CATCHWORDS Social Welfare - National health legislation - Health Insurance - Determination by Medicare Participation Review Committee under s.124DF of Health Insurance Act 1973 a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies - undertaking in writing by a medical practitioner under Division 2 of Part IIA of the Health Insurance Act 1973 is given only by the person identified in the writing as the person who gives it. Statutes - Interpretation - Permissive, directory and mandatory provisions - Whether limitation of time in s.124D(2) of the Health Insurance Act 1973 mandatory. Health Insurance Act 1973 - Part IIA, Division 2; Part VB DOCTOR JOHN SHERMAN AND DOCTOR HENDRICK VAN RENSBERG v. MEDICARE PARTICIPATION REVIEW COMMITTEE AND THE MINISTER FOR HEALTH VG339 of 1993 SAMUEL JAMES BEN LEES v. MEDICARE PARTICIPATION REVIEW COMMITTEE AND THE MINISTER FOR HEALTH VG340 of 1993 Jenkinson J. Melbourne 7 August, 1995 IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VG339 of 1993 GENERAL DIVISION ) BETWEEN: DOCTOR JOHN SHERMAN First Applicant AND: DOCTOR HENDRICK VAN RENSBERG Second Applicant AND: MEDICARE PARTICIPATION REVIEW COMMITTEE First Respondent AND: THE MINISTER FOR HEALTH Second Respondent CORAM: Jenkinson J. PLACE: Melbourne DATE: 7 August, 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The determination in writing of the Medicare Participation Review Committee dated 18 March 1993 that it should consider whether the applicant Doctor John Sherman had breached an undertaking given by him under section 23DF of the Health Insurance Act 1973 be quashed. 2. The determination in writing of the Medicare Participation Review Committee dated 18 March 1993 that it should consider whether the applicant Doctor Hendrick Van Rensberg had breached an undertaking given by him under section 23DF of the Health Insurance Act 1973 be quashed. 3. The proceeding be otherwise dismissed. 4. Consideration of the costs of the proceeding be adjourned to a date to be fixed. (Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA) VICTORIA DISTRICT REGISTRY ) No. VG340 of 1993 GENERAL DIVISION ) BETWEEN: SAMUEL JAMES BEN LEES Applicant AND: MEDICARE PARTICIPATION REVIEW COMMITTEE First Respondent AND: THE MINISTER FOR HEALTH Second Respondent CORAM: Jenkinson J. PLACE: Melbourne DATE: 7 August, 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The determination in writing of the Medicare Participation Review Committee dated 18 March 1993 that it should consider whether the applicant Samuel James Ben Lees had breached an undertaking given by him under section 23DF of the Health Insurance Act 1973 be quashed. 2. The proceeding be otherwise dismissed. 3. Consideration of the costs of the proceeding be adjourned to a date to be fixed. (Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules) IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIAN DISTRICT REGISTRY ) No. VG339 of 1993 GENERAL DIVISION ) BETWEEN: DOCTOR JOHN SHERMAN First Applicant AND: DOCTOR HENDRICK VAN RENSBERG Second Applicant AND: MEDICARE PARTICIPATION REVIEW COMMITTEE First Respondent AND: THE MINISTER FOR HEALTH Second Respondent No. VG340 of 1993 BETWEEN: SAMUEL JAMES BEN LEES Applicant AND: MEDICARE PARTICIPATION REVIEW COMMITTEE First Respondent AND: THE MINISTER FOR HEALTH Second Respondent CORAM: Jenkinson J. PLACE: Melbourne DATE: 7 August, 1995 REASONS FOR JUDGMENT Applications by three medical practitioners for orders of review in respect of decisions of a Medicare Participation Review Committee. Part VB of the Health Insurance Act 1973 makes provision for the establishment of such committees, each of which I will call a "Review Committee", for the appointment of Chairpersons and other members of Review Committees, and for the hearing and determination of matters identified in that Part. Dr. Henry Konopnicki had on 11 June 1992 pleaded guilty to an offence against s.129(2) of that Act in the Magistrates' Court and was by that Court discharged without conviction, pursuant to s.19B of the Crimes Act 1914 (Cth). Section 124B(2) of the Health Insurance Act 1973 provides that a reference in Part VB of that Act to a conviction of an offence includes a reference to the making of an order under s.19B of the Crimes Act 1914 in relation to the offence. Sub-sections (1) and (2) of s.124D provide: "(1)This section applies in relation to a conviction of a practitioner where: (a) the practitioner has been convicted of a relevant offence; (b) all the rights of the practitioner to appeal against the conviction (other than the right to apply for an extension of the time for instituting such an appeal) have been exhausted or have expired; and (c) the conviction has not been wholly set aside. (2) Within 28 days after this section commences to apply in relation to a conviction of a practitioner, the Minister shall, if an appeal, or an application for an extension of the time for instituting an appeal, against the conviction is not pending, give to the Chairperson a notice in writing setting out the details of the conviction and, at or about the same time, give to the practitioner a copy of the notice." An offence against s.129 is within the meaning of the expression "relevant offence" in Part VB. The word "practitioner" in that Part comprehends a person registered or licensed as a medical practitioner under a law of a State that provides for the registration or licensing of medical practitioners. Dr. Konopnicki and the applicants in these proceedings are and at material times were so registered. The Minister's delegate gave the Chairman of a Review Committee a notice under s.124D(2) in respect of Dr. Konopnicki's "conviction" and in compliance with the requirements of Part VB the Chairman established a Review Committee consisting of himself and two other persons selected by him. The function of the Review Committee was to make a determination in relation to Dr. Konopnicki in respect of his commission of the offence. The Review Committee is required by sub-section 124F(2) to "determine that: "(a)no action should be taken against the practitioner; (b) it should counsel the practitioner; (c) it should reprimand the practitioner; (d) the practitioner is disqualified in respect of one or more of the following: (i) the provision of specified professional services, or the provision of professional services other than specified professional services; (ii) the provision of professional services to a specified class of persons, or the provision of professional services to persons other than persons included in a specified class of persons; (iii)the provision of professional services within a specified location, or the provision of professional services otherwise than within a specified location; or (e)the practitioner is fully disqualified." Sub-section 124F(5) provides: "(5)Where a Committee determines under paragraph (2) (d) or (e) that a practitioner is disqualified, the Committee shall specify in the determination the period over which the disqualification is to have effect, being a period that ends: (a) where the determination is a review of a period of disqualification referred to in subsection 124D(3) - on or before the day on which that period of disqualification is to come to an end; or (b) in any other case - within 5 years after the day on which the determination comes into effect." The expression "professional service" is defined in s.3(1) to mean a service to which an item in one of the tables set out in Schedule 1 of the Act relates, in respect of which item a medicare benefit is payable. Such a benefit is not payable if the service was rendered by a disqualified practitioner : s.19B. Dr. Konopnicki was at relevant times an "approved pathology practitioner", within the meaning of that expression in the Health Insurance Act 1973. Part IIA of the Act contains special provisions relating to pathology. A medicare benefit is not payable in respect of a pathology service rendered in relation to a person (except such a service as has been prescribed by regulation) unless the service was rendered by or on behalf of an approved pathology practitioner in a laboratory of which the proprietor was an approved pathology authority : see s.16A. The expression "approved pathology authority" is defined in s.3(1) to mean, in the Act, "a person in respect of whom there is in force an undertaking given by the person, and accepted by the Minister, under s.23DF". The expression "approved pathology practitioner" is defined in the same terms, except that s.23DC is substituted in place of s.23DF. In Part IIA it is provided that where a medical practitioner seeking to be an approved pathology practitioner signs an undertaking in writing in accordance with a form approved by the Minister and gives the Minister the undertaking, together with an application for the Minister's acceptance of the undertaking, the Minister may accept the undertaking on behalf of the Commonwealth and determine the period, not exceeding 12 months after the day on which the undertaking comes into force, for which the undertaking is to have effect : see s.23DC(1). A similar provision is made in respect of a person seeking to be an approved pathology authority : see s.23DF. The language of those and other provisions in Part IIA make it quite clear that, while a polity and a body corporate (on whose behalf the undertaking may be signed) may be an approved pathology authority, only entities having legal personality can fall within the defined meaning of either expression. The undertaking (dated 26 June 1987) and application contemplated by s.23DC were given by Dr. Konopnicki to the Minister in late June or early July 1987. The Minister's delegate accepted the undertaking, which came into force on 1 August 1987. While the undertaking was in force Dr. Konopnicki signed and gave to the Minister two other documents , under s.23DF. The relevant part of the undertaking given under s.23DF is reproduced: The relevant parts of the application are reproduced: The facts, so far as known to the Review Committee and the Court, are that at material times the pathology practice conducted by Dr. Konopnicki was conducted by him for the applicants, who owned the practice, and who were the proprietors of the laboratory in which the practice was conducted (perhaps by means of a company they controlled), and who paid Dr. Konopnicki a salary for his services. The words "Urban Laboratory Services" constitute a business name which was used as the name of the practice. The offence against s.129(2) to which Dr. Konopnicki pleaded guilty was furnishing in his application dated 1 July 1927 for acceptance of his undertaking dated 15 July 1987 information that was false in a material particular. The false information was that he, not the applicants, was the proprietor of the practice. Section 23DL provides that where the Minister has reasonable grounds for believing that a person who was an approved pathology practitioner has breached an undertaking given by the person for the purposes of s.23DC, the Minister shall give notice in writing to the person setting out those grounds and inviting the person to make submissions to him, showing cause why he should not take further action in relation to the person under that section. The section affords the Minister a choice between several further courses of action. The course the Minister's delegate took, after he had given Dr. Konopnicki such a notice as s.23DL contemplates, was to give, pursuant to s.23DL(4), notice in writing to the Chairman of the Review Committee already established in consequence of the giving to him of the notice under s.124D(2). Sub-section 124E(3) requires a Chairperson who receives such a notice in relation to an approved pathology practitioner to establish a Medicare Participation Review Committee, upon which are conferred by s.124FB functions, in relation to any suggested breach of an undertaking which the Review Committee finds to have occurred, similar to the functions conferred on a Review Committee by s.124F in respect of the commission of a "relevant offence". The breach of undertaking suggested was the commission of an offence to which reference is made in the undertaking dated 26 June 1987, given with Dr. Konopnicki's application for its acceptance, which constituted him an approved pathology practitioner from 1 August 1987. One undertaking included in that signed undertaking was that Dr. Konopnicki would not take any action that would constitute an offence against sub-section 129AAA(1) of the Act. That sub-section provides: "An approved pathology practitioner who accedes to a request from a practitioner (in this subsection referred to as `the requesting practitioner') to provide pathology services to a patient shall not make a payment, directly or indirectly, to the requesting practitioner or any other person for the services provided by the requesting practitioner to that patient in connection with the making of that request and, in particular, shall not make a payment, directly or indirectly, to the requesting practitioner or the other person in respect of any use of the staff of the requesting practitioner or of the other person for the purpose of taking pathology specimens from that patient." There was put before the Review Committee material to suggest that while the undertaking was in force medicare benefits aggregating $257,951.90 had been paid by cheques drawn in Dr. Konopnicki's favour, apparently in respect of pathology services rendered by him or on his behalf. The cheques were banked to the credit of a bank account of one of the applicants. Of these payments $134,283.05 was believed to have been in respect of pathology services provided at the request of one or other of the three applicants, who at relevant times were carrying on a general medical practice in St. Kilda. By reason of those circumstances the possibility appeared that Dr. Koponicki had made to each of the applicants such a payment as s.129AAA(1) forbids. In compliance with the requirements of s.124E(3) the Chairman established a Review Committee, constituted by the same three persons who constituted the other Review Committee, to consider the suggested breach of the undertaking dated 26 June 1987 notified to him by the Minister under s.23DL(4). Sub-section 124FA(1) provides: "Where: (a) a Committee is established under subsection 124E(3) in relation to an approved pathology practitioner; and (b) the Committee has reasonable grounds to believe that an approved pathology authority that employs or employed the approved pathology practitioner has breached an undertaking given by the approved pathology authority under section 23DF; the Committee may determine, in writing, that the Committee should consider whether the approved pathology authority has breached that undertaking." If the Review Committee makes such a determination, it is required by s.124FA(3) to give the approved pathology authority notice in writing of the determination. And s.124C requires that the Review Committee, having made such a determination, thereafter determine whether the approved pathology authority has breached the undertaking and, if the latter determination is that a breach has occurred, make further determinations. In this case the Review Committee determined, in performance of the function it conceived that s.124FA(1) had conferred on it, that it should consider whether what for convenience it called Urban Laboratory Services had breached the undertaking dated 15 July 1987. That is not the way the Review Committee expressed its determination. In those reasons, dated 18 March 1993, the following appears: "7. Dr Konopnicki is an Approved Pathology Practitioner and a Committee has been established under s.124E(3) in relation to him. The facts recited above disclose that from June 1987 until at least May 1988, Dr Konopnicki was employed by Urban Laboratory Services. Dr. Konopnicki on 1 July 1987 made application under s.23DF for Approved Pathology Authority status. That application was made, or at least purported to be made, on behalf of Urban Laboratory Services. In support of that application, Dr Konopnicki gave the Undertaking dated 27 June 1987 which included an undertaking not to take action which would constitute a breach of s.129AAA(1). In doing so he undertook not to make any payments to a practitioner who requested him to render pathology services. That undertaking was given by him on behalf of Urban Laboratory Services. The gravamen of the reference by the Minister's delegate to the Committee under s.23DL is that by causing or allowing Medicare benefit cheques to be paid to the account of Urban Laboratory Services, an account in which Drs Lees, Sherman and Van Rensburg had an interest, Dr Konopnicki breached his Undertaking. 8. Subject to three matters which require further examination, the conditions precedent to the application of s.124FA(1) of the Act are established. Those matters are whether in fact Dr Konopnicki's conduct did constitute the making of a payment to Urban Laboratory Services and its three proprietors and whether Urban Laboratory Services, in which it appears that Dr Konopnicki had no interest except as an employee, gave the Undertaking of 27 June 1987. This last question reduces to whether Dr Konopnicki had authority, express, implied or perhaps ostensible, to give the Undertaking on behalf of Urban Laboratory Services. The Committee has decided that there is prima facie evidence before it to establish that Urban Laboratory Services did breach the Undertaking of 27 June 1987. It therefore determines that it should consider whether Urban Laboratory Services has breached that undertaking. ............................................... 10. The Secretary is also requested to obtain a business names search to formally identify the proprietors of Urban Laboratory Services during the relevant period." The evidence before me discloses nothing which might be described as an undertaking in writing which has for a date 27 June 1987. I infer that reference was intended to the undertaking dated 26 June 1987 given and accepted by the Minister upon Dr. Konopnicki's application in respect of his status as an approved pathology practitioner. No reference is made in those reasons to the undertaking dated 15 July 1987, notwithstanding that reference is made to the application dated 1 July 1987 which must be taken to relate to, and to seek acceptance of the undertaking dated 15 July 1987. But these difficulties may be ignored. It is apparent from the reasons of the Review Committee that it was aware that Urban Laboratory Services was a business name, not a legal person, and that use of the name was intended by the Review Committee as indicating the applicants, who were, according to the material before the Review Committee, the owners of the pathology practice carried on under that name and the proprietors of the laboratory in which it was carried on, and as apt to comprehend also any other medical practitioners revealed by search to be "proprietors ... during the relevant period". (Search indicated that Dr. Konopnicki was registered as the person carrying on business under the name from 30 June 1987, but nothing turns on that.) It is in my opinion impossible to reach the conclusion, on the material before the Review Committee, that the applicants or any of them at any relevant time fell within the meaning of "approved pathology authority" in s.124FA(1). All the applications and undertakings given to the Minister are unequivocally given by Dr. Konopnicki as the person making the applications and giving the undertakings. Only legal persons are permitted by ss. 23DC and 23DF to give undertakings and to make applications. The terms of the documents are quite inconsistent with any suggestion that other persons may be giving an undertaking or making an application and are using the expression "Urban Laboratory Services" as a generic appellation to comprehend several legal persons. "Urban Laboratory Services" is declared in the application which has reference to that name to be the property of Dr. Konopnicki. The provisions of Part IIA in my opinion permit the acceptance by the Minister only of an undertaking by the person (or, perhaps, persons) by or on whose behalf that undertaking was given. The identity of that person is unequivocally indicated on these documents. If it were proved that in giving those documents to the Minister Dr. Konopnicki had acted at the direction, and with the intention, shared by them, of his acting as the agent, of the applicants to give the undertakings on their behalf, those circumstances, being unknown to the Minister when the undertakings were accepted, could in my opinion have no effect on the legal consequences of Dr. Konopnicki's giving, and the Minister's acceptance, of the undertakings. Those consequences would be that he alone fell within the defined meaning of the expressions "approved pathology practitioner" and "approved pathology authority" in the Act during the relevant period. It follows that the Review Committee's determination under s.124FA(1) involved an error of law. The determination was in my opinion a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies. Like the decision, that a licensee is no longer a fit and proper person to hold the licence, which was under consideration in Australian Broadcasting Tribunal v. Bond (1990) 170 C.L.R. 321, the determination of the Review Committee, although in one sense an intermediate determination on the way to deciding whether an approved pathology authority had breached an undertaking, was a decision on a matter of substance, for which s.124FA(1) provided as an essential preliminary to the making of that ultimate decision. The determination will be set aside. When the applicants appeared before the Review Committee in response to notices of the determinations submissions were advanced by counsel on their behalf that the determination had been erroneous and that for that reason the Review Committee should not enter upon a hearing to determine whether the applicants had breached an undertaking given, as the Review Committee had previously considered to be possible, by Dr. Konopnicki on their behalf. The Review Committee did not accede to those submissions, for reasons given in a document dated 9 July 1993. The applications as originally filed were for orders of review in respect of the Review Committee's decisions to enter upon the hearing, not in respect of the determination under s.124FA(1). The decisions to enter upon the hearing were not in my opinion decisions to which the Administrative Decisions (Judicial Review) Act 1977 applied. They were no more than steps in entering upon and carrying on the hearing to its conclusion. The applications for orders of review in respect of those decisions will be dismissed. On 25 August 1992 the applicant Dr. Lees was "convicted", by reason of his having been made the subject of an order under s.19B of the Crimes Act 1914, of an offence against s.129AA(1)(b) of the Health Insurance Act 1973. That was "a relevant offence" within the meaning of that expression in s.124D and elsewhere in Part VB. Section 124D, the first two sub-sections of which have been set out above, commenced to apply in relation to that conviction 30 days after 25 August 1992. No appeal or application for an extension of the time for instituting an appeal against the conviction was made. The notice in writing to the Chairperson of the Review Committee contemplated by s.124D(2) was given about a fortnight after the expiration of the period of 28 days prescribed by that sub-section. It was submitted by counsel for Dr. Lees that the giving of the notice after the time limited by s.124D(2) was legally inefficacious and that accordingly the Chairman who received the notice was not authorised by s.124E(1) to establish a Review Committee, nor by s.124E(2) to bring the notice to the attention of a Review Committee already established under s.124E(1). "Lawyers speak of statutory provisions as imperative when any want of strict compliance with them means that the resulting act, be it a statute, a contract or what you will, is null and void. They speak of them as directory when they mean that although they are legal requirements which it is unlawful to disregard, yet failure to fulfil them does not mean that the resulting act is wholly ineffective, is null and void. It is almost unnecessary to say that the decided cases illustrating the distinction relate to much humbler matters than the validity or invalidity of the constitution of the Legislature of a State. But in them all the performance of a public duty or the fulfilment of a public function by a body of persons to whom the task is confided is regarded as something to be contrasted with the acquisition or exercise of private rights or privileges and the fact that to treat a deviation in the former case from the conditions or directions laid down as meaning complete invalidity would work inconvenience or worse on a section of the public is treated as a powerful consideration against doing so." Clayton v. Haffron (1960) 105 C.L.R. 214 at 247. The problem, which arises "whenever a judicial or executive act .... is subjected by statute to the prior performance of conditions", as to whether failure to comply with a condition renders the act invalid was considered by the New South Wales Court of Appeal in Tasker v. Fullwood [1978] 1 N.S.W.L.R. 20, which stated the following propositions as relevant to the solution of the problem (at 23): "(1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklins Stores Pty. Ltd. case [1977] 2 N.S.W.L.R. 955 at pp. 963 et seq. (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v. Beaumont [1977] 2 N.S.W.L.R. 211 at p.220. (4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v. The Commonwealth (1975) 134 C.L.R. 81 at pp. 179, 180. (5) It can mislead if one substitute for the question thus posed on investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. (6) In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated: the Franklins Stores Pty. Ltd. case [1977] 2 N.S.W.L.R. 955, at pp. 965 et seq. A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: Victoria v. The Commonwealth (1975) 134 C.L.R. 91 at pp. 118, 162, 179, 180." In Victoria v. The Commonwealth Stephen J. observed (134 C.L.R. at 179): "A directory construction will not assist in securing validity unless, despite the non-compliance which is the occasion for invoking that construction, there may nevertheless be seen to be substantial compliance with the general object at which the statutory provision aims. ............................................... Where, on the contrary, a stipulation may be seen to be of importance in attaining the general object of the statute its total non-observance cannot be sought to be excused, and its intended effect circumvented, by the adoption of a directory construction. A directory construction may none the less be given to such a stipulation if it is of a kind capable of degrees of non-compliance and if some degree of non-compliance can be seen as not necessarily prejudicing the substantial carrying into effect of the general object. If in such a case a directory construction be adopted, the extent of non-compliance in the particular case must then be examined to determine whether what has in fact occurred nevertheless gives effect to the general object of the statute." The evident scope and object of s.124D(2), as of Part VB in which it stands, is to subject to responsible, independent and expert scrutiny conduct of a professionally qualified person rendering services in respect of which medicare benefit is payable which may indicate that the person will, unless counselled or reprimanded or disqualified, jeopardise the proper functioning of the legislatively ordained medicare scheme, and to ensure the proper functioning of the scheme by appropriate sanctions in respect of conduct found to have occurred which does tend to jeopardise that proper functioning. To achieve that object and to avoid harm, to the professional person of whose conduct such a scrutiny is proposed, which unnecessary delay in the scrutinising process would be likely to cause, the time limit ordained in s.124D(2) was imposed. But neither from the nature of the process nor from the realities of professional practice by the persons liable to be subjected to it can a conclusion be drawn that a slight delay, caused by failure to comply precisely with the requirement of s.124D(2) as to the time of giving the notice to the Chairperson, would be likely to cause that harm. And the frustration of the general object of Part VB which insistence on exact compliance with that requirement would work strongly suggests that there is not a legislative intention that the validity of the act of giving notice to the Chairperson should depend on that exact compliance. The contrast between the limitation of 28 days for the giving of notice to the Chairperson and the limitation expressed by the phrase "at or about the same time", while it demonstrates the draftsman's careful consideration of the temporal requirements which should be ordained, does not lead to a conclusion that invalidity for any failure to comply with the former requirement was intended by the legislature. The difference of the two provisions is sufficiently explained by understanding that the whereabouts of the Chairperson will be known to the Minister, but the whereabouts of the practitioner may not be known by the Minister. If, as in my opinion is the case, the stipulation of 28 days is of a kind capable of degrees of non-compliance and some degree of non-compliance can be seen as not necessarily prejudicing the substantial carrying into effect of the general object of s.124(2), then in my opinion a directory construction of the requirement of 28 days should be adopted. It was not submitted that, if that construction were adopted, what in fact occurred in this case did not give effect to that general object. There was, as I think, substantial compliance with the requirement. I doubt whether the Review Committee's decision to proceed with the hearing in the face of the failure to comply exactly with the 28 day requirement was a decision to which the Administrative Decisions (Judicial lReview) Act 1977 applies. It may have been conduct engaged in for the purpose of making a decision to which that Act applies. In any event, if I had accepted the submission advanced on Dr. Lees' behalf, the jurisdiction conferred on this court by s.39B of the Judiciary Act could have been invoked to prohibit the members of the Review Committee from proceeding to hear the matter to which the notice under s.124D(2) refers. There will be orders that each determination in writing of the Review committee dated 18 March 1993 that the Committee should consider whether an applicant had breached an undertaking given by him under section 23DF of the Health Insurance Act 1973 be quashed. Each proceeding will be otherwise dismissed. I will hear the parties on questions of costs. I certify that this and the 24 preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson. Associate Dated: 7 August, 1995 VG339 of 1993 Counsel for the Applicants : Mr. M.R. Titshall Q.C. No appearance for the First named Respondent Counsel for the Second named : Mr. M. Goldblatt Respondent Solicitors for the Applicants : Ebsworth & Ebsworth Solicitors for the Second : Australian Government named Respondent Solicitor VG340 of 1993 Counsel for the Applicant : Mr. R.K.J. Meldrum Q.C. and Mr. P.L. McLoughlin No appearance for the First named Respondent Counsel for the Second named : Mr. M. Goldblatt Respondent Solicitors for the Applicant : O'Connor & O'Connor Solicitors for the Second : Australian Government named Respondent Solicitor Dates of Hearing : 24 and 25 July, 1995