Artinian v Commonwealth of Australia [1997] FCA 1604

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No NG 1004 of 1996 ) GENERAL DIVISION )

BETWEEN: DR YACOUB ARTINIAN Applicant AND: THE COMMONWEALTH OF AUSTRALIA First Respondent THE HEALTH INSURANCE COMMISSION Second Respondent DR R NEWTON Third Respondent DR ALAN JOHN HOLMES Fourth Respondent PROFESSIONAL SERVICES REVIEW COMMITTEE (NO 29) Fifth Respondent CORAM: HILL J PLACE: SYDNEY DATED: 28 FEBRUARY 1997 REASONS FOR JUDGMENT Dr Yacoub Artinian ("Dr Artinian") is the applicant in proceedings for judicial review of certain decisions including a decision that a Professional Services Review Committee (No 29) ("the Committee") be set up pursuant to Part VAA of the Health Insurance Act 1973 (Cth) ("the Act"). This application is in similar terms to the application made by Dr Artinian's brother, Dr Garo Artinian, the subject of my interlocutory judgment dated 27 November 1986. All that I have been permitted to know about the substantial application is that it has been alleged that Dr Artinian has engaged in inappropriate practice either in connection with the rendering of services or in connection with the initiation of services. Dr Artinian now moves the Court for interlocutory relief restraining the Committee, the fifth respondent to the proceedings as presently constituted, from further considering the reference which was referred to it, so the notice of motion suggests on 29 November 1996. It is common ground that the Committee met on 31 January 1997. I have been told from the bar table, and I have no reason to doubt, that the transcript of the proceedings on that day occupied some 191 pages. The Committee proposes to resume its deliberations on Saturday, 1 March 1997 and it is for this reason that the present motion has an element of urgency which has necessitated the giving of these ex tempore reasons. The Committee comprises three persons being respectively the Chairman of the Committee, Dr Rice, and the members, Dr Stephen Phillips and Dr David Rivett. The curriculum vitae of each of these gentlemen is in evidence before me and it is evident from a perusal of them that each is eminently qualified to be a member of the Committee. No suggestion is made to the contrary. The attack made upon their participation is a suggestion of ostensible bias. No suggestion is made that any of the members of the Committee is actually biased. The present proceedings should be seen against the statutory background of the Act which is set out in some detail in my judgment in the interlocutory proceedings concerning Dr Garo Artinian; Dr Garo Artinian v The Commonwealth of Australia & Ors (unreported, 27 November 1996). It suffices here to say that, where a referral has been made by the Health Insurance Commission to the Director of Professional Services Review pursuant to s86 of the Act into what that section refers to as "inappropriate practice" according to s89 of the Act, the Director must, within 28 days after receiving the referral, either dismiss the referral or set up a Committee to consider whether the practitioner has "engaged in inappropriate practice". The Committee is to be set up in accordance with s93 of the Act and, relevant to present purposes, is to comprise a Chairperson who is a Deputy Director and two other panel members, each appointed by the Director. By force of sub-sec95(2) of the Act, the Chairperson and other panel members must be medical practitioners belonging to the profession in which the practitioner under investigation was practising when rendering or initiating the referred services. Sub-section 96 of the Act gives to the person whose conduct is under consideration the right to challenge an appointment of a Committee member, inter alia, on certain grounds including that it: "(b) is likely to be thought, on reasonable grounds, to be biased.