A _ "JUDGMENT No. 02.37 21am CATCHWORDS APPEAL FROM MEDICAL SERVICES REVIEW TRIBUNAL - new ground of review before Tribunal purported to be added outside of 30 day time limit for service of request for review - sub-s.119(1) Health Insurance Act 1973 (Cth) as interpreted in Minister for Health v. Thomson - Tribunal may only have regard to grounds set out in request lodged within time limit - statutory jurisdiction of Federal Court under s.124A of the Act - effect of breach of rules of natural justice on administrative decision - need to pursue ground based on natural justice in other proceedings. REVIEW BY MEDICAL SERVICES REVIEW TRIBUNAL - principles stated by Stephen J. in Spurling v. Development Underwriting (Vic) Pty Limited not appropriate to function of review on the papers by Tribunal. Health Insurance Act 1973 (Cth) s.82, s.106, s.114, s.119, s.124A. DAVID MCINTOSH v. MINISTER FOR HEALTH NSW G110 OF 1987 Davies J. 6 October 1987 - a . sé s, Sydne a we ge > y yY Lye sv 7 AAR, = 2-3 ocTie7 3 m7 FAL a Pe } .) c AUS riatian OF ', , i be CtPat x Ng nOISIRY uN . NOS oN "XN IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. NSW G110 of 1987 GENERAL DIVISION BETWEEN: DAVID McINTOSH Applicant AND: MINISTER FOR HEALTH Respondent CORAM: Davies J. DATE: 6 October 1987 PLACE: Sydney MINUTES OF ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the respondent's costs. NOTE: 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. NSW G110 of 1987 ) ) GENERAL DIVISION BETWEEN: DAVID McINTOSH Applicant AND: MINISTER FOR HEALTH Respondent CORAM: Davies J. DATE: 6 October 1987 PLACE: Sydney REASONS FOR JUDGMENT This is an appeal under s.124A of the Health Insurance Act 1973 (Cth) ("the Act") from the decision of a Medical Services Review Tribunal. The appeal is one on points of law only. The Act provides for the payment of certain benefits, now called "Medicare Benefits", to certain medical, optometrical, radiological and pathological practitioners. Division 3 of Part V of the Act provides for the establishment of Medical Services Committees of Inquiry, each of which, by s.82, is to inquire into and submit to the Minister for Health its report and recommendation on questions and matters referred to the Committee by the Minister. Such a question as to the possibility of overservicing by the applicant, Dr David McIntosh, was referred to a Committee by the Minister. The Committee commenced its inquiry into excessive servicing by Dr McIntosh on 11 October 1982 and reported thereon to the Minister on 12 November 1984. In its report the Committee recommended that certain services rendered by the applicant were excessive and that the amount of medical benefits paid in respect of those services be repaid. The Committee also recommended that the applicant be reprimanded. Sub-section 106(1) of the Act provides that, where a Committee makes such a recommendation, the Minister may make a determination, in writing, in accordance with that recommendation. The Minister did so on 26 February 1985. Thereafter, the applicant appealed to a Medical Services Review Tribunal, established under Part VA of the Act. The Review Tribunal was constituted by three persons, of whom the Chairman was legally qualified and the other two members were medically qualified. Section 114 provides that a request for a review shall be in writing and shall set out the grounds on which the request is made and shall be served on the Minister within 30 days after service of the determination. Paragraph 119(1)(a) provides:- "A Tribunal that reviews a determination in accordance with a request - (a) shall consider the matter to which the determination relates having regard to the grounds set out in the request, the documents forwarded by the Minister with the request and any addresses made to the Tribunal during the proceedings on the review; ..." In Minister for Health v. Thomson (1985) 60 A.L.R. 701 it was held by Fox, Beaumont and Wilcox JJ. that this provision requires that the review be undertaken on the papers before the Review Tribunal, namely in accordance with the request for a review, having regard to the grounds set out in the request and to the documents forwarded by the Minister with the request. The Review Tribunal is also entitled to take into account any oral submissions made to the Review Tribunal during the proceedings on the review but is not entitled to receive additional evidence. Sub-paragraph 119(1)(b)(ii) of the Act provides that, in the circumstances which occurred in this case, the Review Tribunal may affirm, set aside or vary the determination of the Minister. Sub-section 119(2) provides that the decision of the Review Tribunal shall be deemed to be a determination of the Minister. The request for review, which was made on the applicant's behalf within 30 days of the service of the Minister's determination, raised issues going to the merits of the findings against Dr McIntosh by the Medical Services Committee of Inquiry. After the handing down of the decision in Thomson's case, a decision was made not to argue these grounds on the review, presumably because further evidence could not be called on the applicant's behalf. On 27 November 1986, well outside the 30 days time limit, notice was given of intention to rely upon a ground of review which in substance raised the issue that the applicant had not received natural justice in the proceedings before the Medical Services Committee of Inquiry. The letter of 27 November 1986 from the applicant's solicitors to the Minister for Health stated inter alia:- "We wish to give further notice of an amendment to paragraph 3 of the Grounds of Review contained in our letter of 20th March 1985. A further breach of the rules of natural justice will be argued in that the Practitioner was denied his right to have his case considered by all the members of the Committee and more particularly in that Dr. T.G. Quinn did not contribute in any way to the Committee's deliberations or recommendations (see report of the Committee page 4 ("Committee's Deliberations"). Alternatively per force of the foregoing it is submitted as a ground of review that the report of the Committee sought to be reviewed was ultra vires." Having regard to the interpretation placed by Thomson's case upon the provisions of sub-s.119(1), it was not open to the Review Tribunal to consider this new ground. Paragraph (a) of sub-s.119(1) specifies the matters which should be taken into account by the Review Tribunal and requires that the case be considered having regard to the grounds set out in the request for the review. There being a time limit for the service of the request for review and there being no provision enabling amendment of the request after the expiration of the time limit, the Review Tribunal must have regard to the grounds set out in the request lodged within the time limit and to no other grounds. Nevertheless, the Review Tribunal dealt with the new ground and held there had not been a breach of the rules of natural justice by the Medical Services Committee of Inquiry. After considering all matters raised in the submissions put to it, the Review Tribunal affirmed the Minister's determination. The grounds of appeal to this Court from that decision raised issues of natural justice of which the following is an example:- "(a) Whether the applicant was denied natural justice for that the Medical Services Committee of Enquiry's deliberations concerning what recommendation it would make to the Minister of Health in respect of the Applicant were deliberations in which one member Doctor T.G. Quinn whilst attending the hearings against the Applicant, took no part whatsoever." On the grounds an order was sought guashing the recommendation of the Medical Services Committee of Enquiry. It is not useful to discuss the issues as to natural justice which are raised in those grounds. They were not matters which, in the form in which they were raised, were the proper subject-matter of consideration by the Review Tribunal. Nor are they proper matters for the consideration of this Court. I do not suggest that, before the Review Tribunal, counsel for the applicant could not have submitted that in some respects the Medical Services Committee of Inquiry had not proceeded in accordance with the principles of natural justice and that some aspect or aspects of the Committee's findings should be treated with caution or reserve or even rejected for that reason. But that was not how the matter was put. In the proceedings hefore the Review Tribunal and in this appeal, it was sought to reject the whole of the findings and report of the Medical Services Committee of Inquiry. The Review Tribunal had, and this Court has in an appeal under s.124A of the Act only a statutory jurisdiction. That jurisdiction does not extend to setting aside a decision or proceeding of a Medical Services Committee of Inquiry by reason of there having been a breach by the Committee of the principles of natural justice. Thus in Regina v. Jones (Gwyn)[1969] 2 Q.B. 33, it was held that on an appeal against sentence, froma decision of quarter sessions to which the appellant had been committed by justices, it could not be argued that the committal to quarter sessions was invalid and a nullity. The jurisdiction of the Court was a purely statutory jurisdiction limited to reviewing the sentence which had been passed and 1t was not possible to challenge the justices' committal of the appellant to quarter sessions for sentence. That was a matter which the appellant must take up in other proceedings. Likewise, in the present case, the grounds based on natural justice must be pursued, if at all, in other proceedings and not before the Review Tribunal or in this appeal. Indeed, an essential prerequisite of the jurisdiction of the Review Tribunal was that the Committee of Inquiry had made a report and recommendation to the Minister and the Minister had made a determination thereon. The only effect of the applicant's argument that the report and recommendation of the Committee of Inquiry were invalid because of a breach of the rules of natural justice could be that the Review Tribunal itself did not have jurisdiction to proceed. Moreover, it is a principle of law that the decision of the Committee of Inquiry stands unless set aside by a court having jurisdiction to declare it to be void. As Aickin J. said in Forbes v. New South Wales Trotting Club Limited (1979) 143 C.L.R. 242 at p.277:- "That which is done without compliance with applicable principles of natural justice, in circumstances where the relevant authority is obliged to comply with such principles, is not to be regarded as void ab initio so that what purports to be an act done 1s totally ineffective for all purposes. Such an act is valid and operative unless and until duly challenged but upon such challenge being upheld it is void, not merely from the time of a decision to that effect by a court, but from its inception. Thus, though it is merely voidable, when it is declared to be contrary to natural justice the consequence is that it 1s deemed to have been void ab initio." Likewise, in The Queen v. Balfour and Another; ex parte Parkes Rural Distributions Pty Limited, delivered on 27 August 1987, Wilcox J. said, at p.15:- "Although this was not so clear in earlier times, it is now accepted that, however apparent the defect may be, an administrative decision remains good in law unless and until it is declared to be invalid by a court of competent jurisdiction: see Smith v. East Elloe Rural District Council T1956] AC 736 at pp.769-770, Durayappah v. Fernando [1967] 2 AC 337, Calvin v. Carr [1980] AC 574 at pp.589-590 and Forbes at p.277. The principle is expressed by Wade, "Administrative Law" (Sth ed.), at p.314: "The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived has rights, or for some other legal reason. In any such case the 'void' order remains effective and 1s, in reality, valid."" The appeal must therefore be dismissed. However, I should not close without mentioning one aspect of the reasons of the Review Tribunal which I have noticed. At the conclusion of the Review Tribunal's reasoning appeared the following passage:- "No specific item of medical service disallowed by the Committee was brought to our attention and we think it appropriate in the circumstances to apply the principle stated by Stephen J. in Spurling v. Development Underwriting (Vic) Pty Limited 1973 VR T. This principle of law has been applied by Medical Services Review Tribunals on other occasions and is in the following terms:- "In approaching the decision of an expert tribunal I must, I think, not only refrain from making up my own mind on the evidence before it, must not only confine myself to inquiring whether on any reasonable view of the evidence the Tribunal's decision on a question of fact can be supported, but must also bear in mind that I am concerned with areas in which members of the Tribunal have special expertise and experience which the legislation plainly intends them to employ. I must, therefore, be slow to conclude that on no reasonable view could this Tribunal decide a particular matter of fact as 1t has. This does not mean that it 1s not open to me to form such a view but it at least dictates caution in my approach to the evidence." (Spurling's case at page 11.) Taking the approach suggested by Stephen J. and proceeding with the caution suggested we are of the opinion that the Committee's findings should stand." I should make it clear that the principles stated by Stephen J. in Spurling v. Development Underwriting (Vic) Pty Limited [1973] v.R. 1 at p.1ll, were principles which were appropriate to judicial review. A Medical Services Review Tribunal has a much wider function than that. Although it 1s limited to a consideration of the documentary material forwarded to it by the Minister, a Review Tribunal has the duty for itself to exercise the function which the Minister himself performed, namely to determine whether or not to accept the recommendation made by the Committee of Inguiry. It does not exercise the function of review on a point of law, it exercises the function of review on the papers. Save that the Review Tribunal was limited to reviewing the documentary material, taking into account the addresses made to it, it was entitled itself to reconsider any 10. matter contained in the report and recommendation of the Committee of Inquiry. Certainly the Review Tribunal was not constrained "from making up [its] own mind on the evidence before it" and was not required to "confine [itself] to inquiring whether on any reasonable view of the evidence the [Committee's] decision on a question of fact can be supported". Nor was the Review Tribunal required to be "slow to conclude that on no reasonable view could this [Committee] decide a particular matter of fact as it has." As the Committee of Inquiry was a Committee of members having expert knowledge and experience and as that Committee of Inquiry saw the witnesses, no doubt the Review Tribunal was entitled, as was the Minister, to give such weight to the findings of the Committee of Inquiry as seemed proper in the circumstances of the case. But to say that is not to say that the Review Tribunal ought to have adopted the approach enunciated by Stephen J., for that approach is the approach of judicial review. However, having regard to the way in which the matter proceeded before the Review Tribunal, the grounds of appeal understandably did not raise any issue with respect to this matter. My comments do not provide a ground for interfering with the decision of the Review Tribunal. ll. For the reasons I have given, I am of the opinion that the appeal should be dismissed with costs. I certify that this and the 10 preceding pages are a true copy of the Reasons for Judgment herein of The Honourable Mr Justice Davies. Associate: =) - Cathe. . Date: 6 October 1987 Counsel for the applicant: Mr M.B. Williams Solicitors for the applicant: McCourt Ward-Harvey Counsel for the respondent: Mr A. Robertson Solicitors for the respondent: Australian Government Solicitor Date of hearing: 17 August 1987