Tisdall v Kelly [2005] FCA 365

FEDERAL COURT OF AUSTRALIA

Tisdall v Kelly [2005] FCA 365

HEALTH LAW – medical practitioners – Professional Services Review Scheme – investigative referral – adjudicative referral – finding of 'inappropriate practice' on the basis of breach of 80/20 rule – whether Acting Director of Professional Services Review and Professional Services Review Committee failed to ascertain which services rendered by applicant fell within terms of referrals – whether services rendered within specified location – whether committee obliged to exercise investigative powers – whether committee correctly construed and applied meaning of 'exceptional circumstances' – whether exceptional circumstances may be circumstances of an on-going nature – whether denial of procedural fairness – whether Acting Director obliged to notify applicant of his opinion that an agreement to resolve matter should only be entered into if applicant initiated discussions and acknowledged inappropriate practice WORDS AND PHRASES – 'exceptional circumstances'

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 11, 5 Federal Magistrates Act 1999 (Cth) s 39 Health Insurance Act 1973 (Cth) ss 10(1), 10(2), 19(6), 20(1), 20A, 80, 81(1), 82, 83(1), 86(1)(a), 86(4), 87(1), 88, 89, 89B, 91, 92, 93(6), 93(7), 94, 95(1), 95(2), 95(5), 101(2), 103, 104, 105A, 106(2), 106H(1), 106KA, 106KD, 106L, 106Q, 106T, 106U, 106TA, 93(1), Health Insurance Amendment (Professional Services Review) Act 1999 (Cth) Migration Act 1958 (Cth) s 427(1)(d) Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB, 46(1)(b) Health Insurance Regulations 1975 (Cth) reg 13 Health Insurance (1999-2000 General Medical Services Table) Regulations 1999 (Cth) Health Insurance (Professional Services Review) Regulations 1999 (Cth) regs 10, 11

Daniel v Kelly [2003] FCA 772 (2003) 200 ALR 379 distinguished Kelly v Daniel [2004] FCAFC 14 (2004) 139 FCR 64 distinguished Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 (2001) 106 FCR 426 cited Kabir v Minister for Immigration & Multicultural Affairs [2001] FCA 248 (2001) 184 ALR 295 cited R v Alley; Ex parte New South Wales Plumbers and Gas Fitters Employees' Union (1981) 153 CLR 376 cited Hatcher v Cohn [2004] FCA 1548 not followed Oreb v Willcock [2004] FCA 1520 discussed Lee v Kelly [2005] FCA 26 discussed Lee v Grigor [2005] FCA 25 not followed Crowley v Holmes [2004] FCA 521 not followed Dimian v Health Insurance Commission [2004] FCA 1615 not followed Selim v Lele [2005] FCA 24 not followed DR PETER THOMAS TISDALL v DR BERNARD RAYMOND KELLY (AS ACTING DIRECTOR OF PROFESSIONAL SERVICES REVIEW), DR LYNETTE EDWARDS (AS CHAIRPERSON OF PROFESSIONAL SERVICES REVIEW COMMITTEE NO. 325), DR JOHN TURNBALL (AS A MEMBER OF PROFESSIONAL SERVICES REVIEW COMMITTEE NO. 325, DR GEOFF MACFARLANE (AS A MEMBER OF PROFESSIONAL SERVICES REVIEW COMMITTEE NO. 325) AND THE DETERMINING AUTHORITY (ESTABLISHED PURSUANT TO SECTION 106Q OF THE HEALTH INSURANCE ACT 1973) V 322 of 2003 GRAY J 8 APRIL 2005 MELBOURNE