Kelly v Daniel [2004] FCAFC 14

FEDERAL COURT OF AUSTRALIA

Kelly v Daniel [2004] FCAFC 14 ADMINISTRATIVE LAW – medical practitioner – Professional Services Review Scheme under Pt VAA of the Health Insurance Act 1973 (Cth) – effect of 1999 amendments – investigative referral by Health Insurance Commission ("Commission") to Director of Professional Services Review ("Director") – adjudicative referral by Director to Professional Services Review Committee - whether investigative referral can be made in reliance upon s 106KA(1) alone – whether Commission failed to take into account relevant considerations before making investigative referral - referred services – length of referral period – whether Commission must refer to the Director particulars of a practitioner's services over a full two-year period - whether two year period is merely an outer limit of the period for which particulars of services must be referred to and investigated by the Director – whether adjudicative referral can be made in reliance upon s 106KA(1) alone – whether Director failed to take into account relevant considerations before making adjudicative referral – procedural fairness

Health Insurance Act 1973 (Cth), ss 86, 89, 91, 92 and 106KA Health Insurance (Professional Services Review) Regulations 1999, regs 10 and 11 Adams v Yung (1998) 83 FCR 248, referred to Pradhan v Holmes [2001] FCA 1560, (2001) 125 FCR 280, considered Health Insurance Commission v Grey [2002] FCAFC 130; (2002) 120 FCR 470, cited Kioa v West (1985) 159 CLR 550, cited Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355, referred to BERNARD RAYMOND KELLY (in his capacity as Acting Director of Professional Services Review), ALAN JOHN HOLMES (in his capacity as Director of Professional Services Review), LYNETTE EDWARDS (in her capacity as a member of Professional Services Review Committee No. 324), CELIA SKLOVSKY (in her capacity as a member of Professional Services Review Committee No. 324), JOHN TURNBULL (in his capacity as a member of Professional Services Review Committee No. 324) AND HEALTH INSURANCE COMMISSION v STEVEN DANIEL V657 OF 2003 MARSHALL, NORTH AND WEINBERG JJ 6 FEBRUARY 2004 MELBOURNE