[1991] FCA 201; 29 FCR 343

Administrative Law - natural justice - Medical Services Committee of Inquiry - inquiry - excessive medical services - whether natural justice requires particulars to be given of specific areas of concern - whether natural justice in fact denied

Health Insurance Act 1973, ss. 82, 79 and 96B

Administrative Decisions (Judicial Review) Act 1977, ss 5 and 16

Counsel for appellant: Dr A. Morrison with B. McManamey

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

The appellants are two medical practitioners who are currently appearing before the Medical Services Committee of Inquiry for the State of New South Wales ("the Committee") constituted under s. 80 of the Health Insurance Act 1973 ("the Act").

2. The inquiry upon which the Committee has embarked was instituted by a document described as an "Instrument of Referral under S. 82" ("the reference"). By the reference, the delegate of the relevant Minister referred to the Committee for inquiry into, and submission of a report and recommendations on, certain matters relevant to the operation or administration of the Act, namely, whether each professional service rendered to a patient by the appellants, being the services particulars of which are set out in annexures to the reference and being services for which Medicare benefit has been paid, was an excessive service within the meaning of s. 79 (1B) of the Act.

3. There are two annexures to the reference. Annexure A sets out details of each patient. Annexure B sets out details, in respect of each patient, showing the date and type of each service claimed and the Medicare benefit paid. Each service is described by reference to the appropriate Medicare number.

4. The Committee, after consideration of the material in the reference, wrote to the appellants advising them that it had resolved to conduct a hearing into the matters referred to it. The letter set out the terms of reference and referred to the Committee's obligation to inquire into the matters and submit a report and recommendation to the Minister. It invited the appellants to forward to the Committee details of the clinical conditions and treatment given in respect of the patients listed in the annexures to the reference. The appellants were also invited to make available to the Committee any clinical records, x-ray reports and specialists' reports relating to the patients. The letter concluded by drawing the appellants' attention to the fact that they had the right to be represented, to call witnesses and to examine other witnesses appearing at the hearing.

5. The inquiry commenced on 2 March 1989. The appellants were represented by solicitor and counsel. Before any evidence was taken, the Chairman of the Committee advised the appellants of their rights to give evidence, call witnesses, examine other witnesses and address the Committee. She informed the appellants that before the hearing was concluded they would be invited to make submissions.

6. Each appellant has given evidence on oath. Members of the Committee have asked questions in respect of the patients listed in the annexures to the reference. No objection has been taken to this course. Indeed, the Committee has been provided with the appellants' handwritten clinical notes relating to each patient.

7. The hearing continued on 16 and 30 March, 27 April, 25 May and 15 June 1989. At the commencement of the hearing on 16 March, the appellants' counsel asked the Chairman whether, at the end of the evidence, the Committee would identify the matters in respect of which the Committee was concerned "so that we might, by way of address or explanation or further evidence, deal specifically with the particular source of concern, rather than with the issues at large". The Chairman made it plain that the Committee would reach no opinions until the hearing was concluded and that the appellants would be given an adequate opportunity to make any submissions "either on a specific or on a general basis before the hearing is formally concluded".

8. During the course of their evidence, the appellants were asked questions by the members of the Committee. Their counsel did not seek leave to re-examine. However, when questions might have appeared to indicate some concern at the repetition of particular services, such as the giving of particular courses of injections, the appellants sought to explain the need for the services they had provided. There is no suggestion that the appellants were limited in any way in giving explanations or evidence to the Committee.

9. On 15 June 1989, the Committee concluded its questioning of the appellants in respect of all twenty patients referred to in the reference. The Chairman invited the appellants or their counsel to make any submissions, and indicated that, after they had been made, the Committee would proceed to "consider the transcript, and services rendered, make our decision and formulate our Report and forward it to the Minister". Counsel for the appellants then submitted to the Committee that his clients were entitled to be given particulars of the services in respect of which the Committee had a concern. He claimed that the appellants were entitled to such particulars as a matter of natural justice and that, in the absence of them, they would have to "deal with the matters at large without knowing which services any allegations are made about or even what the nature of those allegations are . . .".

10. After consulting with the other members of the Committee, the Chairman rejected any suggestion that the Committee had an obligation to provide the particulars sought by counsel. However, she indicated that the evidence to date had demonstrated that many of the services rendered had involved courses of therapy given by injection, and that the Committee would welcome being addressed on that question. However, she made it clear that this ought not to preclude address on the totality of the evidence before the Committee. She made it plain that the Committee had not reached conclusions adverse to the appellants in any particular respect.

11. Thereafter, correspondence passed between the solicitors for the appellants and the Committee. The correspondence raised and dealt with a number of matters, some of which were not agitated on the hearing of the appeal. Relevantly, for present purposes, the appellants' solicitors pressed the Committee to give particulars "of the services which are alleged to be excessive and the basis upon which each such service is alleged to be excessive", which particulars the Committee declined to give.

12. Subsequently, an application for an order of review under ss. 5 and 16 of the Administrative Decisions (Judicial Review) Act 1977 was made. A number of decisions said to have been made by the Committee were challenged in the proceedings, which were heard by Foster J. He held that the appellants had failed to establish any basis for the granting of any of the relief sought, and dismissed the application. It is from his decision that this appeal is brought.

13. Although many matters were argued before and decided by Foster J., the only matter argued on the hearing of the appeal was whether he was in error in finding, as he did, that the appellants were not entitled, as a matter of natural justice, to be furnished with the particulars sought by their counsel at the conclusion of the hearing on 15 June 1989, when the Committee indicated that it had concluded its questioning of the appellants. It appears that in the course of the proceedings before the primary judge, an inquiry was made of the Committee whether it was able to give some indication of the matters in respect of which it had concern. The Committee's response was that it was not possible for it to give such an indication.

14. Foster J. was of the opinion that the Committee's inability to indicate the areas of concern to it would render futile any order that it furnish the particulars sought. He recognised that it would be desirable for the issues in the inquiry to be narrowed, but said that this could not take place if the Committee was unable to furnish the particulars sought. He thought it would be clear to the appellants that the "doubts and suspicions" that they may have rendered professional services to their patients which were "not reasonably necessary" for the patients' adequate medical care (vide s. 79 (1B) of the Act) were engendered by the large number of similar services rendered in a small time period to each of the patients. He said that the services, the number of them and the relevant times when they were rendered were clearly shown on the schedules to the reference.

15. Foster J. distinguished the present case from a case such as Freeman v McKenzie (1988) 82 ALR 461 where, in the interests of justice, something more was required than a mere investigative progression from the first to the last patient of a group of 1600 patients. His Honour pointed out that, in the present case, only twenty patients were involved, the services under scrutiny were clearly identified, and the patients were well known to the appellants. He thought that the appellants were well able to provide explanations to their legal representatives as to why, despite an apparently large number of services provided to the individual patients, these were nevertheless not excessive. He pointed out that what had been sought by the appellants were particulars of individual services which were the subject of concern. With respect to this he said:

"Where there is a general finding that a total number of

particular services rendered to a patient goes beyond what was

reasonably necessary for that patient's medical care, it will

obviously be a nice question to separate out the particular

services which are to be regarded as the 'excessive' ones. It is

hardly a task to be undertaken before the completion of the

evidence. Certainly, in my view, no principle of natural justice

requires that the Committee undertake such a task by way of the

provision of particulars at this stage of the hearing."

16. Moreover, Foster J. was of the opinion that the requirement that the Committee should provide the particulars sought ran counter to the authorities: see Minister for Health v Thompson [1985] FCA 208; (1985) 8 FCR 213 and cases there cited at p 216. He rejected an argument that the absence of particulars rendered incapable of useful exercise the rights granted to the appellants by s. 96B of the Act to give evidence, call witnesses, examine other witnesses and address the Committee. Accordingly, he declined to rule that the appellants had been denied natural justice and refused the relief sought.

17. In obiter dicta at the conclusion of his reasons, his Honour made the following observation:

"Before parting with this case I should indicate that, in my

view, a breach of the rules of natural justice would arise if,

prior to the Committee's making any adverse findings or

recommendations in relation to the applicants (if such should be

the case), the applicants were left in a state of being genuinely

unaware of the possibility of such adverse findings or

recommendations being made. In other words, there would be

injustice if the applicants were properly in a position where they

could say, in effect, `if only we had known that the Committee had

those criticisms in mind we could have met them by the calling of

further evidence or the making of further submissions'. So much

appears, in my opinion, from the decision of the Judicial

Committee of the Privy Council in Mahon v Air New Zealand Limited

[1983] UKPC 29; 1984 AC 808 and, in particular, from a passage at p 821 where it

is said 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, might have deterred him from making the finding even though

it cannot be predicted that it would inevitably have had that

result'.

As will have sufficiently appeared from what I have said, there

is, in my view, no current basis for the application of this

principle to the proceedings before the Committee. One might

reasonably suppose that, as the investigation unfolds and the

evidence is discussed in the course of counsel's address, there

will be a definition of matters of concern sufficient to exclude

the possible application of this principle.

It is obviously desirable, that this principle be kept steadily in

mind so that the possibility of future cost and delay may be

avoided."

18. On the hearing of the appeal, counsel for the appellants fastened upon these obiter dicta. He argued that his Honour erroneously assumed that the Committee would proceed to take further evidence, and that, at a later stage in its proceedings, the Committee would be in a position to furnish the particulars sought of it. It was submitted that this assumption was incorrect in that the Committee had virtually concluded its questioning of the appellants. In consequence, so it was submitted, in the absence of the particulars which had been sought, the appellants' counsel would be required to call evidence and make submissions in ignorance of the case against his clients. It was submitted that the appellants had the right to know the case being made against them, notwithstanding that the Committee was not strictly judicial in character.

19. As appears from the Instrument of Referral and its annexures to which reference has already been made, the matter into which the Committee is to inquire and upon which it is to report to the Minister is whether each of the professional services rendered by the appellants during the calendar year 1987 to certain patients was excessive in the sense that it was not reasonably necessary for the adequate medical care of the patient to whom the service was rendered. The documents clearly identify each of the patients concerned and set out in substantial detail, in respect of each patient, each professional service which is to be the subject of inquiry by the Committee. That an important aspect of the inquiry in relation to each of the named patients would concern the frequency with which services of a particular kind were rendered to that patient in the relevant period becomes obvious from a mere perusal of the annexures. To take an example - though perhaps the most extreme - payment was made to the appellants in respect of more than 80 surgery visits by the same patient during the year under review.

20. We are satisfied that the documents of which copies were provided to the appellants before the hearing by the Committee began were sufficient to convey to the appellants particulars of the subject matter of the inquiry as required by s.95(2) of the Act. Indeed, we do not understand the contrary to be asserted.

21. There can be no doubt, and the respondents do not contend otherwise, that a hearing before a Medical Services Committee of Inquiry pursuant to s.94 of the Act must be conducted in such a way as to accord procedural fairness to the person whose conduct is the subject of inquiry; see Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J. (as he then was) at p 582; Mahon v Air New Zealand Ltd [1983] UKPC 29; (1984) AC 808; Annetts v McCann [1990] HCA 57; (1990) 97 ALR 177. The Act makes specific provision for the representation of such a person (s.96A) and provides that the person, or his representative, is to be given the opportunity to give evidence, to call witnesses, to examine other witnesses appearing at the hearing and to address the Committee (s.96B). It must be remembered, however, that, although the Committee is to proceed by way of a hearing, the role of the Committee is an investigatory one: Minister for Health v Thomson supra per Fox J. at p 216. The Committee in no way sets out to make a case against those whose conduct is under investigation. It is for the presiding member to determine the procedure to be followed (s.97(2C)). It is not, as Woodward J. observed in Freeman v McKenzie supra at p 470, for the Court, in its supervisory role, to tell a Committee how it should conduct its inquiry. A Committee is also entitled to bring to bear its own experience and expertise in reaching its conclusions. As Fox J. said in Minister for Health v Thomson, supra at p 217:

"It is not disputed that the committee is one of experts. The

Act requires that it comprise five medical practitioners. It

seems reasonably clear that the intention of the Act is that the

committee sit as a committee of the peers of the medical

practitioner whose conduct is in question and exercise its own

judgment in relation to the evidence before it, using its own

collective knowledge in its evaluation.

There are many authorities which hold that such a committee can

act on its own views, and can do so without disclosing those views

to a person appearing before it, in the role of a defendant or

otherwise ...".

22. The requirements of procedural fairness will, however, often extend beyond the specific requirements of the statute. What is necessary for a Committee to do in order to satisfy those requirements in any individual case will, of course, depend upon the particular circumstances of that case. It may generally be accepted, however, that a Committee will fail to satisfy those requirements if, having regard to the manner in which the hearing is conducted, a Court is satisfied, upon a perusal of the Committee's report, that it has made findings adverse to a practitioner on factual matters of which it can be said, upon a fair examination of what has occurred, that the practitioner has had no real notice, that his attention was not specifically directed to those matters at the hearing and that he has, in consequence, had no real opportunity to comment.

23. It would follow that, if in the course of its deliberations after the apparent conclusion of a hearing undertaken in accordance with s.94 of the Act, a Committee proposes to make findings adverse to a practitioner on a factual matter of the kind to which we have referred, the Committee would be bound, before making such a finding, to re-open the hearing so that the practitioner might have an opportunity to deal with that matter. In this regard, see generally Bond v Australian Broadcasting Tribunal (1988) 19 FCR 494.

24. It is, however, quite a different question whether the Court should interfere in the conduct of a hearing in the manner suggested by the appellants. While this Court has a general supervisory role under the Administrative Decisions (Judicial Review) Act 1977 in relation to the conduct of inquiries for which the Health Insurance Act provides, the Court will not, unless compelling circumstances are shown, examine the material before a Committee at any particular stage of a hearing which it is conducting in order to determine, in the abstract, whether, if a particular finding is made, the making of that finding may vitiate the Committee's report because of an absence of procedural fairness. It is only after the findings of the Committee are known that such an inquiry can profitably be undertaken. We do not think that this view of the Court's function is inconsistent with what was said by the High Court in Annetts v McCann (supra). In that case the coroner had declined to hear any submissions from counsel appearing for the parents of the deceased and, in such circumstances, it was thought appropriate that the Court should intervene before the coroner proceeded to make findings of fact. In the circumstances of the present case, the Court would not, we think, be justified in assuming that the Committee will proceed to make findings upon any matter of which the appellants have not had adequate notice. That is to say we do not think the conclusion can yet be reached that the Committee has denied the appellants their undoubted right to natural justice.

25. We think Foster J. was correct in concluding that, in the circumstances of this case, the Committee is not bound, as a matter of law, to accede to the request made to it by counsel for the appellants at the hearing on 15 June 1989 and confirmed by letter to the Committee dated 26 June 1989 that, before the calling of further evidence by the appellants or the presentation of addresses on their behalf, the Committee limit the scope of the inquiry on which it is engaged by identifying those services in respect of which the Committee has a concern and indicating in general terms the nature of its concern "in relation to each service". That the Committee is not so bound would not, of course, preclude it indicating in the course of the hearing, if it is able to do so, those particular aspects of the matter which are not of concern to it. If that were done, the hearing would, to that extent, be shortened. Whether the Committee can do so must, however, be left to the good sense of those conducting the inquiry.

26. We should add that on the hearing of the appeal the appellants, without opposition from the respondents, tendered evidence that after Foster J.'s decision was given the Committee reconvened and heard further evidence from the appellants. We do not think what then transpired casts doubt on the correctness of the primary judge's decision.

27. In our opinion the appeal should be dismissed. The appellants must pay the respondents' costs of the appeal.

The setting in which this appeal must be determined requires the court to examine the duties of a Medical Services Committee of Inquiry, and the rights of a doctor whose claims in respect of medical services are under scrutiny by the Committee, with particular reference to the principles of natural justice. In the end, the fate of the appeal turns, not so much on the right of the appellants to natural justice (which cannot be doubted), as on whether the time has yet arrived when it can be seen that the right has been denied and that the demands of justice require the intervention of the court immediately, before the inquiry has been completed. However, that question cannot be answered without some examination of the legislation, and of what has occurred.

2. The appellants are two medical practitioners who conduct a general practice in an area in the western suburbs of Sydney. They speak Italian, and a large proportion of their patients consists of elderly people who have come to Australia from Italy. The appellants were named in a document (described as an Instrument of Referral under s. 82 of the Health Insurance Act 1973 (the Act)) which referred to a Medical Services Committee of Inquiry of New South Wales ("a Committee") the question

"whether each professional service rendered to a patient by

(the doctors), ... particulars of which are set out in

Annexure marked `B' numbered 1 to 20, being a service for

which Medicare benefit has been paid, was an excessive

service within the meaning of section 79(1B) of the said

Act."

The document was dated 1 December 1988. Annexed to it were particulars of 1,038 services rendered in respect of 20 patients during the calendar year 1987.

3. Section 82 of the Act authorizes the Minister to refer to a Committee a matter of a certain kind that "arises out of or relates to the rendering of a professional service (other than a pathology service), on or after 15 April 1977, in the State for which the Committee is established." The establishment of the Committee is provided for by s. 80. The expression "excessive service", used in the Instrument of Referral, is to be understood by reference to s. 79(1B), which provides:

"A reference in this Division to excessive services is a

reference to professional services (other than pathology

services), being services in respect of which medicare

benefit has become or may become payable and which were not

reasonably necessary for the adequate medical or dental care

of the patient concerned."

What that definition involves was considered by a full court in Tiong v Minister for Community Services and Health (1990) 93 ALR 308.

4. Where a matter is referred to a Committee by the Minister, the Committee is required, by s. 94, to consider the matter, and if it "appears to the Committee that ... (c) a practitioner may have rendered excessive services ... the Committee shall (conduct a hearing or hearings into the matter as provided by paragraphs (j) and (k))". In such a case, s. 95 requires a notice to be given to the practitioner which "shall give particulars of the matter to which the hearing relates". Section 96B(1) provides:

"Where a relevant person (defined by s. 79(1) to include a

person given notice under s. 95) attends, appears or is

represented at a hearing ... he or his representative, as

the case requires, shall be given the opportunity to give

evidence, and to call witnesses, on behalf of the relevant

person, to examine other witnesses appearing at the hearing

and to address the Committee."

Section 97 provides:

"1. A hearing shall be held in private.

2. At a hearing, the Chairperson or ... shall preside.

. . .

3. The rules of evidence do not apply in relation to a

hearing and the procedure for conducting the hearing

is, subject to this Act and the regulations, within

the discretion of the member presiding.

. . ."

Sections 98 to 103 inclusive make a number of provisions in respect of the adducing of evidence and the protection and immunity of members of the Committee, and persons appearing before it, of the kind which might be expected if the proceedings were to be assimilated, at least to some extent, to the proceedings of a court. Section 104 then provides:

"After completion by a Committee of a hearing in relation to

a matter, the Committee shall report to the Minister its

opinion on the matter and, in a case where the Committee, in

the report, expresses the opinion -

(a) that a practitioner specified in the report has

rendered excessive services; or

. . .

the report shall identify the excessive services."

Section 105(2) empowers a Committee, which has identified excessive services, to make, in its report,

"one or more of the following recommendations:

(c) that the practitioner ... be reprimanded;

(ca) that the practitioner ... be counselled;

(e) where the medicare benefit is payable, but has not

been paid, to the practitioner - that the medicare

benefit or a specified part of the medicare benefit

cease to be payable;

(f) where the medicare benefit has been paid to the

practitioner ... - that the amount of the medicare

benefit or a specified part of that amount be payable

by the practitioner to the Commonwealth."

5. If the Committee makes a recommendation under s. 105(2), it is required to send to the Minister, with its report, a transcript of the proceedings at the hearing. Section 106(1) then provides:

"Where a Committee makes a recommendation in accordance with

sub-section 105(2) ... the Minister may make a determination,

in writing, in accordance with that recommendation."

Succeeding provisions give the Minister's determination effect, subject to rights of review or judicial review. There is provision for publication by the Minister of a statement including the reasons for the making of the determination, and there is a requirement that a copy of the statement be laid before each House of Parliament. While, as I have said, there is provision for review of the determination, it has been held that the Review Tribunal has no power to receive fresh evidence, but must review the case by reference only to the material that was before the Committee: Minister for Health v Thomson [1985] FCA 208; (1985) 8 FCR 213; Tiong (supra).

6. It did appear to the Committee, under s. 94, that each of the appellants may have rendered excessive services, and they were given notices under s. 95 which included, by way of particulars in accordance with s. 95(2), the details annexed to the Instrument of Referral. The court may, I think, safely infer that the Committee's reasoning, in its application of s. 94, proceeded on the basis of the numbers of services rendered to each of the identified patients within the 12 months period, and not on the clinical pictures presented by the patients on the various occasions in question. The Committee knew nothing about the patients, except that they had received the treatments, which could not of their own nature raise any suspicion, since they were recognised treatments provided for in the Medicare scheme. But it is plainly open to a Committee considering a matter referred to it, in the preliminary way required by s. 94, to make a statistical judgment based on the frequency of the recurrence of particular types of services in respect of particular patients by comparison with what, according to the professional experience of the members of the Committee, would be expected to occur in the carrying on of a general practice in the area concerned. See Freeman v McCubbery (unreported, Smithers, Lockhart and Jenkinson JJ., 10 October 1985).

7. Where a Committee proposes to hold a hearing on such a basis as this, it is obvious that the particulars which can be provided under s. 95(2) will be limited to details of the services that have given rise to the suspicion. Particulars of that kind were supplied in Freeman, and particulars of the same kind were supplied in the present case. It does not follow that, after the Committee has entered upon the inquiry and obtained details of the clinical picture presented at every attendance into which it is inquiring, the need may not arise to furnish further particulars. In the normal course, the clinical picture might be expected either to confirm or to rebut the statistical inference; although, perhaps, in some cases, the inference may remain available, but without it being possible to say it is either confirmed or rebutted. In most cases, and at least as regards many of the treatments in question, details of the presentation of the patient might be expected to enable conclusions to be drawn, either favourable or unfavourable to the practitioner, which are no longer based on statistical expectation, but on the clinical picture itself. The care of the legislature to provide expressly for the supply of particulars in s. 95(2), the express right conferred by s. 96B to give evidence and to call witnesses (which can only be effective if issues are first identified), and the close assimilation of the conduct of the hearing in a number of respects to formal proceedings of a judicial or quasi-judicial character, all suggest, on the face of the statutory scheme, that further particulars should, in such a case, be provided as the inquiry proceeds. It is not an inquiry at large, but one directed to a series of nominated matters each of which is the subject of a specific suspicion against a particular person. At some stage in its course, suspicion in respect of each of those matters will either be resolved in his favour or will become hardened into a definite potentiality of a finding against him. All this was, I think, treated as a matter of course in Freeman. Smithers J. (with whom Lockhart J. agreed) said:

"Of course all particulars as are reasonably necessary to

enable the appellant to conduct his case, and of which the

Committee has knowledge, in relation to the issues which

arise at the hearings, must be given. But, the notice given

under s. 95(1) does, in my opinion, contain particulars of

the matter to which the hearing relates and there is no

ground for requiring particulars of addresses of any

patients before the commencement of the hearing." (Emphasis

added.)

In the same case, Jenkinson J. (with whom also Lockhart J. agreed) said:

"As to what natural justice may require, that cannot in my

opinion be determined until after the hearing has commenced

and the course which it is to take has appeared."

8. At the hearing of the present appeal, reference was made to a later decision in respect of Dr Freeman, Freeman v McKenzie (1988) 82 ALR 461. There, Woodward J. (at 470-472) suggested careful procedures designed to apprise the doctor, in the particular circumstances, of the information needed for a defence of the services he had rendered, into which inquiry was being made. Before us, counsel for the respondents urged that the necessity for particulars in Dr Freeman's case may have arisen out of the very large number of patient attendances there in question. It should, therefore, be noted that the unreported decision to which I have referred makes it plain the contemplated hearing would not have been anything like as cumbersome as was suggested; the Committee had decided "to hold a hearing with respect to the first thirty patients mentioned in the annexures", a hearing which (had it proceeded) could hardly have been completely incomparable with the hearing which the present case involved.

9. The appellants, at the request of the Committee, supplied to it copies of their clinical notes, and attended hearing sessions, each lasting approximately two hours, on six occasions from March to June 1989. At the commencement of the hearing, the presiding member of the Committee advised the appellants, inter alia, of their right to call witnesses, and also said: "Before the hearing is officially concluded I will invite both doctors ... to make any type of submission they wish to this hearing". The Committee then proceeded in order, as the presiding member put it, to "go through the individual services", asking the appellants questions about them one by one.

10. At the end of the sixth hearing occasion, the presiding member said:

"Well that concludes the portion of the proceedings in which

we look at the services rendered by the doctors to these

patients that have been referred to us; except for the

little bit of tidying up of a couple of reports that I think

are still to come. What we would invite before we formally

consider the services provided, we would invite either you

Dr Romeo and Dr Genua or your legal representative counsel

to make any submission on your behalf and to bring any

points to our attention that may not have been covered

during the course of the hearing. When that has been done

and you've been given the opportunity to do that, we will

then proceed to consider the transcript, and services

rendered, make our decision and formulate our Report and

forward it to the Minister. However before that occurs, of

course, you have every opportunity to address us and bring,

raise any matters that you see fit. That should be, that

would be best of course done at the next hearing."

"Madam Chairman, I don't know what the procedure has been on

previous occasions, but in my respectful submission, my

client (sic - scilicet clients) would be entitled to know by

way of particulars, any of the services in respect of which

the Committee has a concern and to know what the nature of

that concern is before my clients either ask the Committee

to consider further evidence or hear submissions in relation

to those matters. Otherwise what is left is for them to

deal with the matters at large without knowing which

services any allegations are made about or even what the

nature of those allegations are (sic) and in my respectful

submission, as a matter of natural justice they should know

where your areas of concern are and how they relate to

particular services."

This submission was supported by reference to authority. The learned trial judge has summarized counsel's final remarks as follows:

"He concluded by submitting that the appropriate procedure at that

juncture was for the Committee `not by way of making any

determination but by way of indicating' should (sic - scilicet to)

identify those services in respect of which the Committee has a

concern and that it should indicate in general terms the nature of

the concern `in relation to each service'. ... He submitted that

these particulars should be provided before any question of the

calling of further evidence by the (appellants) or presentation of

addresses on their behalf should arise."

Following an adjournment to consider the matter, the Committee resumed the hearing and the following was said:

"THE CHAIRMAN: I reject any suggestion that this

Committee has an obligation to provide the particulars

sought by yourself as Counsel and we do not provide them.

However the hearing to date has demonstrated that many of

the services rendered have involved courses of therapy given

by injection. The Committee would, will welcome being

addressed on this question and make it clear that this ought

not to preclude address on the totality of the evidence

provided before this Committee. (Emphasis added.)

DR MORRISON: Yes thank you Madam Chairman. Might I

also enquire whether there are any services in respect of

which there is any query about the length of service?

THE CHAIRMAN: We haven't come into (sic) any

determination about that at this stage.

DR MORRISON: Well, what I'm asking is whether, so that

I know whether I'm to address in relation to any services,

if there is such a query.

THE CHAIRMAN: Well, I think that is covered in the

general, at the end and I cannot with any honesty, with

honesty answer that question, because we have not had any

discussion on that matter at all. I have given you the only

area that has arisen in our minds so far, from which your

question of particulars could be in any way answered.

DR MORRISON: You see the practical difficulty I have

and the difficulty which the Committee may be left with in

the end is that as a matter of natural justice, my clients

are entitled to be heard on any issue upon which you make a

determination. If you make that determination without

hearing submissions in relation to it, or at least affording

the opportunity of submissions, then in my respectful

submission, natural justice would not be done. Now,

unless - a mere invitation to address on the many hundreds

of matters doesn't amount to affording that opportunity. So

that what I would be asking is, in relation to any specific

item such as, an example I gave was the length of service.

You've mentioned one matter in respect of which we will

obviously deal. I would ask that no determination be made

unless my attention is drawn on that matter, so that the

opportunity of address arises. Otherwise I'm left to guess

at what the concerns of the Committee are and as to what I

should address and it's going to take me a very long time if

I have to deal with every single reference, but that's the

alternative I'm otherwise faced with.

THE CHAIRMAN: Yes, well I may not be able to accede to

that request, because we may not have an idea in our own

minds. I think I have gone just about as far as I can at

the moment with this request."

11. It is from the decision, so expressed, of the Committee to reject the application made on behalf of the appellants to be informed of the nature of the matters they were called upon to answer, that the claim the subject of the appeal arose. There were other matters litigated before the learned trial judge, but this is the only issue which remains in debate. In the application by which the proceeding was initiated, an application under the Administrative Decisions (Judicial Review) Act 1977, the decision challenged was described as

"the decision that the applicants were not entitled to know

particulars of which of the 1,038 services involving 20

patients referred to in the notices given were services in

respect of which the Committee had a concern and what the

nature of that concern was before requiring the applicants

to exercise their rights pursuant to section 96B of the

Health Insurance Act 1973 to call evidence and address the

Committee".

12. During the hearing before the learned trial judge, as he records in his judgment, at his request,

"a further inquiry was made of the Committee as to whether,

at that stage, the Committee having had further time to

consider the transcript, might then be able to give some

indication of areas of concern. The answer was that it was

not possible."

His Honour took the view that this answer effectually precluded further question. He said:

"Desirable as it may be that the issues of this inquiry be

narrowed, thus shortening the work remaining to be done and

lightening the load upon the applicants and their legal

advisers, this cannot take place if the Committee is unable,

at this point, to weed out of the material before it matters

which it sees as having no relevance or further relevance to

its inquiry. A number of authorities have been cited to me

(e.g. Johnson v Miller [1937] HCA 77; 59 CLR 467). In so far as they are

based upon the assumption that the tribunal, judicial,

quasi-judicial or investigative, is able to do what the

court is asked to order but, for one reason or another, is

declining to do so, they are of no assistance to me in the

present circumstances."

13. But the question was not whether the work remaining to be done should be shortened, thus lightening the load upon the applicants' legal advisers, but whether the time had come when natural justice demanded that they know what sort of case they had to meet. To the extent that the Committee queried the necessity for treatment by injections, they did know what they had to meet, and the court was informed that they called expert evidence concerning the cultural inclination of Italian patients towards treatment by injection rather than by other means, and about medical practices prevalent in Italy itself. But to the extent that the Committee expressly stated its desire to "make it clear that this ought not to preclude address on the totality of the evidence provided before this Committee", they were left completely unaware whether other aspects of the treatments they had rendered might come under question in the deliberations of the Committee or whether, as regards any particular patients, a purely statistical contention would have to be met by calling expert or other evidence, including perhaps the patients themselves, in justification of what they had done.

14. I find it impossible to accept literally the Committee's answer that it could not supply any further information as to its concerns. The explanation proffered by counsel for the respondent, at the hearing of the appeal, was to the effect that there were practical problems in the way of calling the Committee together to consider its attitude prior to the conclusion of the hearing. It was suggested an undesirable precedent would be set if the Committee did so. This is far from inability. Furthermore, the appellants had given lengthy evidence in answer to the questions of the Committee about each of the treatments listed in the referral. It must have been possible for the Committee to have formed some tentative conclusion as to whether some proportion of these treatments was justified. Although the rule in Browne v Dunn (1893) 6 The Reports 67 is applicable to judicial proceedings, it is a rule of quite ordinary fairness; and the same considerations of fairness require the conclusion, the appellants not having been challenged during the giving of their evidence on the footing the whole of their treatment of all of the patients was a sham or otherwise completely unnecessary, that at least some of the services must no longer be under question. The problem then is for the appellants to know whether any or all of the remainder of the services will be questioned on a statistical basis or on some other basis, and if so what that basis might be.

15. In the absence of some identification of the Committee's concerns (which may conveniently be called particulars, provided it is understood that they would not be particulars of a charge but of a finding the Committee considers may be open on the material before it), the appellants must be groping in the dark in any attempt they make to provide an answer. Except in a sense so broad as to be meaningless, they do not know the question. Just some of the possibilities for any given patient, during any given period, are the following: that it might be suggested no service at all was required; that it might be suggested some (if so, how many?) of the services rendered during the period exceeded what was required; that it might be suggested, although a service was required, the service rendered was too lengthy, or for some other reason not appropriate; and that it might be suggested, although a service was required, the service actually rendered involved one unnecessary procedure, or alternatively some two or more unnecessary procedures.

16. The issue to be debated would make a great difference to the evidence required to be called on behalf of the appellants. If the question is whether a particular condition was severe enough to require, say, a weekly attendance over a period, they might want to call the patient. If the question is the reasonable necessity for intensive treatment in respect of a particular kind of condition, they might want to call a psychiatrist or other specialist; or perhaps an economist working in the medical area. Medical Benefits Fund of Australia Ltd v Pullinger (1990) 95 ALR 463 provides an interesting insight into the complexity of the questions which may arise at the intersection between medicine and economics. In that case the relevant statutory test was "need", a test expressed in language close to the language with which this appeal is concerned. If the real question is a statistical argument, it might make a great difference whether the suggestion is that a relatively small proportion of the attendances exceeded some standard or whether the suggestion is that a very great proportion of them was unwarranted. In the one case, it might be a sufficient answer to show that ethnic and cultural considerations required a variation of the norm; in the other case, it might be essential to any defence to go to the great expense of calling every patient, and a number of specialists, in order to justify the treatments given on a case by case basis.

17. The only area of concern identified by the Committee has been the matter of injection treatment. It may be that the statistical argument has already been disposed of by the mere examination of the clinical notes, supplemented by the questions the Committee itself has asked to obtain elucidation of them. If this is the position, as the assertion that no further information can be provided at present, taken literally, would suggest, the Committee should say so. Since the Committee has reached the stage where it has called upon the appellants to make any answer they may desire to make, now is the time for clarification of whether any answer is required. If nothing can in fact be raised as an area for concern, there is no need for the appellants to adduce further evidence at all. See the comments of Fox J. in Thomson (supra) at 216. But if an answer is to be made, and the Committee has continued to invite an answer, the appellants should not be required to engage in shadow boxing; they should know the substance of the issues an effective response must address.

18. There seems to be a suggestion in the respondents' case that, if a statistical analysis may form the basis of a finding against the appellants, particulars are not required. Not only is this inconsistent with Freeman; it is inconsistent with what the Act requires the Committee to do. The report envisaged by s. 104 "shall identify the excessive services". So the Committee cannot be content with a statistical conclusion about a proportion of services, individually unspecified. The hazard to the appellants is a report identifying particular services as excessive, and that is the issue of which they are entitled to sufficient notice to enable them to meet it.

19. Audi alteram partem is one of the great statements of the law. But the principle has to be applied under a variety of circumstances in which it may find expression in differing practical expedients. So the answer to Nicodemus's question: "Doth our law judge any man before it hear him?" (John 7:51) is much more than an impatient "Of course not". It is that the law secures to a person at risk of deprivation in one of the ways referred to by Mason J. in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582 a right, not only to be heard, but first to be told with sufficient precision what he has to answer, in order that he may make effective answer, so far as that is open to him. Mason J. said:

"It is a fundamental rule of the common law doctrine of

natural justice expressed in traditional terms that,

generally speaking, when an order is to be made which will

deprive a person of some right or interest or the legitimate

expectation of a benefit, he is entitled to know the case

sought to be made against him and to be given an opportunity

of replying to it".

Later in the same judgment (at 587) his Honour said:

"(R)ecent decisions illustrate the importance which the law

attaches to the need to bring to a person's attention the

critical issue or factor on which the administrative

decision is likely to turn so that he may have an

opportunity of dealing with it."

In the leading case The Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 395, Dixon C.J. and Webb J. spoke of "an adequate opportunity of being heard". In Delta Properties Proprietary Limited v Brisbane City Council [1955] HCA 51; (1955) 95 CLR 11 at 18 the joint judgment of Dixon C.J., Webb, Fullagar, Kitto and Taylor JJ. stated:

"In particular it is essential that the person whose

property is in question must be given a full and fair

opportunity of placing before the council his case against

the formation of the opinion".

In Mahon v Air New Zealand Ltd [1983] UKPC 29; (1984) AC 808 at 821 Lord Diplock said that the 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, might have deterred

him from making the finding even though it cannot be

predicted that it would inevitably have had that result."

In a well known passage, which is cited by Brennan J. in Kioa (at 613), it is stated:

"(W)hatever standard is adopted, one essential is that the

person concerned should have a reasonable opportunity of

presenting his case."

20. None of these formulations can be satisfied, when the principle is being applied to a situation of complexity, in the absence of notice, to the person to be affected, of the nature of the case he has to meet. In Haoucher v Minister of State for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 671 Toohey J. (with whose judgment, as well as with that of McHugh J., Deane J. expressed general agreement) said:

"(T)he deportee is entitled to know what were the

circumstances said to be `exceptional' and what was the

evidence said to be `strong', and to be heard in answer.

Procedural fairness requires that much."

"If exceptional circumstances and strong evidence were

alleged to exist, the appellant was entitled to know what

was the nature of the material relied upon by the Minister

to defeat his legitimate expectation. ... In F.A.I.

Insurances Ltd v Winneke ((1982) [1982] HCA 26; 151 CLR 342), this court

held that the insurer was entitled to know what matters were

relied on to show that it was not a fit and proper person to

have its `licence' renewed. I can see no distinction in

principle between that case and the present case."

Without knowledge of the critical issues on which the decision will turn, a person who may be affected will be left in the dark, deprived of a full and fair opportunity of presenting a case in his own interest. "If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him": Kanda v Government of Malaya [1962] UKPC 2; (1962) AC 322 at 337, per Lord Denning.

21. These statements of principle, therefore, unite to entitle the appellants to know "the critical issue or factor" before they attempt to make an answer which, otherwise, might be pointless or even self-defeating. The principles of natural justice will not be satisfied, as Samuels J.A. (with whom McHugh J.A. agreed) made clear in Public Service Board of New South Wales v Etherton (1985) 1 NSWLR 430 at 434, by the provision of a great deal of general information "to enable (the person affected) to make up his own mind, by investigating a mass of material, as to the precise nature of the case which was to be alleged against him". Where the issues are complex, and the material voluminous, simply to invite an interested person to speak, without indicating what complexion the facts wear, according to an opposing party, or, in the case of an inquisitorial proceeding, according to the tribunal's impression, may be a more or less empty form. (See the remarks of Hunt J. in Etherton at first instance ((1983) 3 NSWLR 297 at 307). It would be a great wrong to the appellants to allow the Committee's convenience to get in the way of their right to a real opportunity of defence. (Cf. Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1, where a draconian procedure and a stringent time limit made the requirements of natural justice most inconvenient, but were not permitted to deny the plaintiff's right.) To give to the Committee's convenience the priority the Respondents claim for it would also gravely devalue the quality of administrative decision making which should prevail under our law: Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 71.

22. In F.A.I. Insurances v. Winneke (supra, at 371) Mason J. cited, as representing the law, a passage from the dissenting judgment of Kitto J. in Testro Bros. Proprietary Limited v Tait [1963] HCA 29; (1963) 109 CLR 353 at 368. Kitto J. said:

"The general conclusion seems justified that an inquiry may

be of the character that implies a necessity to allow a

person affected a fair opportunity to be heard,

notwithstanding that an adverse report will do no more than

expose him to a possibility not previously existing of a

deprivation of rights by the exercise of a discretionary

power by another authority. The reason is that the report

itself prejudices the rights by placing them in a new

jeopardy".

See also In re Pergamon Press Ltd (1971) Ch 388 at 399, per Lord Denning M.R. In Annetts v McCann [1990] HCA 57; (1990) 97 ALR 177 at 179, Mason C.J., Deane and McHugh JJ. made it clear the rules of natural justice "apply to public inquiries whose findings of their own force could not affect a person's legal rights or obligations", and referring to Testro, they said (at 180): "It is beyond argument that the view of the majority in that case would not prevail today". Their Honours also said (at 178):

"It can now be taken as settled that, when a statute confers

power upon a public official to destroy, defeat or prejudice

a person's rights, interests or legitimate expectations, the

rules of natural justice regulate the exercise of that power

unless they are excluded by plain words of necessary

intendment".

The prejudice to the appellants of a report upon receipt of which the Minister may, by executive fiat, be able to require repayment of possibly large sums by them to the Commonwealth, and may publish damaging findings about them which could injure their reputation and even lead to charges of professional misconduct (see Tiong (supra); Minister of State for Health v Peverill (Black C.J., Wilcox and Foster JJ., unreported, 2 May 1991) at 30), is plainly sufficient to invoke this principle. See also the remarks of Brennan J. in Annetts v McCann at 186-187.

23. Annetts v McCann is relevant to the present appeal for another reason. In that case a coroner, contrary to the principles of natural justice, had held himself entitled to exercise an unfettered discretion to determine whether the appellants (who were the parents of the deceased) could make submissions, and had declined to hear them. He had, however, reserved his decision, and it remained open to him to return a verdict involving no finding adverse to the appellants or the deceased. But the majority of the High Court (Mason C.J., Deane and McHugh JJ. - Brennan and Toohey JJ. dissented) said (at 182):

"To allow the ruling of the Coroner to stand is to run the

risk - which cannot be considered fanciful - that the

Coroner will make adverse findings concerning the appellants

or the deceased without them being heard."

Their Honours went on to refer to the public interest, but, as I understand their judgment, this was because the case had been conducted by the appellants on a false basis, and a submission had been made that, for that reason (which the dissentients adopted), the appeal should be dismissed. The majority decision illustrates the proposition that, where it can be seen a Tribunal has taken the view, which the Committee took in the instant case, that it is not bound to accord natural justice, the court will not necessarily wait to see whether this attitude actually leads to an unjust result (cf. the quotation from Seneca's Medea made by Dixon C.J. and Webb J. in Tanos, the substance of which is reproduced in Colpitts at 71); but will make an appropriate order to protect the party disadvantaged against a risk which is not fanciful. In the present appeal, the appellants are on express notice that the Committee regards itself as free to return a finding against them on some as yet unstated basis; and that is a matter of particular significance for the question whether the court should intervene now, because the statutory scheme of review will deny the appellants any opportunity to call further evidence once the hearing is concluded and the decision given.

24. The respondents, relying on Thomson (supra), urged the contention that the Committee, as a Committee of medical experts, was entitled to "act on its own views, and can do so without disclosing those views to a person appearing before it". This proposition, for which Fox J. cited authority (at 217), is of course correct. But the question here is not whether the Committee can act on its own views, or whether it must disclose those views to anyone, but whether the appellants are entitled to notice of any adverse findings (whatever their source) which may be made. Thomson was an entirely different case in which, as Beaumont J. said (at 225), "the correspondence cited shows that at an early stage the respondent was fairly warned of the precise allegations to be levelled at him". (I have corrected an obvious printing error.) Where a practitioner is not fairly warned of the precise allegations to be levelled against him, there is a difficulty about the placing of any great reliance on the fact that the Committee is a Committee of medical experts, his peers. For the question whether services are "reasonably necessary" is not to be determined upon an exact criterion, nor is it a purely medical one. What is reasonably necessary, as Pullinger (supra) makes clear, may well involve economic questions. Much may depend upon whether a doctor's concept of what is reasonably necessary is to be determined, as Hippocrates would have had it (see Oxford Companion to Medicine (1986) - Hippocratic Oath), by the exercise of the doctor's ability and judgment solely "for the good of (his) patients", or whether the economics of Medicare must be allowed a significant role. Such a question is peculiarly one upon which, even before a peer group, a practitioner whose charges are under attack should have the fullest opportunity to present his side. And it should be remembered, too, that if a committee of experts has an expert view of a particular point, that might be the very reason a person whose case they are deciding may want notice as to whether the point is to be raised, so that he may call an even more qualified expert to dispute their view. Furthermore, when an aspect of the functioning of a decision making body, the decisions of which may prejudice a person's rights, interests or legitimate expectations, is urged as a reason for restricting the application of the rules of natural justice in relation to that body, the court should bear in mind what the majority said in Annetts (at 179), where they drew attention to the rapid enlargement in recent years of the field within which the principles of natural justice apply. A court today should be slow to exclude any statutory tribunal from a duty to observe natural justice fully, in the absence of plain words in the statute necessarily having that effect. The present statute, on the contrary, clearly indicates that the Committee is to function as a quasi-judicial tribunal conducting a proceeding in which the affected practitioner is entitled to particulars, a tribunal, moreover, which will, if it does not exonerate him, be required (by s. 104) to translate the general criterion stated in the Act into quite precise findings.

25. For these reasons, in my opinion, the appeal should be allowed.