Yoong v Director, Professional Services Review [2023] FCA 1186

Federal Court of Australia

Yoong v Director, Professional Services Review [2023] FCA 1186 File number(s): QUD 377 of 2021

Judgment of: PERRY J

Date of judgment: 6 October 2023

Catchwords: ADMINISTRATIVE LAW – where the Director of the Professional Services Review issued a notice to produce under s 89B of the Health Insurance Act 1973 (Cth) (the HI Act) in the course of a review of the provision of services by the applicant during the review period – where s 89B of the HI Act authorises the Director to issue a notice requiring production of "documents that are relevant to the review" including clinical records of services rendered or initiated during the review period – where the notice to produce required production of "complete clinical records" for 76 patients – where the applicant produced clinical records for services rendered or initiated within the review period only – whether inference should be drawn that the Director did not turn her mind to whether the complete clinical records of the listed patients were relevant to review – where the Director subsequently purported to narrow the temporal scope of the notice to produce in correspondence – proper construction of s 89B, HI Act – consideration of general principles with respect to the construction of powers to issue notices to produce documents or information in aid of an investigatory function – where relevant question for the Director in determining the scope of a s 89B notice is what documents or classes of documents are reasonably capable in a broad investigative context of being relevant to the review of services provided during the review period – held: the notice to produce was not authorised by s 89B because it was not confined to requiring production of relevant documents and is invalid ADMINISTRATIVE LAW – whether decision to issue notice to produce was legally unreasonable – admissibility of evidence not before the decision-maker to establish legal unreasonableness EVIDENCE – consideration of principles governing the drawing of inferences where there is no direct evidence of a fact in issue ADMINISTRATIVE LAW – notice under s 106ZPM of the HI Act (s 106ZPM notice) given to the applicant that s 106ZPM(1) prevents Medicare benefits being payable for services rendered by the applicant pending compliance with the notice to produce – where it is a precondition to the issue of a s 106ZPM notice that the Director personally forms the view that the applicant has intentionally failed to comply with the notice to produce – whether the Acting Director improperly exercised the power to issue a s 106ZPM notice by acting under the dictation of the Director – where a draft s 106ZPM notice was prepared prior to the Acting Director reviewing the documents – where issues of credibility arose with respect to the evidence given by the Acting Director – finding that the Acting Director was not acting under dictation