JUDGMENT No. suc 2!Quvsual ct Sree CATCHWORDS HEALTH INSURANCE - Review of allegation of breach of undertaking by approved pathology practitioner - Whether review committee entitled to receive legal submissions from counsel representing the Minister - Width of committee's statutory powers to control its procedure and to "inform itself on any matter in such manner as it thinks appropriate". Health Insurance Act 1973, ss.124J and 124N. LYNCH v THE MEDICARE PARTICIPATION REVIEW COMMITTEE, D I CASSIDY QC, DR E RAIK, DR J H MAYNARD and ' MINISTER FOR HEALTH, HOUSING & COMMUNITY SERVICES NO. NG.323 of 1995 CORAM: WILCOX J PLACE: SYDNEY DATE: 12 OCTOBER 1995 RECEIVED 13 OCT 1995. FEDERAL COURT OF IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH ) No. NG.323 of 1995 WALES DISTRICT REGISTRY ) ) GENERAL DIVISION ) BETWEEN: THOMAS B LYNCH Applicant AND: THE MEDICARE PARTICIPATION REVIEW COMMITTEE First Respondent D I CASSIDY Qc Second Respondent E RAIK Third Respondent J H MAYNARD Fourth Respondent and MINISTER FOR HEALTH, HOUSING & COMMUNITY SERVICES Fifth Respondent CORAM: WILCOX J PLACE: SYDNEY DATE: 12 OCTOBER 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondents' costs of the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) No. NG.323 of 1995 NEW SOUTH WALES DISTRICT REGISTRY ) ) GENERAL DIVISION ) BETWEEN: THOMAS B LYNCH Applicant AND: THE MEDICARE PARTICIPATION REVIEW COMMITTEE First Respondent D I CASSIDY Qc Second Respondent E RAIK Third Respondent J H MAYNARD Fourth Respondent and MINISTER FOR HEALTH, HOUSING & COMMUNITY SERVICES Fifth Respondent CORAM: WILCOX J PLACE: SYDNEY DATE: 12 OCTOBER 1995 REASONS FOR JUDGMENT WILCOX J: This application is brought under the Administrative Decisions (Judicial Review) Act 1977 and s.39B of the Judiciary Act 1903. The applicant seeks review of a decision of a Medicare Participation Review Committee, -2- constituted by the second, third and fourth respondents, to permit the intervention in an inquiry being conducted by them of the Minister for Health, Housing and Community Services. 'The Committee was named as the first respondent to this application and the Minister as fifth respondent. The facts It is not necessary to go deeply into the facts. The applicant, Thomas Brendan Lynch, is a medical practitioner practising as a pathologist in Rockhampton, Queensland. He is, apparently, an "approved pathology practitioner" within the meaning of the Health Insurance Act 1973. Following earlier communications between the Health Insurance Commission and Dr Lynch, on 6 May 1994 a delegate of the Minister wrote a letter to Mr D I Cassidy QC, Chairman of the Committee, notifying him of a belief that Dr Lynch had breached a pathology undertaking given by him: see s.23DL of the Health Insurance Act noting that Dr Lynch failed to make a submission under subs. (2) in response to a notice under subs. {1), with the result that subs. (4) (a) applied. The Committee met to consider the delegate''s notice on 14 March 1995. The Committee consisted of Mr Cassidy as Chairman and Drs E Raik and J H Maynard, Members. Dr Lynch attended the hearing. He was represented by counsel, Dr G Flick SC, and a solicitor, Ms S Sheridan. Ms Henderson of counsel also attended the hearing with an instructing ~-3- solicitor, Ms J Noonan. Ms Henderson informed the Committee that she appeared for the Minister in response to an indication from the Committee that it wished the Minister to be represented. It appears that the Secretary of the Committee had communicated that wish to the Australian Government Solicitor, presumably on the -instruction*of the Chairman and because the Committee expected legal issues to emerge. Dr Flick objected to Ms Henderson's appearance. He contejfided that, regardless of its invitation, the Committee had no power to hear her. Debate ensued on that question. After a short adjournment, the Committee ruled it had power to hear Ms Henderson and indicated it proposed to do so. In subsequent discussion, Ms Henderson made clear that she intended to limit her role to putting submissions on any legal issues that might arise and not to become involved in factual matters. The Committee accepted this. Nonetheless, Dr Flick said his client wished to challenge the Committee's decision. The Committee adjourned the hearing of the matter to allow that course to be taken. This proceeding was commenced on 9 May 1995. The statutory provisions Part VB of the Health Insurance Act deals with Medical Participation Review Committees. A Committee Chairperson must be a qualified legal practitioner: see - 4 - s.124C. The other members of the Committee must be selected by the Chairperson from lists of names submitted respectively by the appropriate professional organisation and the Minister: see s.124BA. Subject to.a-presently immaterial exception, in the case of an inquiry concerning an approved pathology practitioner, each of these members must be an approved pathology practitioner: see s.124EB. In the case of a complaint that an approved pathology practitioner has breached an undertaking, the task of the Committee is to determine whether the practitioner has breached the undertaking and, if so, to identify the relevant services and to determine what corrective action ought to be taken: see s.124FB. As soon as practicable after making a determination, the Committee is required to notify its determination to the Minister and the subject person: see s.124Q. The determination is subject to review by the Administrative Appeals Tribunal: see s.124R. Sections 124G-124P relate to Committee hearings. Section 124G requires a hearing except where the Committee is satisfied on the papers that no action should be taken against the person. Section 124H allows the Minister to make guidelines with respect to the making of determinations. Section 1243 concerns hearing procedures: the convening of the hearing, notices, the subject person's entitlement to attend and be represented by another person and other matters. In the present case, reliance is placed on subs.(5) which reads: - 5 - "(S) At a hearing conducted by a Committee: (a) the procedure of the hearing is, subject to this Act and the regulations, within the discretion of the Committee; (b) the hearing shall be conducted with as little formality and technicality, and with as much expedition, as requirements of this Act, and a proper consideration of the matter before the Committee, permit; and (c) the Committee is not bound by the rules of evidence and may inform itself on any Matter in such manner as it thinks appropriate." Section 124N is also relevant. It reads: "124N.(1) A member of a Committee has, in the performance of the duties of a member of the Committee at a hearing conducted by the Committee, the same protection and immunity as a Justice of the High Court. (2) A person appearing on behalf of a practitioner at a hearing conducted by a Committee, a person entitled to appear before the Committee and a person authorised by the Committee to appear before it have the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court." Counsel's contentions In the argument before me, Dr Flick repeated the submission that a Medical Participation Review Committee has no power to allow an appearance by counsel representing the Minister. He pointed out that the statute does not expressly empower the Committee to join the Minister as a party. The -6- only provision regarding the addition of parties is s.124FA which enables a Committee considering a matter involving an approved pathology practitioner to give notice to an authority or practitioner by whom the subject person was employed, with the implication that the authority or practitioner may become a party to the inquiry. Dr Flick also pointed out that s.1247(4) expressly permits "a relevant party" to attend the hearing and be represented. This term is defined by $.1247(10), but not so as to include the Minister. Dr Flick submitted that "any relevant interest of the Minister" in the Committee's discharge of its duties "is already sufficiently addressed" by the composition of the Committee and the Minister's power to make guidelines. The ability of the Committee to resolve any questions of law that arise is guaranteed, he asserted, by the qualifications of the Chairperson. Anticipating that Ms Henderson would place reliance on s.1243(5) (a) and (c), Dr Flick sought to read them down. The powers conferred by para. (a), he said: "are the powers conferred as to the manner in which a hearing is to be conducted and confer no authority to authorise participation by persons other than those permitted by the Legislature to attend such hearings." In relation to para.(c), Dr Flick said that the power granted to the Committee to "inform itself on any matter in such manner as it thinks appropriate" is not a power to - 7 _ authorise the attendance of. interveners; the phrase "on any matter" means "on any matter of evidence". According to Dr Flick, $.1243(5)(c) does not address the resolution of questions of law. In support of his submission concerning -para.({c), Dr Flick referred to two decided cases: ~ Commissioner for Prices and Consumer Affairs v Charles Moore (Aust) Limited-.(1977) 139 CLR 449 and Dare v Dietrich (1979) 37 FLR 175. In the first of those cases, the High Court of Australia considered a South Australian provision similar to s.124J(5) of the Health Insurance Act and authorising a tribunal to "inform itself on any matter in such manner as it thinks fit". At 462 Gibbs J said: "If that sub-section allowed the Tribunal, when construing a statute, to take into account material inadmissible~in an ordinary court, and thus to reach a construction different from that at which the ordinary courts would be bound to arrive, it would provide a prescription for chaos. But it has no such effect. It relaxes the rules of evidence which would otherwise govern the Tribunal in the exercise of its functions, but it does not enable the Tribunal to give a statute any meaning other than that which a court of law would place upon it." Dare Vv Dietrich concerned the Northern Territory Workmen's Compensation Ordinance 1949. It contained a provision like s.124J(5) (c). At 180-181 Deane J commented that the provision "makes it clear that, while the tribunal is, no doubt, under an obligation to act with judicial - 8 - detachment and fairness, the proceedings before the tribunal are not governed by the ordinary principles relating to the determination of disputed questions of fact by a judicial tribunal". As Dr Flick anticipated, Ms Henderson placed primary reliance on s.124J(5), although she also pointed out that s.124N(2) assumed the possibility of a person being "authorised by the Committee" to appear before it, as distinct from being "entitled to appear". This assumption, she argued, reflected a legislative intention that a Committee be free to permit | intervention as it sees fit, subject only to its exercise of discretion falling within the scope and purpose of the Act and to considerations of procedural fairness. Although s.124J(5) does not expressly deal with intervention, Ms Henderson contended that it was covered by para.(a), and possibly also para.(c). In relation to para. (a), Ms Henderson drew attention to two cases in which courts have treated the joinder of parties as aspects of procedural control: see Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 251 and New South Wales Technical and Further Education Commission v_ Fines (1993) 32 NSWLR 385 at 390 and 394-395. Conclusions The Committee's determination on this matter was clearly correct. Paragraph (a) of s.124J uses language found in many statutes. It has always been interpreted as - 9 - conferring wide powers upon the relevant tribunal. Their width is demonstrated by the two cases cited by Ms Henderson. If .they enable a tribunal to add parties, they surely authorise an order permitting restricted intervention. Moreover, I see no reason to read down para.(c) in the manner suggested by Dr Flick. It is true that Gibbs J and Deane J spoke of provisions like s.1247(5)(c) in the context of the relevant tribunal informing itself about matters of fact, but neither of their Honours suggested that the words would not extend to matters of law. They must do so. Dr Flick conceded that thembers of the Committee (including the Chairperson) are entitled to consult text books, statutes and reported cases in order to inform themselves on a legal point that might arise before them. They are not restricted to the Chairperson's general legal knowledge. Yet there is no provision specifically permitting this. If the Committee can inform _ itself on the relevant law by its own researches, why not by receiving submissions from counsel representing the Minister? There is no merit in Dr Flick's argument that any relevant interest of the Minister is .already sufficiently addressed by the composition of the Committee and her power to make guidelines. As the person ultimately responsible for the efficient functioning of the Act, the Minister has an interest in the effectiveness of the Committee. The fact that the Committee has a legally qualified Chairperson, does not mean that it has no need for competent legal argument. As court experience demonstrates, legally sound decisions are more - 10 - likely to be made, even by experienced judges, if they first hear competent legal argument on both sides of an issue. There is no reason to doubt that even a legally qualified Committee Chairperson will benefit from similar argument; perhaps the non-~legally qualified members even more so. The application for review should be dismissed with costs. I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment of the Honourable Justice Wilcox. Associate: L L tenes ao Dated: 12 October 1995 APPEARANCES Counsel for the Applicant: Dr Geoffrey Flick SC Solicitors for the Applicant: ' Minter Ellison Counsel for the Minister: Ms R Henderson Solicitors for the Minister: Australian Government Solicitor Date of hearing: 6 October 1995