Administrative Law.- Appeal from Administrative Appeals Tribunal - claim under Isolated Patients Travel and Accommodation Assistance Scheme (IPTAAS). Administrative Appeals Tribunal Act 1975 sub-s.44(1) National Health Act 1953 sub-ss.13(1) and 17(5)(b)(11) No. WA G54 of 1986 ON APPEAL from the General Administrative Division of the Administrative Appeals Tribunal constituted by Mr J.0. Ballard SECRETARY TO THE DEPARTMENT OF HEALTH v. KATHRYN JUNE RYAN No. WA G54 of 1986 MUIRHEAD J. PERTH 1 August 1986 noe ee wee ee ne ee ee en eee vricore , oe poer wee, Seek mamieamcpenah Radial mee en ee - ie eetr ree e oA 4 a , - we roe . IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G54 of 1986 we we ON APPEAL from the General Administrative Division of the Administrative Appeals Tribunal constituted by Mr J.0. Ballard BETWEEN: SECRETARY TO THE DEPARTMENT OF HEALTH Appellant and KATHRYN JUNE RYAN Respondent MINUTE OF ORDER JUDGE MAKING ORDER: MUIRHEAD J. DATE OF ORDER: 1 AUGUST 1986 WHERE MADE: Perth THE COURT ORDERS THAT: 1. 2. Appeal is dismissed. The decision of the Administrative Appeals Tribunal the subject of the appeal be affirmed. igre ee eer rs femmemban 3. Respondent's costs (if any) to be paid by appellant. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. ete em re eee oe "! we te ML "wae a! ee BO re et ene a Ee rein wea er IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G54 of 1986 wee wm ON APPEAL from the General Administrative Division of the Administrative Appeals Tribunal constituted by Mr J.0. Ballard BETWEEN: SECRETARY TO THE DEPARTMENT OF HEALTH Appellant and KATHRYN JUNE RYAN Respondent CORAM: MUIRHEAD J. 1 August 1986 REASONS FOR JUDGMENT This is an appeal by the Secretary to the Department of Health from a decision of the Administrative Appeals Tribunal made on the 2nd day of May 1986. Pursuant to sub-s.44(1) of the Administrative Appeals Tribunal Act 1975 the appeal is restricted to questions of law. On 23 April 1985 Mrs. Kathryn Ryan applied for Isolated Patients Travel and Accommodation Assistance Scheme (IPTAAS) benefits in respect of a plane journey from Carnarvon, where she had been under medical surveillance, to her home in Exmouth. The ee tome re oe w cost of the fare approximated $80. Mrs Ryan was denied this benefit. She then appealed to the Secretary to the Department of Health who confirmed the decision that IPTAAS benefits were not payable. Mrs. Ryan then made application for review to the Administrative Appeals Tribunal. The Tribunal set aside the decision under review. The factual background is of importance. In April 1985 the applicant attended the hospital at Exmouth suffering from acute stomach pains. A cyclone hovered in the vicinity. The general practitioner who she consulted was concerned that her pains were symptomatic of a condition which could require early surgery, 6.9. an appendectomy. Very sensibly, being concerned that this may require the services of a specialist surgeon he decided her safety dictated evacuation to Carnarvon where such a surgeon was available at the Carnarvon hospital. A plane operated by the Royal Flying Doctor Service was in Exmouth and she flew in this to Carnarvon. Delay would have been unwise as had the cyclone struck there was a very real possibility that air and other services would have been disrupted. Clearly it was the intent of Dr. Cullen, the referring doctor in Exmouth, to refer her to the care of the specialist surgeon should the need arise. On arrival at Carnarvon she- saw a general practitioner Dr. Cooper of the Carnarvon Hospital. Obviously it was anticipated that if surgery was required, he, the doctor on the spot, would make the appropriate arrangements and pon ee nomen ~~, - Bt ene erie ew ore tone met me a final reference to the specialist surgeon who also practiced at the hospital. Fortunately her condition, and I assume the cyclone threat, abated and she returned to her home on an Ansett flight. Subsequently under IPTAAS, application was made for the cost of that return journey, the sum of $80. The 'Application for Benefit' form was in part completed by Dr. Cullen. It was obviously completed in haste in the manner of medical men who today must be amongst the greatest 'form fillers' in our society. In nominating "the type of specialist" he referred to 'Carnarvon Hospital'. In the succeeding section he referred to the 'nominated specialist' as Dr. Cooper of the Carnarvon Hospital - the general practitioner who would assume her care and refer her if need be to the specialist surgeon. He certified that Mrs. Ryan had not previously been seen by "this specialist" and completed the reasons for the reference as "acute abdominal pain - appendicitis". If Dr. Cullen had referred her directly to the specialist surgeon there would have been no problems. It was the fact that the "nominated specialist" was a general practitioner upon which the department basically denied her the benefit. He was not, it is said 'a specialist' and the travel allowance is not payable for a journey to or from another general practitioner. I must say bearing in mind the purpose of IPTAAS, that is to say to assist- people to overcome the problems and disadvantages of isolation, it was a narrow construction. Fas acelinietes Dee . 7% Sadalbalalet ieateeeiee tie tat eeeran However she was denied the travel benefit due to the interpretation of sub-s.13(1) of the National Health Act 1953 which provides inter alia: "(1) Where a person who resides inan isolated area- (a) has been referred by a medical practitioner to a specialist or a consultant physician; 3 >) a specialist, being an ophthalmologist; or (CC) we wwawee for the rendering to the person of a _ professional service by the specialist or consultant physician in the practice of his speciality, an application, in accordance with a form approved by the Minister, may be made to the Secretary by, or on behalf of, the person for the approval by the Secretary of the person as an approved patient in relation to the rendering of the professional service." The National Health Act 1953 defines an 'approved patient' as a patient approved by the Secretary under s.13". Section 16 provides "Where the Secretary approves an application under s.13, he shall also approve and specify in the notification under s.15 to the applicant, the means of travel for any relevant journey of the approved patient ......" (s.15 relates to the notification by the Secretary to an applicant of his decision following an application for benefit under s.13). The Tribunal set aside the decision . of the Administrative Appeals Tribunal and found that the applicant was entitled to the benefit. The unusual factual circumstances of the case were taken into account. In regard to the criteria set down by s.13(1) the Tribunal said: pre rete steamers Thy 4 Wormer: whe tht ae, ot ' - es spe ay ~ cee pe oe earn) Te See PT oe "ll. It seems to me therefore that what occurred is within the spirit of the legislation and that the only real justification for the refusal is because the referral in terms was directed to the general practitioner on duty rather than the specialist who would have provided the service. It seems to me that this is a matter where the maxim de minimis non curat lex (the law does not concern itself with trifles) applies, that being the case the decision in this matter should be set aside." ee ee eer ae ree I sympathise with the philosophy behind the reference to "de minimis', but in law it can hardly apply to this situation. The Department sets out the grounds for appeal as follows: "4a, (a) The Tribunal erred in law in holding that the applicant was an approved patient within the meaning of s.13 of the Act. (b) The Tribunal erred in law in holding that a referral to a general practitioner was a referral to a specialist or a consultant physician within the meaning of s.13(1) of the Act. (c) The Tribunal erred in law in applying the maxim de minimis non curat lex. cote gre ree rorrcene see (d) The Tribunal erred in law in finding that the applicant had not claimed an amount for fares under any State lawas this was against the weight of the evidence. (e) The Tribunal erred in law in holding that s.17(5)(b)(ii) of the Act did not apply to the applicant." As to the first ground I take the view that Dr. Cullen did refer his patient to a specialist, 1.e. the specialist surgeon at the Carnarvon hospital. The fact that Dr. Cooper was a link in the short chain of reference does not alter the true nature of the reference, i.e. to a specialist who could operate if the need arose, as obviously Dr. Cullen believed it may. As to the second ground I consider the material before the Tribunal merited a finding that the reference, made at Exmouth, was to the specialist, the general practitioner nominated as the 'specialist', being but a conduit by which circumstances required the reference should be made. The essential requirements of s.13(1) were fulfilled. She was referred "for the rendering" to her "of a professional service by the specialist" and he was the specialist surgeon available at Carnarvon hospital. The third ground of appeal argued by the appellant is that the application of the maxim, de minimis non curat lex, was inappropriate. I believe it was. The maxim that the law does not concern itself with trifling matters is a maxim principally referred to in criminal cases and applicable in few cases of a ooo Pr nature which require consideration of statutory interpretation. Examples where it has been said to have been applied in interpretation cases are to be found, e.g. Customs and Excise Commissioners v. Dodd (1961) 1 WLR 144; Coleshill and District investment Co. Ltd. v. Minister of Housing and Local Government (1968) 1 AL1.E.R. 62. (See Maxwells Interpretation of Statutes (12th Ed.) p.103). But I read those decisions as indicating that the Statute did not apply to the actual mischief complained of, the mischief being other than that contemplated by the legislation. But I do not consider it necessary to consider principles of interpretation, such as the 'golden rule' expressed by Lord Blackburn in River Wear Commissioners v. Adamson (1877) 2 App.Cas. 743 at 764, more recently referred to by Donaldson M.R. in British Concrete Pipe Association (1983) 1 A11.E.R. 203 at 205 and somewhat battered by judicial decisions in contemporary times when principles of public interest, legal policy, predictability and purposive construction are from time to time mooted. (See Francis Bennion's Statutory Interpretation p.285 et seq.). Here the statute is relatively clear. The essential question is whether Mrs. Ryan was referred to a specialist. The Tribunal so found in classifying the reference as being 'within the spirit of the legislation'. I consider its conclusion was correct. Counsel for the Department in arguing the fourth and fifth grounds of appeal submitted that the Tribunal erred in its finding that Mrs. Ryan had not "claimed" any money from State funds. . Pe iad 1. t wre eae me vt 7 a rr yee er es The Tribunal stated as follows" "As to the respondent's second point the test for both paragraph 13(2)(a) of the Act and sub-paragraph 17(5)(b) (ii) is that the applicant has "received or claimed" State funds. Clearly this applicant has not received any money's (sic) from State funds. Nor, on the facts, has she claimed any. In my opinion these two provisions do not operate to prevent her applying for the IPTAAS benefit because of a possibility that a benefit may be payable if State officers review a contrary decision." I consider the Tribunal was correct in its finding that it is sufficient for the purposes of that Section that no formal application was made and no benefit received from State sources. Informal enquiries by a friend or one's local representative can not constitute an application by the applicant. It could not possibly be within the intention of the statute that a concerned friend, relative or member of Parliament enquiring as to a person's eligibility for State funding could deny, by such actions, the patient's eligibility for a Commonwealth health benefit. For the above brief reasons I consider .the. Tribunal's decision was correct and it is affirmed. The appeal is dismissed. ——— or woe 7 oe a ee ads 7) . ee? te maireye core eat lee Secaatiekahannat a diediie at wea Me att con ree. Mrs Ryan was not represented upon the appeal. Understandably she filed an appearance abiding the result. However, in case she has incurred costs I order that the appellant pay her costs of appeal (if any). I certify that this and the eight preceding pages are a true copy of the Reasons for Judgment of his Honour Mr. Justice Muirhead. Associate Dated: 1 August 1986 ar vooree --—pe —— 7 fle