Butler, Dr Bernard Stewart v Fourth Medical Services Review Tribunal & Anor [1997] FCA 773

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - Medical practitioners - Excessive services - Appeal from decision of Medical Services Review Tribunal - Whether it was necessary to find that the medical practitioner knew or was recklessly unconcerned whether the services were reasonably necessary - Meaning of "personal fault" - Whether clear intention to override the fundamental principle that a guilty mind is required before a person can be held responsible for criminal or quasi-criminal conduct - Onus of proof - Nature of Tribunal proceeding - Whether onus of proof applies to administrative tribunals - Estoppel - Effect of notice that previous statement no longer applied - Whether estoppel operates to prevent exercise of discretion

Health Insurance Act 1973 ss 79(1B), 105, 106AA, 106AB, 124A, 129 Tiong & Anor v Minister for Community Services & Health (1990) 93 ALR 308 Minister for Health v Peverill (1991) 29 FCR 262 Peverill v Backstrom & Ors (1994) 54 FCR 410 The Queen v O'Connor (1980) 146 CLR 64 Coco v The Queen (1994) 179 CLR 427 Minister for Health v Thomson (1985) 8 FCR 213 McDonald v Director-General of Social Security (1984) 1 FCR 354 Taylor v Minister of State for Health (1989) 23 FCR 53 Minister for Immigration v Polat (1995) 57 FCR 98 BUTLER v FOURTH MEDICAL SERVICES REVIEW TRIBUNAL & Anor VG 494 of 1996 Before: NORTH J Place:MELBOURNE Date: 15 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 494 of 1996 ) GENERAL DIVISION )

BETWEEN: Dr BERNARD STEWART BUTLER

Applicant

AND: FOURTH MEDICAL SERVICES REVIEW TRIBUNAL

First Respondent

THE MINISTER FOR HEALTH AND FAMILY SERVICES OF THE COMMONWEALTH OF AUSTRALIA