CATCHWORDS HEALTH INSURANCE - reference to Medical Services Committee of Inquiry - whether reference authorised by Health Insurance Act - whether terms of reference cast onus of proof on practitioner - whether denial of natural justice by Committee - whether Medical Services Review Tribunal can admit evidence not before the Committee. Health Insurance Act 1973 - ss.79,80,82,94,104,.105,106,107, - 114,119 McDonald v. Director-General of Social Security (1984) 1 F.C.R. 354 ref'd to The King v. City of Westminister Assessment Committee: Ex parte Grosvenor House (Park Lane), Limited (1941) 1 K.B. 53 ref'd to MINISTER FOR HEALTH v RONALD LESLIE THOMSON No. G350 of 1984 CORAM: Fox, Beaumont and Wilcox JJs -/ . yo SYDNEY 14 JUNE 1985 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No.G350 of 1984 GENERAL DIVISION weve vn ON APPEAL from a single Judde of the Federal Court of Australia BETWEEN : MINISTER FOR HEALTH Applicant AND: RONALD LESLIE THOMSON Respondent MINUTE OF ORDER JUDGES MAKING ORDER: Fox, Beaumont and Wilcox JJ DATE OF QRDER: 14 June 1985 WHERE MADE: Sydney. THE COURT ORDERS THAT: 1. 2. Note: The appeal be allawed. The order of Sweeney J. be set aside. The order of the Medical Services Review Tribunal be set aside. The determination of the Minister for Health be affirmed. The respondent pay the appellant's costs of both the appeal and the application to Sweeney J. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN_THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G350 of 1984 wey rw GENERAL DIVISION ON APPEAL from a single Judae of the Federal Court of Australia BETWEEN : MINISTER FOR HEALTH Applicant AND: RONALD LESLIE THOMSON Respondent CORAM FOX, BEAUMONT and WILCOX JJ. DATE: 14 JUNE 1985 REASONS FOR JUDGMENT FOX J. This 1s an appeal from a decision of a Judge of this Court (Sweeney J.) who upheld a decision of the Medical Services Review Tribunal, which is constituted under the Health Insurance Act 1973 ("the Act"). The Tribunal had set aside a determination of the Minister for Health made on 25 Auaust,. 1982 affectina the respondent, Dr. Thomson. It is not disputed that the Minister's determination was in accordance with the recommendation of the Medical Services Committee of Inquirv for the State of New South Wales, that Committee also being constituted under the Health Insurance Act. In short, the Committee inquired into the question whether the respondent had given excessive professional services and found that he had. The Minister followed its recommendation that the practitioner be reprimanded, that he be counselled, and that he pay $6,630.55 to the Commonwealth. The decision of tHe Tribunal and of his Honour, in favour of the doctor, related to the reference by the Minister's deleaqate to the Committee upon which the latter carried out the inquiry. The reference was made in the following terms, omitting formal parts: "fo the Medical Services Committee of Inquiry far the State of New South Wales for inquiry into, and submission of a report and recommendations to the Minister of State for Health on. matters relevant to the operation or administration of the said Act and of the National Health Act 1953 (other than Part VII of that Act) which arise out of the rendering of professinxnal services in the State of New South Wales after 15 April 1977, namely, whether each professional service rendered to a patient by Dr. Ronald L. Thomson particulars of which are set out in Annexures marked "Al" ta "A30", being a service for which a medical benefit was claimed, was reasonablv necessary for the adequate medical care of the patient concerned". The particular part of the reference which has been under challenge is that which refers to each professional service and asks whether it "was reasonably necessary for the adequate medical care of the patient concerned". Section 82 of the Act provides that a Committee shall inquire into, and submit to the Minister 1uts report and recommendations on - "(b) anv other matter referred to the Committee by the Minister, being a matter that is relevant to the operation or administration of this Act or the National Health Act 1953 (other than Part VII of that Act) and arises out of or relates fo - (id... (ii) the rendering of a professional service on oF after 15 April 1977, or the initiation of a patholoav service on or after the date of commencement of this section, in the State for which the Committee is established." . Section 104 deals with the Report: "104. After completion by a Committee of a hearind under section 94 in relation to a matter, the Committee shall report to the Minister its opinion on the matter and, ina case where the Committee, in the report, expresses the opinion that a practitioner has rendered excessive services or that a practitioner has initiated excessive pathology services, the report shall identify the excessive services." The term "excessive services" is defined in para.79 (1B)(a) of the Act as follows: "(Ca) a reference to excessive services is a reference to professional services, being services in respect of which medical benefit has become or may become pavable. that are not reasonably necessarv for the adequate medical care of the patient concerned," The "Summary of the Committee's Recommendation" was as follows: "The Committee is of the unanimous opinion that, in respect of the 30 patients, whose patient episode schedules accompanied the reference and were admitted as Exhibit 1, certain of the services listed therein were excessive as they were not reasonably necessarv for the adequate medical care of the patient concerned." His Honour was of the view, as was the Tribunal, that the reference was not in the terms of the Statute and, as his Honour put it, cast a wrong onus on Dr. Thomson. A matter which his Honour did not find necessary to consider was a Notice of Contention relating to a findinag of the Tribunal that there had been no denial of natural justice by the Committee. A further matter, which was raised before the Tribunal by Dr. Thomson was that he wished to call "new evidence in respect of 11 patients". The Tribunal stated that this application was not pursued before it although it was the subiect of the Notice of Contention when the appeal to his Honour came on. Tt was not considered bv him. The application has been argued before us, and I shail return to it. There is no doubt that the reference ta the Committee was not in the terms of the Act. It 1s said that fhis is fatal in itself. but in my opinion this is not so. Tr 1s of course normally desirable that the statutorv terms be followed, but the consequences of a failure to follow them must depend upon a proper construction of the Act. The power of a Committee to inquire into a matter and the power of the Minister to refer it is contained, relevantly, in sub-para.82(b)(ii) which I have already set out. This refers to "anv other matter....relevant to the operation or administration of (the) Act" arisina out of or relating to "the renderina of a professional service....". Section 104 refers to a hearing "in relation to a matter" ('see also sub-secn.95(2)). The terms of the reference come within this lanquage. I am satisfied that the reference was one which enabled the Committee and the Minister to determine without unfairness to Dr. Thompson, -whether there had been "excessive services". The expression of the question in a positive form necessarily involved the Committee in examining the question whether there were "services....that are not reasonably necessarv for the adequate medical care of the patient concerned". The Committee could decide that a service was or was not reasonably necessary and in either case the Minister would be able to act on the report. It was also open to the Committee, as it would have been open to it had the reference been more strictly expressed, to sav that it could not. or did not, arrive at any conclusion. [In that event the inevitable consequence must have been that the Minister could not have found that there had been an "excessive service". His Honour was of the view, and it 1s the submission of the respondent in this case, that bv referring the matter in the terms in which it was referred, the Committee was led to apply the onus of proof wrongly. I do not think it useful, and it may be misleading, to talk in terms of onus of proof in relation to proceedings such as those with which the Committee was concerned. The Committee was one of inquiry, and it was inquiring into the services charged by one doctor. It was obliged to find the facts, so far as it could do so, concerning those services. There were not multiple parties to the inquiry. The process at the hearing was one in which documentarv evidence was formallv laid before it by its Secretary and thereafter Dr. Thomson gave avidence and was questioned at length bv members of the Committee. No other evidence was called. To talk of onus of proof, in its legal sense, is in my view inappropriate (cf. McDonald v. Director-General of Social Security (1984) 1 F.C.R. 354). The role of the Committee was an investiaative one. It would be true that the Minister had referred the matter because doubts or suspicions had been raised, and it is true that ina sense Dr. Thomson was there to defend himself. It 1s also true that mo action of a punitive or disciplinary nature could be taken against him unless it was shown that he had charged for "axcessive services". If the language of the definition of "excessive services" had been followed in the reference, he and the Committee would have been in exactiv the same position. The Committee had power to summons him to give evidence (s.96) and in the nature of things he would have been desirous of establishing that the services were reasonably necessary. It is not reasonable to suppose that the use of the neaative expression would have led him to avoid, or try to avoid, the giving of evidence any more than the use of the positive expression did. It is arqued that the Committee was misled bv the form in which the terms were expressed and that this is evidenced by some of the questions which were put to Dr. Thomson. T should Sav that under sec.94 the Committee only proceeds to conduct an inquiry into a matter referred by the Minister if it appears to the Committee that "a practitioner mav have rendered excessive services" (para.(c)). The Committee was a standing Committee and it would be suprising if it was not familiar with the lanquage of the Act and what was required of 1t. This is evidenced bv the Summary 1t gave, which I have already set out and in which, usina the statutory language, it said "certain of the services listed therein were excessive as they were not reasonably necessary for the adequate medical care of the patient concerned." If the Committee had attempted to ainquire into the question of whether ""services.,..are not reasonably necessary...." it must as a practical matter have proceeded bv first asking whether they were reasonablv necessarv,. I do not accept that the Committee was misled. The next matter raised was whether there had beena denial of natural Justice. The particular aspect relied upon is that the Committee had not made known to Dr. Thomson in the course of the inquiry the views it held tentativelv or otherwise about the number of services appropriate in particular situations. It is not disputed that the Committee is one of experts. The Act requires that it comprise 5 medical practitioners. It seems reasonably clear that the intention of the Act is that the Committee sit as a Committee of the veers of the medical practitioner whose conduct is in question and exercise its, ow judament in relation to the evidence before it. using its own collective knowledge in its evaluation. There are many authorities which hold that such a Committee can act on its own views, and can do so without disclosing those views to a person appearing before 14, in the role of a defendant or otherwise (See The King v. Citv of Westminister Assessment Committee; Ex parte Grosvenor House (Park Lane), Limited (1941) 1 K.B. 53; Crofton Investment Trust Ltd. v. Greater London Rent Assessment Committee & Anor. (1967) 2 Q.B. 955; Kalil v. Bray (1977) 1N.S.W.L.R. 256; Maloney v. New South Wales National Coursing Association Ltd. (1978) 1 N.S.W.L.R. 161). The authorities 1n relation to other leaislation are certainly not conclusive in relation to the operation of the 'o present Act, but it seems to me that ona correct understanding of its operation they are, in their general tenor, applicable. As a practical consideration it may well be that the members of the Committee, during Dr. Thomson's appearance before it, may not have formed anv view about the general limits or standards to be applied to determine what was excessive. In a particular case the Committee would have to sit again to apprise the particular medical practitioner of the views it had alreadv formed. In the present case, in so far as limits or standards were ultimately mentioned in its report, these were in fact far removed from the number of services rendered, and the standards could fairly be understood as providing wide margins, so that on any reasonable view Dr. Thomson's services would be excessive. I do not think there could have been any doubt in Dr. Thomson's mind that the Committee before whom he was appearing would form its own views and that he was endeavouring to show it that he had not over-serviced. One matter that is particularly pointed to by counsel for the Respondent relates to the number of times in which the Committee in its report referred in relation to a particular condition or conditions that one service a month was sufficient. It is suagested that on this matter thev were applving a fixed rule and that Dr. Thomson should have been made aware of it. It is true that the Committee used this vardstick on quite a number of occasions, alwavs in the sense that no more than one service oo me See =---. eee He eee -- . - 10. was necessary in a given period, but I do not think a conclusion can properly be drawn that it had a fixed and unalterable standard in mind. It is also true that a question was not put to Dr. Thomson at any stage as to whether he considered that more than one service per month would be excessive. If the Committee, or members of it, had held a view alona these lines when Dr. Thomson was before it. it probably would have been fairer and more sensible to have sought his views. Dr. Thomson would have been given information about the thinking of the Committee. or some member or members of it, and an opportunity to meet what was in his or their minds. On reflection, this does not seem to add up to a denial of natural iustice, for several reasons. One is the quiding consideration which I have already mentioned, namely that the Committee was one of experts, which would be expected to form its own conclusions and establish its own views as to what limits were appropriate before services became excessive. The second is also a matter which I have touched on namely that 1t is not at all apparent in these proceedings that the views later expressed about limits were then in the minds of the Committee, or any of its members, and Ido not think that a denial of natural justice was involved in not giving Dr. Thomson an opportunity to respond once the Committee had reached its conclusions. The third matter is that it may well have been in the mind of the Committee that no reasonable adjustment to the limits expressed could possibly account for the number of 11. services rendered. A limit possibly had to be stated in each case, but it was in fact very far removed from the number of services rendered. I am therefore of the opinion that the case of the appellant succeeds on these two principal matters. There is then the new evidence. On this aspect the Tribunal stated as follows: "The first two grounds stated in the practitioner's request for review concerned the admissibility of new evidence, but an application for the admissibility of such evidence was not pursued before the Tribunal", We were told that the Tribunal had in fact expressed the view that it could not entertain new evidence and that this matter had been raised before Sweeney J. His Honour did not of course have to consider the matter having in mind the conclusion he reached. As there may have been some confusion, I will state my view that the Tribunal did not in fact have power to admit new evidence. Provisions relating to references to Review Tribunals are to be found in Part VA of the Act commencing at sec.107. Section 114 Ceals with a request for review and sec.119 deals with the proceedings on review. Paragraph 119(1)(a) says that the Tribunal - "shall consider the matter to which the determination relates having regard to the grounds set out in the request, the documents forwarded hv the Minister with the request and any addresses made to the Tribunal during the proceedings on the review". 12. Its powers enable it to affirm, set aside or vary a determination, and in one alternative, to take some other action, but no reference is made to the acceptance of new evidence. On the contrarv the clear implication is that it is not intended to do so. It is of course possible that 1f there 1s fresh evidence of any substance, it can be brought into consideration in the administrative machinery. one way or another. Iam of the view, therefore, that the appeal before us should be allowed with costs, that the application to his Honour should be allowed with costs, that the decision of the Tribunal should be set aside and that in lieu thereof the application to it should be dismissed. a ar re ah: Ok Kins IN THE FEDERAL CoURT OF AUSTRALTA NEW SOUTH WALES REGISTRY No. G350 of 1984 ee GENERAL DIVISION ON APPEAL from a judze of the Pederal Court cof Austrailia BETWEEN : MINTSTER FOR HEALTH Appellant AND: RONALD LESLIE THOMSON Respondent CORAM: Pox. Beaumont and Wilcox. Jd. DATED; 14 June 1985. REASONS FOR JUDGMENT BEAUMONT. J.: The Minister of State for Hsalth appeals from an order of Sweeney, J. dismissing an appeal froma decision of the Medical Services Review Tribunal 'the Tribunal"). That decision set aside a determination made rv the Minister on 25 August 1382 pursuant to 3.16.1: of the Health Insurance Act, 1973 ("the Act") in accordance witn certain recommendations of the Medical Services Committee of Inquiey for the State of New South Wales ("the Committee"). The recommendations challenged in the proceedings were that the respondent. Or. Ronald Lesile Thomson. be reprimanded ta , and counselled and that he repay to the Commonwealth the sum of $6,630.56, paid to him as medical benefits. which in the opinion of the Committee were "excessive services" within the meaning of the Act (see (1984) 3 F.C.R. 147). On 1 December 1981, the Minister. by his delegate, purportedly acting pursuant to 3.82(b) of the Act, referred to the Committes "for inquiry into, and submission of a report and recommendations to the Minister ... on. matters relevant to the operation or administration of the ... Act »e Which arise out of the rendering of professional services ... mamely, whether each professional service rendered toa patient by Dr. Ronald L. Thomson being a service for which a medical benefit was claimed. was reasonably necessary for the adequate medical care of the patient concenerd". Particulars of the services in question were annexed in the form of analysis profiles of services rendered to 30 patients involving 1,756 services in the annual period 1 January 1980 to 31 December 1980. Before continuing with the history of the matter, reference should be made to the statutory framework 1n which the reference was made since it is the respondent's primary argument, one of statutory construction only, that the reference was simply beyond the Minister's powers under 5.82/bD). 3. By s.80(1) of the Act. the Minister shall establish for each State a Committee to be called a Medical Services Committee of Inquiry for that State. Each Committee shall consist of five medical practitioners (s.80(2)). A Committee shall inquire into, and submit to the Minister its report and recommendations on any "matter that is relevant to the operation or administration of the Act ... and arises out of or relates to... the rendering of a professional service" (3.82(b)). Where. after consideration of a matter referred to a Committee by the Minister and of any documents that accompany the reference supplied by the Minister. it appears to the Committee that a practitioner may have rendered "excessive services". the Committee shall conduct a hearing into the matter (s.94(c))}. The Committee shall give notice of the proposed hearing to the practitioner (3.95(1)) and the notice shall give particulars of the matter to which the hearing relates (s.95(2)). A practitioner may attend the hearing in person or by his representative (3.96A(2)) and he shall be given the opportunity to give evidence and to call witnesses, to examine other witnesses appearing at the hearing and to address the Committee (s.96B). The rules of evidence do not apply in relation to a hearing and the procedure for conducting the hearing is, subject to the Act and the regulations, within the discretion of the member presiding (3.97(3)). (These latter provisions are more pertinent to the respondent's secondary contention. to be mentioned later, namely, that the Committee denied him natural justice.) After completion of a hearing under 3.34. the Committee shall report to the Minister its opinion on the matter and, ina case where the Committee. in the report, expresses the opinion that a practitioner has rendered "excessive services", being services that "are not reasonably necessary for the adequate medical care of the patient" (3.79(1B)(a)), the report shall identify those services (3.104). Where a Committee has. in a report under 5.104, expressed the opinion that a practitioner has rendered excessive services and a medical benefit has been paid in respect thereof, the Committee may, 1n the report, make one or more of the following recommendations: that the practitioner be reprimanded: that he or she be counselled: and that the amount of any medical benefit paid be payable to the Commonwealth (s.105(2)). Where a Committee makes a recommendation in accordance with s.105(2), the Minister may make a determination. in writing, in accordance with that recommendation (s.106(1)). To revert to the history of the matter. by letter dated 16 December 1981. the members of the Committee wrote to Dr. Thomson and informed him of the Minister''s reference. The Committee indicated that. after considering the matter, it proposed to hold a hearing intc the matters referred to it. Dr. Thomson was invited to forward to the Committee details of the clinical conditions of the patients concerned and their treatment. In particular, details of episodes of any acute illness were sought. Dr. Thomson was asked to produce at the hearing any original clinical records, particularly any pathology reports, x-ray reports and specialist reports held. Dr. Thomson replied to the Committee by letter dated 5 January 1982. saying: I have given consideration to your request for information concerning clinical conditions, treatment given and particular reference if possible to episodes of acute illnesses in the light of the short time remaining prior to the hearing. It seems to me that in order to provide all the above in comprehensive form for the number of patients concerned. the resultant report would be so voluminous and complex and would absorb so much time in its provision that I doubt if a response could be made in a&@ preliminary fashion as requested in time for 1t to have any relevance to the proposed hearing. In order to assist the Committee as much as possible in the light of the above, I have decided to list principal diagnoses in respect of patients but would like to indicate that, in the limited time available. most of this has been done without the benefit of reference to a wide yari1ety of records and obviousl7 intercurrent conditisns unrelated ta principal patterns would not have been included. I would be happy of course to speak to the balance of the requesta in pergon at the appropriate time. At the commencement of the hearing, which beaan on 18 January 1380, the Committee's secretary tendered the documents annexed to the Minister s ref cD om rence. Dr. Thomson 3 letter dated 5S January 1982 and a report from the National Health Services Counsellor dated S December 1573. Or. Thomgon gave avidence on oath. He was questioned at length about the patients concernea by mempers of the Committee at that hearing and at an adjcurned hearing hela on & April 1982. On 16 July 1382. the Committee reported to the Minister. For the detailed r@asons 1t then gave. the Committee summarised its recommendations as rfslloaws: "Summary of the Committee's Becommenaation The Committee is of the unanimous opinion that. in respect of the 30 patients. whase patient episode achedules accompanied the reference and were admitted as Exhinit 1. certain of the services iisted therein were excessive as they were not reasonably necessary for the adequate medical care of the patient concerned. The services. which were in the opinion of the Committee. excessive services. have been identified by the Committee by placing a circle around each of such services in the patient episode schedules which comprise Exhibit 1. Details of such services are also get out on pages 7 to 44 of this report. The following table highlights the benefit adjustments effected by the Committee's recommendation as set out above. The Committee recommends that the amount of medical benefit as set out hereunder and which was paid in respect of each of the services which. in the opinion of the Committee, were excessive. be paid by Dr. Thomson." As has been said, on 25 August 198 - in accordance with the Committee's recommendations, the Minister purported to make a determination pursuant to s.106 in respect of the "excessive services" rendered by Dr. Thomson. Dr. Thomson wrote to the Minister on 27 September 1982 requesting a review of the determination by the Tribunal. (Part VA of the Act provides for such a review. By 3.119(1), the Tribunal is empowered, ona review, to affirm or set aside the determination and may, if appropriate, also make any other determination that the Minister is empowered to make.) In his letter requesting review, Dr. Thomson said: Grounds upon which the request ia made are as under:- 1. New Evidence in respect of 11 patients. 2. Distinct possibility of new evidence (other than inl supra) in respect of other patients under consideration. 3. Inappropriate constitution of the Medical Services Committee of Enquiry (hereinafter referred to ag 'The Committee'). 4, Failure of the Committee to properly take aiunto account the proper diagnostic picture of many of the patients under review. 5. Failure (or refusal) of the Committee to allow attendances on patients, the only logical explanation of which to any reasonable medical practitioner would be that such attendances form part of a pattern of attendances for a particular medical purpose for which evidence was demonstrated. 6. Manifest factual errors in the Committee's report." (This letter is relevant to the third submission made by the respondent, to be dealt with later. that the Tribunal erred in law by holding that it had no power to review the Minister's determination on the ground that the respondent wished to adduce fresh evidence.) The Tribunal thereafter embarked upon a review of the matter and by an order of review dated 26 January 1984, it set aside the Minister's determination. The Tribunal concluded that the determination was vitiated by the language employed in the initial reference to the Committee. In the opinion of the Tribunal. the Committee was asked the wrong question: instead of being asked whether the services were "not reasonably necessary for the adequate medical care of the patient concerned", thus following the definition of 3.79(1B)(a), the Committee was asked the different question whether the services were "reasonably necessary" for that purpose. The Tribunal thought that there was a real distinction, at least 1n terms of onus of proof, between the two formulations and the Minister's departure from the statutory formula was. the Tribunal held. fatal. From this order, the Minister appealed to the Court pursuant to 3.124A of the Act. As has been said. Sweeney, J. dismissed the appeal, essentially for the reaons advanced by the Tribunal. saying ((1984) 3 F.C.R. 147 at p.149): "The difference between a reference stated in affirmative terms and one stated in neqative terms 1s no mere quibble. The Legislature has treated the question whether a medical service was not reasonably necessary for the adequate medical care of the patient concerned az a matter relevant to the operation or administration of the Act. A medical service which was reasonably necessary in thiz sense i383 not relevant. Moreover, a 10. negative answer to the question, was a service reasonably necessary, is not equivalent to an affirmative answer to the question, was a service not reasonably necessary. So to hold would be to assume that all professional services examined would necessarily, and without doubt, fall into one category or the other, and to ignore considerations of the burden of proof." In my opinion, the reference was within power. As expressed, the subject matter of the reference was the question whether the particular services rendered were reasonably necessary for the adequate medical care of the patients concerned. It is clear. in my view, that this is a "matter" which is "relevant to operation or administration of the Act" within the meaning of 3.82(b). In The Queen v. Thomas; Ex parte Brodsky (1963) 109 C.L.R. 434, a1t was held that the word "matter" ina similar provision was used as a comprehensive term to refer to any subject matter of inquiry, The only point of contention is whether the nominated subject matter is "relevant" in the sense specified. That is, to adopt the dictionary meaning of "relevant", can it be said that such an inquiry bears upon or is connected with the matter in hand. namely, the notion of "excessive services" as defirscd in 3.79(1B)ia)? In my view, the necessary nexus does exist between such a subject matter and that statutory definition. For this purpose, I donot think that it is of any consequence whether the question referred is framed in the positive ll. terms that were in fact employed or in the negative terms contended for by the respondent: either formulation would convey to the Committee the appropriate impression that it was to inquire into the question whether "excessive services". as defined in the statute, were involved. In short, in my view, 1t was open to the Minister to frame his reference to the Committee in any language which was fairly capable of the construction that the subject matter of the reference was services deemed to be eacessive by the definition in 3.79(1B)(a). It could hardly be suggested that 1t was not open to the Minister to paraphrase the provisions of that definition when indicating his terms of reference. In other words. I do not think that a literal reproduction of the terms of the statutory definition is essential to the validity of a reference under $.82(b): it would suffice if the substantial effect of the provision were stated (see Samuel Montagu & Co. Ltd. v. Swiss Air Transport Co. Ltd. £19661 2 Q.B. 306; Nichol v. Thompson (1976) 12 A.L.R. 528; Pearce, Statutory Interpretation in Australia, 2nd ed., (1981) p.174). In the present case. in any event, there is rmplicit, if not explicit, in the question referred to the Committee the negative formulation of the statutory definition of "excessive services". To inquire into the question whether the service3 were reagonably necessary must 12. also involve asking whether the services were not reasonably necessary. It may be accepted that the positive formulation of the terms of reference adopted by the Minister maz convey a particular impression about the onus of proof in the inquiry. I will return to that aspect later. The point now under consideration is confined to the competence of the Minister to refer the matter in the terms he used. That is a question of statutory construction and depends solely upon the existence of an appropriate nexus between the inquiry called for and the notion of "excessive services" as defined in the Act. In my opinion, there is at least a sufficient connection between the question posed by the Minister and the statutory concept of "excessive services" to warrant the conclusion that the subject matter of the Committee's inquiry was a matter relevant to the operation or administration of the Act. Even if I were wrong in this view, 1t would not follow that the positive formulation of the question for the Committee was fatal to the validity of the reference. In my opinion, the present case would simply be one for the application of the maxim "falsa demonstratio non nocet" (see Winagadee Shire Council v. Willis (1910) 1l1cC.L.R. 123 at pp.144, 148). 13. The respondent further submits that the reference was vitiated by creating a false impression that the onus of proot lay upon the respondent to establish that he had not engaged in excessive servicing. That impression is said to be conveyed by the positive formulation employed in the reference. Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area (see McDonald v. Director-General of Social Security (1984) 1 F.C.R. 354). However. where, as here, a breach of discipline. or something analogous is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in Principles of Evidence and Administrative Tribunals, published in Campbell and Waller (ed.) Well and Truly Tried, Monash Studies in Law (1982) at p.53: "There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If. for example, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met. the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly where the issue to be decided is whether circumstances have 14. arisen which would justify cancellation or suspension of a licence. or a finding that a breach of discipline had occurred. the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so notwithstanding that the accuser was also. of necessity, the person or body having authority to adjudicate." But, even if it be accepted that the Miniater bears the onus of proof in the reference to the Committee. it does not follow that the terms of the reference were misleading in this respect. In my opinion, the reference is fairly capable of being construed as an attempt to paraphrase the statutory definition of "excessive services". That paraphrasing was, I think, adequate. There is no mention. in terms, of any onus of proof. There 13 no reason to suppose that the lanquage could convey any impression other than a direction to the Committee inquiring into the question whether excessive servicing, as statutorily defined, had occurred. So read, there can be no suggestion that the reference has anything to say, expressly or by implication, on the onus of proof. I should add that there can be no room for any suggestion that the Committee was itself under any misapprehension as to the onus of proof. It is true that it referred. from time to time, to the absence of clinical records. But the context in which those observations were made suaqgests no more than that this was a material consideration in the Committee's deliberations. as of course 1t was. In my view. the reference wag within power and otherwise valid. The regpondent further arques tnat the Committee denied him natural justice by using its own experience and szpertize to datermine an appropriate frequency or visitation. Although the Committee acknowledagea that it aid ot ul use it2 own eéxperlence and expertise in coming to 12 conclusions. it does net follow that any breach of the rules of natural justice thereby occurred. By virtue of the provisions of $.80(2). only medical practitioners may 3e appointed to the Committees and it is only reasonable to assume that the respondent was at all material times on notice that the members of the Committee would be likeiy to make use of their own expertise and experience in such matters (3ee Rex Vv. City oF Westminster Assessment Committee; m parte Grosvenor House iPark Lane) Limitea C1941] 1 K.B. 53 at p. foxy ; cr. Keller v. Drainage Tribunal and Montaque £1980] V.h. 449 at 6.453). The submission of the respondent 13 tantamount to saying that the rules of natural justice insiat that the Committee should not proceed to a conclusicn until it had first showm a draft or its 16. report to the respondent and invited his comments thereon. In my opinion. the application of notions of fairness in the present circumstances does not require auch an extreme etep \aee National Companies and Yecurities Commission v. The News Corporation Limited (1984) S58 A.L.J.R. 308), Pinally, the respondent argues that the Tribunal Teli into error in holding that it had no power to review on the fresh evidence ground. Since I am of the view that the Tribunal''s order on review should be set aside for other reagons. the scope of the Tribunai's jurisdiction on appeal is no longer material. if it were still a live issue. the power of the Tribunal to receive fresh evidence 1s. at least. a doubtful matter. By 3.417(1)(ai, the person requesting a review ss given a right to appear or be represented before the Tribunal: and he OF his representative is qiven the ocpportunity ts address 1¢t (3.117(1)(b)). No mention is made in the Act or the calling or evidence before tne Tribunal although s.118(2) provides that the procedure of a Tribunal is within the aiscretion of the Fresident. Since 3.119(2) deems the decision of a Tribunal on review to be a determination of a Minister. 1t is difficult to gee any scope for the admission of fresh evidence. (?) GU QQ @ M « fu « ~ Log iv l'. although it would. of course. be open to the party concerned to request the Minister to reconsider his determination in the light of the fresh evidence. It is unnecessary to pursue these matters since, even if the Tribunal possessed the power to admit fresh evidence. there are strong reasons why the discretion to admit should not be exercised in favour of the respondent: the matter was raised very late: there is no suggestion that this evidence was not previously avatlaple; and the correspondence cited shows that at any early stage the respondent was fairly warned of the precise allegations to be levellea at him. In the result. I would allow the appeal with costs. set aside the orders of Sweeney, J. and of the Tribunal and. in lieu thereor., order that the Minister's determination be affirmed and that the respondent pay the costs of the Minister of the proceedings before Sweeney, J.. The respondent should receive a certificate under the Federal Froceedinas (Costs) Act, 1981 ain respect of the costs incurred by him in relation to this appeai. wy uict this end the preceding @3 are a irve coxy of the reasons fo? "ent Parc.a ef The Honourable jucice Bs aor nt. Associate Dated \A— Fre IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G.350 of 1984 weer GENERAL DIVISTON ON APPEAL from a judge of the Federal Court of Australia BETWEEN : MINISTER FOR HEALTH Appellant AND: RONALD LESLIE THOMSON Respondent CORAM: FOX, BEAUMONT and WILCOX JJ. DATE: 14 JUNE 1985 PLACE: SYDNEY REASONS FOR JUDGMENT WILCOX J.: I have had the advantage of reading in draft form the judgments of Fox and Beaumont JJ... I agree with their conclusions and their reasons therefor. I wish to add only two comments. My first comment arises out of the fact that -- in common with the other members of the Court -- I respectfully differ from the view taken by the Medical Services Review Tribunal and by Sweeney J. in relation to the form of the reference given by the Minister to the Committee. Under those circumstances it is appropriate that I state briefly in my own words the primary reason for my conclusion. The reference given by the Minister required the Committee to inquire into, and report upon, the question "whether such professional services rendered ... was (sic) reasonably necessary". In relation to each of those services there were three answers which, as a matter of logical possibility, the Committee might have returned: "Yes, the service was reasonably necessary", "No, the service was not reasonably necessary" and "We don't know. Upon the information available to us we cannot reach a conclusion either way". If the second, negative, answer had been given, the Committee would be in the position of reporting that the services were not reasonably necessary, that is excessive: see s.79(1B) of the Health Insurance Act. The result would constitute a case where, to use the language of s.104, "the Committee, in the report, expresses the opinion that a practitioner has rendered excessive services". In such a report the Committee may recommend disciplinary or recovery action by the Minister (s.105(2)) and thereupon the Minister may make a determinaion in accordance with that recommendation (s.106). The question which has been argued, in respect of the terms of the reference, is whether it referred to the Committee "a matter that is relevant to the operation or administration of the Act". A question so framed that, if it is answered in a certain way, there will be fulfilled a condition precedent to disciplinary and/or recovery action pursuant to the terms of the Act answers this description. It does not matter that, if answered in a different way, no such action would be available. This possibility must always exist. Had the Minister asked whether the services were "not reasonably necessary" or "were excessive" the answer, in relation to any particular service, might have been in the negative or inconclusive, in which case no action relevant to the operation or administration of the Act could have been taken. That possibility would not have prevented the question being a matter relevant to the operation or administration of the Act. The test is whether the subject matter of the inquiry is material to the operation or administration of the Act; mot whether the content of the report of the inquiry will necessarily lead to administrative action under the Act. Both the Tribunal and the learned primary judge were strongly influenced to their conclusion by the apprehension that a reference in the present form would require the Committee to report adversely to the respondent in relation to any services about which it was not able to reach a conclusion, one way or the other, upon the question of reasonable necessity. I think that this apprehension was unfounded. The Committee was required to conduct an inquiry in relation to particular, specified, services. It was required to report its finding in relation to each service. In any case in which it was not able to reach a conclusion it was required to say so. Only if, and to the extent that, the Committee positively found any particular service or services to be "not reasonably necessary" was it entitled to recommend disciplinary or recovery action under s.104. The Committee understood this and, in relation to each of the services which it recommended to be disallowed or made the subject of reprimand or counselling, it did so on the basis of such service "not being reasonably necessary for the adequate medical care of this patient". The second matter to which I wish to refer is the submission by the respondent that the Tribunal erred in failing to permit him to adduce fresh evidence. Like Beaumont J. I think that there were in this case substantial discretionary reasons against the admission of such evidence. However, I share the view of Fox J. that the Tribunal did not have power to admit new evidence. A comparison of those provisions of the Health Insurance Act which apply to the proceedings of the various State Committees with those governing the operation of the Tribunals is eloquent. The Act makes detailed provision in relation to the obtaining of 5. information by Committees, including by evidence on cath or affirmation: see ss. 92, 93, 96, 96A, 96B, 97, 98, 99, 100,— 101 and 102. There are no similar provisions in relation to Tribunals. Consideration of the terms of ss. 103 and 121 reinforces the impression that it was not intended by the Parliament that the Tribunals would receive evidence. Section 103(1) gives to a member of a Committee, in the performance of his duties, the same protection and immunity as that of a Justice of the High Court. Section 121(1) provides in identical terms in relation to a member of a Tribunal. Section 103(2) gives to a person appearing at a hearing before the Committee on behalf of another person the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court. Section 121(2) provides in identical terms in relation to a person representing another person before a Tribunal. Section 103(3) gives to a person appearing at a hearing before the Committee as a witness the same protection, and subjects the person to the same liabilities, as a witness in proceedings in the High Court. There is no provision -- whether in similar terms or otherwise -- in s.121 or elsewhere regarding the protection and liabilities of witnesses in proceedings before the Tribunal. "Section 115 requires the Minister to forward to the Tribunal, upon receipt by him of a request for review, a copy of his original reference to the Committee. a transcript of 6. the proceedings at the hearing conducted upon that reference by the Committee, the report of the Committee, any documents sent to the Minister with that report and the Minister's determination. The role of the Tribunal is to consider the matter to which the determination relates having regard to the grounds set out in the request, the documents forwarded by the Minister "and any addresses made to the Tribunal during the proceedings on the review": (s.119(1)(a)). Significantly, there is no reference to further evidencé. The Tribunal's task is to review the case by reference only to the existing material, and in the light of any addresses made to it on that material. I agree with the orders proposed by Fox J.. I certify that this and the five (5) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Wilcox. Associate: Aasaé Wa Mane Date: 14 June 1985 Counsel for the applicant: Mr T Simos Q.C. with Mr L Katz Solicitors for the applicant: Australian Government Solicitor (Mr M E Cassin) Counsel for the respondent: Mr T E F Hughes Q.C. with Mr J Simpkins