Hill v Keith [2002] FCAFC 7

FEDERAL COURT OF AUSTRALIA

Hill v Keith [2002] FCAFC 7 Health Insurance Act 1973 (Cth) ss 3F, 82, 86, 93, 105(3), 106Q Hill v Holmes [1999] FCA 760 cited Health Insurance Commission v Grey [2002] FCAFC 130 followed Tankey v Adams (2000) 104 FCR 152 followed Transurban City Link Ltd v Allan (1999) 95 FCR 553 applied WILVENE LESLEY EVYLINE HILL v ALAN KEITH V 759 OF 2001 BEAUMONT, SUNDBERG and ALLSOP JJ 20 AUGUST 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 759 OF 2001

BETWEEN: WILVENE LESLEY EVYLINE HILL

APPELLANT

AND: ALAN KEITH

RESPONDENT

JUDGES: BEAUMONT, SUNDBERG and ALLSOP JJ

DATE OF ORDER: 20 AUGUST 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 759 OF 2001

BETWEEN: WILVENE LESLEY EVYLINE HILL

APPELLANT

AND: ALAN KEITH

RESPONDENT

JUDGES: BEAUMONT, SUNDBERG and ALLSOP JJ

DATE: 20 AUGUST 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 THE COURT: The appellant was at all relevant times a medical practitioner within the meaning of s 3 of the Health Insurance Act 1973 (Cth) ("the Act"). The respondent was the Determining Officer under s 106Q of the Act. On 14 August 1997 the Health Insurance Commission referred the conduct of the appellant to the Director of Professional Services Review under s 86 of the Act. On 12 February 1999 the Director established a Professional Services Committee under s 93 to consider whether the appellant had engaged in inappropriate practice as that expression is defined in s 82 of the Act. The Committee held hearings on 8 April and 18 May 1999. The appellant failed to provide responsive answers to questions. Neither she nor her family company, which asserted ownership of her medical records, complied with notices to produce them. As a result, on 19 May 1999 the Director disqualified the appellant from access to Medicare rebates and the Pharmaceutical Benefits Scheme pursuant to s 105(3). The appellant successfully appealed against the disqualification to this Court: Hill v Holmes [1999] FCA 760. 2 On 21 September 1999 the Committee held a further hearing, and on 24 February 2000 provided a draft report to the appellant for comment. The appellant responded in writing on 20 March 2000 and again on 23 March 2000. The Committee made a final report on 13 April 2000, finding that the appellant had engaged in inappropriate practice. On 15 November 2000 the Determining Officer made a draft determination and sent it to the appellant for response. The appellant made submissions to the Determining Officer on 28 November 2000. The Determining Officer made a final determination on 5 January 2001, directing that the appellant be reprimanded and counselled, and that she be fully disqualified from Medicare and the Pharmaceutical Benefits Scheme for a period of 18 months. On 7 February 2001 the appellant requested a review of the final determination. As a result the determination was stayed pending the decision of the Tribunal and any subsequent appeal. See s 106V. 3 The Professional Services Review Tribunal conducted its review on 5 and 6 April 2001. On 3 July the Tribunal handed down its decision affirming the final determination. On 27 July 2001 the appellant filed a notice of appeal with this Court. She subsequently amended the notice on a number of occasions, with the final version of the further amended notice of appeal dated 16 August 2002 abandoning all previous grounds and substituting as the sole ground what has been called the constitutional ground, which is expressed as follows: "The authority vested by Parts VAA and VA of the Health Insurance Act … in the Committee (under s 93), the Determining Officer (under s 106Q) and the Tribunal (under s 108) respectively was judicial power purportedly vested in a non judicial body contrary to s 71 of the Constitution and, as a result: (a) the provisions of ss 94 to 121 of the Act were invalid as an enactment beyond the Commonwealth's legislative power; and (b) any purported exercise of the powers thereby conferred by either the Committee, the Determining Officer or the Tribunal was invalid." 4 The legislative scheme in Parts VAA and VA of the Act is set out in detail in our reasons for decision in Health Insurance Commission v Grey [2002] FCAFC 130 ("Grey") and we will not repeat that exposition. The contention that the Committee, the Determining Officer and the Tribunal exercise the judicial power of the Commonwealth contrary to s 71 of the Constitution was rejected in Grey as it had been by an earlier Full Court decision in Tankey v Adams (2000) 104 FCR 152 ("Tankey"). Mr Shand QC, who appeared for the appellant, described this as a formidable body of authority, but said that the appellant "desires to pursue the appeal in order to preserve her rights". Before us the appellant deployed essentially the same arguments as those that had been advanced in Grey. They followed the form of the written submissions that had been filed, and since they are on the Court file and the submissions did not depart from them, we need not attempt to summarise those submissions. 5 In Grey the Court dealt in detail with the arguments comparable with those advanced by Mr Shand, rejecting all of them. We do not propose to repeat here what we have so recently written in Grey. We incorporate here by reference what we said there. The appellant has not convinced us that Grey and Tankey are clearly wrong, and accordingly we should follow those decisions. See Transurban City Link Ltd v Allan (1999) 95 FCR 553 at 560. It follows that the sole ground of appeal fails and the appeal must be dismissed with costs. 6 The order of the Court, therefore, is appeal dismissed with costs.