Crowley v Holmes [2002] FCA 1585

FEDERAL COURT OF AUSTRALIA

Crowley v Holmes [2002] FCA 1585 PAUL DAVID CROWLEY v ALAN JOHN HOLMES (in his capacity as the Director of Professional Services Review) and GEOFFREY HIRST and STEPHEN PHILLIPS and DAVID ROSENTHAL and HEALTH INSURANCE COMMISSION V 259 OF 2002 NORTH J 18 DECEMBER 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 259 OF 2002

BETWEEN: PAUL DAVID CROWLEY

APPLICANT

AND: ALAN JOHN HOLMES (in his capacity as the Director of Professional Services Review)

FIRST RESPONDENT

GEOFFREY HIRST

SECOND RESPONDENT

STEPHEN PHILLIPS

THIRD RESPONDENT

DAVID ROSENTHAL

FOURTH RESPONDENT

HEALTH INSURANCE COMMISSION

FIFTH RESPONDENT

JUDGE: NORTH J

DATE OF ORDER: 18 DECEMBER 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant is to pay the respondents' costs of the application. 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 V 259 OF 2002

BETWEEN: PAUL DAVID CROWLEY

APPLICANT

AND: ALAN JOHN HOLMES (in his capacity as the Director of Professional Services Review)

FIRST RESPONDENT

GEOFFREY HIRST

SECOND RESPONDENT

STEPHEN PHILLIPS

THIRD RESPONDENT

DAVID ROSENTHAL

FOURTH RESPONDENT

HEALTH INSURANCE COMMISSION

FIFTH RESPONDENT

JUDGE: NORTH J

DATE: 18 DECEMBER 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 Doctor Crowley, the applicant, is a general practitioner who conducts a practice in Lowood in Queensland. In this application to the Court he seeks to prevent a Professional Services Review Committee (the Committee) constituted under the Health Insurance Act 1973 (Cth) (the Act) from proceeding to consider whether he has engaged in inappropriate practice. The Committee was established by the Acting Director of Professional Services Review, acting on behalf of the first respondent (the Director), and was constituted by Doctors Hirst, Phillips and Rosenthal, the second, third and fourth respondents respectively. 2 It is first useful to explain the factual circumstances and the legislative setting of the proceeding. Whilst it will be necessary to refer to certain legislative provisions in detail, a convenient starting point is to sketch by way of broad overview the legislative scheme applicable so far as it is relevant to this proceeding. 3 Part VAA of the Act establishes a professional services review scheme whereby the conduct of doctors and other providers of like services can be examined to ascertain whether any inappropriate practices have been undertaken. The scheme provides for the Health Insurance Commission (the Commission), the fifth respondent, to refer matters to the Director of Professional Services Review (s 86). Such a referral is called an investigative referral. The Director must then conduct an investigation into the referred services (s 89). The Director may set up a Professional Services Review Committee (s 93) under Division 4 of the Act and make an adjudicative referral to the Committee. In such a case the Committee must consider whether the rendering of the referred services constituted engaging in inappropriate practice. The Committee must give a final report to, inter alia, the Determining Authority (s 106L(4)), which is established by s 106Q. If the Committee reports that there has been inappropriate practice, the Determining Authority must determine the consequences from a number of possible outcomes listed in s 106U, including, reprimand, counselling, repayment of Medicare benefits, or disqualification for up to three years.