Tisdall v Webber
99 Much of the argument revolved around the authority of Tisdall v Webber and it is instructive to consider the reasoning in that case in some detail.
100 The Committee's report did not set out [28] in its entirety, it is worth setting it out in full here. It appears under the heading "The notion of 'absence'" in Greenwood J's judgment and states:
The primary Judge at [19] regarded the notion of "absence", in its statutory setting, as extending beyond a literal absence and connoting a lack of "readily or reasonably available" alternative medical services for Dr Tisdall's patients having regard to the Regulation 11(b) factors. As Buchanan J observes, that formulation of the statutory concept of absence (accepted by the appellant) is consistent with the "practical approach" to Regulation 11(b) adopted by Dowsett J in Hatcher v Fry [2000] FCA 1573; (2000) 183 FCR 1 at [16] in formulating the question to be asked by a Professional Services Review Committee, namely (as applied in this case), if a patient of Dr Tisdall on the relevant days during the referral period could not have seen Dr Tisdall within an appropriate timeframe (that is, within a reasonable timeframe) would the patient have been able, reasonably, to consult another medical practitioner? An answer to that question will involve consideration of the elements of a counter-factual contention based upon an assumption that the patient could not have seen Dr Tisdall. The question, of course, for the Committee is slightly different to that formulated by Dowsett J. It is whether, having regard to the relevant factors, the Committee can be affirmatively satisfied by Dr Tisdall (having regard to the body of evidence put to it for adjudication by the Committee members as general practitioners), on the matter of objective counter-fact, whether a patient of Dr Tisdall would have been able, reasonably, to see another medical practitioner rather than Dr Tisdall. Many considerations may be relevant to that question but they include questions of access to alternative practitioners, the location of the practice of an alternative medical practitioner, the hours during which such a practitioner might be available and the patient numbers or patient cohort seeking access to the alternative medical practitioner.
101 It is also useful to consider Dr Tisdall's circumstances as accepted by the committee in his case and the basis on which it declined to accept that he had made out "exceptional circumstances" on relevant days. Justice Buchanan directed attention to those matters at [100]-[101] as follows:
101 As to those matters the Committee:
• accepted that there was a chronic doctor shortage in rural Australia and that Kyabram and its surrounding area suffered from a relative shortage of doctors;
• accepted that there was a lack of co-operation between Dr Tisdall and a number of other doctors in Kyabram during the relevant period;
• referred to evidence supporting the proposition that other doctors in Kyabram had closed their books (and made no reference to evidence to the contrary);
• accepted that some doctors in Kyabram may have had limited hours of practice;
• accepted that alternative psychiatric, counselling and radiology services were limited for Dr Tisdall's patients;
• appeared to accept that Dr Tisdall had a reputation for caring for the underprivileged;
• appeared to accept that a large proportion of the Aboriginal, Turkish and Italian communities around Kyabram saw Dr Tisdall; and
• appeared to accept that Dr Tisdall bulk billed a large number of his patients, typically less well-off members of the community.
102 However the Committee declined to accept that those matters, in the circumstances, constituted exceptional circumstances or made out a case of exceptional circumstances under reg 11(b). One essential ingredient in the Committee's reasoning appears to have been its conclusion (or assumption) that other practices or practitioners would probably have had the capacity to see additional patients on each of the 66 days in question and would not have refused to see Dr Tisdall's patients on those days. Those findings were supported by observations that other practitioners also bulk billed "a significant proportion of their patients". The figures given by the Committee suggested that during the referral period in general, and on the 66 days in question in particular, other medical practitioners in the region bulk billed at the rate of about 46% (compared to Dr Tisdall's rate of about 73%).
102 It is useful to set out Buchanan J's consideration at [110]-[113]:
110 In Hatcher v Fry (2009) 183 FCR 1, Dowsett J dealt with the issue expressly, saying (at [16]):
16 In my view the regulation dictates a practical approach to the availability of other medical services. Within Australia it can hardly be said that anybody has no access to medical services. For a person in Roma there would always be the option of travelling to Brisbane for such services. However such a requirement might not be practicable simply because the requirement for such services might not justify the journey. In other cases that solution would not enable the patient to obtain the required services in a suitable timeframe. In others it would simply involve too much of a disruption to a patient's day-to-day life. On the other hand, it is conceivable that in a small country town having, say, two medical practitioners, both may be so busy that neither is, in a practical sense, able to fit in the other's patients other than by seeing more patients in the same timeframe. The question to be addressed is simply whether or not, if a patient could not have consulted the applicant within an appropriate timeframe, he or she would reasonably have been able to consult another medical practitioner. Such an enquiry involves consideration of the geographical locations of other practitioners, the hours during which they were available and their history of patient numbers.
111 Similarly, in the present case the primary judge said (at [19]):
19 In my view, the relevant sense of "absence" extends beyond a literal, physical absence of other medical services available to Dr Tisdall's patients. In the context of Reg 11, the term connotes a lack of readily or reasonably available alternative medical services for those patients, bearing in mind, as contemplated by sub-paragraphs (i) and (ii) of Reg 11(b), the location of the practice at issue, and the characteristics of the relevant patients. For there to be an absence in this sense, it is not sufficient that the alternative services be merely limited, as the Second Committee was prepared to find they had been.
[Emphasis in original]
112 Counsel for Dr Tisdall accepted the primary judge's statement as a correct construction of reg 11(b). Counsel for the respondents was more circumspect, suggesting simply that it was a matter for the Full Court to decide. However, she made no submission suggesting that any other construction should be preferred. In my view, the approach taken by the trial judge is consistent with that taken by Dowsett J and is to be preferred to any strict, literal, meaning requiring that no services at all be available. Accordingly, the question for attention is whether alternative services would have been available to Dr Tisdall's patients within a reasonable time.
113 In my view, the Committee did not apparently adopt, nor did it address, a test framed in that way or to that effect. In particular, it said nothing to dispel the suggestion inherent in the evidence of a number of witnesses, that requiring a patient to wait for days to see another doctor, if Dr Tisdall was available promptly, was an unreasonable delay. There was a significant body of reasonably uniform evidence put before the Committee by Dr Tisdall to the effect that: there was a serious shortage of medical practitioners in and around Kyabram; doctors in the two other practices in Kyabram had limited their hours, their preparedness to see new patients and their preparedness to see Dr Tisdall's patients in particular; patients were required to wait days to see doctors other than Dr Tisdall; and Dr Tisdall was prepared to go out of his way to accommodate their circumstances. In addition, he was more prepared than other doctors in the area to bulk bill and to see patients from disadvantaged groups. The evidence was given, on oath or affirmation, by the following people:
• Mr Wayne Sullivan, Chief Executive Officer of the Kyabram and District Memorial Community Hospital ("the Hospital");
• Ms Jean Courtney, Director of Nursing at the Tongala and District Memorial Aged Care Service and a member of the Board of the Hospital;
• Mr Michael Robertson, Chief Executive Officer of the Murray Plains Division of General Practice (of which all Kyabram general practitioners were active members);
• Dr Ian Collie, a pharmacist in Kyabram practising in the vicinity of Dr Tisdall's surgery;
• Mr Brian Thomson, Manager of the Ngwala Willumbong Co-operative Limited, an indigenous organisation which conducts the Percy Green Memorial Alcohol and Drugs Centre; and
• Mr Nilgun Atalmis, a Turkish interpreter in Shepparton.
103 At [114], Buchanan J set out excerpts of the unchallenged evidence given in support of Dr Tisdall. Mr Sullivan gave evidence that other doctors had closed their books and some people had had to see doctors outside the community or wait a few days to get in except in an emergency. Mr Robertson's evidence was that there were 17,000 people living in the catchment area and nine doctors, which created an acute shortage and it could take "many days" to see a doctor even when it was urgent. Dr Collie's evidence was that there was always a critical shortage of doctors in the region and as a result Dr Tisdall saw a number of patients who were unable to obtain medical services; the other doctors had closed their books and had shorter hours than Dr Tisdall, they had half a day off during the week and ran a roster for out of hours consultations. This was made worse by considerable friction between Dr Tisdall and the other doctors in the area who would not see his patients and refused to include him in their after-hours roster so that Dr Tisdall had not only to see his own patients at his surgery but also cover his own hospital and after-hours consultations. Mr Thomson's duties included securing medical services for residents who were predominantly Aboriginal, some of whom came to the Drugs and Alcohol Centre after being released from prison. He said he had difficulty securing appointments because of the shortage of doctors in the region and the lack of doctors prepared to bulk bill or because the doctors refused to see patients with drug and alcohol problems. Residents would have to wait seven to 10 days to see a doctor in Shepparton, if a doctor was willing to see them. Dr Tisdall would see those patients, bulk bill, had an understanding of drug and alcohol addicted people and Aboriginal people generally, he would see them with little delay and out of hours and on Saturdays when they required medication urgently. Mr Atalmis said that it was difficult for Turkish people to see a doctor anywhere in the region because of the shortage of doctors and if Dr Tisdall was unprepared to see them, they were unlikely to be able to find another doctor when they required treatment.
104 It is in those circumstances that Buchanan J found the relevant committee's dealt with the assessment of Dr Tisdall's case by making a "speculative assumption that on each of the days in question other practices were open, their practitioners had capacity to see additional patients and would have been prepared to do so". They did not explain how that assessment was made, the committee simply declared that it did not accept that other practitioners would have refused to see Dr Tisdall's patients, there was no direct evidence to support that declaration and the committee did it by "some process of inference from statistics supplied by Medicare": [116]-[117].
105 It is notable that at [124], Buchanan J recognised that in proceedings of this kind, findings of fact made by the committee are not reviewable, but the question of whether there is any evidence of a fact is a question of law, as is the question whether a particular inference may be drawn from facts, citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355, 367-368 and Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [33], [91]. At [125], his Honour also accepted that the question whether a conclusion is reached by a process of faulting reasoning, or is illogical, is not necessarily the same question as whether there is some evidence to support a finding of fact or from which an inference may be drawn and supported the position espoused by Greenwood J in Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272; [2008] FCAFC 108 at [95]-[100], relying on the Full Court's decision in Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 at [34] as follows:
The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law. A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place - Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6.
106 His Honour noted that in a case of suggested illogicality or faulty reasoning, the decisive test is not whether there was an error of logic or reasoning, but whether there was no foundation for the conclusion reached, citing the reasoning of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130]-[131], [135]. At [128] of Tisdall v Webber, Buchanan J noted that:
It is important to bear in mind also that the inferential process is not one where speculation, guesswork or mere assumption is accommodated. So far as the work of courts is concerned, where the application of judicial method is expected, the process of drawing an inference from available facts is not to be equated with conjecture, surmise or guesswork. The arbitrary selection of one possibility over others from an available number of possibilities by such a method is not merely lacking in logic; it fails to conform to the necessity that inferences be drawn on matters of legitimate deduction, based as probative values.
107 At [129]-[130], his Honour noted that in Bell IXL Investments Ltd v Life Therapeutics Ltd (2008) 68 ACSR 154; [2008] FCA 1457 at [14], Middleton J observed that while it may sometimes be difficult to distinguish between conjecture and inference, the distinction is important. Conjecture, though plausible, is still a guess, while an inference is a deduction from evidence and can reasonably be treated as part of the legal proof to be considered in making a factual determination. That is a fundamental principle authoritatively established: see Luxton v Vines (1952) 85 CLR 352 at 358. His Honour concluded at [131] that:
… However, a speculative conclusion, even if not truly based on inferential reasoning, must still conform to the necessity that it be reasonably open on the material before the tribunal. Even though the Committee was not bound by the rules of evidence, and was entitled to inform itself as it thought appropriate (s 106 of the Act), that did not mean that it could draw inferences, or jump to conclusions, which the available material did not adequately support.