be unable to provide the appropriate amount of clinical input into each and every consultation when consistently rendering this volume of services over long hours on a regular and continuing basis." 21 On or about 16 May 2000, the delegate sent a copy of the investigative referral to Dr Dimian with a notice under s 88(2) of the Act inviting him to make written submissions to the Director within 14 days stating why the Director should dismiss the referral without setting up a Committee. 22 On 19 May 2000, the Director wrote to Dr Dimian repeating the invitation to make submissions. The letter was in precisely the same form as the two letters sent to Dr Oreb to which I referred at [92 and [107] of my judgment in that case. For completeness, I will set out the letter which is as follows:- "On 16 May 2000 I received a referral from the Health Insurance Commission (HIC) regarding your conduct in relation to the Medicare program. I understand that the HIC has delivered to you a copy of the referral documentation and the relevant sections of the Health Insurance Act 1973 (the Act). In accordance with section 89(1) of the Act I must carry out an investigation of this referral. Following the investigation I have the option to: · dismiss the referral for the reasons set out in section 91 of the act, · enter into an agreement with you as set out in section 92 of the Act, or · refer the matter to a Professional Services Review Committee as set out in section 93 of the Act. Section 88(3) of the Act provides that you may make written submissions to the Director, within 14 days, as to reasons why the Director should dismiss the referral without setting up a Professional Services Review Committee. I would be pleased to receive a submission from you and would give it careful consideration along with other relevant documents or materials I may decide to obtain. Should you wish to communicate with this office, the address and telephone numbers are detailed below. If you would prefer any further communications from this office to be directed to at another address, I would appreciate such advice." 23 On 25 May 2000, Dr Dimian responded to the Director's letter stating his explanation that he worked long hours, that he was the only doctor in the practice, that the practice was in a busy location, that most of his patients had big families and that some of the cases involved multiple or chronic problems. 24 The letter of 25 May 2000 concluded by stating:- "I will appreciate your advice, Sir. Many thanks for your kind consideration of this matter." 25 On 29 May 2000, the Director wrote to Dr Dimian acknowledging receipt of the submission and assuring him that full consideration would be given to it. 26 On 19 July 2000, the Director wrote to Dr Dimian enclosing a notice to produce documents under s 89B of the Act. The letter also enclosed a brochure outlining the scheme. The brochure was in the same form as the brochure to which I referred at [75] - [76] of my judgment in Oreb. It included the following paragraph:- "Negotiating an agreement: The practitioner may approach the Director to negotiate a conclusion of the matter. The Determining Authority must approve any agreement for it to become effective." 27 The Director made the adjudicative referral on 15 February 2001. He stated in it that he did not dismiss the investigative referral under s 91 of the Act because he was not satisfied that there were insufficient grounds on which a Committee established under s 93 of the Act could reasonably find that Dr Dimian had engaged in inappropriate practice. 28 The adjudicative referral states that, pursuant to s 93(1) of the Act, the Director established Committee 169 on 15 February 2001 to consider whether Dr Dimian's conduct constituted inappropriate practice. 29 The referred services were stated to be all Medicare benefits services for specified items provided by Dr Dimian from his practice at 173 Merrylands Road, Merrylands for the period from 1 July 1998 to 30 June 1999. 30 The reasons stated by the Director for the adjudicative referral were Dr Dimian's high volume of services and significant lack of clinical input. Reference was also made to Dr Dimian's inadequate record keeping. 31 There was no reference in the adjudicative referral to any consideration of the possibility of a s 92 agreement. 32 By letter dated 16 February 2001 the Director notified Dr Dimian of the adjudicative referral and enclosed a copy of it. 33 Committee 169 held hearings on 20 April 2001 and 10 and 11 May 2001. Dr Dimian was examined at the hearings. He was accompanied by a solicitor who was present at the hearings to advise Dr Dimian. 34 On or about 25 May 2001, Dr Dimian provided a written submission to Committee 169. It is not necessary to refer to the contents of the submission. 35 On 4 September 2003, Committee 169 provided Dr Dimian with a copy of its draft report. The draft included a lengthy schedule setting out a summary of the evidence given by Dr Dimian for each service randomly sampled, including a transcript reference thereto, and the Committee's reasons in respect of each such sample. The reasons were stated in bullet point form, and were presented in support of the Committee's preliminary finding that Dr Dimian had engaged in inappropriate practice. 36 I was taken to the Committee's draft reasons in respect of some of the services on which random samples were investigated by Committee 169. I will refer below to a number of items to which I was directed. 37 The reasons stated in the draft against Item 53 service no 3 were:- "Having weighed the oral and written evidence, the Committee found that there was insufficient documentation of history and no documented evidence of an adequate examination or that Dr Dimian had investigated and formed a management plan for the patient's recurring acute bronchitis (and whether or not she was suffering from asthma). Dr Dimian's records were deficient in essential clinical information such as the duration and severity of the patient's condition and the presence or absence of sputum." 38 The third bullet point of Committee 169's draft reasons in relation to Item 53 service 29 stated:- "Although Dr Dimian stated that he referred the patient to a specialist for treatment of acute tonsillitis and that he approached the Auburn hospital and been advised by them that there was a two year waiting period for surgery, he failed to record any of this information." 39 The second bullet point in the draft against Item 97 service 8 stated:- "The entry for this service did not contain any documentation regarding the patient's history or any examination performed, despite Dr Dimian's recollection that the patient presented with dizziness and a headache and had a documented history of heart, blood pressure and hypertension problems." 40 The third bullet point of Committee 169's draft reasons in respect of Item 54 service 26 was as follows:- "There was no written evidence to support that any blood tests were done on the patient to monitor his diabetes, despite Dr Dimian's claim in his oral evidence that 'maybe' he did." 41 On 29 September 2003, Dr Dimian provided written submissions in response to the draft report. He referred at [31] of the submissions to what was said to be the failure of the Director to properly consider the possibility of making an agreement under s 92. 42 Dr Dimian also submitted at [48] of his submission that:- "… where I have given evidence as to what did or probably did occur in the course of the consultations and it was not put to me that I was lying, the Committee must accept that evidence." 43 The Final Report of Committee 169 was dated 6 January 2004. It found that the conduct of Dr Dimian in connection with the rendering of some of the referred services would be, in the opinion of Committee 169, unacceptable to the general body of medical practitioners. This was a finding of inappropriate practice under s 82. 44 The final report contained a section headed "Consideration of Submissions on the Draft Report". This section, of course, did not appear in the draft report. It stated that Committee 169 had carefully considered Dr Dimian's submission of 29 September 2003. It also included the following, at [64]:- "With respect to Dr Dimian's oral evidence, the Committee states that it has taken it into account along with all other evidence (refer paragraph 16 of the report). As evidenced throughout the patient discussions, Dr Dimian was often unable to assist the Committee with further evidence because he could not recall the service. When considering what he surmised he would have done against the other evidence, given the fact that the services took place some years prior, the Committee concluded that his evidence was, at times, inconsistent." (emphasis added) The Section 92 question 45 The claim that the adjudicative referral was affected by jurisdictional error by reason of the Director's erroneous construction of s 92 or denial of procedural fairness is identical to the claim made in Oreb. It must be rejected for the reasons which I gave at [181] - [182] and [187] in that case. 46 The Director fairly and squarely put to Dr Dimian in the letter of 19 May 2000, set out at [22] above, the option of entering into a s 92 agreement. 47 So too, Dr Dimian was informed in the brochure forwarded to him on 19 July 2000 that he may approach the Director to negotiate a conclusion of the matter. 48 There was nothing in Dr Dimian's s 88(3) letter of 25 May 2000 which remotely suggested the possibility that he may wish to enter into a s 92 agreement. 49 Nor did Dr Dimian approach the Director to negotiate an agreement after receiving the brochure in July 2000. 50 It was not until 29 September 2003 that Dr Dimian made any mention of s 92 and, only then, to Committee 169 in a submission that the Director had failed to consider the possibility of an agreement. 51 The Director did not give evidence and he made no mention of s 92 in the adjudicative referral. But, as in Oreb, any inference which Dr Dimian seeks to draw cannot assist him. This is because he failed to request a s 92 agreement after being given the opportunity to do so. The Director had no further obligation to consider recourse to s 92. I am entitled to infer from the Director's failure to refer to s92 in the adjudicative referral that he did not consider it to be a material matter: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69] per McHugh, Gummow and Hayne JJ. There was no jurisdictional error in this. The Report of Committee 169 - The Second Rule of Procedural Fairness in Mahon 52 The second rule of procedural fairness was stated by Lord Diplock in Mahon at 821 as follows:- "The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, mighthave deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result." 53 The rule has been accepted by the High Court and was applied by Gaudron and Gummow JJ in Re Refugee Tribunal; Ex parte Aala (2000)204 CLR 82 ("Aala") at [78]. 54 However, Mahon is not authority for the proposition that a tribunal must always give advance warnings of the possibility that it proposes to make adverse credit findings. This was recognised by Gaudron and Gummow JJ when they said in Aala at [76] that there is no universal proposition that before a tribunal makes adverse findings, it is necessary for the tribunal to put to an applicant the concerns which are inclining it to an adverse finding. As their Honours said, the proceedings in the Tribunal in Aala were inquisitorial, not adversarial. 55 A statement to similar effect was made by Gummow and Heydon JJ in Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 ("S154") at [57] as follows:- "Accordingly, the rule in BrownevDunn [(1893) 6 R 67 ("Browne v Dunn")] has no application to proceedings in the Tribunal. Those proceedings are not adversarial, but inquisitorial; the Tribunal is not in the position of a contradictor of the case being advanced by the applicant. The Tribunal Member conducting the inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. The Tribunal Member has no "client", and has no "case" to put against the applicant. Cross-examiners must not only comply with Browne v Dunn by putting their client'scases to the witnesses; if they want to be as sure as possible of success, they have to damage the testimony of the witnesses by means which are sometimes confrontational and aggressive, namely means of a kind which an inquisitorial Tribunal Member could not employ without running a risk of bias being inferred. Here, on the other hand, it was for the prosecutrix to advance whatever evidence or argument she wished to advance, and for the Tribunal to decide whether her claim had been made out; it was not part of the function of the Tribunal to seek to damage the credibility of the prosecutrix's story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation." 56 The "proceeding" before Committee 169 was also inquisitorial. Thus, it was quite wrong to suggest, as Dr Dimian submitted in [48] of his submission of 29 September 2003, that Committee 169 was bound to accept his evidence where it was not put to him that he was lying. 57 All that was necessary for compliance with the second rule in Mahon was that Dr Dimian not be kept in the dark about the risk that his evidence may not be accepted. In my view this was plain from the nature of the referral. It was also made clear in the transcript of Dr Dimian's evidence and in the draft reasons stated in the schedule to the Draft Report. 58 The principal issue raised by the adjudicative referral was whether Dr Dimian was able to provide the appropriate level of clinical input into each consultation while providing a high level of services on a continuing daily basis. This was made plain in the terms of the adjudicative referral, a copy of which was provided to Dr Dimian; see at [27] - [32] above. 59 Section 101(2) of the Act provides that the Committee must hold a hearing if it appears to the Committee that the person under review may have engaged in inappropriate practice. Dr Dimian was, or must be taken to have been aware of this provision. Moreover, there was a description of the powers and duties of the Committee and the rights and obligations of a practitioner in the brochure which was sent to Dr Dimian and to which I referred at [26] above. 60 In light of the issues raised by the adjudicative referral and the nature of the hearing, there can be no suggestion that Dr Dimian was left in the dark as to the possibility that his evidence may not be accepted. 61 Committee 169 questioned Dr Dimian about, inter alia, Item 97 service 8. It subsequently made draft findings on this service as set out at [39] above. The transcript of the examination on this service was as follows:- "There is another item 97 charged for a consultation on 23 January 1999 and there is an entry here I can see in the medical record. Would you be kind enough to read to me what you have entered on that day, word by word? On 23 January '99?--- Is that after hours? That is after hours, item 97 charged. It starts with two words, 'HT'? --- Yes, twenty --- Third of January 1999, would you be kind enough to read for me what you have documented, word by word?--- Yes, yes, I write HT cardio SM, CD2 4 milligram capsules "HT", what does that stand for?--- Hypertension. And can you tell me what have you performed during that consultation?--- Just as here I said that very high headache and they just - she very dizzy, she asked me just - she ring me just to check her blood pressure. Do you recall that consultation? Do you recall - do you remember it? --- Of course I remember, yes, of course. Once I read it, yes I remember, of course, yes. But there is no dizziness written in here. Did you - do you remember if she was dizzy? --- Usually, yes, usually I use just observation just for myself, all right? Just to see what I did. And this is - that's mean I didn't take a history or make anything, no. Just to remind me why I saw her about that time and what medication I give it to her and just to fill her up but --- That's fine. So what was the patient presenting complaints?--- Complained of dizziness and the headache, all right. She ask me just help me, I can't open my eyes, all right. Presenting complaints were dizziness and a headache?--- Headache, yes. Are these entered in the medical records as we see it? Is there any evidence of that in the medical record?---As I said, I write just only the notes, yes. Yes. I'm asking a simple question. Is there any evidence of that in the medical record? Is there dizziness or headache?---No, I didn't write here." 62 Committee 169 also questioned Dr Dimian about Item 54 service 26. It made the draft findings set out at [40] above. The transcript of the examination on this service was as follows:- "DR KEHILA: Is there any blood tests in the medical records of that patient which you have? Have you got the original medical records in there. Have you got the original medical records? DR DIMIAN: Yes, this original, yes. DR KEHILA: That is your medical record not any other doctor's medical record? DR DIMIAN: You mean about this consultation or generally? DR KEHILA: No, the whole medical record of the patient. DR DIMIAN: There is no blood test here. DR KEHILA: That is fine. DR DIMIAN: But just I wanted to add because sometimes the patient he took the blood test from me. DR KEHILA: Well, how do you know if you have done a blood test. We can go round and round and saying the same things again. How do you or I know that you have requested a blood test in this patient? DR DIMIAN: Just what I said, I do not know. DR KEHILA: Exactly, so I was asking a simple question. Have you got any blood results on this patient in your medical records? DR DIMIAN: On this patient, no, but I want to add sometimes when the patient asking me to take the blood results. DR KEHILA: You do not leave any documentation in your medical record that you have taken to know about results? DR DIMIAN: No, asking them just to make a copy and return back to me. Sometimes it takes the patient - I don't get it back. DR KEHILA: What is the purpose of requesting an investigation on a patient? DR DIMIAN: Except maybe ask for another doctor, he said I keep it for myself. I want to keep it for when I go overseas. I give it the specialist. DR KEHILA: So there is a specific purpose. What would be the purpose in doing a blood test on a diabetic patient? DR DIMIAN: The purpose? DR KEHILA: Yes. DR DIMIAN: Just to make sure that he's under control. DR KEHILA: Exactly. So how do you know that this patient is under control? DR DIMIAN: With the blood test. DR KEHILA: All right. Where is the blood test? DR DIMIAN: That's what I'm saying. Maybe just I give him the blood tests and he took it with him. But I'm not sure. DR KEHILA: Maybe you've never done a blood test too. You use the word, maybe. DR DIMIAN: Maybe, yes, I can't remember, yes." 63 It seems to me that in view of these examples, Dr Dimian could have been under no illusion that he was at risk of an adverse finding about his oral evidence of the services he provided. 64 The third way in which it was clear that Dr Dimian was apprised of the risk was in the reasons stated by Committee 169 in the schedule to the draft report. I have set out examples of this at [37] to [40] above. 65 That Dr Dimian was plainly aware of the risk of an adverse finding was evident from his Browne v Dunn submission in [48] of his written submission of 29 September 2003. It is to be inferred from this that he was on notice from the draft that his evidence may not be accepted. It is true of course that the draft report was provided after Dr Dimian gave his evidence but it cannot be said, in light of the draft, that he was not informed of the risk or deprived of the opportunity to adduce additional material. 66 Counsel for Dr Dimian relied upon a statement in JRS Forbes Justice in Tribunals (2002) Federation Press, Sydney, at [28] that before an adverse finding of credit is made the tribunal should ensure that the person concerned is aware that his or her credit is in question. The authority cited by Forbes in support of this proposition is R v Vaccine Damage Tribunal; Ex parte Loveday; Times Law Report 10 November 1984; noted (1985) 59 ALJ 176 ("Loveday"). 67 The note of Loveday in the Australian Law Journal contains the following statement of the trial judge, Nolan J:- "It is the duty of an administrative tribunal, when it has heard a statement of matters that are not in dispute, either explicitly to accept that statement or to make it plain that, for whatever reason, it does not accept the statement, and if it takes neither course, its determination must be quashed." (emphasis added) 68 However, it is important to read this statement in its context and, in particular, having regard to the words which I have emphasised and the facts set out in the Australian Law Journal at 177. There it is pointed out that at the opening of the hearing it was said that no question was raised about the accuracy of certain diary entries. The Tribunal went on to find that the applicant's mother, who made the diary entries, exaggerated her evidence and had sought to support the evidence by later making untrue entries in her diary. 69 When the duty stated by Nolan J in Loveday is read in the light of the facts, it is easy to understand why it was found that the tribunal had contravened the rules of natural justice. The tribunal had misled the applicant (and his mother) into thinking that the diaries were not in dispute and had deprived them of the opportunity to adduce evidence to support their position. 70 A similar situation arose in Aala where the tribunal misled the applicant into believing that documents were before the tribunal whereas in fact they were not; see also Muin v Refugee Review Tribunal (2001) 190 ALR 601. 71 There was nothing in the present case which could have suggested to Dr Dimian that his evidence of clinical attendances was not in dispute. As I have said above, this was apparent from the nature of the referral to Committee 169 and from the line of questioning put to Dr Dimian at the hearing. It follows that there was no contravention of the second rule of procedural fairness stated in Mahon. 72 Nor is the case analogous with the circumstances considered by Nolan J in Loveday. As I have already said, that decision is explicable on the same basis as Aala and Muin, namely that the tribunal misled the applicant into thinking that a particular state of affairs existed whereas in truth it did not. 73 The statement made by Forbes that a tribunal should ensure that the person concerned is aware that credit is in question before an adverse finding is made is too wide. It is not supported by the observations of Gaudron and Gummow JJ in Aala or the comments of Gummow and Heydon JJ in S154 or the facts of Loveday. If the tribunal misleads an applicant into thinking that facts are not in dispute, it cannot depart from that position without giving notice to the party affected. However, there is no general obligation to put matters of credit to a party. It will be sufficient if this is apparent from the nature of the proceedings. 74 Here Dr Dimian was not misled and, as I have said, it was apparent that his evidence was in issue before Committee 169. Section 106KD of the Act 75 I turn then to s 106KD of the Act. I will set out the whole of the section as follows:- "(1) The Committee must prepare a written draft report of preliminary findings setting out: (a) if the Committee members are unanimous in their preliminary findings - those preliminary findings; or (b) if a majority of the Committee members are agreed on preliminary findings - those preliminary findings and the preliminary findings of the other Committee member or Committee members; or (c) if there are not a majority of the Committee members who are agreed on preliminary findings - the respective preliminary findings of the Committee members. (2) If the person under review is a practitioner, the draft report may, with the person's written consent, include recommendations: (a) for the practitioner to be fully or partly disqualified; and (b) about the nature and period of the disqualification. (3) The Committee must give to the person under review a copy of the draft report together with a notice inviting the person to make to the Committee, within 21 days after the day on which the copy of the draft report is given to the person, written submissions suggesting changes to the draft report." 76 Counsel for Dr Dimian relied on s 106KD(3). He submitted that this sub-section cannot be complied with unless the committee provides the practitioner with a draft which is identical, or at least 'virtually' identical, with the form of the final report. Thus, he submitted that there was no compliance in the present case because [64], (which I set out at [44] above), was not contained in the draft. 77 I reject the submission that there must be total correspondence between the draft report and the final report. Section 106KD(3) provides for the practitioner to be able to make submissions suggesting changes to the draft. The final report must be able to accommodate the submissions in a way which is favourable or unfavourable to the practitioner. 78 The draft report which the Committee is required to serve on the practitioner under s 106KD(3) must be the draft report which the Committee is bound to prepare in accordance with s 106KD(1). The draft which is addressed in s 106KD(1) must set out the preliminary findings of the Committee. They may be unanimous findings or the findings of a majority or of individual members. But all that s 106KD(1) requires is that the Committee set out the findings. 79 There was nothing in s 106KD in the form which it took at the relevant time which required the draft report to contain the reasons for the preliminary findings. The Health Insurance Amendment (Professional Services Review and Other Matters) Act 2002 (Cth) ("the Amending Act") added a new sub-section (1A) to s 106KD, which states that the draft report must set out the reasons for the preliminary findings. The new sub-section became effective on 1 January 2003. However, the Act as in force in 1999 continued to apply to an adjudicative referral made before the commencement of the operation of s 106KD(1A); see s 118(1) of the Amending Act. Thus, sub-section (1A) does not apply to the Committee's actions, as the adjudicative referral in respect of Dr Dimian was made in February 2001. 80 The new s 106KD(1A) amended the common law rules of natural justice under which a decision-maker is not bound to disclose his or her reasoning process for comment; see Commissioner for ACT Revenue v Alphaone Pty Limited (1993) 49 FCR 576 at 591 and S154 at [54] and [85]. This merely serves to emphasise that there was nothing in s 106KD(1) which required the Committee to set out the reasons for its preliminary findings in the draft report. Thus, the draft which the Committee was bound to serve under s 106KD(3) need not have included a statement of the Committee's reasons. 81 The draft which was served by Committee 169 did include draft reasons for its findings about the inappropriateness of Dr Dimian's clinical input with respect to a large number of services which were investigated by the Committee. The effect of the reasons to which I was taken by counsel for the respondents was that Dr Dimian's oral evidence was not corroborated by his written records. 82 The draft report contained the Committee's finding of inappropriate practice and specific findings in relation to each service that was investigated. The same findings were set out in the Final Report. 83 However, the Final Report set out two new reasons which were not set out in the draft. The new reasons were set out in [64] in response to Dr Dimian's Browne v Dunn submission. I highlighted the reasons at [44] above. They were that Dr Dimian could not recall services and that his evidence of what he surmised he would have done was inconsistent with other evidence. It is not clear what other evidence was inconsistent with Dr Dimian's surmisings. 84 But, there was nothing in s 106KD(1) which required Committee 169 to set out those additional reasons in its report. There was therefore no obligation on Committee 169 to serve, in accordance with s 106KD(3), a draft report which contained the additional reasons. The draft which Committee 169 served contained its preliminary findings. That was all it was required to do. There were no findings in the Final Report which were not set out in the draft. 85 It follows in my view that Committee 169 did not contravene s 106KD(1) or s 106KD(3). Extension of Time 86 In view of my findings on the s 92 question, this issue does not arise. Orders 87 It follows from my rejection of both of the contentions raised by Dr Dimian that the application must be dismissed with costs. I certify that the preceding eighty seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.