Tiong v Minister for Community Services and Health

Federal Court of Australia|1994-12-19|Before: Einfeld J, Lee JJ

REASONS FOR DGMENT THE COURT: This appeal from a Judge of this Court (Einfeld J.) involves important questions of construction of provisions of

the Health Insurance Act 1973 ("the Act") relating to over-

servicing. In particular, it concerns the position of

The appellant, Dr Peverill, is a specialist pathologist operating a number of practices in Queensland and the Northern Territory. During the relevant time, Dr Peverill operated 7 laboratories and 50 related surgeries. Dr Peverill was personally responsible for supervising 4 of the laboratories (Springwood, Gold Coast, Alice Springs and Darwin) and he employed other pathologists to supervise the laboratories at Ipswich and Cairns. The seventh laboratory (Townsville) was partly owned and fully operated by another practitioner (Dr

On 3 February 1987, a delegate of the fifth respondent ("the Minister") referred certain matters concerning Dr Peverill to the Medical Services Committee of Inquiry for the State of Queensland ("the Committee"). The reference was made under s. 82 (b) of the Act. The first four respondents are the members of the Committee. At the time of the referral by

"82 A Committee shall inquire into, and submit to the Minister its report and recommendations on

(b) any other matter referred to the Committee by the Minister, being a matter that is relevant to the operation or administrat- ion of this Act ... and arises out of or relates to -

(i) an undertaking accepted by the Minister under section 16C; or

(ii) the rendering of a professional service on or after 15 April 1977, or the initiation of a pathology service on or after the date of commencement of this section, in the State for which the Committee is established."

The instrument of referral states that the delegate refers matters: "which arise out of whether Dr Richard Edwin Peverill complied with an undertaking given by him and accepted by the Minister under section

16C of the said Act, and which further arise out of the rendering of professional services in the State of Queensland after 15 April 1977, namely, whether each professional service rendered to a patient by Dr Richard Edwin Peverill, particulars of which are set out in Annexures 'Bl' to ''B251', being a service for which Medicare benefit became payable, was an

excessive service within the meaning of section 79 (1B) (a) of the [Act]."

We shall deal with the relevance of the s. 16C undertaking

On 9 February 1987, the Committee met to consider the reference and determined to hold a hearing into the matters the subject of the reference. Dr Peverill was informed of this on 16 April 1987. The hearing commenced on 10 June 1987. The hearing was much delayed and the Committee sat for only 14 days between that date and the conclusion of the hearing on 6 April 1992. One interruption involved a proceeding taken by

Dr Peverill in this Court, to which we refer hereafter.

-4- The Committee delivered its report to the Minister on 29 May 1992. The report identifies 129 instances of over- servicing by Dr Peverill. The Committee recommended, pursuant

"(i) Dr Peverill be reprimanded in relation to his neglect of professional responsibility in the rendering of pathology services.

(ii) Dr Peverill be counselled in relation to the rendering of fixed combinations of tests, irrespective of the clinical information.

(iii) The Minister revoke his acceptance of the Undertaking by Dr Peverill given under section 16C of the [Act].

(iv) The amount of Medicare benefit totalling $11,931.80 as identified in Tables 1 to 129 of the Report and set out in the Schedule of Excessive Services (Appendix No. 130) be payable by Dr Peverill to the Commonwealth of Australia."

On 27 August 1992, the Minister made a determination

"(i) Under paragraph 105 (2) (c) of the Act, {Dr Peverill], as a specialist in pathology and an Approved Pathology Practitioner for the purposes of the [Act], be reprimanded for neglecting his professional responsibility in the rendering of pathology services;

(ii) Under paragraph 105 (2) (ca) of the Act, [Dr Peverill] be counselled for his provision of multiple pathology tests irrespective of the needs of the patients and clinical information provided by initiating practitioners; and

(iii) Under paragraph 105 (2) (f) of the Act, the amount of Medicare benefits referred to in paragraph (c) above, that is an

payable by [Dr Peverill] to the Commonwealth of Australia."

In a letter to Dr Peverill dated 28 August 1992 enclosing the determination, the Minister noted that s. l106AB of the Act required a penalty payment equivalent to the amount of his determination, bringing the total payable to $23,863.60. The Minister also explained why he had not acted upon the third recommendation of the Committee, relating to the s. 16C

On 15 March 1993, Dr Peverill instituted an application

under the Administrative Decisions (Judicial Review) Act 1977

to review both the decision of the Committee and the determination of the Minister. The application was dismissed by the primary Judge on 31 May 1994. Dr Peverill appeals from

It is appropriate at this stage to consider the relevant

The pathology services under investigation by the Committee were provided to patients between 15 January and 26 September 1986. We shall therefore deal with the Act as it was at these dates. It is necessary to recount various changes to the legislation over the period with which this

So far as material, s. 16A of the Act was as follows:

"16A (1) A Commonwealth medical benefit is not payable in respect of a pathology service unless a practitioner determined that the service was necessary and -

(a) in the case of a pathology service +». 7 the service was rendered by or on behalf of an approved pathology practitioner in pursuance of a request addressed to that approved pathology practitioner -

(i) by the practitioner who determined that the service was necessary; or

(ii) by another approved pathology practitioner who is not' the practitioner who determined that the service was necessary,

being a request made in writing as prescribed or, if made otherwise than in writing, subsequently confirmed in writing as prescribed;

(a) where a service is rendered by a person (in this paragraph referred to as 'the employee') in the course of his employment by another person, then, except in a case to which paragraph (b) applies, it shall be deemed to be rendered by that other person, and not by the employee;

(b) where a person (in this paragraph referred to as 'the employee') is employed by two or more persons jointly and a service is rendered by the employee in the course of that employment, it shall be deemed to be rendered by the employer principally responsible for the matter being

An "approved pathology practitioner" is defined in sub-s.

taken rendered on behalf of a person if, rendered by another person, not being an approved pathology practitioner, arrangement with that person;

(1) to include a person in respect of whom there is in force

an undertaking given by him and accepted by the Minister under

s. 16C. Dr Peverill was an "approved pathology practitioner"

(2) A form of undertaking shall make provision for and in relation to such matters as the Minister considers appropriate.

practitioner gives an undertaking in writing in accordance

with the appropriate form, subject to exceptions not here

relevant, the Minister shall accept the undertaking.

"16C (8) An approved pathology practitioner may, at any time, terminate an undertaking given by him by serving, as prescribed, a notice of termination specifying a date of termination not earlier than 30 days after the day on which the notice is served.

(9) For the purposes of this Act, an undertaking given by a person under this section comes into force when accepted by the Minister or on such earlier date (not being a date earlier than the date on which the undertaking was signed) as is fixed by the Minister and ceases to be in force if -

(a) the undertaking is terminated by the person under sub-section (8);

Dr Peverill signed an undertaking on 27 July 1977 which was accepted by a delegate of the Minister on 1 August 1977, which was also the date on which the operation of the undertaking commenced. This undertaking was still in force at the time the services in question were rendered. Clause 2 of the undertaking defined the term "applicable pathology services" as pathology services in respect of which medical benefits were payable in accordance with the Act. Clause 3 of the undertaking was headed "Compliance with Act" and was as

(a) comply with the provisions in relation to applicable pathology services of the Act as from time to time amended and of the Regulations as for the time being in force; and

(b) take appropriate action from time to time to ensure that persons who in the course of their employment carry out, or by arrangement perform, for or on behalf of the Practitioner duties or services in relation to applicable pathology services, in carrying out those duties or performing those services act in accordance with the

said provisions of the Act and Regulations and in conformity with this undertaking."

Clause 9 of the undertaking was headed "Excessive Services"

"The Practitioner will not render, or request to be rendered, an applicable pathology service that would constitute excessive services as referred to in Division 3 of Part V of the Act. [Sub-section 79 (1B) (a) of the Act provides that a reference to excessive services is a reference to professional services, being services in respect of which medical benefit has become or may become payable, that are not reasonably necessary for the adequate medical care of the patient concerned."

Clause 12 was headed "Termination of Undertaking" and was as

"12 This undertaking shall continue to be in force unless and until it ceases to be in force upon termination by the Practitioner under sub- section 16C (8) of the Act or upon such other event as causes an undertaking to cease to be in force by virtue of sub-section 16C (9)."

Sections 16A, 16B and 16C were repealed by sub-s. 15 (1)

of the Health Legislation Amendment Act 1986 ("the 1986 Act") with effect from 1 August 1987. Sub-section 15 (2) of that

Act provided that the amendment made by sub-s. (1) applied

~ 10 - only in relation to pathology services rendered after the commencement of the section. Section 16A was re-enacted in similar form. Sections 16B and 16C were replaced by a new Part IIA headed "Special Provisions Relating to Pathology". Section 23DB (the successor to s. 16B) provides that the Minister may approve forms of undertaking to be given by persons who wish to become approved pathology practitioners. Section 23DC (the successor to s. 16C) provides for the giving and acceptance of approved pathology practitioner undertakings. Sub-paragraph 23DC (1) (c) provides that upon accepting the undertaking, the Minister must determine a period, being a period of not more than 12 months after the day on which the undertaking comes into force, for which the undertaking is to have effect. Section 23DD provides that the undertaking ceases to be in force upon the expiration of this period or, if the practitioner proffers a second undertaking, upon the date the practitioner is notified of the refusal of

There is no specific provision in the 1986 Act dealing with the termination of the old s. 16C undertakings. However, the definition in sub-s. 3 (1) of "approved pathology

"a person in respect of whom there is in force an undertaking given by the person, = and accepted by the Minister, under section 23DC;"

~l1l- This means that pursuant to the new s. 16A, no Medicare benefit is payable in respect of services rendered by a practitioner until that practitioner has given the new s. 23DC undertaking. We were not shown any s. 23DC instrument signed by Dr Peverill, but on the appeal it was common ground that such an undertaking had been given by him and was still on

We have already noted that the Committee recommended that the Minister revoke Dr Peverill's s. 16C undertaking, but that this was not acted upon by the Minister. In the letter to Dr Peverill dated 28 August 1992, enclosing the determination, the Minister stated that because the system for the giving and accepting of undertakings had changed since Dr Peverill's case was referred to the Committee, it was not possible effectively to revoke Dr Peverill's s. 16C undertaking. This assumed that s. 8 of the Acts Interpretation Act 1901 ("the Interpretation Act") did not operate to save the power of revocation. The amendments effected by the 1986 Act, which we have set out, may cover the field, so that the s. 16C undertaking, while not

brought to an end by any provision, was left in limbo.

Part V of the Act is headed "Committees". Division 3 is headed "Medical Services Committees of Inquiry". At the

(a) a reference to excessive services is a reference to professional services,

12 - being services in respect of which medicare benefit has become or may become payable and which were not reasonably necessary for the adequate

medical or dental care of the patient concerned; and

(b) a reference to the initiation of a pathology service is a reference to

the making of the decision by reason of which the service is rendered;"

Sub-section 79 (1B) was repealed and replaced by s. 22 of the 1986 Act, with effect 1 August 1987. The substituted provision excluded pathology services from the definition of

"excessive services". The new sub-section was as follows:

"79 (1B) A reference in this Division to excessive services is a reference to professional

services (other than pathology services), being services in respect of which

medicare benefit has become or may become payable and which were not reasonably necessary for the adequate medical or dental care of the patient concerned." [Emphasis supplied]

The sub-section was amended again in 1991 by s. 26 of the Health and Community Services Legislation Amendment Act 1991 ("the first 1991 Act") which deleted the words "(other than pathology services)" from the sub-section and so restored the previous situation. This amendment took effect on 24 December

1991 and so was in force when the Committee delivered its

Section 80 provides for the establishment in each State

of a Medical Services Committee of Inquiry for that State.

We have set out s. 82 as it was at the time of the rendering of the services by Dr Peverill earlier in these reasons. After the reference to the Committee on 3 February 1987, s. 82 was repealed and replaced, with effect 1 August 1987, by s. 24 of the 1986 Act. Following amendment, s. 82

"82 A Committee shall inquire into, and submit to the Minister its report and recommendations on, any matter referred to the Committee by the Minister, being a matter that -

(a) is relevant to the operation or administration of this Act ...; and

(b) arises out of relates to the rendering of a professional service (other than a pathology service), on or after 15 April

1977, in the State for which the Committee is established."

The words "(other than a pathology service)" were later

Section 93 provides that the committee may, with the

approval of the Minister, engage as consultants to the

Committee "persons having suitable qualifications and experience". In the present case, the Committee engaged three consultants.

Section 94 of the Act, at the time of the rendering of

"94 Where, after consideration of a matter referred to a Committee by the Minister and of any

documents that accompany the reference supplied by the Minister, it appears to the Committee that -

(b) a person may have failed to comply with an undertaking given by the person = and accepted by the Minister under section

(ad) a person may have caused or permitted a practitioner employed by the person to render excessive services;

(f) a practitioner may have initiated excessive pathology services;

(g) a person may have caused or permitted a practitioner employed by the person to initiate excessive pathology services; or

By s. 25 of the 1986 Act, effective 6 June 1988, paras. (b), (£) and (g) were omitted. By s. 47 of the Community Services and Health Legislation Amendment (No. 2) Act 1990 ("the 1990 Act") effective 28 December 1990, references to the initiation

of excessive pathology services were inserted so that paras.

"(c) a practitioner may have initiated excessive pathology services or rendered excessive services;

(d) a person may have caused or permitted a practitioner employed by the person

to initiate excessive pathology services or render excessive services."

Section 95 of the Act, at the time of the rendering of

(a) if it proposes to hold a hearing into a matter in so far as the matter relates to a circumstance referred to in paragraph 94 (a) or (b) - cause to be given to the practitioner concerned; or

(b) if he proposes to hold a hearing into a matter in so far as the matter relates to a circumstance referred to in paragraph 94 (c), (4), (e), (£)

(g) or (h) - cause to be given to the person first referred to in that paragraph,

notice in writing of the time and place of the proposed hearing at least ten days before the date of the proposed hearing. (2) A notice under sub-section (1) shall give Particulars of the matter to which the hearing relates. (3) A notice under sub-section (1) may be

Dr Peverill was sent as. 95 notice on 16 April 1987. This notice simply reproduced the matters that were contained in the instrument of referral under s. 82 (b). The relevant portions of this referral are set out earlier in these

~ 16 - Section 104 of the Act is headed "Report by Committee". At the time of the rendering of the services, it was as

"104 After completion by a Committee of a hearing in relation to a matter, the Committee shall report to the Minister its opinion on the matter and, in a case where the Committee, in the report, expresses the opinion -

(a) that a practitioner specified in the report has rendered excessive services;

(b) that a person specified in the report has caused or permitted a practitioner -

(d) that a person specified in the report has caused or permitted a practitioner -

(ii) ..., to initiate excessive pathology services,

Section 27 of the 1986 Act, effective 1 August 1987, removed paras. (c) and (d). By s. 47 of the 1990 Act, references to the initiation of excessive pathology services were added into

17 - At the time of the rendering of the services, and so far

"105 (1) «... (2) Where - (a) a Committee has, in a report under

section 104, expressed the opinion that a practitioner has rendered

excessive services or that a practitioner has initiated excessive pathology services, and has

(b) a medicare benefit is payable, or has been paid, in respect of any of those services,

the Committee may, in the report, make one or more of the following recommendations:

(ca) that the practitioner, being a practitioner other than a _ body corporate, be counselled;

(d) in the case of the rendering of excessive pathology services - that the Minister revoke his acceptance of the undertaking given under section 16C by the practitioner;

(e) where the medicare benefit is payable, but has not been paid, to the practitioner - that the medicare

benefit or a specified part of the Medicare benefit cease to be payable;

(f) where the medicare benefit has been paid to the practitioner or has been paid, or is payable, to another person, (including another practitioner or another person by whom the first-mentioned practitioner is employed) - that the amount of the Medicare benefit or a specified part of that amount be payable by the practitioner to the Commonwealth.

(i) expressed the opinion that a person has caused or permitted a practitioner -

(A) who is employed by the first-mentioned person; or

(B) who is employed by a body corporate of which the first-mentioned person is an officer,

to render excessive services or to initiate excessive pathology services; and

(ii) identified those services; and a medicare benefit is payable, or has

the Committee may in the report make one or more of the following recommendations:

that the first-mentioned person, being a person other than a _ body corporate, be reprimanded;

that the £irst-mentioned person, being a person other than a _ body corporate, be counselled;

where the first-mentioned person, being an approved pathology practitioner, has caused or permitted a practitioner employed by the first- mentioned person to render excessive pathology services - that the Minister revoke his acceptance of the undertaking given under section 16C by the approved pathology practitioner;

where the medicare benefit is payable, but has not been paid, to the first-mentioned person - that the medicare benefit or a specified part of the medicare benefit cease to be payable;

(g) where the medicare benefit has been paid to the first-mentioned person or has been paid or is payable to a person other than that first- mentioned person - that the amount of the medicare benefit or a specified part of that amount be payable by the first-mentioned person to the Commonwealth.

Where a Committee has, in a report under section 104, expressed the opinion that a practitioner has failed to comply with an undertaking given by him and accepted by the Minister under section 16C, the Committee may, in the report, make one or more of the following recommendations:

(a) that the practitioner be reprimanded; (aa) that the practitioner be counselled;

(b) that the Minister revoke his acceptance of the undertaking;

(c) that where a medicare benefit is payable, but has not been paid, to the practitioner in respect of a pathology service and the Committee is of the opinion that the practitioner failed to comply with that undertaking in relation to that service, the medicare benefit or a specified part of the medicare benefit cease to be payable;

(ad) that, where a medicare benefit has been paid to the practitioner, or has been paid, or is payable, to another person, in respect of a pathology service and the Committee is of the opinion that the practitioner failed to comply with that undertaking in relation to that service, the amount of the medicare benefit or a specified part of that amount be payable by the practitioner to the Commonwealth.

20 - By s. 28 of the 1986 Act, references to excessive pathology services and s. 16C undertakings were removed. This was effected by deleting paras. (2) (d), (2A) (e) and sub-s. (3), and by deleting references to the initiation of excessive pathology services from paras. (2) (a) and (2A) (a) (i). Section 47 of the 1990 Act reinserted references to the initiation of excessive pathology services in paras. (2) (a)

"106 (1) Where a Committee makes a recommendation in accordance with sub-section 105 (2), (2A) or (3), the Minister may make a determination, in writing, in accordance with that recommendation.

(2) Where the Minister makes a determination under sub-section (1), in relation to a person he shall serve on the person to whom the determination relates, either personally or by post, a notification in writing setting out the determination.

(3) Where the Minister makes a determination under sub-section (1), then -

(a) if no request for review of the determination under Division 3 of Part VA or application for judicial review of the determination under Division 4 of that Part is lodged within the period allowed for such a request or application, the determination takes effect at the expiration of that period;

(Db) aif a request for review of the determination under Division 3 of Part VA or an application for judicial review of the determination under Division 4 of that Part is

lodged within the period allowed for such a request or application -

(i) in a case where the determin- ation is set aside on the review

subject to paragraph (c), the determination does not take effect; or

(ii) in a case where the determin- ation is affirmed, or varied, on the review and no appeal against the decision on the review is brought by virtue of section 124A within the period allowed for such an _- appeal - the determination takes effect, or takes effect as so varied, at the expiration of that period; or

(c) if an appeal against the decision on a review under Division 3 of Part VA or a judicial review under Division 4 of that Part is brought by virtue of section 124A within the period allowed for such an appeal,' the determination does not have effect until the appeal, and any further appeal or appeals, are determined and, upon the determination of the appeal and any such further appeal or appeals, the determination takes effect or takes effect as varied or does not take effect, in accordance with the judgment or order on the appeal or further appeal or appeals."

Section 106AA of the Act at all relevant times provided that after a determination under s. 106 the Minister shall cause to be prepared a statement setting out particulars of the determination and the reasons for making the determination. The statement must be laid before each House of Parliament, and the Minister may, in addition, cause the

By s. 7 of the Health Insurance Amendment (No. 2) Act 1991 ("the second 1991 Act") with effect 20 November 1991, s. 106AB was inserted into the Act. That section provides that where a Committee makes a s. 104 report to the Minister expressing an opinion that a practitioner has initiated excessive pathology services or rendered excessive services, and making a para. 105 (2) (e) recommendation or a para. 105 (2) (£) recommendation, and the Minister makes a determination in accordance with that recommendation under s. 106, the practitioner is liable to pay to the Commonwealth by way of penalty an amount equal to the amount of Medicare benefit that ceased to be payable to the practitioner or is payable by the practitioner to the Commonwealth, as the case may be. A similar provision is made in the second 1991 Act for

recommendations under paras. 105 (2A) (f) and 105 (2A) (9g).

A number of provisions set out above refer to the initiation of an "excessive pathology service". At the time the services were rendered the Act did not contain a definition for such a phrase. This was inserted into s. 3 (the definition section) by sub-s. 4 (1) of the 1986 Act, with

effect from 1 August 1987. The new definition is as follows:

"'excessive pathology service' means a pathology service -

(a) in respect of which medicare benefit has become or may become payable; and

(b) that is not reasonably necessary for the adequate medical or dental care of the patient concerned."

It will be noted that during the period between the commencement by the Committee of its inquiry and the delivery of its recommendations, pathology services first were removed from the definition of "excessive services" and from the ambit of the operation of the other sections determining the functions and powers of the Committee, and then were reinstated. It was not submitted that these changes affected in any way the validity of the Committee's actions or recommendations. Indeed, counsel for Dr Peverill conceded or suggested that he was not assisted by these amendments. The respondents may, in any event, have gained assistance from s. 8 of the Interpretation Act. We have set out the amendments because they assist in interpreting the meaning of the term

Finally, we should refer to s. 129AD. This has been in the Act since its insertion by s. 50 of the Health Insurance Amendment Act 1977 but has been amended from time to time. It provides for the recovery as a debt of an amount specified by a determination under such a provision as s. 106 as being

The present proceeding has had a somewhat complicated history. The matters leading to the commencement of the inquiry by the Committee have been set out earlier in these reasons. After the commencement of the inquiry, on 27 March

1988, Dr Peverill brought an application to this Court under

~ 24 - s. 39B of the Judiciary Act 1903 seeking a rule nisi for prohibition against the Minister and the Committee members. This step was apparently taken after the Committee indicated that there was no dispute that all of the services in question had been requested of Dr Peverill, and that the only remaining issue was whether the performance of those services amounted

to the rendering of excessive services within the meaning of

The Judge who heard the application (Einfeld J.) delivered his reasons on 21 October 1988. In these reasons

his Honour states the nature of the proceeding as follows:

"The applicant brings this case in a number of alternative forms. He has foregone an original request for a rule nisi for prohibition in the sense of seeking a primary hearing before a Full Court. He now seeks a series of declarations and various forms of judicial review pursuant to the Judicial Review Act. For the present, I do not propose to pass on any one or more of these forms of relief. After these views are made available, I will hear counsel further on what flows from my conclusions. Accordingly, I directed that the parties should agree on the fundamental issues or questions to be considered. They have agreed on three out of four questions. The three agreed questions are as follows:

i. Whether on the true construction of the Health Insurance Act 1973, a pathology test can be an excessive service, as defined in section 79 (1B) (a) of the Act, if it has been requested by a medical practitioner under section 16A (1) (a) of the Act.

Whether, on the true construction of the undertaking given by the applicant, the performance by the applicant of a pathology test which had been requested by a medical practitioner under section 16A

(1) (a) of the Act could be a breach of that undertaking if the test was not in fact reasonably necessary for the adequate medical care of the patient concerned.

Whether the Minister can, under section 82 (b) of the Act, refer to a Medical Services Committee of Inquiry the question of whether certain specified pathology services were not reasonably necessary for the adequate medical care of the patient concerned.

As part of the relief sought is declaratory, and as in any event what is being sought is discretionary relief in relation to an administrative proceeding that is part heard, one possible conclusion raised in argument is that it is inappropriate for the Court to intervene at this. stage. There is much authority to this effect, especially in relation to committal proceedings and other administrative hearings. However, the proceedings of this Committee of Inquiry have already been interrupted for this hearing, and the parties have jointly asked the Court to rule on these issues. In particular, counsel for the respondents, who might have taken the point, has indicated that his clients will welcome the Court's ruling on the subject. I can understand this attitude in this case, and I will act in accordance with it, although I must say that there are reasons, including considerable persuasive authority, which might otherwise lead a first instance Court in the other direction. Apart from consent, one weighty matter supportive of intervention at this stage, certainly for appropriate rulings of law, is the common ground that the hearing is likely to be substantially lengthened and very much more expensive if the Court does not rule at this time.

I will therefore address and rule on the three questions posed."

At no stage does his Honour identify any decision the subject of judicial review. His Honour proceeded to answer the three

26 - On 13 February 1989, his Honour made a number of

"On the true construction of the Health Insurance Act 1973 as it stood in 1977, the undertaking given to the first respondent by the applicant on 27 July 1977 with effect from 1 August 1977 does not empower a Medical Services Committee of Inquiry constituted under the Act to report on whether a pathology test is an excessive service within the meaning of the Act if the patient was referred to the applicant to perform the test, even if the referring practitioner erred in determining that the test was necessary for, or reasonably necessary for the adequate medical care of, the patient."

His Honour also declared that the instrument of referral of 3 February 1987 was invalid, to the extent to which it purported to refer to the Committee the question whether certain specified pathology services requested of the applicant by other medical practitioners and conducted by him in pursuance of those requests were excessive services, and whether certain specified pathology services complied with or were in breach of his undertaking because they are alleged to be excessive

The Minister appealed and the decision of the Full Court was delivered on 2 May 1991. It is reported, (1991) 29 F.C.R. 262. We shall refer to this decision in greater detail later in these reasons. It is sufficient for present purposes to note that the Full Court relied upon Tiong v Minister for Community Services and Health (1990) 93 A.L.R. 308, a Full

Court decision given on 4 May 1990, that is after the decision

-~ 27 - of Einfeld J. Their Honours stated (at 276) that the decision

in Tiong was authority for, inter alia, two propositions:

"[Ijn the case of an allegation that an unnecessary service has been rendered, it is not a complete answer that the service was

rendered at the request of another practitioner. Although a request is a very material matter, which under normal

circumstances may be acted upon without further inquiry, cases may occur in which even a requested practitioner may be found to have rendered excessive services. However, ... such cases will be confined to those involving some 'personal fault', to use the term of Davies J. and Spender J. [in fiong], or lack of innocence, to adopt the concept of Burchett J."

It followed that the Full Court was of the view that the three questions answered by the primary Judge in the immediate case should have been answered affirmatively, rather than negatively. The Court allowed the appeal and set aside the declarations made by Einfeld J., but did not substitute an order giving effect to these conclusions by an appropriate declaration. The Full Court took the view that there would be no utility in making a declaration in terms sought by the

"The circumstances under which a pathologist may be found to have rendered an excessive service, despite a request from another practitioner, will be clear to the Committee

Rather, having set aside the declarations and orders made by Einfeld J., the Full Court ordered that the application be

28 - Following this appeal, the Committee recommenced its

inquiry, and delivered its report to the Minister on 29 May

The Committee found that, of the 7 laboratories operated

by Dr Peverill, 6 bulk-billed 99% of the services requested by

practitioners, and the seventh laboratory bulk-billed approximately 80%. Dr Peverill supplied all referring practitioners with a kit which included a "Data Book". Dr Peverill gave oral evidence and was cross-examined. He was

asked if he could tell the Committee how one could become a

At a glance

Court

Decision date

Before

Source

Judgment (379 paragraphs)

Parties

Cited By (5)