Tankey v Adams

Is the Tribunal a repository of judicial power? 15 In answering this question in the negative, the learned primary Judge reviewed some of the salient provisions of the Act and the application to them of principles enunciated by the High Court in Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 ("Ranger Uranium"); Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140; and Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 ("Precision Data"). 16 His Honour then concluded: "In determining whether a body is exercising the judicial power of the Commonwealth, it is necessary to characterise the process taking place as being judicial or otherwise. The whole system is to be examined: who is constituting the Tribunal, what powers do they have, what are the procedures, what are the results and what are the consequences. Some have tried to draw the line between determining existing legal rights and obligations, and determining new rights and obligations. Even if this distinction led anywhere in legal terms, I do not think it would resolve the question here as the Tribunal, acting in a regulatory capacity, has apparently involved itself in both areas. Peer review of professionals is a well-known procedure which no-one has to my knowledge previously labelled as the exercise of judicial power. Dr Tankey's past activity has been declared as inappropriate by his peers. In my opinion the Tribunal's concurrence in this process and finding is not judicial in nature. On the disciplinary action taken as the result of peer review, a counselling order does not strike me as involving the exercise of judicial power. On the other hand, it can certainly be a part of judicial power that a person be made to pay a fine or penalty, or to make restitution. The fact that Dr Tankey has been ordered to pay back more than half a million dollars, amounting to his entire income for a year earned through personal exertion, is certainly a relevant issue. He has presumably already paid tax on his 1994 income. No doubt his nett [sic] income went to maintaining a family, paying school fees, and possibly paying off a mortgage. Taking it from him now before tax is a very heavy penalty, and of a kind that does indeed bear on whether it is the exercise of judicial power or not. By contrast, the disqualification orders, which in relation to medical fees really mean the inability to obtain income by bulk-billing, or to have patients obtain by direct access the Medicare subsidy of the fees paid, is much more akin to a professional judgment than a legal imposition. The authorities say that the task to be performed in assessing whether judicial power is being exercised is global assessment. On this basis, in my opinion, the Tribunal is not exercising judicial power and did not do so in this case." 17 Counsel for the appellant founded his submission on this ground on the binding and conclusive declaratory effect of the Tribunal's decision which directed the appellant to repay the sum of $580,576.00 found to be due to the Commonwealth and imposed penalties on the appellant. That determination, it will be recalled, was made at the conclusion of the Tribunal's review of the Determining Officer's final determination. That final determination, in turn, had been based on the Committee's report after preparing a draft determination and receiving written submissions from Dr Tankey. 18 It was further submitted on behalf of the appellant that the Tribunal's determination that he be fully disqualified for six months and partly disqualified for a further six months, conclusively deprived him of the right to have prescriptions written by him attract a pharmaceutical benefit under the National Health Act and of the right to have his professional services attract a medicare benefit under s 10(1) of the Act. Those rights, it was said, are valuable legal rights of a medical practitioner irrespective of whether the respective benefits are payable to the practitioner or to his or her patients. The decision to abrogate those rights of the present appellant was arrived at, so the argument went, after reviewing the evidence before the Committee and applying relevant legal principles to the facts found after undertaking that review. It was therefore said to follow that the Tribunal's inquiry was concerned with "the ascertainment of legal rights and obligations" so as to attract the application of the principles enunciated by the High Court in Ranger Uranium. 19 That case raised the question of whether the Conciliation and Arbitration Commission had jurisdiction to entertain a "reinstatement dispute". The High Court drew a distinction between a claim for reinstatement as a legal right or a remedy for breach of a legal obligation on the one hand, and the creation by award prescription of new rights and obligations on the other. It was then observed at 665-666 (footnotes omitted): "It is well settled that functions "may be classified as either judicial or administrative according to the way in which they are to be exercised": Reg v Hegarty; Ex parte City of Salisbury, per Mason J; see also Federal Commissioner of Taxation v Munro, per Isaacs J; Reg v Spicer; Ex parte Australian Builders' Labourers' Federation, per McTiernan J and Kitto J; Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd. A finding that a dismissal is harsh, unjust or unreasonable involves the finding of relevant facts and the formation and expression of a value judgment in the context of the facts so found. Although findings of fact are a common ingredient in the exercise of judicial power, such findings may also be an element in the exercise of administrative, executive and arbitral powers: see Reg v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd, per McTiernan J, and Reg v Hegarty; Ex parte City of Salisbury, per Murphy J. So too with the formation and expression of value judgments. In our view the fact that the Commission is involved in making a determination of matters that could have been made by a court in the course of proceedings instituted under s.119 of the Act does not ipso facto mean that the Commission has usurped judicial power, for the purpose of inquiry and determination is necessarily different depending on whether the task is undertaken by the Commission or by a court. The purpose of the Commissioner's inquiry is to determine whether rights and obligations should be created. The purpose of a court's inquiry and determination is to decide whether a pre-existing legal obligation has been breached, and if so, what penalty should attach to the breach. The power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken. Thus inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations. But if its object is to ascertain what rights and obligations should exist, it is properly characterized as an arbitral function when performed by a body charged with the resolution of disputes by arbitration. Inquiry into and determination of facts for the purpose of ascertaining what rights and obligations should be brought into existence in settlement of an industrial dispute does not cease to be an exercise of arbitral power merely because, in the course thereof, the Commission may form an opinion as to the existing legal rights and obligations of the parties. As was pointed out in Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd, the formation of an opinion as to legal rights and obligations does not involve the exercise of judicial power, at least if it is "a step in arriving at the ultimate conclusions on which [is based] the making of an award intended to regulate the future rights of the parties". For, as was there made clear, "the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights." 20 Equally, in our view, the fact that the Tribunal was involved in the determination of facts and the application of concepts like "inappropriate practice" which have been defined by statute, does not entail that the Tribunal was exercising judicial power. It is necessary, as the High Court said in Ranger Uranium, to identify the purpose for which the Tribunal has been required to exercise its power of inquiry and determination. 21 Ranger Uranium was referred to in a later joint judgment of the Full High Court in Precision Data, which concerned the powers of the Corporations and Securities Panel to make declarations on the application of the Australian Securities Commission under s 733(1) or s 734(2) of the Corporations Law that "unacceptable circumstances" had occurred in relation to the acquisition of shares in a company or as a result of conduct engaged in by a person in relation to shares in, or the affairs of, a company. The making of such a declaration empowered the Panel, again on the application of the Commission, to make orders of a protective kind, including orders preventing the exercise of voting rights in the company and directing the company not to make a payment due from the company in respect of specified shares. It was observed, at 188-189 (footnotes omitted): "The acknowledged difficulty, if not impossibility, of framing a definition of judicial power that is at once exclusive and exhaustive arises from the circumstance that many positive features which are essential to the exercise of the power are not by themselves conclusive of it. Thus, although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power. Again, functions which are ordinary ingredients in the exercise of administrative or legislative power can, in some circumstances, be elements in the exercise of what is truly judicial power. It follows that functions may be classified as either judicial or administrative according to the way in which they are to be exercised. So, if the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power. That is not to suggest that considerations of policy do not play a role, sometimes a decisive role, in the shaping of legal principles. Furthermore, if the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created, then the function stands outside the realm of judicial power." 22 After quoting part of the passage from Ranger Uranium reproduced at para 19 of these reasons, their Honours continued: "The Court was then speaking with reference to an arbitral function of the Conciliation and Arbitration Commission but, as the judgment shows [(1987) 163 CLR at pp 665-666; see also Re Cram (1987), 163 CLR at p 149], the remarks apply with equal force to determinations made for administrative, executive or legislative purposes." 23 In our view, contrary to the argument advanced on behalf of the appellant, the Tribunal was not concerned with the ascertainment of legal rights and obligations. It is true that s 106U contemplated that the Determining Officer might make a direction for repayment to the Commonwealth of an amount equivalent to any medicare benefit paid for inappropriate services (s 106U(c)) or for payment of an amount in addition to that payable under s 106U(c). However, the making of a direction of that kind was not predicated on the ascertainment of any existing liability in the practitioner. The liability, in the sense of a debt due to the Commonwealth, arose on the making of the determination. Similar observations apply to directions under s 106U(f) and (g) effecting a revocation or suspension of the authority to prescribe a pharmaceutical benefit or a partial or total disqualification from the provision of services. 24 Another consideration which militates against regarding the power conferred on the Tribunal as judicial is that the Tribunal was required to review a determination of the Determining Officer based on a report by a Committee that a practitioner had engaged in "inappropriate practice" as defined in s 82(1). That is not a phrase which has any parallel with "traditional judicial concepts" as Windeyer J called them in The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 399. Rather, it is a concept which depends for its application on peer review which is, of its nature, a delegated administrative function of government rather than the exercise of judicial power; see also Reg v Spicer; Ex parte Australian Builders' Labourers' Federation (1957) 100 CLR 277 per Kitto J at 305. This impression is reinforced, first, by the fact that an examination of a practitioner's conduct could only be initiated by reference from the Health Insurance Commission. It was, in no sense, able to be initiated in vindication of a private or individual right; see Tasmanian Breweries (supra at 402). 25 In the second place, the debt to the Commonwealth which came into existence upon the giving of a direction under s 106U(1)(c) was not directly enforceable by the Director or the Tribunal. It had to be sued for in a court of competent jurisdiction. By contrast, the facility to make a determination which is immediately binding or conclusive between the parties is a characteristic aspect of judicial power. Thus, in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, it was observed in the joint judgment of Deane, Dawson, Gaudron and McHugh JJ at 268-269: "However, there is one aspect of judicial power which may serve to characterise a function as judicial when it is otherwise equivocal. That is the enforceability of decisions given in the exercise of judicial power. In Waterside Workers' Federation of Australia v J W Alexander Ltd [(1918) 25 CLR 434 at 451], Barton J said: "It is important to observe that the judicial power includes with the decision and the pronouncement of judgment the power to carry that judgment into effect between the contending parties. Whether the power of enforcement is essential to be conferred or not, when it is conferred as part of the whole the judicial power is undeniably complete." And in Federal Commissioner of Taxation v Munro [(1926) 38 CLR 153 at 176], Isaacs J pointed out that the concept of judicial power includes enforcement: the capacity to give a decision enforceable by execution. It was this characteristic of judicial power which was emphasised by Latham CJ in Rola Co (Australia) Pty Ltd v The Commonwealth [(1944) 69 CLR 185 at 198-199]. He pointed to the fact that in Huddart, Parker & Co Pty Ltd v Moorehead Griffith CJ referred not only to the giving of a binding and authoritative decision as being indicative of the exercise of judicial power, but also spoke of such a decision being given by a tribunal "called upon to take action". Thus, Latham CJ pointed out, where a tribunal is able to give a binding and authoritative decision and is able to take action so as to enforce that decision, "all the attributes of judicial power are plainly present" [Rola Co (Australia) Pty Ltd v The Commonwealth (supra, at 199)]. 26 In Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at 109-112, the High Court referred to Tasmanian Breweries when holding that a decision of the tribunal established under the Superannuation (Resolution of Complaints) Act 1993 (Cth) reviewing a decision of a trustee of a regulated superannuation fund did not create a new charter by reference to which the existence of the rights or obligations of the parties to the complaint were to be decided between those persons or classes of persons. There was not, as there was in Brandy, a mechanism of registration whereby a non-binding administrative determination was converted into a binding, authoritative and curially enforceable determination. Rather, in Breckler, the trustees became obliged to observe determinations of the tribunal by force of a variation to the trust deed and the status of the superannuation scheme as a regulated scheme. Moreover, determinations of the tribunal were not immune from collateral attack in properly constituted curial proceedings. 27 A related indication of the absence of judicial power is that the armoury of directions which might be made under s 106U in consequence of a determination includes directions for reprimand and counselling which are foreign to the exercise of judicial power, even for the punishment of criminal offences. It is true that all of the directions available under s 106U(1) have a disciplinary flavour but that does not entail that they could only be given in the exercise of judicial power. Even a power to impose a fine, if exercisable as part of a disciplinary scheme applicable to members of a identifiable class by virtue of their relationship with the Commonwealth, is not inherently judicial. Thus, it was observed in the joint judgment of the High Court in The Queen v White; Ex parte Byrnes (1963) 109 CLR 665 at 669-671: "If as a result of s. 55(1) and s. 55(3)(d)(1) [of the Public Service Act] the section were construed as enabling the tribunal to impose a fine which was recoverable at law by any lawful means, that would explain the view insisted upon by the applicant that the section invades the realm of the judicial power of the Commonwealth but we do not think that the provisions of the Act should be so construed. We think that the so-called fine is nothing but a mulct to be deducted from salary or pay and we think that the provisions of s. 55, in spite of the heading of Div. 6, "Offences", should be interpreted as wholly concerned with breaches of discipline and disciplinary measures concerned only with the Service. Division 6 is, of course, limited to the Service and we are not here dealing with a law having general operation over all the members of the community. We are dealing with the regulation of what is, no doubt, a very large body of people with respect to their work for and their relations with the Commonwealth Crown. The expressions used in sub-s. (1) of s. 55 relate of course to conduct which is treated as open to considerable objection on what may be Service grounds but it should be kept steadily in mind that the so-called punishment must be determined by officers acting under the provisions of the subsequent sub-sections of s. 55. Again, when par. (d) of sub-s. (3) is examined, it is seen that no inconsiderable portion of the disciplinary measures which it authorizes relates simply to status, conditions or other relations in the Service. The Appeal Board is mentioned in the proviso to sub-s. (3) and further dealt with in sub-ss. (4), (5), (6), (6A), (7), (8), (9), (9A), (10) and (11). As has already appeared, we think that Div. 6 of Pt. III of the Act relating to offences is part of the law regulating the relationship between the Commonwealth and its servants; it is a law with very special application. Section 55, in creating so-called "offences" and providing for their "punishment", does no more than define what is misconduct on the part of a public servant warranting disciplinary action on behalf of the Commonwealth and the disciplinary penalties that may be imposed or recommended for such misconduct; it does not create offences punishable as crimes. The formalities prescribed in ss. 55, sub-ss. (3), (5) and (7), and 57, 58 and 60 (which counsel for the applicant described as "judicial trappings") are directed to safeguarding public servants from possible official injustice in the determinations whether there has been departure from the "code" established by s. 55(1) and, if so, what punishment should be imposed. The establishment of these safeguards does not indicate that an officer whose conduct is being investigated is being tried for a criminal offence; indeed in the Act a clear distinction is drawn between criminal offences committed by public servants (s. 62) and breaches of the disciplinary code established by s. 55(1)." 28 Similar views were expressed by Davies J in Yung v Adams (1998) 80 FCR 453 at 472 about the directions which can be given under s 106U of the Act. His Honour there said: "In Clyne v Bar Association (NSW) (1960) 104 CLR 186 the High Court pointed out (at 201-202) that, although disbarment is sometimes referred to as "the penalty of disbarment", it was in no sense punitive in character. In the course of their reasons, Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ referred to the fact that, in one of the proceedings brought in the Supreme Court of New South Wales against Mr Clyne on a charge of unprofessional conduct, the charges had been withdrawn on his giving an undertaking (at 202) "to abide by the recognised standards which should govern the conduct of members of the profession". Similarly, in Bar Association (NSW) v Evatt (1968) 117 CLR 177 Barwick CJ, Kitto, Taylor, Menzies and Owen JJ said (at 183-184) that: "The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved." Their Honours went on to say (at 184): "The respondent's failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser." As those cases show, directions under s 106U with respect to a reprimand, counselling, the repayment of benefits and disqualification are not imposed as a punishment. They are imposed with a view to protecting patients and the Commonwealth against abuse of the system." 29 For these reasons, we have concluded that the learned primary Judge was plainly right when he concluded that the Tribunal, when reviewing a Determining Officer's final determination and directions given under s 106U, was not exercising judicial power.

Exceptional Circumstances 30 In the appellant's outline of submissions, ground 5 complains that his Honour erred in law by failing to find that the Tribunal misdirected itself when it observed that it would only be in "exceptional circumstances" that a finding of inappropriate practice made by a Professional Services Review Committee would be found to be unsustainable. 31 In Yung v Adams (supra) at 476-477, Davies J (at first instance) said: "…the function of a Professional Services Review Tribunal is not that of applying principles of judicial review to findings earlier made but that of considering the whole matter on its merits, having regard to the material which is before it and in the light of all relevant matters including the extent to which procedural fairness has been accorded to the medical practitioner". 32 On appeal the Full Court in Adams v Yung (1998) 83 FCR 248 endorsed this view of the role of the Tribunal, and established definitively the following principles: · the Tribunal is not obliged to accept a finding by a Professional Services Review Committee; · it is open for the Tribunal to take a different view from the Committee; and · the weight which will be given to the Committee's findings by the Tribunal is a question for the judgment of the Tribunal. 33 The appellant submitted that, contrary to these principles, the Tribunal had reviewed the facts before it as though it were dealing with an appeal in the sense of a review limited to correcting legal error, and not conducting a rehearing in which it could reach its own conclusions, albeit limited to the material which had been before the Committee. It was submitted, for example, that the Tribunal had asked itself whether there was evidence to support the findings made by the Committee, rather than whether those findings should be upheld. It was submitted that the Tribunal's error was exemplified by its observation that it would only be in "exceptional circumstances" that a finding of inappropriate practice made by a Committee would be unsustainable. 34 The respondent submitted that, when read in context, the Tribunal's reference to "exceptional circumstances" disclosed no error of the type identified by the appellant. 35 We agree with the respondent's contention that the reference to "exceptional circumstances" must be read in context. The passage in the Tribunal's reasons for determination which gives rise to this ground of appeal was written in response to a contention apparently advanced on behalf of the respondent to the effect that the Tribunal was bound to accept any findings made by the Committee in relation to inappropriate practice. As the decision of the Full Court in Adams v Yung has confirmed, the Tribunal was entirely correct in rejecting that submission. It was in the course of explaining its reasons for doing so that the Tribunal referred to: "… the intention of Parliament that the Committee should be an investigatory body of peers, the Chairperson and panel members being 'practitioners who belong to the profession in which the practitioner was practising when he or she rendered or initiated the referred services (s95(2))'". 36 The Tribunal then made its remark about "exceptional circumstances". That remark was plainly designed to emphasise the significance of peer group evaluation. In context it was nothing more than an acknowledgment of what must be plain, namely that an assessment of whether there has been inappropriate practice which is made by a practitioner's peers will generally be found to be reliable. It was submitted that to interpret the Tribunal's reference to "exceptional circumstances" as indicating some sort of pre-determination on its part, or misallocation of a non-existent burden of proof, would amount to overzealous judicial review of the type so clearly disapproved by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 37 The principles formulated by Davies J in Yung v Adams, and upheld on appeal in Adams v Yung, acknowledge that the Tribunal may, in the course of reviewing the material before it, take an entirely different view from that taken by the Committee. As Beaumont J observed in Adams v Yung, the weight to be given to the Committee's findings is a question for the judgment of the Tribunal conducting the review. 38 In the present case the Tribunal did review the material before it. It decided, as it was entitled to do, that it would give substantial weight to the Committee's findings. We consider that when one reads the Tribunal's decision as a whole, its remark about "exceptional circumstances" was intended to do no more than reflect its view of the importance of the findings made by the Committee. Its reference to "exceptional circumstances" does not suggest that it abdicated its responsibility to conduct a full review on the merits. Its reasons show that it understood the nature of its task, and that it arrived at its own conclusions in relation to the issues it was bound to consider. No error on the part of the Tribunal has been demonstrated.

Sampling 39 It was submitted on behalf of the appellant that the learned primary Judge had erred in two quite separate ways when dealing with the contentious, and difficult, issue of sampling. In his outline of submissions to this Court, in dealing with grounds 7 and 8, the appellant contended: · that the learned primary Judge erred in law in "relying on" a finding in the Committee's Report that Dr Tankey had acknowledged that the sample records examined were representative of the general standard of his records when there was no evidence to support that finding; and · that his Honour erred in law in failing to find that the Tribunal's determination upholding the respondent's determination that Dr Tankey had engaged in "inappropriate practice" was invalid, the respondent's determination having been based on findings by the Committee which had itself relied on sampling techniques which did not accord with the requirements of the Act, and which had been adopted by the Committee without Dr Tankey having been notified that their use was contemplated. 40 It is convenient to deal with these contentions separately.

Dr Tankey's "acknowledgment" 41 The Report summarised the process which the Committee had adopted in arriving at its finding that Dr Tankey had engaged in "inappropriate practice". The Committee said: "PROCESS The Committee: · studied the referral · held a hearing on 22 September, 6 October and 22 November 1995 · examined all the available medical records of the patients seen on one randomly selected day, that is, 117 patient medical records for 7 June 1994 (Dr Tankey acknowledged that the sample records examined were representative of the general standard of his records) · examined random samples of pathology tests and of x-rays requested for thirty patients in each case, some samples of his referral letters and the records of some referred patients · took evidence from expert witnesses with general practice experience (Dr David Brand, Dr Brian McCrossin and Dr Brian Kable) on the appropriateness of Dr Tankey's structure and mode of practice with regard to the time spent with patients, his medical records and referrals." (emphasis added) 42 It was contended on behalf of Dr Tankey that there was no basis whatever for the Committee's attribution to him of an acknowledgment that the sample records examined were representative of the general standard. 43 In its decision upholding the respondent's decision to act upon the Committee's finding, the Tribunal observed: "The Committee found that medical records were incomplete, medications were not recorded, allergies were not recorded, there was poor or absent recording of diagnoses and physical findings and referrals were not noted." 44 It is important to note that the Tribunal did not refer, in terms, to Dr Tankey's supposed acknowledgment. The Tribunal did, however, observe in a related context: "It was put that the three general practitioners who gave evidence before the Committee examined an inappropriate sample of medical records. The samples appear to be in line with comments made about Dr. Tankey's records by the Commission in its referral." (emphasis added) 45 In his reasons for judgment the learned primary Judge referred to the Committee's finding regarding Dr Tankey's supposed acknowledgment. His Honour said: "In contrast to the criticisms of Burchett and Hill JJ in the Full Court in Yung as to that Committee's narrow focus on some services rendered on a particular day, the respondent asserted that this Committee's examination of services rendered on the randomly chosen day ranged over the entire history of those patients and not just the services rendered on that day. He agreed [sic] that the records for those patients provided a basis for the criticism of Dr Tankey on the general protocols he observed in the treatment of all of his patients. It appears to me from the transcript of the hearing before the Committee that not even every service performed on the chosen day was examined and that a detailed inquiry into the treatment of less than 10 patients took place. The sample required is, however, a sample of services (s 106H) and not a sample of patients, and the Report stated that Dr Tankey acknowledged that the 117 records examined were representative of the general standard of his records." (emphasis added) 46 It was submitted on behalf of Dr Tankey that this passage demonstrated that his Honour had fallen into error by wrongly accepting, and acting upon, a finding by the Committee for which there was no foundation. 47 An examination of the transcript of the proceeding before the Committee makes it clear that Dr Tankey did not acknowledge, in terms, that the sample records examined were representative of the general standard of his records. Dr Tankey did, however, refer to the state of his records at various times throughout the proceeding. For example, in answer to a question concerning the detail encompassed in his notes, he replied: "No. I write - I just basically write relevant notes, you know, like I would not have down there - like if there was something relevant in the history like acute pelvic inflammatory disease or something like that, that would appear in the notes if - if the- as you can see from those, you know, to try and comply with regulations in recording patients', you know histories, I've sort a detailed a… (indistinct) … down which probably gives a bare minimum but I can understand it I know where I am going. …" (transcript 367) 48 The transcript continues: "DR MATTHEWS: Doctor, perhaps going back to the notes for a minute, while we have just been on that subject, we had had a look at a few of the notes there. We will be looking at them in more detail later on. Some of the notes we have seen are extremely brief. DR TANKEY: Yes. DR MATTHEWS: One, two, three words perhaps. What do you understand is the purpose of keeping notes? DR TANKEY: Purpose of keeping notes is purely, probably, to record abnormalities, you know. I - I - we're getting into politics again. I deliberately keep notes to a minimum. … DR MATTHEWS: Just getting back to the notes issues again, do you understand anything by the concept of the minimum requirements for good notes. DR TANKEY: No. THE CHAIRPERSON: How do you get on some years down the line when you have got to write reports on some of these patients with your minimal record keeping? DR TANKEY: I - I have no troubles in writing medical-legal reports. You know, like for this or that. As I said, I could - I - without looking at, say, …I could tell you that [LW] has MS, had asthma, has a lot of social problems related to this, that she's got a normal girl, and asthmatic father, two of the boys are epileptic and three of them have all got learning disabilities which severely handicap them and to some degree, mental retardation and you just - you know what's going on, and it will be documented somewhere, maybe not as accessible as what it should be, but if you go through the standards of that standard book, the only points that I fall down on is probably records, which I admit are minimal and maybe hard to follow for someone else …" (transcript 368-9) (emphasis added) 49 The transcript reveals that, shortly after this exchange, Dr Tankey was asked by Dr Matthews whether he would agree that perhaps his referrals could be better. Dr Tankey replied: "Better, yes, I would, and my records too. I would agree that they're minimal. I have got no qualms on that at all, you know." (transcript 389) (emphasis added) 50 Subsequently, the following exchange took place: THE CHAIRPERSON: But you do agree part of conducting your practice is to keep adequate medical records? DR TANKEY: A part of it - to me it's a smaller part rather than a larger part. To me the important part is actually providing the care - the quality of the care. This is what I can't follow. You seem to head around in a bit of this: bit of that. My records are brief … THE CHAIRPERSON: Can I put it to you then - that is quite … DR TANKEY: Can you see what I'm getting at? THE CHAIRPERSON: Yes. But we want to try to see what we are getting at. I put it to you that for the adequate ongoing care of a patient, and this was a fairly sick man, that part of the adequate ongoing care of a patient is to keep reasonable records, in the event that (a) you might need them yourself. You may have a very brilliant memory; however we all get a little bit older and a bit greyer and we do not remember so well, or we have accidents or we go on holidays and things and somebody else may need to carry on the care of this patient. Now part of the appropriate practice is having at least adequate records to follow what is happening with a patient and with due respect, it is very difficult to read from your record the past history of this patient. DR TANKEY: Sure. But what you have then got to compare is sets of records that are representative of the general body of practitioners. THE CHAIRPERSON: Well, with due respect, I would hope that most practitioners would have a better record than this. Have you ever been in court? DR TANKEY: Yes. THE CHAIRPERSON: And have you taken records like this along to the court? DR TANKEY: Yes. THE CHAIRPERSON: Do you have any trouble with the legal … DR TANKEY: Got by." (transcript 439) (emphasis added) 51 The Committee on several occasions expressed concerns regarding the adequacy of Dr Tankey's records. At one point, Dr Backstrom, a member of the Committee, commented: "I would prefer not to say anything at this time except to comment about your records. I am strongly of the opinion that a GP's record is an aide memoire purely and simply and just for you and nobody else: but having said that - so therefore I kind of support your concept - but your records are deficient even in that respect, I feel. They are not sufficient even for an aide memoire for you, but from the medical defence point of view, I can assure you if ever you did have a complaint - and we are all of us likely to have that - of negligence, I would not like your chances. Even with good records these days, the way the legal system or the legal eagles work these days - they take the patient's word rather than what is written down in your record, and if you have not got any record, you have not got a chance." 52 Dr Matthews added: "Thank you, Mr Chairman, I think I would just be a little bit stronger than Dr Backstrom. I think that good records or records that other people can operate on are absolutely integral to the principle of being able to offer good care to those patients, because quite clearly you cannot be available 365 days a year, 24 hours a day. So I think that your ability to offer appropriate care is greatly detracted from by the condition of the records that we have inspected today." 53 Dr Tankey did not take issue with the comments of either Dr Backstrom or Dr Matthews. Nor did he contend before the Committee that there was anything atypical about the particular clinical notes which were the subject of criticism. He at all times spoke in the most general of terms about his record keeping practices. The one concession that he was prepared to make, "… the only points that I fall down on is probably records, which I admit are minimal and may be hard to follow for someone else …", was also couched in general terms. 54 In these circumstances, the Committee's statement regarding Dr Tankey's supposed acknowledgment should be viewed, in our opinion, as no more than a shorthand expression by which it endeavoured to summarise the overall effect of his evidence regarding this matter. 55 In considering whether the Committee's findings indicate error on its part, it must again be borne in mind that the reasons given by statutory decision-making bodies should not be scrutinised overzealously to discern whether some inadequacy may be gleaned from the manner of their expression - Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (supra). We do not accept that the Committee erred when it summarised the evidence given by Dr Tankey in the way in which it did. 56 There are other obstacles to Dr Tankey's success on this ground of appeal. An appeal under s 124A of the Act is not brought from a finding of a Committee that a practitioner has engaged in "inappropriate practice", or a final determination by a Determining Officer to that effect. It is brought from a decision of the Tribunal which has reviewed that determination. The fact that a Committee may have erred in arriving at a finding, does not, of itself, give rise to a right to relief in this Court. 57 The Tribunal's reasons for decision in the present case suggest that it did not accord any weight to the Committee's observation concerning Dr Tankey's supposed acknowledgment regarding the representative nature of the sample records examined. There is nothing to indicate that this finding by the Committee (if it be a "finding") played any role in the Tribunal's decision to uphold the Determining Officer's determination that Dr Tankey had engaged in "inappropriate practice". 58 In our opinion the appellant's submission that the learned primary Judge erred when he "relied on" the Committee's observation regarding the supposed acknowledgment greatly overstates any importance which his Honour may have attached to that observation. We do not accept that it was treated by his Honour as tantamount to an admission on the part of Dr Tankey. In their context, the learned primary Judge's reasons, far from having "relied upon" the supposed acknowledgment, did no more than paraphrase the Committee's observation as part of a summary of the background to the matter. 59 In our opinion ground 7 must be rejected. The sampling methods required by the Act 60 We turn next to the submission advanced on behalf of the appellant that the sampling techniques used by the Committee in the course of preparing its Report did not comply with the requirements of the Act. It is necessary to set out in some detail the provisions of the Act which bear upon this issue. 61 Referrals by the Commission to the Director are dealt with in Pt VAA of the Act. By s 86(1) it is provided that: "86. (1) The Commission may, in writing, refer to the Director the conduct of a person relating to one or both of the following: (a) whether the person has engaged in inappropriate practice in connection with rendering of services; (b) whether the person has engaged in inappropriate practice in connection with initiation of services." 62 Section 86(2) provides: "(2) So far as the referred services concern rendering of services, the services must have been rendered: (a) during the 2 year period preceding the referral; and (b) on or after 1 September 1993; whether or not any or all of the services were initiated before the start of that period and/or before that day". 63 Section 87 of the Act deals with the content and form of referrals. That section provides as follows: "87. (1) The referral must specify whether it relates to one or both of the following: (a) specified services; or (b) services rendered or initiated by a practitioner that are one or more of the following: (i) services of a specified class; (ii) services provided to a specified class of persons; (iii) services provided within a specified location. (2) The content and form of the referral must comply with any guidelines made under subsection (3). (3) The Minister may, in writing, make guidelines about the content and form of referrals. (4) Guidelines so made are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901." 64 Section 88(1) of the Act provides that the Commission must send a copy of the referral to the person under review within forty-eight hours of sending the referral to the Director. Section 88(2) provides that the copy must be accompanied by a notice inviting the person under review to make written submissions to the Director, within fourteen days, stating why the Director should dismiss the referral without setting up a Committee. A notice in those terms was given to Dr Tankey. 65 By s 89(1) it is provided that, within twenty-eight days after receiving the referral, the Director must either dismiss it, or set up a Committee to consider whether the practitioner has engaged in inappropriate practice. A Committee was, of course, established. 66 Sections 106G to 106K of the Act were, until 1997, contained within subdivision C of Div 4 of Pt VAA of the Act. That subdivision was headed "Findings Based on Statistical Sampling". Subdivision C was repealed by the Health Insurance Amendment Act (No 1) No 146 of 1997. However, at the time Dr Tankey's conduct came under scrutiny ss 106G-106K provided: "106G. This Subdivision applies to the Committee if the referral is expressed to relate to services rendered or initiated by the person under review that are one or more of the following: (a) services of a specified class; (b) services provided to a specified class of persons; (c) services provided within a specified location. 106H. (1) Subject to section 106J, in making findings on the conduct of the person under review in connection with the referred services, the Committee may base its findings wholly or partly on its findings on his or her conduct in connection with a sample of those services. (2) The sample of services: (a) must be produced in accordance with directions issued under section 106K; and (b) in being used to base the Committee's findings with respect to the referred services, must only be used in accordance with those directions. 106J. (1) The Committee must notify the person under review, orally or in writing, of any finding it proposes to make, with respect to the referred services, that is based on use of a sample of services under section 106H. (2) If, on being so notified, the person under review requests the Committee to increase the size of the sample of services, the Committee must, subject to subsection (4), increase the size of the sample of services, and review its proposed findings, in accordance with directions issued under section 106K before using the sample of services under section 106H with respect to the referred services. (3) If, on being so notified, the person under review requests the Committee to allow the person to present his or her case to the Committee addressing all of the referred services, the Committee must, subject to subsection (4): (a) allow the person to present that case in accordance with any directions given by the Committee; and (b) unless the person fails to present that case in accordance with such directions, must not use the sample of services under section 106H to base its findings with respect to the referred services. (4) The person under review cannot make requests under both sub-section (2) and subsection (3) in respect of the same referral. 106K. (1) The Minister may issue directions about: (a) the production of samples of services for the purposes of section 106H; and (b) increasing the size of samples of services under section 106J; and (c) use of samples of services under section 106H (including the use under that section of samples increased in size under section 106J). (2) Directions must be in accordance with advice received from the Australian Bureau of Statistics. (3) Directions are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901."

The referral 67 By its referral dated 26 July 1995, the Commission, acting pursuant to s 86 of the Act, referred to the Director: "the conduct of Dr James Adrian Tankey in relation to whether he has engaged in inappropriate practice in connection with the rendering and initiation of Medicare services as defined by the Act". 68 As noted earlier the referral specified a period from 1 January to 31 December 1994. The referred services were described as follows: "For the purpose of s 87(1) of the Act, this referral relates to all services rendered and initiated by Dr Tankey from all his practice locations and all institutions visited by him." 69 The referral nominated three practice locations being 16 East Street, Ipswich, Queensland (the principal location), Rosewood Road, Amberley, and Ipswich After Hours Centre, 2 Wharf Street, Ipswich. It identified Dr Tankey as having provided 27,048 services under Medicare to 5,556 patients, averaging 552 services per week for the 49 weeks in which he worked during that period. It stated: "During this period Dr Tankey provided more than 80 services a day on 191 days, of which there were 140 days when he provided more than 100 services, 74 days with more than 120 services, 26 days with more than 140 services, 5 days with more than 160 services. On his busiest day he provided 181 services. The Health Insurance Commission believes the appropriate level of clinical input could not be maintained for such long hours on a regular and continuing basis." 70 The referral also identified referral rates for pathology, diagnostic imaging, and specialist or consultant referrals which the Commission believed were not reasonably medically necessary or appropriate for the care of the relevant patients. 71 The Commission said that, in forming a view about the appropriateness of Dr Tankey's practice, it had taken into account the servicing patterns of all active general practitioners in Australia. It noted that Dr Tankey provided substantially more services than 99% of those practitioners. It noted also that the average annual consultation figure was 8,469 services (as compared with Dr Tankey's 27,048 services). It observed that for Dr Tankey to conform with the draft criteria in the entry standards for general practice accreditation developed and adopted by the Royal Australian College of General Practitioners, he would need to work continuously in the one location for at least 13.3 hours to provide 80 services in a day, and for at least 16.7 hours to provide 100 services in a day. Based on his services for the referral period, Dr Tankey would have needed to spend 92 hours per week in direct patient contact.

The competing contentions 72 Relying upon ss 106G-K of the Act, Dr Tankey challenged the Committee's findings based on statistical sampling. He submitted that the Tribunal ought to have set aside those findings, and in default of the Tribunal having done so, the learned primary Judge had erred in failing to set them aside. He submitted that the Committee's power to use samples of services as a basis for its findings was subject to the preconditions set out in ss 106H(2)(a), 106H(2)(b), and 106J(1). He argued that those preconditions had not been met. 73 It is clear that, in finding that Dr Tankey had engaged in inappropriate practice, the Committee relied, at least in part, on his conduct in connection with a sample of the referred services. The Committee had before it all the available medical records of the patients he had seen on one randomly selected day, that is 117 patient medical records for 7 June 1994. It also had before it samples of pathology tests for thirty patients, samples of X-rays for thirty patients, examples of his referral letters, and samples of the records of some patients who had been referred to specialists. 74 It was common ground before this Court that the Minister had, during the relevant period, issued directions regarding sampling pursuant to s 106K of the Act. It was also common ground that the requirements of s 106H(2)(a) and (b) were mandatory, and that a failure to comply with those requirements might entail invalidity of the entire sampling process - Project Blue Sky v ABA (1998) 194 CLR 355 at 390. 75 It was submitted on behalf of Dr Tankey that, although the Committee was not bound to use statistical techniques in arriving at its findings, if it elected to do so, it was obliged to comply strictly with any directions issued pursuant to s 106K. It was submitted that the sampling techniques used by the Committee did not accord with those specified in the Act, and that this resulted in invalidity of all findings based upon misuse of those techniques. 76 Counsel for the respondent submitted that, even assuming that the Committee's sampling techniques did not accord with those specified in the Minister's directions, this had no bearing upon the correctness of its findings. That was because the sampling requirements imposed by ss 106G-K had no application to a referral relating to "specified services" under s 87(1)(a) of the Act, which, she contended, this referral was. Those requirements were applicable only to referrals of the type dealt with under s 87(1)(b). 77 Counsel for the respondent drew attention to the fact that s 106G, which limited the application of subdivision C of Div 4 of Pt VAA headed "Findings based on statistical sampling", referred to three classes of service which corresponded precisely with the three classes of services set out within s 87(1)(b)(i), (ii), and (iii). Section 106G did not use the language of s 87(1)(a). It followed, so it was submitted, that referrals expressed as relating to "specified services" did not require the use of sampling techniques which accorded with directions issued by the Minister. 78 The issue to be resolved is whether a referral in the terms in which Dr Tankey's referral is expressed is properly to be regarded as falling within s 87(1)(a) of the Act, or as falling within one or more of s 87(1)(b)(i), (ii) or (iii).

Conclusion regarding sampling 79 It is clear that the referral concerning Dr Tankey does not relate to "services of a specified class". It relates to all services rendered and initiated by Dr Tankey during the referral period. A referral expressed in these terms is not, for the purposes of s 87(1)(b)(i), a referral which relates to a "specified class" of services. 80 It is also clear that the referral does not relate to "services provided to a specified class of persons". The referral was expressed in the most general of terms. It related to services provided to all persons treated by Dr Tankey from all his practice locations, and at all institutions visited by him. A referral so expressed is far wider than one which, for the purposes of s 87(1)(b)(ii), relates to a "specified class of persons". 81 It was submitted on behalf of Dr Tankey that the referral relating to his conduct met the description "services provided within a specified location" within the meaning of that expression in s 87(1)(b)(iii). The location[s] said to have been "specified" in the referral were "from all his practice locations" and "all institutions visited by him". If that submission were to be accepted, it would follow that the requirements of s 106H(2)(a) and (b) were not met. It would then be necessary to consider what consequences, if any, might flow from a failure to observe those requirements. 82 The authorities which bear on this subject are not easily reconciled. In Artinian v Commonwealth (1996) 43 ALD 235 Hill J dealt with an application for interlocutory relief pending the hearing of an application for judicial review. The applicant challenged two decisions, one by the Commission to make a referral under s 86(1) to the Director, and a second by the Director to set up a Committee to consider whether the applicant had engaged in inappropriate practice. 83 Hill J said at 241: "4. Whether the referral complied with s 87(1) in specifying services The document of referral under s 86 of the Act described the referred services in the following terms: For the purposes of s 87(1) of the Act, this referral relates to all services rendered by Dr Artinian from his practice locations in the state of New South Wales during the period of 1 January 1995 to 31 December 1995, inclusive. It is submitted that so to define the services to which the referral relates, is to fail to comply with the provisions of s 87(1) which requires that the referral specify one or both of specified services or services of the kind referred to in s 87(1)(b). It is said that to name all the services in a period is not to specify "specified services". It would seem fairly obvious that the referral did not seek to specify or to make a specification in accordance with s 87(1)(b). The word "specify" has its ordinary English meaning as stated in the Macquarie Dictionary of "to mention or name specifically or definitely; state in detail". What is required, if a referral is to specify services, is that the referral be precise or particular about which services it refers to. It would probably not be a sufficient compliance with s 87(1), for example, if the referral were to be as general as to refer to all services whatsoever carried out by the practitioner. However, it is said on behalf of the respondents that the referral does not refer to all services carried out by the practitioner but rather to all services carried out by him in a particular period of time, namely the period from 1 January 1995 to 31 December 1995 inclusive. For my part, I do not see why s 87(1) should be construed as not permitting a specification of the services performed by a practitioner on a particular day, a particular week or in a particular month. If this is so, I can see no reason why it would be invalid to specify the proceedings in a particular year. Put in another way, the argument for the applicant can hardly be said to be strong, although put the other way it can hardly be said to be unarguable." (emphasis added) 84 It seems that Hill J regarded the referral in Artinian as having been made under s 87(1)(a) of the Act, and not under s 87(1)(b). That emerges from the fact that he considered the word "specify" in the context of the expression "specified services", an expression which is found in s 87(1)(a), and not in s 87(1)(b). 85 The referral concerning Dr Artinian was expressed in similar terms to that concerning Dr Tankey. Hill J's reasoning in Artinian may therefore be seen as providing support for the respondent's contention that the referral concerning Dr Tankey was a referral made under s 87(1)(a), and not under s 87(1)(b). 86 In Retnaraja v Morauta (1999) 93 FCR 397 von Doussa J seems to have come to a different conclusion. His Honour there heard an appeal under s 124A of the Act from a decision of a Professional Services Review Tribunal. The issue was whether the appellant, Dr Retnaraja, had engaged in inappropriate conduct in connection with the rendering of services during the referral period, 1 July 1994 to 30 June 1995. 87 After setting out the provisions of s 87 of the Act, von Doussa J observed at 400: "The referral concerning Dr Retnaraja relies on s 87(1)(b)(iii). Paragraph 2 of the referral reads: "For the purposes of section 87(1) of the Act, this referral relates to all Medicare services rendered by Dr Retnaraja from his practice locations in the State of South Australia."" (emphasis added) 88 His Honour seems, therefore, to have regarded the referral concerning Dr Retnaraja as falling within s 87(1)(b)(iii), relating to "services provided within a specified location". The question whether the referral fell within that paragraph did not, however, arise for determination in that case. No reason was given by his Honour for characterising the referral in that way. 89 It is possible to distinguish the referral concerning Dr Retnaraja from that concerning Dr Tankey. Dr Retnaraja's referral was limited to his practice locations "in the State of South Australia". It could be said that this was a "specified location". Dr Tankey's referral was not confined to any location whatever. It extended to "all his practice locations". Had Dr Tankey engaged in practice at a location other than one of the three specifically nominated in the referral, including a location outside the State in which he principally conducted his practice, the services which he provided at any such location would undoubtedly have fallen within the ambit of the referred services. That would not have been the position in respect of Dr Retnaraja. 90 There is another basis upon which Dr Retnaraja's referral may be distinguished from that concerning Dr Tankey. Dr Tankey's referral included "all institutions visited by him". That expression is entirely general in scope. It can hardly be described as being limited to any "specific location". 91 There may be thought to be some support for a wider view of s 87(1)(b) in the judgment of Davies J, at first instance, in Yung v Adams (supra). The referral concerning the conduct of Dr Yung which gave rise to the proceeding was expressed as follows at 460-461: "On behalf of the Health Insurance Commission and pursuant to Section 86 of the Health Insurance Act 1973 (the Act) I, Ronald Philip Tomlins, Medical Director, hereby refer to the Director of Professional Services Review, the conduct of Dr Steven YUNG in relation to whether he has engaged in inappropriate practice in connection with the rendering of Medicare services as defined by the Act . … For the purposes of section 87(1) of the Act, this referral relates to all services rendered by Dr Yung within the premises at the corner of Hotham Road and Princes Highway, Kirrawee in the State of New South Wales." 92 Davies J said at 461: "In its referral, the Commission said, inter alia: "In the referral period, 1 January 1994 to 31 December 1994, Dr Yung provided 19,622 services under Medicare of which 17,331 (88.3%) were provided at his Kirrawee practice mostly on Mondays, Tuesdays and Thursdays (see Attachment 1, Referral pages 16-31). … Using this guideline [average times are not less than 10 minutes], to provide 100 services on a day, Dr Yung should have worked continuously for at least 16.7 hours. … Given these reasons the Health Insurance Commission is concerned that the appropriate level of clinical input could not be maintained for such long hours on a regular and continuing basis and believe that this conduct is unacceptable to the general body of General Practitioners." (Emphasis added)" 93 His Honour continued at 462: "The Commission's referral was accompanied by a considerable amount of statistical material relating to Dr Yung's practice during the referral period, 1 January 1994 to 31 December 1994. … Although the Commission attached statistical material to its referral, the Commission did not engage in or recommend a process of sampling. The Act at the time provided stringent safeguards with respect to the use of a sampling technique." 94 Finally, his Honour said at 465: "The Committee examined Dr Yung and Dr Gooley and some records of Dr Yung's practice. However, the Committee did not at any time formulate in writing issues or charges to which Dr Yung should respond. Nor did the Committee engage in statistical sampling in accordance with the provisions set out in ss 106G to 106K of the Act." 95 Davies J appears to have assumed that the referral concerning Dr Yung had been made under s 87(1)(b) of the Act, and not s 87(1)(a). It is difficult, otherwise, to understand why his Honour referred to the Committee's not having engaged in statistical sampling in accordance with ss 106G-106K of the Act. Those sections are not applicable to referrals made under s 87(1)(a). 96 In none of the three judgments at first instance referred to above, Artinian, Retnaraja, or Yung,was it necessary to resolve the question whether the particular referral was brought under s 87(1)(a) or s 87(1)(b). The conclusions arrived at in each case were baldly stated, with no reasons being given. None of those judgments can be said to provide an authoritative statement of principle when dealing with the issue now before this Court. 97 We do not accept the appellant's submission that the referral concerning Dr Tankey's conduct fell within s 87(1)(b)(iii) of the Act. Such a conclusion would do violence to the language of that paragraph. In our opinion, the referral did not relate to "services provided within a specified location", but was far more general in scope. We consider that the referral was a referral relating to "specified services" and was made pursuant to s 87(1)(a). Section 106G did not, therefore, render applicable subdivision C of Div 4 of Pt VAA of the Act. Any failure by the Committee to comply with directions issued by the Minister is, accordingly, of no consequence. 98 The case for the appellant was, however, put on an alternative basis. Counsel relied upon this passage in the joint judgment of Burchett and Hill JJ in Adams v Yung (supra) at 299-300: "In a case where the allegation of conduct is failing to give appropriate care to patients, having regard to the number of services the doctor has performed, a committee if it is to consider the totality of the services referred must, on the legislation presently under consideration, of necessity engage in a proper sampling procedure. It is difficult to see how the proceedings could otherwise be conducted. While the sampling procedure in s 106H (which has now been repealed by the Health Insurance Amendment Act (No 1) 1997 (Cth)) is not made mandatory by the section that precedent provides a sure guide and the only sure guide, to the resolution of the problems such as arose in the present case. … The fact that the doctor in the present case is in the 99th percentile of doctors in comparable positions clearly enough raised a question for consideration, for that statistical outcome involves comparing the time that he spent (under 10 minutes per patient) with the time spent on average by other practitioners. But it does not follow from the fact that an adverse conclusion might well be drawn that it necessarily must be. It will be the task of the Committee to examine the practitioner's conduct in respect of those services and to determine the issue. Sampling will be the obvious mode of proceeding. No question of burden of proof arises in the context. In the present case, the Committee did not attempt to make any useful sample analysis. Indeed it appears to have considered only the patients seen on one day in the whole 12 month period although it asked the doctor questions about patients treated in two months. It does not appear to have considered the medical records that were made available to it in other periods. Indeed the Committee did not even examine every service performed on that one day let alone whether there was an over prescription of antibiotics in some stated proportion of cases having regard to the facts of these cases, assuming that was a matter open to it." (emphasis added) 99 The appellant relied upon those observations in support of a submission that, irrespective of whether the referral had been made under s 87(1)(b)(iii) of the Act (as the appellant contended) or under s 87(1)(a) (as the respondent contended), the Committee had in any event been obliged to comply with the directions issued by the Minister. That was because the sampling procedure in s 106H had been endorsed by the Full Court in Adams v Yung as the "only sure guide" to be followed. 100 It should be noted that the Full Court made this observation in circumstances where it had been assumed throughout that the referral under consideration had been made under s 87(1)(b)(iii), and that ss 106G-K were therefore applicable to the processes to be followed by the Committee and the Tribunal. Burchett and Hill JJ noted that the sampling procedure in s 106H was not made mandatory by the section, but concluded that, if sampling were used, it should be used in accordance with the directions issued by the Minister. Their Honours did not address the position which would have arisen had the referral in that case been made under s 86(1)(a), and the regime under s 106H been not therefore applicable. 101 The learned primary Judge in the present case seems to have assumed, as did the Full Court in Adams v Yung in relation the referral concerning Dr Yung, that the sampling procedures laid down in s 106H were applicable. His Honour said (at par 102): "Section 106K of the Act refers to directions as to sampling to be made by the Minister. Clause 2.2 (Part 2) of the directions made requires that 30 exploratory random samples of services be examined. The Committee complied with this request. The directions then required the Committee to calculate the percentage of services in the exploratory sample that constitute "inappropriate practice" and round the percentage down to the next lower multiple of five percent. It appears that the Committee did not entirely comply with that provision nor with clause 2.3 which states that if the percentage determined in accordance with clause 2.2 is less than 20 per cent, no further statistical inferences are to be made concerning the Referral. However, except in respect of pathology and X-rays, and possibly specialist referrals where the identified cases may determine whether those referrals were reasonably necessary, I think that this scheme has little relevance where the particulars of the alleged conduct are that the doctor was not able to provide an appropriate level of clinical input because he was consistently rendering large numbers of services daily and working such long hours." 102 The learned primary Judge continued (at par 104): "These observations do not, however, apply to a judgment on adequacy and quality of service over the year in question based on the overall statistical facts. Where fairness might demand that a practitioner not be too highly penalised on the basis of severely limited examples or statistics said to justify a finding arising merely from number of services, the servicing of an excessively high number of patients is not to be tolerated because of the logistical difficulty of investigating a doctor's practice. During the referral period in this case, there were 24,231 level B consultations such that proportionately there were only a small number of short consultations including those for work certificates and repeat prescriptions, for which Dr Tankey suggested he received many requests and which he said he often took home and wrote outside ordinary practice hours. In my opinion, this fact alone justified the Committee's findings. As the Committee's findings were principally concerned with the quality of service given in these consultations over the year in question, even if this ground of appeal were open notwithstanding that it purports to challenge the Committee's actions rather than the Tribunal's, I cannot hold that the use of the sampling procedure invalidated the findings of "inappropriate practice"." 103 It is clear, therefore, that his Honour reasoned that, despite the Committee's failure to comply with all of the requirements laid down in the directions issued by the Minister, there had been substantial compliance with those requirements. Substantial compliance was, in his Honour's view, sufficient. It followed that the Tribunal had not erred in upholding the determination of the Director based upon those findings. 104 We differ in our reasons from the learned primary Judge in one important respect. We consider that the referral concerning Dr Tankey was made under s 87(1)(a) of the Act, and not under s 87(1)(b). It follows, in our opinion, that the sampling requirements contained in the directions issued by the Minister were not applicable to that referral. It also follows that the Committee did not err in not having complied in their entirety with those requirements. 105 Because we have so concluded it is unnecessary for us to express any view as to the correctness, or otherwise, of his Honour's approach to the sufficiency of substantial compliance with the sampling requirements set out in the Minister's directions. We observe, however, that the description by Burchett and Hill JJ in Adams v Yung of the directions issued by the Minister as "the only sure guide" to the resolution of the problems in that case does not necessarily mean that any use by a Committee of sampling techniques which does not accord with those directions will necessarily vitiate any findings based upon such use of those techniques. 106 It must be remembered, in that context, that the Committee called for the production of Dr Tankey's patient record cards in respect of all services rendered on 7 June 1994. The members questioned Dr Tankey at length on matters arising from the contents of those cards. The transcript of the proceeding before the Committee demonstrates that the questioning ranged over the entire contents of the cards which were produced, and not just the entries in respect of services rendered on that day. The cards were used as one possible basis for examining the protocols which Dr Tankey observed in his practice. The breadth of the questioning indicates that the sample was not inadequate. The matters raised ranged across a wide number of issues. 107 The Committee used the information which it had gathered from its questioning of Dr Tankey to form a view about the general nature of his practice. It was entitled to proceed in that fashion. The members of the Committee were general practitioners. They were peers of Dr Tankey. They were expected to apply their own experience and expertise to their task. They did so in a manner which the learned primary Judge regarded as being, by and large, unexceptionable. We can discern no error on his Honour's part in arriving at that conclusion.

Dr Tankey's further alternative submission 108 We also reject a further alternative submission which was advanced on behalf of Dr Tankey that the Committee erred by restricting its examination of his practice to a small number of his records, being only those which had been considered by the three general practitioners who gave evidence before it. 109 The background to the evidence of those three general practitioners is important. Dr Tankey had queried whether the composition of the Committee was representative of the general body of general practitioners. It was in response to that query that the Committee called the three general practitioners to give evidence. The evidence of those three general practitioners did no more than confirm in the minds of the members their own earlier reactions to Dr Tankey's methods of practice. The three general practitioners were shown several examples of the records maintained by Dr Tankey. That was done to enable them to comment, in general terms, on the adequacy of his record keeping. They were not invited to use those few examples as a basis for expressing wide ranging opinions about the nature of his practice. Nor in our opinion did they do so.

The Tribunal's decision 110 The appellant submitted in ground 6 of his grounds of appeal that the learned primary Judge erred in law in finding that the fact that during the referral period there were some 27,048 services provided under Medicare (of which 24,231 were level B, or long consultations) "alone justified the Committee's findings". The appellant submitted that this particular matter had not been adverted to in the reasons expressed by the Determining Officer. Nor was it a matter which had been relied upon by the Committee, or by the Tribunal. The appellant submitted that his Honour had not been entitled, therefore, to rely upon a factual matter of this type as a basis for "overlooking" those errors of law which his Honour had found to have occurred. 111 When considering the background to his Honour's observations in this regard, it is important to appreciate just how much greater was the level of servicing provided by Dr Tankey than the levels of servicing provided by other practitioners who have been found to have engaged in inappropriate conduct. 112 During Dr Yung's referral period, 1 January to 31 December 1994, he provided 19,622 services under Medicare of which 17,331 were provided at his Kirrawee practice. Those 17,331 services were the subject of the referral. Of particular note was the fact that there were 15,388 level B (longer) consultations during the referral period. 113 In Dr Retnaraja's referral period, 1 July 1994 to 30 June 1995, he provided 5,513 services to 678 patients. This was said to be more than the average number of services per patient provided by ninety-nine per cent of all active general practitioners in Australia. 114 In Dr Artinian's referral period he provided 23,706 services, averaging 464 services and seventy hours of total patient contact each week at an average of 6.5 patients per hour. 115 In the course of his judgment in Artinian Hill J observed at 242: "These and other figures might well lead to the conclusion either that Dr Artinian would be so exhausted from seeing a large number of patients as not to give his patients appropriate medical attention or alternatively was misstating the number of patients he had personally seen or the time in which he spent with them." 116 His Honour continued: "It seems to me almost unarguable that the Commission was not entitled to take into account the statistical material in determining whether or not to refer Dr Artinian's conduct in connection with his rendering of services, to the director. The time spent by Dr Artinian, even if considered without reference to the time spent by other practitioners, would seem enough to raise questions for consideration. When, however, the time he spent is compared with time spent by other practitioners, the point is even more obvious. No doubt it is possible that there could be good explanations. But this is not to say that the statistical material would be irrelevant in considering the issue under s 86." 117 His Honour went on to reject a submission that reference could not be made to statistical material of the type there relied upon in considering whether there had been inappropriate conduct. He noted that submissions to like effect had been rejected in Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 71 per Northrop and Lockhart JJ, and also in Freeman v McCubbery (1985) 5 FCR 367 per Northrop J. 118 When it is understood that during the period referred for consideration in the present case Dr Tankey provided 27,048 services under Medicare, 24,231 of which were level B consultations, vastly more than the services provided by either Dr Yung or Dr Retnaraja, and significantly more than the services provided by Dr Artinian (all of whom had been found, at least on the merits, to have engaged in inappropriate conduct), it becomes apparent that the case which Dr Tankey had to meet was quite overwhelming. It is against the background of such a case that his Honour concluded that, even if the Committee had failed to comply strictly with the requirements of s 106H of the Act, the Tribunal's determination upholding the earlier finding of inappropriate conduct should stand. 119 It would defy common sense to suggest that the strength of the evidence against a particular medical practitioner may not, in an appropriate case, be taken into account in an appeal under s 124A of the Act. Although that section is silent as to the relief which may be granted if an error of law on the part of the Tribunal is demonstrated, it does not follow that every error of law which is demonstrated will result in the decision below being set aside. The "appeal" which is contemplated under that section plainly lies in the original jurisdiction of the Court. It is akin to judicial review. The relief which may be granted will depend upon the effect of the error of law upon the outcome of the decision-making process. Errors of law which are "harmless" or "trivial" do not normally warrant the setting aside of an administrative decision - Secretary, Department of Social Security v McKenzie (1993) 31 ALD 55 at 61-2 per Ryan J. Courts do not remit matters for reconsideration where it is futile to do so - Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560-2 per Sackville J. 120 Though our reasoning differs in certain respects from that of the learned primary Judge, we have arrived at the same conclusion as his Honour regarding this particular issue. The Tribunal's determination should not be disturbed even if, contrary to our view, the requirements of s 106H of the Act were applicable to this referral, and those requirements were not satisfied.

Prior counselling 121 In the appellant's outline of submissions it was submitted in ground 9 that his Honour erred in law in finding that, notwithstanding the admission of evidence that on occasions in 1989, 1991 and 1992 medical advisers from the Commission had cautioned Dr Tankey, "that the way in which he was conducting his practice was causing concern," and notwithstanding his Honour's finding that this evidence was irrelevant and ought not to have been received, the Committee's error did not invalidate the Tribunal's determination. 122 The appellant submitted that the Tribunal had condoned the Committee's consideration of what were said to be irrelevant matters. His Honour ought, consistently with his finding that they were irrelevant, to have set aside the Tribunal's determination. 123 The respondent, by a notice of contention, argued that the Committee had not erred in having taken the prior counselling of the appellant into account. The respondent relied for this submission on a decision of the Court in Sinja v Asher (1989) 22 FCR 423 where it was held that a tribunal may remark upon matters about which it is not required to make findings without, by that process, creating legal error and causing its decision to miscarry. 124 The respondent conceded that it was no part of the Committee's task to inquire into the appellant's prior conduct, or to investigate the efficacy of the counselling process. However, it was submitted that the reference to the prior counselling of the appellant in the Committee's reasons for decision was merely peripheral, and should be regarded as nothing more than part of the background to the Committee's investigation. 125 The respondent submitted, in the alternative, that the Tribunal was required to decide which, if any, of the s 106U(1) sanctions should be imposed on a practitioner who had been found to have engaged in inappropriate practice. It followed that the deliberations of the Tribunal in this matter were not confined to the referral period. Prior counselling of the appellant, such as had occurred in this case, was relevant, particularly when the Tribunal came to make its decision as to what sanctions, if any, should be imposed. 126 We consider that there is force in each of the respondent's submissions. We are not persuaded that the issue of prior counselling was irrelevant to the matters before the Tribunal, or that its reference to such counselling amounted to legal error. However, even if we are incorrect in this regard, the way in which both the Committee and the Tribunal dealt with this issue did not, in our view, vitiate the decisions which were arrived at.

Testimonials and surveys 127 The appellant, in his outline of submissions, claimed in ground 10 that his Honour erred in law in finding that the Tribunal's decision was not invalidated by reason that the Tribunal found nothing wrong in the Commission's attitude of giving little weight to the specialists' testimonies and patient surveys, and that the Committee's treatment of these matters was inadequate "to the point of causing legal error". 128 The Tribunal appears to have endorsed the approach taken by the Committee to the evidence comprising letters of support from specialists and survey forms completed by patients who had expressed their satisfaction with the way in which Dr Tankey conducted his practice. 129 The appellant submitted that in his approach to these issues his Honour had assumed, erroneously, that the appeal under s 124A of the Act (which was confined to questions of law) entitled the Court to review both facts and law. It was submitted that when his Honour decided that particular errors of law which were found to have occurred did not invalidate the Tribunal's determination, he had erred in having regard to the facts before the Tribunal. This error was said to be exemplified by his Honour's observation that (at par 108): "The question is whether the use of evidence infected the findings and whether the preponderance of the findings about his practising procedures and conduct provide a sufficient accumulation of legal errors". 130 The respondent, by notice of contention, submitted that his Honour had erred in finding that the Committee and the Tribunal had both been wrong to disregard this evidence. In that regard, the definition of "inappropriate practice" which both these bodies were bound to apply was that set out in s 82 of the Act. 131 The respondent submitted that, as a result, the appellant's conduct as a general practitioner was to be assessed from the point of view of the general body of general practitioners of which he was a member. It followed, it was submitted, that neither the Committee nor the Tribunal was required to give weight to the views expressed by specialist consultants, or by patients through survey evidence. The respondent submitted that his Honour had erred in holding that the Committee and the Tribunal had been required to give weight to such views. 132 Once again we consider that there is force in the respondent's contention. However, even if we are wrong, and the learned primary Judge was correct in concluding that the material should have been taken into account, we do not agree, as the appellant contends, that his Honour's approach to dealing with such an error was itself legally impermissible. His Honour was entitled to assess the effect, if any, which errors of this type may have had upon the fact finding process. He concluded that the evidence in question was peripheral to the task which the Committee was required to undertake under s 82(1) of the Act. It followed that its failure to have regard to this evidence did not invalidate its decision. His Honour was entitled, as a matter of law, to come to that view.

Other grounds of appeal 133 The appellant, in his outline of submissions, dealt with grounds 12, 13 and 14. In those grounds it was contended, amongst other things, that the learned primary Judge had erred in law in failing to find that the Tribunal's determination was void by reason of its failure to explain adequately its reasons for finding that all services rendered in 1994 were inappropriate. It was submitted that there was no basis for any such finding. It was also contended that his Honour had erred for the same reason, in finding that the respondent had been entitled to make an "educated estimate" that 50% of the services rendered in 1994 had been inappropriate. 134 The appellant submitted that it was clear that the Tribunal had found, without giving proper reasons, that all services rendered by Dr Tankey during the referral period were "inappropriate services". The learned primary Judge had correctly concluded that the evidence for condemning each and every service was inadequate. That being so, it was submitted, it was equally wrong for his Honour to have allowed 50% of the services to be condemned. 135 The appellant also drew attention to what he submitted was an error in the amount ordered to be repaid. The direction first made by the Determining Officer, and restored by the learned primary Judge, that Dr Tankey repay the amount of $258,277.45, "being an amount equivalent to the Medicare benefits paid for 50% of the inappropriate services rendered during the period of the referral …", involved a miscalculation. The figure was based upon a false premise as to the total amount paid for the services performed by Dr Tankey under the ambit of the referred services. It took into account, as "inappropriate services", services which were outside the referral. By restoring that figure of $258,277.45 his Honour had unwittingly perpetuated that error. 136 The respondent submitted that, when his Honour observed in relation to the Committee's conclusion that "there was no finding that all the services rendered in 1994 were inappropriate", that observation was entirely correct. The Committee had reported upon the "conduct" of the appellant. It had referred specifically to the definition of "inappropriate practice" in s 82(1)(a) of the Act. It had not purported to make findings that any particular services were "inappropriate". Indeed, the task of doing so in relation to some 27,048 services would have been impossible. 137 The respondent submitted that the Tribunal had been given a discretion to determine that either part or the whole of the amount paid by way of Medicare benefits should be repaid under s 106U(1)(c). That section should be read in conjunction with s 33(3A) of the Acts Interpretation Act 1901 (Cth) which provides: "33 (3A) Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power to make, grant or issue such an instrument with respect to some only of those matters or with respect to a particular class or particular classes of those matters and to make different provision with respect to different matters or different classes of matters." 138 We are not persuaded that the learned primary Judge fell into appellable error in determining to restore the figure of $258,277.45. That figure had been fixed by the Committee as the appropriate amount to be repaid by the appellant by reason of conduct constituting "inappropriate practice". The course of restoring that figure was open to his Honour under s 124A of the Act, and seems to us to have been well within a sound exercise of his Honour's discretion. Procedural fairness 139 Finally, the appellant in his outline of submissions relied upon ground 11 in which he complained that the learned primary Judge had erred in law in failing to find that the Tribunal's determination was void because the Committee had failed to accord the appellant procedural fairness. 140 In so far as this ground differed from the contention that the Committee failed to accord procedural fairness as required under s 106J of the Act with respect to the use of samples, it complained that the Committee had failed adequately to particularise the "inappropriate practice" alleged against Dr Tankey. The appellant submitted that the inadequacy of the particulars was made more unfair by the enormity of the range of services being examined, the complexity of the issues, and the provision of what was said to be a series of particulars which constituted "red herrings". 141 It is unnecessary to deal in any detail with this submission. The Committee in the present case complied with the requirements of the Act. It identified, and particularised, matters of concern which came to its attention during the course of its proceedings. These matters were communicated to Dr Tankey, and he was invited to make submissions in relation to them. 142 In Adams v Yung at 297-298 Burchett and Hill JJ said: "We agree with the learned primary judge without reservation that in a case such as the present the Committee was bound to give notice of the findings that might be made against the medical practitioner and an opportunity for him or her to respond … The rules of natural justice would require the Committee to make clear to the doctor the allegations made against him. Where the matters to be considered by the Tribunal involve a multitude of services, … it is obvious that the Committee's proceedings must necessarily be made manageable." 143 The Committee in the present case complied with these principles. It provided to Dr Tankey a comprehensive list of the adverse matters which had come to its attention, and identified the areas of concern which ultimately caused it to make the findings which it did. These were: · the volume of services and quality of care given in the time available; · poor record keeping; · the lack of general review or preventative medicine; and · the management of specific areas such as respiratory problems, diabetes and obesity. 144 It is plain that both the appellant and his representatives understood fully the matters which concerned the Committee. The submissions lodged on his behalf, and the correspondence from the appellant to the Queensland Branch of the Australian Medical Association which he forwarded to the Committee, addressed the issues which the Committee had identified. These documents indicate that the entire transcript of the Committee's proceedings had been subjected to the closest scrutiny, both by the appellant, and by his advisers. 145 Dr Tankey never, at any stage, complained of having been left uninformed as to the adverse findings which might be made against him. He made no complaint of any lack of particulars in his request to the Minister to have the Tribunal review the findings of the Committee. This complaint was raised for the first time in his written submissions before the learned primary Judge who, correctly in our view, rejected it.

Conclusion 146 None of the grounds of appeal raised by the appellant in this matter has been made good. It follows that the appeal must be dismissed, with costs.

I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Associate: Dated: 10 August 2000 Counsel for the Applicant: Mr D.J.S. Jackson QC

Counsel for the Respondent: Mr D.M.J. Bennett QC, Solicitor-General for the Commonwealth with Ms R.M. Henderson

Solicitor for the Respondent: Australian Government Solicitor

Dates of Hearing: 22 and 23 November 1999