Tisdall v Webber

The relevant statutory provision 9 The Committee in conducting its adjudicative function has recited at [16] of its reasons a version of s 106KA which takes the form of that section as amended by the Health Insurance Amendment (Professional Services Review and Other Matters) Act 2002 (Cth) ("the 2002 Amending Act") which commenced operation on 1 January 2003. The Committee was asked in the discharge of its adjudicative function to determine whether Dr Tisdall had engaged in inappropriate practice in the period 5 January to 21 August 2000 inclusive. That question involves asking whether Dr Tisdall's conduct at the relevant time constituted inappropriate conduct having regard to the statutory content of that term at that time. The relevant statutory instrument to apply is the version of the Act as it stood during the period under examination rather than the terms of the section commencing 1 January 2003. However, there is no material difference between the two provisions although for the sake of completeness the nature of the change ought to be identified. Section 106KA as it stood during the referral period is set out below. For ease of reference, the elements of the section which were later amended have been emphasised in italics and underlining. "106KA Patterns of services (1) Subject to subsections (2) and (2A), if, during a particular period (the relevant period), the circumstances in which some or all of the referred services were rendered or initiated constituted a prescribed pattern of services, the conduct of the person under review in connection with rendering or initiating services during that period in those circumstances is taken, for the purposes of this Part, to have constituted engaging in inappropriate practice. (2) If the person under review satisfies the Committee that, on a particular day or particular days during the relevant period, exceptional circumstances existed that affected the rendering or initiating of services by the person, the person's conduct in connection with rendering or initiating services on that day or those days is not taken by subsection (1) to have constituted engaging in inappropriate practice. (2A) However, subsection (2) does not affect the operation of subsection (1) in respect of the remaining day or days during the relevant period on which the person rendered or initiated referred services even if the circumstances in which the referred services were rendered or initiated on that day or those days would not, if considered alone, have constituted a prescribed pattern of services. (3) The regulations may prescribe, in relation to: (a) a particular profession; or (b) an identified group or groups of practitioners in a particular profession; circumstances in which services of a particular kind or description that are rendered or initiated constitute, or do not constitute, a prescribed pattern of services for the purposes of subsection (1). (4) The circumstances that may be prescribed under subsection (3) as circumstances in which services that are rendered or initiated constitute a prescribed pattern of services include, but are not limited to, the rendering or initiation of more than a specified number of services, or more than a specified number of services of a particular kind, on each of more than a specified number of days during a period of a specified duration. (5) The circumstances that constitute exceptional circumstances for the purposes of subsection (2) include, but are not limited to, circumstances that are declared by the regulations to be exceptional circumstances. (6) This section only applies to services rendered or initiated after the commencement of this section. (7) This section does not preclude the Committee from making a finding under this Subdivision (other than section 106KB) in relation to conduct during a particular period in connection with rendering or initiating services without considering whether or not the circumstances in which the services were rendered or initiated constituted a prescribed pattern of services." 10 Schedule 1 of the 2002 Amending Act made changes to s 106KA of the Health Insurance Act 1973 (Cth) in the following terms and emphasis is given by italics and underlining to the areas of change: "76 Subsections 106KA(1) and (2) Repeal the subsections, substitute: (1) Subject to subsections (2) and (2A), if, during a particular period (the relevant period), the circumstances in which some or all of the referred services were rendered or initiated constituted a prescribed pattern of services, the person under review is taken, for the purposes of this Part, to have engaged in inappropriate practice in providing those services. (2) If the person under review satisfies the Committee that, on a particular day or particular days during the relevant period, exceptional circumstances existed that affected the rendering or initiating of services provided by the person, the person is not taken by subsection (1) to have engaged in inappropriate practice on that day or those days. 77 Subsection 106KA(2A) Omit "rendered or initiated", substitute "provided". 78 Subsection 106KA(7) Omit "conduct during a particular period in connection with rendering or initiating services", substitute "the provision of services during a particular period"." 11 Although s 106KA(1) and (2) took the form set out at [10] of these reasons at the date of the Committee's decision on 9 July 2009, the question of whether Dr Tisdall's conduct constituted engaging in inappropriate practice was a matter to be determined having regard to the version of the Act set out at [9] of these reasons. Part 3 of the Regulations (containing Regulations 7 to 11) was introduced into the Regulations by the Health Insurance (Professional Services Review) Amendment Regulations 1999 (No 1) (No. 346) which commenced on 1 January 2000. Throughout the entire review period (and at the date of the Committee's decision), Regulation 11 was in the following terms: "11 Exceptional circumstances For subsection 106KA (5) of the Act, the following circumstances are declared as constituting exceptional circumstances: (a) an unusual occurrence causing an unusual level of need for professional attendances; (b) an absence of other medical services, for patients of the person under review during the relevant period, having regard to: (i) the location of the practice of the person under review; and (ii) characteristics of the patients of the person under review. Note For relevant period, see s 106KA of the Act."

The scheme of the Act 12 Before examining those grounds of challenge, the statutory scheme established by the Act needs to be considered. 13 Part VAA of the Act establishes "a scheme under which a person's conduct can be examined to ascertain whether inappropriate practice is involved": s 80(1). Part VAA also provides for action that can be taken in response to inappropriate practice. Division 2 of Part VAA creates an administrative structure for the review of conduct by a Director of Professional Services Review and a Professional Services Review Panel. Division 3 concerns the referral of a person's conduct for review by a Professional Services Review Committee constituted under Division 4 of Part VAA of the Act. 14 Under s 82(1) of Part VAA a practitioner (in Dr Tisdall's case, a medical practitioner: s 81(1)), engages in inappropriate practice if the practitioner's conduct in connection with rendering (or initiating) services (being a service for which a medical benefit was payable at the time the service was rendered or initiated: s 81(1)) is such that a Professional Services Review Committee constituted under the Act could reasonably conclude, in the case of a general practitioner (being Dr Tisdall's case) that the conduct would be "unacceptable to the general body of general practitioners". 15 However, engaging in a prescribed pattern of services can also give rise to engaging in inappropriate practice. Section 106KA(1), taken in conjunction with Regulation 10 of the Regulations, provides, subject to s 106KA(2), that if in a 12 month period, 80 or more services (being "professional attendances" as defined by Regulation 7 of the Regulations) are rendered on each of 20 or more days, the person rendering those services is taken for the purposes of Part VAA to have engaged in inappropriate practice. 16 Section 106KA(2) provides, as it applies in this case, that if Dr Tisdall satisfies the Committee that on a particular day or particular days (within the 66 days in issue), firstly, exceptional circumstances existed, and secondly, those circumstances affected the rendering of his services, Dr Tisdall's conduct in connection with rendering 80 or more services on that day or those days is not taken by s 106KA(1) to have constituted engaging in inappropriate practice. Section 106KA(2A) preserves the operation of s 106KA(1) in respect of any remaining days not shown by Dr Tisdall to the Committee's satisfaction to constitute exceptional circumstances. 17 The circumstances that constitute exceptional circumstances include those circumstances declared by the Regulations to be exceptional circumstances (s 106KA(5)) and Regulation 11 of the Regulations provides that those circumstances set out at Regulation 11(a) and (b) (see [11] of these reasons) are exceptional circumstances. 18 Sections 83, 84 and 85 of the Act provide for the appointment of a medical practitioner by the Portfolio Minister as the Director of Professional Services Review; the appointment of practitioners to a Professional Services Review Panel and the appointment of practitioners as Deputy Directors and, more specifically, the appointment of medical practitioners as Deputy Directors. Section 86 provides for an "investigative referral" of a person's conduct to the Director to consider whether the person has engaged in inappropriate practice in connection with the rendering of services in a particular period. The Director, under s 93(1) of the Act, may elect to set up a Professional Services Review Committee and make an "adjudicative referral" to such a Committee "to consider whether conduct by the person under review in connection with rendering or initiating services specified in the adjudicative referral … constituted engaging in inappropriate practice". The services that may be specified in the adjudicative referral are any of the services specified in the investigative referral to the Director: s 93(7). 19 A s 93 Committee was established on 14 February 2002 to consider an adjudicative referral from the Acting Director of Professional Services Review of whether Dr Tisdall's conduct in connection with rendering all services provided by him within Australia during the period 5 January to 21 August 2000 (inclusive) constituted inappropriate practice under the Act. The scope of that referral was confined to whether Dr Tisdall had engaged in a prescribed pattern of services (the s 106KA question). The adjudicative referral by the Acting Director was challenged by Dr Tisdall in Federal Court proceedings and on 30 January 2006 orders were made remitting the matter to the Committee for determination of the referral according to law. On 13 March 2006, the Director of Professional Services Review made an adjudicative referral to the Committee in the same terms as the earlier referral. The Committee was constituted in accordance with s 95 of the Act on 13 March 2006 to consider the matters referred to it. 20 Dr Tisdall conceded before the Committee that on 66 days during the referral period he had rendered 80 or more services constituted by professional attendances falling within Regulation 7 of the Regulations. The Committee was constituted by a Deputy Director (a medical practitioner and chairperson) and two general practitioners: s 95(1) of the Act. Section 95(2) provides that the chairperson and the panel members must be practitioners who belong to the profession in which the practitioner was practising when he or she rendered the referred services and (in the case applicable to Dr Tisdall), if the practitioner is a general practitioner, the panel members must be general practitioners: s 95(5) of the Act. 21 By s 98(3) the Committee may for the purposes of inquiry into a matter that is the subject of the referral, inform itself in any manner it thinks fit. The Committee must hold a hearing if it appears to it that the person under review may have engaged in inappropriate practice in rendering the referred services: s 101(2). The Committee held such a hearing. A person under review, subject to the Committee's reasonable limitations, is entitled to attend the hearing; be accompanied by a lawyer; call witnesses to give evidence; put on statements or affidavits of evidence; produce written statements going to character; question persons giving evidence; and address the Committee on questions of law and on the merits: s 103. In the conduct of the hearing, the Committee may inform itself on any matter in any way it thinks appropriate: s 106(2). The Committee is not bound by the rules of evidence: s 106(2). It may take evidence on oath or affirmation (s 106A) and a Committee member may by an instrument in writing summon a person (other than the person under review) to appear at a hearing to give evidence and produce such documents as are referred to in the summons: s 106B. Section 106EA of the Act addresses conduct in contempt of the Committee. 22 A Committee is to make findings only in respect of services specified in the adjudicative referral: s 106H(1). A Final Report must be prepared setting out the findings of the Committee members where, as here, the Committee members were unanimous in their findings: s 106L(1)(a). Where the Committee is divided, the report must set out the findings of the majority and also those findings of the other Committee member or members. 23 Division 5 of Part VAA sets out the functions and powers of the Determining Authority established under s 106Q(1) having regard to the Committee's findings. In circumstances where a Professional Services Review Committee has made findings of inappropriate practice, a draft, and ultimately a final determination, must be formulated by the Determining Authority: s 106T and s 106TA of the Act. A draft or final determination, made in reliance upon a Committee's finding of inappropriate practice, must contain one or more of the directions set out at s 106U(1)(a) to (h) subject to the considerations set out at s 106U(1A) to (4). The directions at s 106U(1)(a) to (h) include, if the person under review is a practitioner, that the practitioner be disqualified in respect of either the provision of specified services; the provision of services to a specified class; the provision of services within a specified location; or that the practitioner be fully disqualified. 24 It follows from a consideration of the scheme adopted by the Act that, in the exercise of the adjudicative power (s 93 and Division 4 of the Act) to consider and make findings as to whether Dr Tisdall's conduct in rendering services specified in the referral under s 93(7) constituted engaging in inappropriate practice by reason of engaging in a pattern of prescribed services for the purposes of s 106KA, the Committee must act judicially. It must act according to the principles established in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 per Dixon J; The King v Connell and Another; Ex parte Hetton Bellbird Colliers Ltd (1944) 69 CLR 407 at 429432 per Latham CJ; Craig v South Australia (1995) 184 CLR 163 at 179 per the Court; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 at [82] per McHugh, Gummow and Hayne JJ. Provisions such as s 98(3) and s 106(2) of the Act are generally regarded as facultative and in some senses free a decisionmaker from the constraints applicable to courts of law although, notwithstanding those freedoms from constraint (in a limited sense), the administrative decisionmaker must nevertheless act judicially. 25 Although Minister for Aboriginal Affairs v PekoWallsend Ltd (1986) 162 CLR 24 concerns questions of the scope of judicial review under the AD(JR) Act (which has a wider reach into nonjurisdictional error than the supervisory jurisdiction grounding the constitutional writs: Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex Parte Applicants S134/2002 (2003) 211 CLR 441 at [36] - [43] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ), Mason J observed at 39 to 41 in as a matter of general principle that the factors a decisionmaker is bound to consider in making a decision are determined by a construction of the statute conferring the power. The statute might exhaustively state those matters or merely state them in an inclusive way. If not expressly stated, they must be determined by implication from the subjectmatter, scope and purpose of the Act. 26 Mason J also observed in PekoWallsend at 40 that in the context of judicial review on the ground of taking into account irrelevant considerations, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined except, in so far as there may be found in the subjectmatter, scope and purpose of the statute, some implied limitation on the factors to which the decisionmaker may legitimately have regard. In Yusuf at [73] McHugh, Gummow and Hayne JJ observed that it is essential to begin the question of isolating the relevant factors by considering the statutory scheme as a whole. It may emerge that the considerations that are, or are not, relevant to the decisionmaker's task are to be identified primarily, perhaps even entirely, by reference to the particular piece of legislation rather than the particular facts of any case before the decisionmaker (Yusuf at [73]). In Yusuf at [74] their Honours observed that the considerations at [73] do not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration but "[W]hat is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decisionmaker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decisionmaker acts" [emphasis added].

The questions before the Committee 27 Having regard to the concession made by Dr Tisdall before the Committee that on each of the 66 days during the referral period he had rendered 80 or more services (as defined) the question to be determined by the Committee by reference to the Act in making findings arising out of its adjudication of the matters relevant to the referral was whether having regard to Regulation 11(b), it could be satisfied by Dr Tisdall, that on each of the 66 days during the referral period there was, as a matter of objective analysis, an absence of other medical services for patients of Dr Tisdall having regard to the statutory matters of the location of Dr Tisdall's practice and the characteristics of his patients seeking services on each of those days. If the Committee could be so satisfied, the second question for it under s 106KA(2) of the Act was whether it could be satisfied that those circumstances affected, in a causal sense, the rendering of Dr Tisdall's services on each of those days: Oreb v Wilcock [2005] FCAFC 196; (2005) 146 FCR 237 at [10] per Black CJ and Wilcox J and at [230] to [232] per Lander J.

The notion of "absence" 28 The primary Judge at [19] regarded the notion of "absence", in its statutory setting, as extending beyond a literal absence and connoting a lack of "readily or reasonably available" alternative medical services for Dr Tisdall's patients having regard to the Regulation 11(b) factors. As Buchanan J observes, that formulation of the statutory concept of absence (accepted by the appellant) is consistent with the "practical approach" to Regulation 11(b) adopted by Dowsett J in Hatcher v Fry [2000] FCA 1573; (2000) 183 FCR 1 at [16] in formulating the question to be asked by a Professional Services Review Committee, namely (as applied in this case), if a patient of Dr Tisdall on the relevant days during the referral period could not have seen Dr Tisdall within an appropriate timeframe (that is, within a reasonable timeframe) would the patient have been able, reasonably, to consult another medical practitioner? An answer to that question will involve consideration of the elements of a counterfactual contention based upon an assumption that the patient could not have seen Dr Tisdall. The question, of course, for the Committee is slightly different to that formulated by Dowsett J. It is whether, having regard to the relevant factors, the Committee can be affirmatively satisfied by Dr Tisdall (having regard to the body of evidence put to it for adjudication by the Committee members as general practitioners), on the matter of objective counterfact, whether a patient of Dr Tisdall would have been able, reasonably, to see another medical practitioner rather than Dr Tisdall. Many considerations may be relevant to that question but they include questions of access to alternative practitioners, the location of the practice of an alternative medical practitioner, the hours during which such a practitioner might be available and the patient numbers or patient cohort seeking access to the alternative medical practitioner. 29 The exercise of the power to make findings of fact under s 106KA(2) turns upon the state of satisfaction of the Committee members. Section 106KA(2) does not confer an unconfined discretion upon the Committee members. Their state of satisfaction (so far as Dr Tisdall's case is concerned as put) must be reached (or not reached) having regard to the statutory matters in s 106KA(2) and Regulation 11(b). On the question of judicial review of a decisionmaker's state of satisfaction of a relevant statutory matter, Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118 and 119 said this: "It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he [or she] can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts. Hughes and Vale Pty Ltd v New South Wales [No. 2] itself was a case of that kind. Where the authority is required to be satisfied of the existence of particular matters of objective fact, the position may be very different. It may then be possible to show clearly not only that the material facts existed but that an authority acting in accordance with its duty could have reached no other conclusion than that they existed." [emphasis added apart from the reference to Hughes] 30 As to judicial review of an opinion or state of satisfaction of a decisionmaker see also Avon Downs (supra) per Dixon J at 360 on the strength of suppositions made by a decisionmaker. Where a decisionmaker is bound to take a factor into account but fails to do so or takes into account a factor not relevant to the statutory factors, the requisite state of satisfaction (or not) is not reached as a matter of law: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [53] - [54] per the Court. Where the exercise of the statutory power to make findings is conditional upon a particular opinion or state of satisfaction, an inquiry for the Court may be whether the opinion has really been formed at all, as a matter of law: Saeed at [53]; Foster v Minister for Customs and Justice (2000) 200 CLR 442 at 447 [7] and [8] per Gleeson CJ and McHugh J. 31 Although the grounds of review that fasten upon the use made of relevant or irrelevant considerations are essentially concerned with the proper application of the law by the decisionmaker rather than the process of decisionmaking and factfinding, the process of decisionmaking itself may also miscarry in a way reflecting an error of law. Want of logic is not synonymous with error of law. The authorities which deal with the question of an absence of evidence to support a finding as compared with a finding reflecting a lack of logic but nevertheless supported by "some basis" in evidence, were considered by the Full Court in Wecker v Secretary, Department of Education, Science and Training [2008] FCAFC 108; (2008) 168 FCR 272. Rather than recast those comments, I will simply note what I said at [98] and [99] (French J agreeing at [3], subject to his Honour's own reasons; Weinberg J agreeing at [41]), in these terms, in part: "[98] However, at common law, want of logic is not synonymous with error of law (Bond 170 CLR 321, per Mason CJ at 356, with whom Brennan, Toohey and Gaudron JJ agreed) and as to inferences, "so long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place" (his Honour's emphasis, Bond 170 CLR at 356 per Mason CJ). On the other hand, where a statute requires the decision-maker to discharge particular duties, "irrationality of the kind described by Deane J in Australian Broadcasting Tribunal v Bond may involve non-compliance with the duty" (Re MIMA; Ex parte S20/2002 77 ALJR 1165; 198 ALR 59 at [9] per Gleeson CJ). In the context of the particular statutory framework relating to protection visas under the Migration Act 1958 (Cth) and the role and duty of the Refugee Review Tribunal, Gummow and Hayne JJ (with whom Gleeson CJ agreed) in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; 207 ALR 12 at [38] observed that although the question of whether protection obligations relevantly arose included a consideration of factual matters, "the critical question is whether the determination [by the Tribunal] was irrational, illogical and not based on findings or inferences of fact supported by logical grounds" and "inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error". [99] In Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at [25], Black CJ, von Doussa and Carr JJ observed that want of logic in drawing an inference will not of itself constitute an error of law. Their Honours also noted, however, that a want of logic "may sound a warning note to put one on inquiry whether there was indeed any basis for the inference drawn": see also NAMM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 32 per French, Lindgren and Finkelstein JJ; Minister for Immigration and Multicultural and Indigenous Affairs v W306/01A [2003] FCAFC 208 per French, Hill and Marshall JJ; NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 per Tamberlin, Emmett and Weinberg JJ; W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 per French, Lee and Carr JJ; NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 per Heerey, Sundberg and Crennan JJ; VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 per Kiefel, Marshall and Downes JJ, applying these principles. …" 32 In Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744; (2001) 65 ALD 141, Sundberg, Emmett and Finkelstein JJ observed that the question of whether there is any evidence of a particular fact is a question of law and whether a particular inference can be drawn from facts found is also a question of law. 33 The Committee noted that in the course of oral evidence before it on 28 July 2006, Dr Tisdall accepted that he had rendered 80 or more services on 66 days during the referral period [18]. The Committee also noted that Dr Tisdall by his submissions of 1 May 2006 and 28 March 2007 contended that exceptional circumstances within Regulation 11(b) of the Regulations existed throughout the referral period [20]. Dr Tisdall thus contended that the matters the subject of all the evidence he put on before the Committee applied to all of the 66 days in question.

The relationship between professional attendances and patients seen 34 There was some confusion during the course of the hearing of the appeal as to whether the provision of 80 or more services on each of the 66 days represented 80 or more professional attendances on 80 or more patients or 80 or more services provided to some lesser number of patients. That matter seemed important to the Full Court as the cohort of Dr Tisdall's patients who might have sought out other medical services in the referral period was arguably relevant to the question of whether alternative medical services were available (or absent) for them in the catchment as a practical matter. There is arguably, or at least rationally, a potential relationship between the demandside cohort of patients seeking medical services on any day during the referral period and the supplyside availability of other medical practitioners to provide the required medical services. The only question of interest, of course, on that topic to the Court in the course of the appeal was whether it was clear to the Committee from its reasons whether it regarded (or not) 80 or more professional attendances as attendances upon 80 or more individual patients. The Full Court was not seeking to establish that matter of fact to its own satisfaction as that is entirely a matter for the Committee, but rather was seeking to identify the treatment of that matter by the Committee. 35 The Medicare Australia statistics before the Committee recorded that the total number of patients seen by Dr Tisdall during the review period was 3,930 "distinct patients" and on the relevant 66 days Dr Tisdall saw 2,626 "distinct patients". The Committee accepted that the adjudicative referral "provided evidence" that Dr Tisdall had rendered 80 or more "professional attendances" on each of the 66 days: [18]. The Committee therefore proceeded on the basis that each of the 80 or more services provided by Dr Tisdall represented a professional attendance upon a separate patient on the day. 36 In order to make that position clear, the parties were asked whether a joint position could be put before the Court identifying on each of the 66 days on which Dr Tisdall provided 80 or more services, whether he attended 80 or more patients. The parties by a joint memorandum of 16 November 2010 said that only those services represented by professional attendances for the purposes of Regulation 7 of the Regulations were taken into account by the Committee when determining whether Dr Tisdall had rendered 80 or more services. 37 The following table sets out the number of Regulation 7 professional attendances by Dr Tisdall on each of the 66 days across the referral period and the corresponding number of patients seen in respect of those professional attendances each day. Sometimes, the number of patients is identified as an alternative number. In some cases, professional attendances were made upon patients with the same name and it is not clear whether one patient received both services or whether two patients received one service, and on other occasions it can be established that two professional attendances (services) were made upon the same patient. 38 However, it is clear from [18] and [19] of the Committee's reasons that the Committee proceeded from the very outset on the footing that 80 or more services represented at least 80 or more professional attendances upon 80 or more patients on each of the 66 days. The total number of professional attendances upon patients across the 66 days was 5,710 (having regard to the lower of the alternative numbers - Alternative 1) or 5,719 (having regard to the higher of the alternative numbers - Alternative 2). Since all of those professional attendances were represented by 2,626 "distinct patients", it follows that each of those 2,626 patients was seen by Dr Tisdall, on average, across the 66 days 2.17 times (Alternative 1) or 2.18 times (Alternative 2). Those statistics represent averages. It may be, for example, that Dr Tisdall saw a patient on four or five occasions across the 66 days in relation to one or more medical problems and another patient on simply one occasion. 39 Nevertheless, it is clear that the Committee proceeded on the footing that each professional attendance, in effect, represented a service provided to a separate patient on the relevant day. It follows that on each of the 66 days Dr Tisdall saw not less than 80 patients and on the busiest day (Day 30) he saw 105 patients. Set out below is the Table.

Table showing numbers of services constituting professional attendances under Regulation 7 of the Regulations and the numbers of patients for the 66 days identified as days of 80 or more services Date Total of "professional attendances" as defined by Regulation 7 of the Regulations Number of patients seen on the day 1 5 January 2000 86 86 2 11 January 2000 81 81 3 14 January 2000 80 80 4 17 January 2000 82 82 or 81 5 20 January 2000 80 80 6 21 January 2000 87 87 or 86 7 28 January 2000 87 87 or 86 8 31 January 2000 88 88 9 1 February 2000 89 89 10 3 February 2000 84 84 11 11 February 2000 80 80 12 18 February 2000 82 82 13 21 February 2000 92 92 14 22 February 2000 83 83 15 24 February 2000 84 84 16 28 February 2000 81 81 17 29 February 2000 82 82 18 3 March 2000 82 82 19 6 March 2000 80 80 20 7 March 2000 86 86 21 9 March 2000 87 87 22 10 March 2000 98 98 or 97 23 14 March 2000 93 93 24 16 March 2000 85 84 25 17 March 2000 82 82 or 81 26 23 March 2000 80 80 27 24 March 2000 85 85 28 30 March 2000 99 99 29 31 March 2000 85 85 30 3 April 2000 105 105 31 4 April 2000 91 91 32 7 April 2000 97 97 33 10 April 2000 86 86 34 11 April 2000 95 95 or 94 35 18 April 2000 86 86 36 20 April 2000 97 97 37 26 April 2000 99 99 or 98 38 27 April 2000 81 81 39 28 April 2000 94 94 40 2 May 2000 96 95 41 5 May 200 94 94 42 9 May 2000 98 98 43 11 May 2000 88 88 44 12 May 2000 80 80 or 79 45 15 May 2000 89 89 46 16 May 2000 87 87 47 18 May 2000 81 81 48 19 May 2000 87 87 49 2 June 2000 84 84 50 5 June 2000 91 91 51 8 June 2000 84 84 52 9 June 2000 84 84 53 16 June 2000 86 86 54 19 June 2000 91 91 or 90 55 23 June 2000 80 80 56 4 July 2000 83 83 57 7 July 2000 87 87 58 11 July 2000 81 81 59 14 July 2000 86 86 60 21 July 2000 80 80 61 25 July 2000 80 80 62 4 August 2000 82 82 63 8 August 2000 82 82 64 11 August 2000 88 88 65 15 August 2000 83 83 66 21 August 2000 88 88

The case put to the Committee 40 At [21] the Committee notes that Dr Tisdall contended for an absence of other medical services for his patients in the region where he practised because of: "(a) a chronic shortage of doctors in Kyabram; (b) the lack of cooperation between Dr Tisdall and other doctors in Kyabram (other doctors refused to see Dr Tisdall's patients); (c) the decision of other doctors in Kyabram to limit their hours of practice and close their books to new patients; (d) the lack of other doctors with specialist skills, particularly psychiatric counselling and radiology; and (e) the characteristics of Dr Tisdall's patients, including: (i) the disadvantaged, including those from lower socioeconomic groups such as pensioners and drug users, and the elderly and infirm members of the community; and (ii) those from particular ethnic backgrounds, including Italian, Aboriginal and Islamic backgrounds; and (f) circumstances where other doctors in Kyabram did not bulkbill to the same extent as Dr Tisdall did."

The Committee's adjudication of the case 41 On 28 July 2006, the Committee conducted a hearing and took evidence from Dr Tisdall. At [10] the Committee notes that it received from Dr Tisdall's advisers statutory declarations in support of the absence of alternative medical services during the referral period from Mr Wayne Sullivan (the Chief Executive Officer of the Kyabram & District Memorial Community Hospital); Mr Brian Thomson (the Manager of the Ngwala Willumbong Cooperative, an indigenous organisation); Dr William Orchard (a psychiatrist); Dr Ian Collie (a pharmacist in Kyabram); Ms Jean Courtney (the Director of Nursing at the Tongala & District Memorial Aged Care Service and a board member of the Kyabram & District Memorial Community Hospital); Dr Tisdall and Mr Nilgun Atalmis (an interpreter for the Turkish Community in the Shepparton region). Dr Tisdall's advisers made four separate written submissions to the Committee. 42 At [29] of its reasons the Committee notes Dr Tisdall's submission of 1 May 2006 that during each week (during the referral period), Monday to Friday, Dr Tisdall saw patients between 9.00am and 7.30pm (approximately 11 hours each day) and on Saturday he saw patients from 8.00am to 1.00pm (five hours) although sometimes the Saturday hours were much longer; on Sunday, Dr Tisdall conducted an emergency clinic; he remained on call for 24 hours for his patients; from 8.00am each morning for about 30 minutes he conducted a round of his patients at the hospital and from 8.30am each morning he wrote medical reports for 30 minutes; he saw his hospital patients in the evening until about 9.00pm; he conducted outpatients services at the hospital for an hour on each Monday and Thursday morning undertaking minor procedures such as excising lesions and fixing fractures; and, he performed operations at the hospital for three to four hours on Wednesday mornings. 43 At [22] the Committee notes Dr Tisdall's oral evidence that during the 2000 calendar year there were six other practitioners (seven in all) practising in Kyabram. The Committee notes that the nearest public hospital was in Shepparton (45 kilometres away) and patients had to wait up to seven hours to be treated there. Smaller hospitals operated in Echuca (also 45 kilometres away) and in Kyabram. 44 At [25] the Committee notes the evidence of Mr Sullivan that all of the doctors in Kyabram practised a number of areas of medicine including anaesthetics, broader medical services, minor surgical procedures and obstetrics. At [26] the Committee notes the oral evidence of Mr Michael Robertson, the Chief Executive Officer of the Murray Plains Division of General Practice that Kyabram's catchment for patients included Undara and encompassed in 2002, 17,000 people. The Committee noted Dr Tisdall's submission of May 2006 that during the referral period the doctor/patient ratio (in the catchment) was 1:2000 (which suggests a catchment of 14,000 people) as compared with a metropolitan ratio of 1:960. As to the demand for medical services, the Committee notes at [28] Ms Courtney's evidence that the quality of Kyabram's Hospital and its services elevated Kyabram to a medical centre attracting additional people from outside the region (or catchment) seeking medical services. 45 At [30] the Committee notes Dr Tisdall's oral evidence that he saw 4,500 patients in the calendar year 2000. Dr Tisdall gave evidence that during the referral period he had left a group practice comprising other Kyabram doctors to establish his own practice. Those doctors, he told the Committee, worked normal hours and took holidays regularly. He told the Committee that those doctors were antagonistic towards him because he had chosen to leave and set up his own practice. He told the Committee that many of his patients had told him that other Kyabram doctors would not treat them because they were aligned with him. 46 As to afterhours services, Dr Tisdall gave oral evidence to the Committee that the other Kyabram doctors operated two rosters at the Kyabram Hospital and that Dr Tisdall was permitted to join the roster only in relation to patients requiring afterhours emergency medical care and only in respect of patients who were not already seeing a doctor, with the result, it was said, that Dr Tisdall was required to be oncall for all of his patients for 24 hours each day, seven days a week, and only in an emergency would one of the other Kyabram doctors treat a patient of Dr Tisdall. 47 As to the contended shortage of doctors in the Kyabram catchment, the Committee notes at [23] the evidence of Mr Sullivan that the catchment may be between 12,000 to 16,000. The Committee also notes at [24] Mr Sullivan's evidence that he had heard anecdotally that other doctors (apart from Dr Tisdall) in Kyabram had closed their books. The Committee also notes at [24] that Mr Sullivan's evidence on that point was supported by the evidence of Ms Courtney, Mr Collie and Dr Tisdall in his own oral evidence. Buchanan J in his Honour's reasons at [114] notes the content of Mr Sullivan's evidence on that matter and the evidence of the other deponents. 48 As to the aspects of the characteristics of Dr Tisdall's patients, the Committee at [34] notes the evidence of Dr Orchard that Dr Tisdall had a reputation for caring for the underprivileged and that patients would travel long distances to see him because of their trust in him. At [34] the Committee notes the evidence of Mr Collie that a large proportion of the Turkish and Italian communities around Kyabram saw Dr Tisdall as he was highly regarded. At [36] the Committee notes the evidence of Mr Atalmis, an interpreter in Shepparton, that members of the Turkish community preferred to see Dr Tisdall because he understood their culture, was prepared to go out of his way to help them when they required medical services, and was willing to bulkbill them if they were receiving social security benefits. The Committee notes Mr Atalmis's evidence that there is quite a large Turkish community in and around Shepparton and that he acted as an interpreter for the Turkish patients of Dr Tisdall at least twice a week during 2000 and 2001. The Committee notes at [35] Dr Tisdall's statutory declaration of 29 March 2007, by reference to a table, showing that he saw between four and 13 Turkish patients (an average of 8.81 Turkish patients) and between two and 13 Italian patients (an average of 7.19 Italian patients) on the days reflecting a random selection of the 66 days on which he rendered 80 or more services. 49 At [35] the Committee notes that Dr Tisdall gave evidence to the Committee that Turkish, Italian and Aboriginal patients saw him because he was willing to bulkbill them and because, in Dr Tisdall's view, he believed those groups considered that he had a particular understanding of their cultural and religious sensitivities and in addition Dr Tisdall speaks some Italian. At [34] the Committee notes Dr Orchard's evidence in support of Dr Tisdall that Dr Tisdall is the only practitioner in the area who regularly bulkbills. At [34] the Committee notes Mr Collie's evidence that Dr Tisdall bulkbills a large number of his patients, typically the less welloff members of the community. At [33] the Committee notes Dr Tisdall's evidence that he bulkbilled pension and health card holders which Dr Tisdall said constituted 45% of his practice. The Committee notes Dr Tisdall's estimate that 30% of his patients were pensioners and a large number were drug users. 50 At [37] the Committee notes the evidence of Mr Thomson that Mr Thomson, the manager of the Ngwala Willumbong Co-operative, referred residents of the Percy Green Memorial Alcohol and Drugs Centre, run by the Cooperative, to Dr Tisdall because Dr Tisdall was prepared to see the residents at short notice and bulkbill them for his services. The Committee notes that this contrasted, Mr Thomson said, with the lack of other doctors who were willing to bulkbill or to see patients with alcohol or drug problems. 51 As to the preference of patients to see Dr Tisdall, Dr Tisdall gave evidence that his Italian, Turkish and Aboriginal patients found it very comfortable to see him, especially the Aboriginal patients, because of Dr Tisdall's empathy with them. The Committee notes at [38] Dr Tisdall's evidence that Italian patients came to see him because he could speak some of their language and he demonstrated empathy with them. The Committee notes that he contended that the Turkish patients came to see him because nobody else, in all probability, wanted to see them. He said that certainly there was no bulkbilling for those patients (from other doctors) and again, that he had empathy with those cultural groups. The Committee notes at [39] Dr Tisdall's suggestion of anecdotal evidence that other doctors avoided providing services to Islamic and Aboriginal patients. 52 At [27] the Committee says that it understands its task is to "determine whether or not there was an absence of other medical services for patients of Dr Tisdall during the relevant period, having regard to the location of Dr Tisdall's practice and the characteristics of his patients". At [47] the Committee observes that it is required to answer whether there was "an absence of services for Dr Tisdall's patients on [the 66 days] (having regard to the location of his practice)". At [45] to [48] the Committee records its conclusions as to locational factors and the catchment; at [49] the socioeconomic mix of the people in the catchment; and at [50] and [51] some brief passing reference to the Aboriginal, Turkish and Italian patients of Dr Tisdall. 53 As to the matters of fact accepted by the Committee, it found at [45] that during the referral period there was "a chronic doctor shortage in rural Australia…and that Kyabram and its surrounding area also suffered from a relative shortage of doctors, compared to metropolitan centres" [emphasis added]; there was "a lack of cooperation between Dr Tisdall and a number of other doctors in Kyabram"; and "some doctors may have had limited hours of practice". 54 Those findings and those that followed at particularly [46] and [47] were informed by the Committee's use of statistics provided by Medicare Australia.

The Committee's reference to statistics provided by Medicare Australia 55 The Committee's use of the Medicare Australia statistics began with a factual matter drawn from an exhibit to one of Dr Tisdall's statements. The exhibit disaggregated the locations of Dr Tisdall's patients. The Committee notes at [40] that four postcode locations represented the geographic source of 75% of Dr Tisdall's patient base: Kyabram (plus two communities), Postcode 3620, 4,538 patients or 41.64%; Shepparton (including three communities), Postcode 3630, 1,943 patients or 17.83%; Ardmona (plus three communities), Postcode 3629, 899 patients or 8.25%; and Cooma (plus four communities), Postcode 3616, 834 patients or 7.65%. 56 Although the Committee did not make an express finding as to the catchment or the scope of the "location" of Dr Tisdall's practice other than a reference at [45] to "Kyabram and its surrounding areas", the same reference at [49] and a reference at [50] to practitioners "in the region", the references to the four postcode locations (and identified towns and communities) seems to be an acceptance by the Committee of the description of the catchment (and thus the location) for Dr Tisdall's practice consisting of between 12,000 and 16,000 people. 57 The Committee then notes at [41] that many of the patients who saw Dr Tisdall on one or more of the 66 days also saw another medical practitioner at some point across the period 5 January 2000 to 21 August 2000. A patient who saw Dr Tisdall on 11 January 2000 (one of the 66 days) may have seen another medical practitioner in May or June or July and it may have been on a day in those months when Dr Tisdall saw 80 or more patients or perhaps some other day. Similarly, a patient who saw Dr Tisdall on 4 August 2000 (one of the 66 days) may have seen another medical practitioner on a day in February, March or April which may have been one of the relevant 66 days in those months, or not. 58 The Committee notes at [41] that eight medical practitioners across the period 5 January 2000 to 21 August 2000 also engaged in 301 attendances upon some patients that Dr Tisdall saw drawn from the 66 day patient breakdown (2,626 patients in all) in the postcode area 3620 (being the main locational catchment for Dr Tisdall). The 301 attendances, of course, may represent 301 different people or some lesser number of individuals who had, in all, 301 attendances. Dr Tisdall saw on all of those 66 days either 5,710 or 5,719 patients (alternatives 1 and 2) represented by a patient cohort of 2,626 individuals. Those 301 attendances upon the eight other medical practitioners in that postcode catchment represent 5% of the attendances on Dr Tisdall in the 66 day period. 59 Similarly, 30 medical practitioners across the referral period also engaged in 232 attendances upon some patients that Dr Tisdall saw in the 66 days (recognising that those 232 attendances may represent a lesser number of individuals) in the postcode area 3630 (the second highest locational area for Dr Tisdall). Those 232 attendances represent 4% of Dr Tisdall's attendances in the 66 days. 60 Nine medical practitioners across the referral period engaged in 122 attendances upon some patients that Dr Tisdall saw in the 66 day period in the postcode area 3629 (the third highest locational area for Dr Tisdall). Those 122 attendances represent 2% of Dr Tisdall's attendance in the 66 day period. 61 Finally, the Committee notes that seven medical practitioners across the referral period also engaged in 121 attendances upon some patients that Dr Tisdall saw in the 66 days in the postcode area 3616 (the fourth highest locational area for Dr Tisdall). Those 121 attendances represent 2% of Dr Tisdall's attendances over the 66 days. 62 These statistics at [41] deal with attendances by "other medical practitioners (not specialists)". At [41] the Committee then refers to other statistics concerning medical practitioners described (more broadly) as "distinct other medical practitioners" (which presumably is a reference to attendances by other medical practitioners which includes the first group, and also specialists). The Committee notes that across the referral period 868 individual patients (within the cohort of 2,626 patients) saw 552 distinct other medical practitioners giving rise to 2,958 visitations or attendances. The first group of attendances at [41] by general practitioners represents 776 attendances and thus the second group of attendances by other medical practitioners represents 2,182 attendances constituting the aggregate 2,958 attendances in all. 63 In noting the statistics related to the first group of medical practitioners, the Committee refers only to attendances not patient numbers although the attendances are said to reflect consultations with "many patients". If the attendances directly reflect patient numbers, the 776 Group 1 attendances may amount to 776 individuals, that is, different patients. The description "individual patients" can be misleading because each attendance concerns an attendance upon an individual patient but the total number of attendances may involve a lesser number of separate or individual persons. In other words, a person may have had more than one attendance upon a medical practitioner. 64 If 868 individual patients gave rise to 2,958 attendances upon all other medical practitioners throughout the referral period, each of those individuals had, on average, 3.4 attendances upon other medical practitioners across the relevant period. 65 The reference at [41] to the very large number of other medical practitioners (552) in the aggregated numbers for all medical practitioners (including specialists) as compared with the comparative number of other general practitioners noted by the Committee in the four postcode locations (that is, 8, 30, 9 and 7 general practitioners) suggests that many of those attendances upon 552 "distinct other medical practitioners" may be attendances upon specialists across the medical discipline. If so, a question would arise as to the utility of the statistic as Dr Tisdall is a general practitioner seeing patients who according to the relevant test might otherwise reasonably have seen (or not, having regard to the Regulation 11(b) factors) another general practitioner. If there were relevant attendances upon 552 "distinct other medical practitioners", were those 552 distinct other medical practitioners practising in the catchment or does the reference to 552 distinct other medical practitioners have some further contextual explanation or other explanation suggesting relevant substitutability within a reasonable period? 66 The first group of statistics discussed at [41] of the Committee's reasons concerning 776 attendances (in all) upon other medical practitioners, at some point during the referral period, by some patients who saw Dr Tisdall on some of the 66 days show a statistically small number of "other" attendances for each postcode location (5%, 4%, 2% and 2%) as compared with the total attendances on the 66 days upon Dr Tisdall. From the total cohort of 2,626 patients who saw Dr Tisdall on the 66 days, 5,710 or 5,719 attendances (alternatives 1 and 2) were made upon Dr Tisdall in those 66 days and 776 other attendances were made on other medical practitioners at some unidentified point between 5 January 2000 and 21 August 2000. That represents in all 6,486 attendances (5,710 + 776 attendances), of which 88% were made upon Dr Tisdall. That suggests that in almost nine out of 10 attendances by the 2,626 patients who saw Dr Tisdall on those 66 days and who also otherwise acquired medical services in the referral period, the patients did so either because they chose to see Dr Tisdall or had to see Dr Tisdall. The second possibility may be consistent with an inability on the part of patients on the 66 days to reasonably access services from other medical practitioners in the catchment. 67 Was it relevant to consider whether 776 attendances occurred on other medical practitioners at some unidentified point during the referral period by some patients who saw Dr Tisdall on some of the 66 days? Section 106K(A)(2) taken together with Regulation 11(b) of the Regulations and the adjudicative referral provides, in effect: "If Dr Tisdall satisfies the Committee that, on a particular day or particular days during the period 5 January 2000 to 21 August 2000, an absence of other medical services existed for the patients of Dr Tisdall having regard to the location of Dr Tisdall's practice and the characteristics of his patients, that affected the rendering … of services by Dr Tisdall, Dr Tisdall's conduct in connection with rendering … services on that day or those days is not taken by subsection (1) to have constituted engaging in inappropriate practice." [emphasis added] 68 Dr Tisdall's case put to the Committee was that there was an absence of other medical services throughout the whole of the referral period that affected his rendering of services. That approach may have been adopted because it was too forensically difficult to show (or satisfy the Committee of) an absence of other medical services on each and every individual day (and thus in the aggregate all 66 days). Since the contended inappropriate practice was said to consist of a statutory pattern of services within the referral period, Dr Tisdall may have chosen to satisfy the Committee that a general pattern of absence of other medical services subsisted across the entire referral period. 69 Having put his case of an absence of other medical services on the relevant 66 days on the footing that there was an absence across the entire referral period (which necessarily applied to all 66 days) it was at least relevant for the Committee in considering the case as put, to consider whether some of the patients who saw Dr Tisdall on some of the 66 days also saw other medical practitioners during the referral period and if so, how many. Such an analysis in adjudicating the case actually put to the Committee might have tended to show something about access to other services throughout the referral period from which an inference might or might not arise about "absence" on the relevant days, although the raw statistics do not reveal the underlying reasons for attendances. 70 At [42] the Committee notes that in postcode 3620 on each of the 66 days, the statistics show that between three and seven other medical practitioners (an average of 5.8 practitioners) "worked" rendering, on the statistics, 114 medical services per day, on average, between them. The Committee also notes at [42] that during the referral period (not just the 66 days) from postcode 3620, 10 other medical practitioners rendered 19,711 services at a bulkbilling rate of 46.16% (compared with Dr Tisdall's rate of 73.20%) and seven of those 10 medical practitioners rendered more than 1,900 services (at a bulkbilling rate of 34%). 71 It follows that if 5.8 (on average) other medical practitioners rendered 114 services (on average) in all on each of the relevant 66 days, each of the other medical practitioners, on average, therefore rendered 19.65 services on each of those 66 days for postcode 3620 (the main locational catchment for Dr Tisdall). If 10 other medical practitioners (which presumably includes the three to seven medical practitioners earlier mentioned concerning the rendering of services on the 66 days) rendered 19,711 services, each medical practitioner, on average, rendered 1,971 services throughout the period 5 January 2000 to 21 August 2000. That period (leaving aside all weekend services) consists of 179 days (Monday to Friday) at an average of 11.01 services rendered by each of those 10 medical practitioners each weekday during the referral period. 72 Perhaps these averages taken together with the statistics at [41] explain Dr Tisdall's submission noted by the Committee at [43] that the statistics suggest that the proportion of patients who saw Dr Tisdall in the referral period and who also saw other medical practitioners in the location (postcode zones) of his practice was "very small".

The reason for looking at the statistics 73 The point of examining the statistics is not to substitute the Court's view on the ultimate question on the merits or the facts for that of the Committee, but simply to examine the content of the statistics to consider what might be revealed by them so as to understand how they were used by the Committee and whether they represent any evidence of a relevant matter where reliance was placed upon this data by the Committee.

Further findings 74 Apart from the Committee's findings already mentioned at [50] of these reasons, the Committee also accepted that during the referral period there was a higher doctorpatient ratio in Kyabram than in metropolitan areas: [45]. The Committee at [46] then relied upon the statistics at [42] for postcode location 3620 (demonstrating that between three and seven medical practitioners worked on each of the relevant 66 days) as "indicat[ing] that substantive practices were open" and "likely had capacity to see additional patients": [emphasis added]. 75 The Committee infers at [46] from the fact that other medical practitioners (three to seven practitioners) rendered some services (19.65 services on average, it seems) on each of the 66 days, that those medical practitioners, on the facts, likely had (that is, more likely than not, had) the capacity to render medical services to Dr Tisdall's patients. In that sense, the Committee must have concluded that those statistics (three to seven medical practitioners open and working) are a proxy, on the facts, for the conclusion that had Dr Tisdall not been available to see his patients on those 66 days, those patients would have been able, reasonably, to see one of the other medical practitioners so working. 76 The Committee however does not say that or say why that might be so apart from an inference drawn from the foundation fact of three to seven other medical practitioners open and working in the location on the 66 days. Nor does the Committee refer to the statistics for each postcode zone analysed at [41] of its reasons which were presumably thought to be relevant that almost nine out of 10 attendances (in the circumstances discussed at [63] of these reasons) were, in fact, directed to Dr Tisdall, or why. 77 To support its state of nonsatisfaction of the statutory factors, based on an inference of no absence of other medical practitioners to render services to Dr Tisdall's patients on the relevant days, the Committee also notes at [46] that on each of the 66 days the "three busiest other practitioners rendered at least 10 services but no more than 43 services" and the "average number of services rendered by the three busiest other practitioners ranged from 17.67 services per practitioner (the quietest day) to 34.3 services per practitioner (the busiest day)". 78 The foundation fact of importance to the Committee was that the three busiest other medical practitioners rendered not less than 10 but not more than 43 services and, on average, rendered 17.67 services on the quietest day and 34.3 services on the busiest day. 79 Although the Committee does not express its state of nonsatisfaction of the central matter of absence on the following basis, the inferential reasoning seems to be this. Since the three busiest other medical practitioners in the postcode catchment were rendering not less than 10 services and not more than 43 at an average of 17.67 services on the quietest day and 43.3 services on the busiest day (over the relevant 66 days), the rendering of 80 or more services by Dr Tisdall on those 66 days in the same postcode catchment is so substantially beyond the pattern of rendering of services by other medical practitioners for that catchment (4.5 times the average of the busiest three practitioners on the quietest day and 1.8 times the busiest day average of those three practitioners) that some, at least, of the patients of Dr Tisdall on each of those 66 days could likely have been seen by the other medical practitioners in the catchment because the capacity margin between their pattern of rendering on those days and that of Dr Tisdall allows that inference to be drawn. 80 However, the statistical pattern of rendering by itself does not support an inference of latent or actual capacity to provide services to Dr Tisdall's patients on those 66 days. It may well aid in an analysis of the facts giving rise to the statistical pattern of rendering by focussing the inquiry and causing the Committee in an adjudicative or deliberative way to analyse why one practitioner is seeing many more patients than others and, more importantly, whether the reason or reasons are, in fact, those advanced by the person under review relevantly connected with the Regulation 11(b) factors. 81 Dr Tisdall sought to demonstrate an absence of other medical services by reference to the statutory factors and, in effect, sought to answer a suggested inference of likely capacity in other medical practitioners to render the relevant services by asserting the merits of the uncontradicted body of evidence demonstrating the elements of the case described at [37] of these reasons. In one sentence, the Committee disposes of the entirety of that body of evidence by saying this: "47. The Committee does not accept that other practitioners would have refused to see Dr Tisdall's patients and, consequently, does not consider there to have been an absence of services for Dr Tisdall's patients on the [66] days…" 82 Accordingly, there are two reasons why the Committee is not satisfied of an absence of other medical services. First, the Committee formed a view that other medical practitioners likely had the capacity to see and render services to Dr Tisdall's patients. Secondly, those medical practitioners, having that capacity, would not have refused to see Dr Tisdall's patients. Neither of these explanations for the Committee's state of nonsatisfaction actually deals with the evidence put to the Committee by Dr Tisdall. 83 There is no further analysis of the foundation evidence (but for some specific matters to be mentioned shortly) or any explanation for its rejection. There is no adverse credit finding made concerning the direct evidence of Dr Tisdall or an explanation for the rejection of the evidence of disinterested witnesses such as Mr Wayne Sullivan, Ms Jean Courtney, Mr Michael Robertson, Mr Ian Collie, Mr Brian Thomson or Mr Nilgun Atalmis. It seems to me, having regard to these matters, that the Committee has not, as a matter of law, reached the relevant opinion and formed the relevant state of satisfaction in the sense contemplated by Saeed and Foster. 84 Moreover, the Committee relies upon the statistics discussed at [77] of these reasons to find "likely capacity" in other practitioners to see Dr Tisdall's patients and secondly a disposition, on the part of those practitioners, to see Dr Tisdall's patients, without addressing the question of whether those practitioners could reasonably, in fact, have seen those patients within a reasonable timeframe having regard to the locational factors and the characteristics of Dr Tisdall's patients. In that sense, I agree with Buchanan J that the Committee has not considered, expressly, the important practical question of whether the patients could reasonably have obtained other medical services had they not been seen by Dr Tisdall. 85 It may be that the Committee's finding that substantive practices were open on the 66 days, coupled with the two suppositions that firstly, those practitioners likely had capacity to see additional patients and secondly, would do so, contains a further supposition that Dr Tisdall's patients on the relevant days could likely have been seen within a reasonable timeframe. The Committee does not say that. Even if an assumption is made that the test formulated at [27] of the Committee's reasons and applied by it asks whether Dr Tisdall's patients would have been able, reasonably, to consult other medical practitioners who had that capacity and disposition, the two suppositions at the threshold are not soundly based in the sense that they are not open simply on the statistics and fail to reflect any analysis of the underlying facts. In Avon Downs at 360, Dixon J said this: "But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income … If [the commissioner] does not address himself to the question which the subsection formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law." 86 Although the Committee members are entitled to consider and undertake their adjudicative function concerning the statutory factors against the background of their own professional experience as general practitioners especially having regard to s 95 of the Act which requires the Committee to be comprised of general practitioners in a case where a general practitioner is the person under review, the Committee members are not entitled to make findings of fact informing its state of nonsatisfaction of those statutory factors based upon assumptions of likely capacity and likely disposition to see patients, unsupported by actual evidence, or simply based upon inferences drawn from statistics which do not reveal facts about the reasons for statistical rates of attendance. 87 This is especially so when the consequences for a citizen of findings made on such a footing is that the citizen might be deprived either for a time or entirely of an entitlement to earn an income from undertaking the provision of services. 88 At [48] of the Committee's reasons, it accepts that for Dr Tisdall's patients alternative psychiatric counselling and radiology services were limited. The Committee notes that Dr Tisdall's patients were in no different circumstances to patients seeing other doctors in Kyabram. The Committee found that it was "not convinced that this [the limited access to alternative psychiatric counselling and radiology services] constituted anything exceptional about Dr Tisdall's practice" [emphasis added]. The Committee further finds that it is "not convinced that there was an absence of those services for Dr Tisdall's patients and further, whatever the limits on alternative care were, those limitations did not 'affect' Dr Tisdall's servicing, in the sense of causing him to render more services than he otherwise would have". The Committee explained the reason for that conclusion, in part at least, on the footing that "the performance of those specialist services would have resulted in longer consultations and hence in Dr Tisdall rendering fewer attendances for the day in question rather than more" [emphasis added]. 89 At [49] the Committee gave consideration to the socioeconomic standing of the Kyabram catchment and considered that Kyabram and its surrounding area was not, in itself, of lower socioeconomic standing although the Committee accepted that persons from disadvantaged backgrounds resided in the region and that such persons would have been attracted to a practice that bulkbilled for services to the extent of Dr Tisdall's bulkbilling practices. However, the Committee was satisfied that there were other practitioners in the region who bulkbilled a significant proportion of their patients and "[c]onsequently, the Committee does not consider there was an absence of services for Dr Tisdall's disadvantaged patients on the [66] days" [emphasis added]. At [51] the Committee found that it was not satisfied that "Aboriginal, Turkish and Italian patients saw Dr Tisdall because of an absence of services for them". In addressing the evidence, the Committee found at [51] that "[T]o the extent that Dr Tisdall's reference to those patients related to their need for bulkbilling, this issue has already been discussed above [49]" and to the extent that Dr Tisdall's references to patients from these cultural groups which exhibited a disposition to consult with him "is based on language difficulties, the Committee notes that Dr Tisdall used an interpreter for his Turkish patients, a service available to all other doctors in the region, and that Dr Tisdall only spoke limited Italian". 90 The Committee accepted at [51] that Aboriginal, Turkish and Italian patients saw Dr Tisdall because he showed empathy towards them and they felt comfortable with him. The Committee concluded that these factors did not "evidence an absence of services for those patients and the Committee finds that there were services available for these patients". 91 Although the Constitution provides for a distribution of powers with the result that the exercise of supervisory review of administrative decisionmaking by Chapter III courts does not engage the merits of administrative decisionmaking, the administrative decisionmaker must reach findings within the process of decisionmaking which are open and supported by some evidence. If there is any evidence to support the findings, the decision is not susceptible of review on the footing that the Court in the exercise of original jurisdiction might not or would not have made those findings. The relevant tests are set out at [24] to [26] and [29] to [32] of these reasons. It seems to me that it was not open to the Committee to reach a state of nonsatisfaction on the basis of the statistics upon which it relied in the absence of any process of reasoning revealing the statutory factors informing those statistics and in circumstances where in one brief sentence the Committee rejected the totality of Dr Tisdall's evidence and that of his witnesses. 92 Accordingly, an order ought to be made removing the decision of the Committee into this Court and quashing it together with an order that the matter be remitted to the Committee for further consideration with a view to examining the question as framed by this Court in the context of the statutory factors having regard to the evidence of Dr Tisdall and his witnesses together with an explanation of the Medicare Australia statistics upon which the Committee chooses to rely. I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate: Dated: 7 June 2011 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 467 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: PETER THOMAS TISDALL

AND: TONY WEBBER (IN HIS CAPACITY AS DIRECTOR OF PROFESSIONAL SERVICES REVIEW)

JUDGEs: GREENWOOD, TRACEY and BUCHANAN JJ DATE: 7 june 2011 PLACE: MELBOURNE

TRACEY J 93 I agree that the appeal should be allowed for the reasons given by Greenwood and Buchanan JJ. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate: Dated: 7 June 2011 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 467 of 2010

AND: TONY WEBBER (IN HIS CAPACITY AS DIRECTOR OF PROFESSIONAL SERVICES REVIEW)

JUDGES: GREENWOOD, TRACEY AND BUCHANAN JJ DATE: 7 june 2011 PLACE: MELBOURNE

BUCHANAN J 94 The effect of s 106KA of the Health Insurance Act 1973 (Cth) ("the Act"), when read with reg 10 of the Health Insurance (Professional Services Review) Regulations 1999 (Cth) ("the Regulations") is that if a practitioner provides 80 or more professional services on 20 or more days during a 12 month period he or she is taken to have engaged in "inappropriate practice". A practitioner may avoid the consequences of the presumption of inappropriate practice by identifying "exceptional circumstances". Some, but not all, matters which might constitute exceptional circumstances are prescribed by the Regulations. 95 Section 106KA(2) and (5) of the Act provided at the relevant time: 106KA Patterns of services … (2) If the person under review satisfies the Committee that, on a particular day or particular days during the relevant period, exceptional circumstances existed that affected the rendering or initiating of services provided by the person, the person's conduct in connection with rendering or initiating services on that day or those days is not taken by subsection (1) to have constituted engaging in inappropriate practice. … (5) The circumstances that constitute exceptional circumstances for the purposes of subsection (2) include, but are not limited to, circumstances that are declared by the regulations to be exceptional circumstances. (Since the events with which the proceedings are concerned s 106KA has been modified, but not in a way which affects the matters to be addressed or the outcome.) 96 Regulation 11 of the Regulations provided: 11 Exceptional circumstances For subsection 106KA(5) of the Act, the following circumstances are declared as constituting exceptional circumstances: (a) an unusual occurrence causing an unusual level of need for professional attendances; (b) an absence of other medical services, for patients of the person under review during the relevant period, having regard to: (i) the location of the practice of the person under review; and (ii) characteristics of the patients of the person under review. 97 For the purpose of the present appeal it is only reg 11(b) which requires consideration. The relevant period in the present case was between 5 January and 21 August 2000 during which period Dr Tisdall provided 80 or more individual professional services on 66 particular days. 98 On 13 December 2001 the Health Insurance Commission (now known as Medicare Australia) made an investigative referral to the Director of Professional Services Review. The Director made an adjudicative referral dated 14 February 2002 to Professional Services Review Committee No. 325 ("the Committee"). The Committee published a report on 23 January 2003 concluding that Dr Tisdall had engaged in inappropriate practice on each of the 66 days and that exceptional circumstances that affected the rendering of services did not exist on any of those days. Dr Tisdall commenced proceedings in the Federal Magistrates Court of Australia for judicial review to set aside the Committee's decision. Those proceedings were transferred to this Court. Dr Tisdall's application was rejected by Gray J on 8 April 2005 (Tisdall v Kelly (2005) 219 ALR 152) but, after the judgment of a Full Court in Oreb v Willcock (2005) 146 FCR 237 ("Oreb"), the matter was remitted by consent to the Committee for further determination. The reason why that happened is no longer relevant. The Committee was reconstituted. It published a final report on 9 July 2009 which again concluded that Dr Tisdall had engaged in inappropriate practice and that exceptional circumstances that affected the rendering of services did not exist on any of the 66 days in question. Dr Tisdall applied again to this Court; this time to set aside the second decision of the Committee. On 26 May 2010 the further application for judicial review was rejected by the primary judge (Tisdall v Webber [2010] FCA 501). From that judgment the present appeal has been brought. 99 Dr Tisdall practised in Kyabram in Victoria near Shepparton. His patients came from that region, including Shepparton itself. The essential elements of Dr Tisdall's case were that there was an absence of medical services for his patients in the region where he practised during the period under consideration because of a combination of factors, including: a chronic shortage of doctors in Kyabram; the refusal of other doctors to see his patients; the fact that other doctors had closed their books to new patients and limited their hours of practice; the lack of doctors with particular specialist skills including psychiatric, counselling and radiology services; the characteristics of Dr Tisdall's patients who included disadvantaged members of society and those from particular ethnic backgrounds; and the fact that Dr Tisdall bulk billed more than other doctors. 100 As to those matters the Committee:

• accepted that there was a chronic doctor shortage in rural Australia and that Kyabram and its surrounding area suffered from a relative shortage of doctors;
• accepted that there was a lack of co-operation between Dr Tisdall and a number of other doctors in Kyabram during the relevant period;
• referred to evidence supporting the proposition that other doctors in Kyabram had closed their books (and made no reference to evidence to the contrary);
• accepted that some doctors in Kyabram may have had limited hours of practice;
• accepted that alternative psychiatric, counselling and radiology services were limited for Dr Tisdall's patients;
• appeared to accept that Dr Tisdall had a reputation for caring for the underprivileged;
• appeared to accept that a large proportion of the Aboriginal, Turkish and Italian communities around Kyabram saw Dr Tisdall; and
• appeared to accept that Dr Tisdall bulk billed a large number of his patients, typically less well-off members of the community. 101 However the Committee declined to accept that those matters, in the circumstances, constituted exceptional circumstances or made out a case of exceptional circumstances under reg 11(b). One essential ingredient in the Committee's reasoning appears to have been its conclusion (or assumption) that other practices or practitioners would probably have had the capacity to see additional patients on each of the 66 days in question and would not have refused to see Dr Tisdall's patients on those days. Those findings were supported by observations that other practitioners also bulk billed "a significant proportion of their patients". The figures given by the Committee suggested that during the referral period in general, and on the 66 days in question in particular, other medical practitioners in the region bulk billed at the rate of about 46% (compared to Dr Tisdall's rate of about 73%). 102 The paragraphs of the Committee's decision in which its findings contrary to Dr Tisdall are encapsulated, and lead to its conclusion, are as follows: Existence of exceptional circumstances 45. The Committee accepts that there was a chronic doctor shortage in rural Australia during the referral period, and that Kyabram and its surrounding area also suffered from a relative shortage of doctors, compared to metropolitan centres. The Committee also accepts that there was a lack of cooperation between Dr Tisdall and a number of other doctors in Kyabram during the referral period, and that some doctors in Kyabram may have had limited hours of practice. 46. The Committee agrees that during the referral period there was a higher doctor-patient ratio in Kyabram than in metropolitan areas. Nevertheless, between three and seven other practitioners worked on each of the days on which Dr Tisdall rendered 80 or more services, at an average bulk-billing rate (over those days) of 46.52%. The number of services rendered by those practitioners indicates that substantive practices were open and likely had capacity to see additional patients. For example, on each of the relevant days the three busiest other practitioners rendered at least 10 services but no more than 43 services. The average number of services rendered by the three busiest other practitioners ranged from 17.67 per practitioner (quietest day) to 34.3 services per practitioner (busiest day). 47. The question the Committee is required to answer is whether there was an absence of services for Dr Tisdall's patients on the days on which he rendered 80 or more services (having regard to the location of his practice). Although the Medicare Australia data shows that a number of other practitioners were practising on the relevant days, Dr Tisdall submits that those doctors were not available to see Dr Tisdall's patients either because they had closed their books to all new patients or because they refused to see Dr Tisdall's patients in particular (because of ill feelings towards Dr Tisdall). The Committee does not accept that other practitioners would have refused to see Dr Tisdall's patients and, consequently, does not consider there to have been an absence of services for Dr Tisdall's patients on the days on which he rendered 80 or more services. 48. The Committee accepts that, for Dr Tisdall's patients, alternative psychiatric, counselling and radiology services were limited. The Committee notes that Dr Tisdall's patients were in no different a situation to patients seeing other doctors in the town and is not convinced that this constituted anything exceptional about Dr Tisdall's practice. The Committee is not convinced that there was an absence of those services for Dr Tisdall's patients and further, whatever the limits on alternative care were, those limitations did not 'affect' Dr Tisdall's servicing, in the sense of causing him to render more services than he otherwise would have. The Committee considers that the performance of those specialist services would have resulted in longer consultations and hence in Dr Tisdall rendering fewer attendances for the day in question rather than more. 49. The Committee does not consider that Kyabram and its surrounding area was an area, in itself, of lower socio-economic standing, although it accepts that persons from disadvantaged backgrounds resided in the region and that such persons would have been attracted to a practice that bulk-billed to the extent that Dr Tisdall did. The Committee bases its belief on information sourced from ABS data from the 2001 Census, undertaken the year after the referral period, which shows that the median weekly income: • in Australia was $375; • in Victoria was $380; and • in the Goulburn region (incorporating Kyabram) was $347. 50. The Committee is satisfied that there were practitioners in the region who bulk-billed a significant proportion of their patients. Consequently, the Committee does not consider there was an absence of services for Dr Tisdall's disadvantaged patients on the days on which he rendered 80 or more services. 51. The Committee is not satisfied that Aboriginal, Turkish and Italian patients saw Dr Tisdall because of an absence of services for them. To the extent that Dr Tisdall's reference to those patients related to their need for bulk-billing, this issue has already been discussed above. To the extent it is based on language difficulties, the Committee notes that Dr Tisdall used an interpreter for his Turkish patients, a service available to all other doctors in the region, and that Dr Tisdall only spoke limited Italian. The Committee accepts that these patients saw Dr Tisdall because he showed empathy towards them and they felt comfortable with him. This, however, does not evidence an absence of services for those patients and the Committee finds that there were services available for these patients. CONCLUSION 52. By virtue of subsection 106KA(1) of the Act and regulation 10 of the Regulations, Dr Tisdall was deemed to have engaged in inappropriate practice on the 66 days in the referral period when he rendered 80 or more professional attendances. 53. Dr Tisdall has not satisfied the Committee that exceptional circumstances existed which affected the rendering of any of his services. [Emphasis added] 103 Under the scheme established by the combination of s 106KA(2) and reg 11(b) there are two questions presented for consideration. The first question is whether, having regard to the factors mentioned in reg 11(b)(i) and (ii), there was "an absence of other medical services" for Dr Tisdall's patients during the period under review. As Lander J pointed out in Oreb (at [231]), when discussing reg 11(b): The first inquiry is to determine objectively whether there is an absence of other medical services for the general practitioner's patients. 104 In that inquiry some meaning must be attributed to the concept of "absence" in order to test any suggestion of exceptionable circumstances and in order to weigh factual matters relied on by reference to the matters referred to in reg 11(b)(i) and (ii) - namely, the location of the practice and the characteristics of the practitioner's patients. I will return to that issue shortly. 105 The second question, which will arise in any case where exceptional circumstances have been found to exist, is whether such circumstances "affected the rendering or initiating of services" (s 106KA(2)). This question concerns whether a causal relationship has been established between the claimed exceptionable circumstances and the level at which services were provided on a particular day or days (see Oreb per Black CJ and Wilcox J at [10]). 106 The discussion in the Committee's decision which preceded the "conclusion" section of its decision addressed each of the two questions I have identified at some point. For example, in paragraph 48 of its decision, the Committee disposed of reliance by Dr Tisdall on an alleged lack of alternative psychiatric counselling and radiology services for Dr Tisdall's patients by first rejecting the premise that there was a relevant absence of alternative services for his patients in those respects and, secondly, by concluding that, in any event, any limits on alternative care in those areas did not "affect" the level of services Dr Tisdall provided. The second part of this conclusion addressed the question arising under s 106KA(2) while the first part addressed the test in reg 11(b). In respect of other matters, however, the Committee clearly confined itself to the question arising under reg 11(b) and did not go on to deal with the further question which might arise under s 106KA(2). Despite that, in paragraph 53 of the Committee's decision, the Committee appeared to conflate the two questions. 107 Except for the issue addressed in paragraph 48, the Committee's decision must be understood as confined to a discussion of the operation of reg 11(b). It follows that if there was a flaw in its conclusions on that question, and if the matters relied on by Dr Tisdall did constitute exceptional circumstances within the meaning of reg 11(b), there remained for consideration (except perhaps in the case of the matters specifically addressed in paragraph 48) the question of whether the established exceptional circumstances affected the level of services he provided. 108 There is no doubt that Dr Tisdall bore the onus of persuading the Committee that during the period in question there was "an absence" of services available to his patients, which affected his own provision of services (see Oreb per Lander J at [204]-[205], [208], [223]). The term "absence of other medical services" is not defined in the Act or Regulations and there are only a small number of relevant judicial comments about it. In Hatcher v Cohn (2004) 139 FCR 425 Kiefel J said (at [57]): 57 … Exceptional circumstances will exist so long as there are no other medical services available to the practitioner's patients … 109 However, this remark, which is clearly correct so far as it goes, was not directed at providing any exhaustive statement of the circumstances which might qualify for attention. Such a strict approach would be a very limited one. Her Honour's observation was made in the course of addressing other issues and was not specifically directed to the question now under consideration. 110 In Hatcher v Fry (2009) 183 FCR 1, Dowsett J dealt with the issue expressly, saying (at [16]): 16 In my view the regulation dictates a practical approach to the availability of other medical services. Within Australia it can hardly be said that anybody has no access to medical services. For a person in Roma there would always be the option of travelling to Brisbane for such services. However such a requirement might not be practicable simply because the requirement for such services might not justify the journey. In other cases that solution would not enable the patient to obtain the required services in a suitable timeframe. In others it would simply involve too much of a disruption to a patient's day-to-day life. On the other hand, it is conceivable that in a small country town having, say, two medical practitioners, both may be so busy that neither is, in a practical sense, able to fit in the other's patients other than by seeing more patients in the same timeframe. The question to be addressed is simply whether or not, if a patient could not have consulted the applicant within an appropriate timeframe, he or she would reasonably have been able to consult another medical practitioner. Such an enquiry involves consideration of the geographical locations of other practitioners, the hours during which they were available and their history of patient numbers. 111 Similarly, in the present case the primary judge said (at [19]): 19 In my view, the relevant sense of "absence" extends beyond a literal, physical absence of other medical services available to Dr Tisdall's patients. In the context of Reg 11, the term connotes a lack of readily or reasonably available alternative medical services for those patients, bearing in mind, as contemplated by sub-paragraphs (i) and (ii) of Reg 11(b), the location of the practice at issue, and the characteristics of the relevant patients. For there to be an absence in this sense, it is not sufficient that the alternative services be merely limited, as the Second Committee was prepared to find they had been. [Emphasis in original] 112 Counsel for Dr Tisdall accepted the primary judge's statement as a correct construction of reg 11(b). Counsel for the respondents was more circumspect, suggesting simply that it was a matter for the Full Court to decide. However, she made no submission suggesting that any other construction should be preferred. In my view, the approach taken by the trial judge is consistent with that taken by Dowsett J and is to be preferred to any strict, literal, meaning requiring that no services at all be available. Accordingly, the question for attention is whether alternative services would have been available to Dr Tisdall's patients within a reasonable time. 113 In my view, the Committee did not apparently adopt, nor did it address, a test framed in that way or to that effect. In particular, it said nothing to dispel the suggestion inherent in the evidence of a number of witnesses, that requiring a patient to wait for days to see another doctor, if Dr Tisdall was available promptly, was an unreasonable delay. There was a significant body of reasonably uniform evidence put before the Committee by Dr Tisdall to the effect that: there was a serious shortage of medical practitioners in and around Kyabram; doctors in the two other practices in Kyabram had limited their hours, their preparedness to see new patients and their preparedness to see Dr Tisdall's patients in particular; patients were required to wait days to see doctors other than Dr Tisdall; and Dr Tisdall was prepared to go out of his way to accommodate their circumstances. In addition, he was more prepared than other doctors in the area to bulk bill and to see patients from disadvantaged groups. The evidence was given, on oath or affirmation, by the following people: