Phan v Kelly [2007] FCA 269

FEDERAL COURT OF AUSTRALIA

Phan v Kelly [2007] FCA 269 ADMINISTRATIVE LAW – Health Insurance Act 1973 (Cth) – Professional Services Review – statutory scheme for examination of conduct to ascertain whether inappropriate practice involved – challenge to decisions of Director and Committee – whether Director erred in referral to Committee by failing to notify Applicant he had taken evidence from two medical advisors into account – whether Director erred by attaching samples of medical reports to his referral – whether Committee erred by taking reports into account – application of procedural fairness procedures in context of staged statutory procedure – whether Committee erred by adopting alternative sampling methodology in decision-making process – whether Committee should have notified the Applicant that an alternative methodology had been adopted – application of judicial immunity – whether advice given by statistician as to statistical validity of methodology is part of decision-making process – whether statistician is agent of the Committee – application dismissed. Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5 and 6 Judiciary Act 1903 (Cth), s 39B Health Insurance Act 1973 (Cth), ss 82, 83, 86, 88, 89B, 90, 91, 92, 93, 98, 101, 102, 103, 104, 105A, 106, 106D, 106K, 106L, 106T, 106TA, 106U Evidence Act 1995 (Cth), s 129 Pradhan v Holmes (2001) 125 FCR 280, referred to Kioa v West (1985) 159 CLR 550, referred to Re Refugee Review Tribunal, Ex party Aala (2000) 204 CLR 82, referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, referred to Muin v Refugee Review Tribunal (2002) 76 ALJR 966, referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, referred to Cornall v A.B. [1995] 1VR 372, followed Annetts v McCann (1990) 170 CLR 596, cited Commissioner of Police v Tanos (1958) 98 CLR 383, cited Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, followed Mathews v Health Insurance Commission (2006) 90 ALD 49, distinguished Herijanto v Refugee Review Tribunal (2000) 170 ALR 379, referred to Herijanto v Refugee Review Tribunal (No 2)(2000)170 ALR 575, referred to Mathews v Health Insurance Commission (No. 1) [2005] FCA 1061, referred to