Federal Court of Australia

Amir v Director of Professional Services Review [2022] FCAFC 44

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    This appeal turns on a narrow question of statutory construction concerning the meaning of the term “decision” in the specific context of the Professional Services Review Scheme established by Part VAA of the Health Insurance Act 1973 (Cth). The Scheme is administered by the Professional Service Review Agency, which is headed by a medical practitioner appointed by the relevant Minister as the Director of Professional Services Review.

THE LEGISLATIVE FRAMEWORK

2    The primary judge summarised the statutory scheme at [4] – [18] of her judgment: Amir v Director of Professional Services Review [2021] FCA 745 (J). The following summary is substantially drawn from the primary judge’s analysis, supplemented with additional detail as relevant to the issues raised on appeal.

3    Part VAA of the Act establishes the Scheme. The object of Pt VAA of the Act is to “protect the integrity of the Commonwealth Medicare benefits, dental benefits and pharmaceutical benefits programs” and, in doing so, “protect patients and the community in general from the risks associated with inappropriate practice” and “protect the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice”: s 79A of the Act.

4    “Inappropriate practice” is defined in s 82. Broadly, it is conduct of a medical practitioner rendering or initiating services which would be “unacceptable to the general body of” the practitioner’s peers.

5    The Director, who is required to be a medical practitioner, is an independent statutory officer appointed by the Minister: s 83. The Director and the Australian Public Service employees assisting the Director together constitute the Agency: s 106ZM(2). The Director is the head of the Agency.

6    The Scheme involves three stages for reviewing and investigating the provision of services to determine whether a person has engaged in inappropriate practice: s 80.

7    The first stage is concerned with the Director’s assessment and in certain circumstances review of the provision of services by a practitioner at the request of the Chief Executive Medicare: s 80(3)–(5). A review may only be initiated by the Chief Executive, who may, in writing, request the Director to review the provision of services by a person during the period specified in the request: s 86(1). The period specified in the request must fall within the two year period immediately preceding the request: s 86(2). Within seven days after making the request, the Chief Executive must give the person written notice of the request: s 87(1).

8    If the Chief Executive requests the Director to review the provision of services by a person, the Director must, within one month after receiving the request, decide whether or not to undertake the review: s 88A(1).

9    If the Director decides to undertake a review, following the review, the Director must do one of three things. First, decide to take no further action: s 80(4)(a). Secondly, enter into an agreement with the person under review: s 80(4)(b). Thirdly, make a referral to a Committee, comprised of peers of the person under review: s 80(4)(c).

10    Review by a Committee is the second stage of the review process. The Committee is responsible for determining if inappropriate practice has occurred. The Committee has the power to conduct a hearing and require the person under review to give evidence and to compel the production of documents: s 80(6)–(9).

11    If the Committee is satisfied that inappropriate practice has occurred, the Committee reports to a Determining Authority which is constituted under s 106Q(1) and is comprised of a group of practitioners and a community representative. The third stage of the review process is the determination and imposition of sanctions by the Determining Authority: s 80(10).

12    This appeal involves the first stage of the review process, namely the validity of the Director’s decision to refer the request made in respect of the appellant, Dr Amir, to a Committee for determination of whether he had engaged in inappropriate practice.

13    The Director must decide to undertake the review if, after considering the request from the Chief Executive and any other relevant information the Director has obtained, it appears to the Director that there is a possibility that the person who is the subject of the request to the Director has engaged in inappropriate practice in providing services during the review period: s 88A(2). If the Director does not make a decision under s 88A(1) within the period of one month specified, the Director is taken to have decided, at the end of that period, to undertake the review: s 88A(3). In this way, the default position is that if the Director does nothing, the Director will review the request.

14    The Director must give written notice of the decision to the person the subject of the review and to the Chief Executive: s 88A(4). The written notice must be given within seven days after the decision to undertake a review is made but failure to give the notice within that time or with the content required by s 88A(6) does not affect the validity of the decision: ss 88A(5) and (7).

15    Section 88A(1) is central to the present appeal. The Director’s decision under s 88A(1) is the trigger for time to commence to run for the period during which the Director must either complete his or her review of the Chief Executive’s request or be deemed to have decided that no further action be taken in respect of the review by operation of s 94(1).

16    The Director’s discretion as to whether or not to conduct a review is altered by s 89 of the Act which specifies the circumstances in which the Director must review. Section 89 is not engaged in the present appeal. Section 94 does not apply to a review undertaken as a result of s 89.

17    For the purpose of undertaking a review, the Director has the power to require the production of documents or the giving of information from, inter alia, the person who is the subject of the Director’s review: s 89B. Where such a notice is issued and is not answered within the specified timeframe, the Director may determine to extend the 12-month time period prescribed by s 94(1), during which the Director is required to complete his or her review or be deemed to have decided to take no further action. In such cases, the 12-month period can be extended by a specified period which is not longer than the period of non-compliance: s 94(3).

18    Following a review, the Director can either decide under s 91 to take no further action or decide not to make a decision under s 91 to take no further action. In the latter event, the Director must give the person under review a written report setting out the reasons why the Director has not made a decision under s 91 and invite the person to make written submissions to the Director, within one month, about the action the Director should take in relation to the review: s 89C(1).

19    If the Director decides not to make a decision under s 91 to take no further action and gives the person under review a report and invitation under s 89C(1)(b), as soon as practicable after taking into account any submissions made by the person, the Director must under s 89C(2):

(a)    decide to take no further action in relation to the review in accordance with section 91; or

(b)    enter into an agreement with the person under review under section 92; or

(c)    make a referral to a Committee under section 93.

20    The Director may decide to take no further action in relation to a review if he or she is satisfied that there are insufficient grounds on which a Committee could reasonably find that the person under review has engaged in inappropriate practice in providing services during the review period or circumstances exist that would make a proper investigation by a Committee impossible: s 91(1).

21    Section 92(1) of the Act provides that the Director and a person under review for the provision of services may enter into a written agreement under which the person acknowledges that he or she engaged in inappropriate practice and agrees to submit to specified action as a consequence.

22    Section 93(1) provides that the Director may set up a Committee and make a referral to the Committee to investigate whether the person under review engaged in inappropriate practice in providing the services specified in the referral. If the Director makes such a referral to a Committee, it is to be accompanied by a written report for the Committee giving reasons why the Director believes the person under review may have engaged in inappropriate practice in providing the services to which the referral relates: s 93(6). Within seven days after making the referral, the Director must give a copy of the referral and the report to the Chief Executive and the person under review: s 93(7). The Committee can investigate any aspect of the provision of the referred services and its investigation is not limited by any reasons given in a request for review or a Director’s report following a review: s 80(6).

23    Section 94(1) contains a mechanism by which, if the Director has not made a decision in respect of a request within the designated time period, the Director will be deemed to have made a decision to take no further action in relation to the review. The provision in s 88A(1) (the trigger decision) and the deeming mechanism in s 94(1) give rise to the construction issue on the present appeal. Section 94(1) relevantly provides:

(1)    If:

(a)    the Director decides to review the provision of services by a person; and

(b)    before the end of the period of 12 months after making the decision, the Director has not:

(i)    made a decision under section 91 to take no further action in relation to the review; or

(ii)    entered into an agreement with the person under section 92 (whether or not the agreement has been ratified by the Determining Authority); or

(iii)    referred the provision of one or more of the services to a Committee;

then, the Director is taken to have made a decision at the end of that period to take no further action in relation to the review.

…

24    The purpose of s 94(1) is to encourage the Director, having decided to undertake a review, not to be dilatory in completing the review and taking one of the actions referred to in s 94(1)(b): National Home Doctor Service Pty Ltd v Director of Professional Services Review [2020] FCA 1016; 276 FCR 382 (NHDS No. 2) at [56].

25    The effect of s 94(1) whereby the Director “is taken to have made a decision” at the end of the relevant period is to create a statutory fiction. It operates to deem a decision to have been made at a point in time when no such decision has in fact been made: NHDS No. 2 at [55] – [56].

THE ISSUE ON APPEAL

26    The validity of the Director’s decision to refer the request made in respect of Dr Amir to a Committee is challenged on the basis that the referral was not made within time, with the consequence being that the Director is deemed to have made a decision to take no further action: s 94(1). The timeframe within which the Director may make a decision to refer to a Committee is limited to 12 months plus, relevantly, any extension to that period under s 94(3).

27    Dr Amir contends that the Director’s decision to refer the Chief Executive’s request in respect of him to a Committee was made one day outside the relevant period and was therefore invalid. Dr Amir further contends that by the effluxion of time and operation of s 94(1), the Director is deemed to have made a decision to take no further action on the day before the Director purported to make a decision referring the matter to a Committee.

28    The first and third respondents, the Director and the Commonwealth respectively, contend that the Director’s decision to refer the matter to a Committee was made within time.

29    The second respondent, Professional Services Review Committee No 1306, filed a submitting appearance save as to costs, and accordingly did not participate in the hearing.

30    The primary issue between the parties turns on the proper construction of the terms “decision” (and “decide”, “decides” and “decided”) in the particular statutory context. The immediate focus is on the proper construction of ss 88A and 94(1). It is common ground that the Director referred, or purported to refer, Dr Amir to a Committee under s 93 on 14 April 2020.

31    Dr Amir contends that the decision that triggered the commencement of the finite period in which the Director could refer Dr Amir to a Committee was made on 4 April 2019 and therefore the relevant period expired on 12 April, or alternatively, 13 April 2020 (being 12 months plus an extension period of nine days). Dr Amir contends that the trigger decision is constituted by an “objectively ascertained, subjective state of mind” on the part of the Director (at T21:1–4). Dr Amir relies on an internal email from the Director to certain Agency staff on 4 April 2019 as evidence that the trigger decision was made by the Director on 4 April 2019.

32    The respondents contend that the trigger decision was made on 16 April 2019 and therefore the relevant period expired on 25 April 2020, some 11 days after the Director referred the matter to the Committee. The respondents contend that the primary judge was correct to hold that in the relevant statutory setting, a decision equates to an “externally manifested communication” of an “irrevocable commitment”: at J [42]. The respondents rely on an external communication from the Director to Dr Amir on 16 April 2019 as evidence that the trigger decision was made on that date.

THE PRIMARY JUDGMENT

33    The primary judge found that in the administrative law context and in the particular statutory setting, a decision under s 88A(1) must be an externally manifested communication by the Director of an irrevocable commitment by her as to whether or not to undertake a review. The primary judge found that the Director made the decision under s 88A(1) which set time running for the purpose of s 94(1) on 16 April 2019 and accordingly, the Director’s decision under s 93(1) to refer Dr Amir to a Committee was made within time and was valid.

CONCLUSION ON THE APPEAL IN SUMMARY FORM

34    Dr Amir has failed to demonstrate error on the part of the primary judge. The first ground of appeal challenges the construction attributed by the primary judge to the word “decision” and its related terms (“decide”, “decides” and “decided”). The submissions advanced on behalf of Dr Amir are premised on a misreading of the primary judge’s reasoning and fail to reflect adequately the statutory context. Ground 1 must be dismissed. Ground 2 falls with Ground 1. Grounds 3 fails because it adds nothing not already covered by the other grounds. Ground 4 challenges findings of fact and is predicated on the success of Dr Amir’s challenge to the primary judge’s construction of ss 88A(1) and 94(1) and the acceptance of his construction of those provisions as covered by Ground 1. Since Ground 1 fails, Ground 4 does not arise.

PRIMARY FACTS

35    The facts are summarised by the primary judge at J [19] – [29].

36    On 4 April 2019, pursuant to s 86(1), the Chief Executive requested that the Director review Dr Amir’s provision of services for the period 1 September 2017 to 31 August 2018. This request was made by email at 2.48 pm. The email enclosed a letter of request with five attachments (together comprising 102 pages): J [57]. By the time the request was made, there had been an earlier separate request to review the provision of services by Dr Amir in the period from August 2016 to 31 July 2017. The Director referred that earlier request to a Committee under s 93 prior to receipt of the request relevant to this appeal.

37    Also on 4 April 2019, a delegate of the Chief Executive notified Dr Amir of the request which had been made to the Director.

38    At 3.06 pm on 4 April 2019, Andrew Shelley, an Agency staff member, emailed other Agency staff circulating the request and all the accompanying materials from the Chief Executive.

39    On the same day, at 3.08 pm, the Director sent an email to certain Agency staff stating that (as written):

I have reviewed the referral and decided to conduct a review

Please prepare the necessary paperwork

He is back again for another 80/20 breach plus excessive pathology and PBS items.

I had a brief chat to Andrew and we'll proceed as per usual but not in any hurry so as to give the Committee time to progress.

…

40    Dr Amir relies on this email to contend that the trigger decision to review under s 88A(1) was made by the Director on 4 April 2019. It is, however, to be noted that the Director’s guidance not to proceed “in any hurry” sits uneasily with that contention because it indicates that in the Director’s mind, the trigger decision had not yet been made. Indeed, if a decision had been made, the Committee would not be getting further time to progress the other matter before this matter was also potentially referred to the Committee.

41    The reference the Director makes to having had a brief chat with Andrew is likely a reference to Mr Shelley, who then forwarded the Director’s email to certain other staff at 3.18 pm, stating:

I think given the lawyers in the committee matter are Avant, we shouldn’t approach them about whether they act in this matter – it's possible Dr Amir has made a decision not to tell his insurer about a further review.

I'd send the kick-off letter directly to Dr Amir, unless (noting they won’t get signed for more than a week) we hear from Avant in the meantime

42    Mr Shelley’s reference to “the committee matter” is a reference to the earlier request made by the Chief Executive in respect of Dr Amir that the Director had already referred to a Committee under s 93(1).

43    Mr Shelley’s reference to the “kick-off letter” is a reference to the Director’s letter recording that a decision to undertake a review had been made and giving notice of that decision to the person concerned as required by s 88A(5). We interpolate again to observe that it is difficult to reconcile the unguarded acknowledgment by Mr Shelley that the “kick-off letter” would not be signed for more than a week with Dr Amir’s contention that the Director had made the trigger decision – the language of “kick-off” itself suggests that time would only commence running when the letter was signed. Further, as will become evident, the letter was in a form, which we infer to be in standard wording, that recorded the relevant decision to undertake a review was made only on the day the letter was signed. Mr Shelley’s email on 4 April 2019 is expressed in a way that is consistent with the Director’s consideration of whether to review the Chief Executive’s request being in train rather than being concluded. In the event, the “kick-off letter” was not signed and notification was not given until 16 April 2019.

44    In response to Mr Shelley’s email, Ms Kylie Neville, an Agency staff member, sent an email at 3.54 pm acknowledging the email and stating that she would look at it and circulate “details of lists we want to look at”.

45    On 8 April 2019, Ms Neville emailed other staff members setting out detailed information about Dr Amir and the services he provided in the review period. Those details are apparently those referred to in her email on 4 April 2019 as being the ones “we want to look at”. The primary judge found that the information circulated by Ms Neville was relevant to the Director’s decision as to whether or not to undertake a review: J [57].

46    On 16 April 2019, the Director notified Dr Amir of her decision to undertake a review as required by s 88A(5). In her letter, which is hand dated, the Director expressly said “…today I have decided to undertake a review into your provision of those services…” (emphasis added). Dr Amir was informed that the Chief Executive would also be notified.

47    On 14 August 2019, the Director issued a s 89B notice to produce to Dr Amir, requiring specified documents to be produced by 4 September 2019. Dr Amir completed his response to the notice to produce on 13 September 2019, some nine days after he was required to comply.

48    On 3 March 2020, the Director informed Dr Amir that she had decided not to make a decision under s 91 to take no further action in relation to the review. As such, she provided Dr Amir with a report in accordance with s 89C of the Act, and invited Dr Amir’s response within one month of receipt of the report. Dr Amir provided a response dated 3 April 2020 to the s 89C report.

49    On 12 March 2020, in accordance with s 94(3), the Director determined to extend the period of 12 months referred to in s 94(1) by nine days, reflecting the period during which Dr Amir had failed to comply with the requirement in the s 89B notice to produce. It is for this reason that the relevant period in the present appeal is one year and nine days.

50    On 9 April 2020, as requested in Dr Amir’s response, the Director proposed to Dr Amir that he enter into an agreement on conditions under s 92, with the agreement to be executed by 14 April 2020. Dr Amir refused to accept the conditions of the proposed s 92 agreement on 14 April 2020.

51    Finally, on 14 April 2020, the Director decided to set up and refer Dr Amir to a Committee pursuant to s 93(1). The Director notified Dr Amir of this decision on the same day.

THE GROUNDS OF APPEAL

52    Dr Amir raised four grounds of appeal. As noted above, the critical ground is Ground 1 by which it is alleged that the primary judge erred in respect of the construction of ss 88A and 94(1) of the Act. There is a substantial overlap between Grounds 1 and 2. The remaining grounds are essentially concerned with alleged errors in fact finding.

CONSIDERATION

Principles

53    The relevant principles which inform the task of statutory construction are not in dispute. It is well established that the task requires consideration of the text, context and purpose: see, in particular, s 15AA of the Acts Interpretation Act 1901 (Cth); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]; Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [25]–[26]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14]; Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2020] FCAFC 192; 282 FCR 1 at [4].

54    The meaning of the term “decision” in ss 88A(1) and 94(1) is to be ascertained by applying the above principles.

Ground 1 and 2: Construction of ss 88A and 94(1) of the Act

55    Ground 1 seeks to demonstrate error in the primary judge’s approach at J [42] and J [45] to construing ss 88A and 94(1) of the Act and the verbs “decide”, “decides”, “decided” and the noun “decision”.

56    The parties agreed that the references in s 94(1)(a) “[i]f the Director decides to review…” and s 94(1)(b) “…12 months after making the decision…” involve a decision by the Director under s 88A(1) of the Act (“…the Director must, within 1 month after receiving the request, decide whether or not to undertake the review”).

57    The primary judge accepted Dr Amir’s submissions that (at J [34]):

(1)    the scheme of the Act consistently distinguishes between the act of making a decision and the act of notifying the making of that decision – see, for example, ss 86(1) and 87(1), 88A(1) and 88A(4), 91(1) and 91(2), 93(1) and 93(7): J [34(1)];

(2)    the distinction between the making of a decision and its notification is also apparent from ss 87(2), 88A(5) and (7) to the effect that failure to comply with the notice requirement does not affect the validity of the decision: J [34(2)];

(3)    “decision” and “decide” should take their ordinary meaning in the Act of “a making up of one’s mind”: Macquarie Dictionary online: J [34(3)]; and

(4)    the cases upon which the Director relies to support the proposition that a decision must be externally manifested concern different statutory regimes and different legal issues (specifically, the operation of the doctrine of functus officio) and do not govern the construction of s 94(1)(b) of the Act: J [34(6)];

but concluded that these propositions did not lead to the conclusion for which Dr Amir advocated: J [35].

58    The primary judge’s analysis of what constitutes “deciding” for the purpose of s 88A(1) (at J [46] – [51]) drew on the approach taken by Finn J to the meaning of “decision” in Semunigus v The Minister for Immigration & Multicultural Affairs [1999] FCA 422 (as subsequently adopted on appeal in Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240; 96 FCR 533 at [11], [75] and [101]):

19.     For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion – as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.

20.     What constitutes such an act can obviously vary with the setting in which the decision is made: it may be no more than a written notation of a conclusion on a departmental file; it may be publication of the conclusion in a particular forum, or communication of it to another; it may be performing a consequential or collateral act that presupposes the decision’s having been made, etc.

59    After reviewing subsequent authorities in which Semunigus has been applied, the primary judge concluded (at J [51]):

The principle in Semunigus concerns the meaning of a “decision” generally. It gives that term a meaning which is consistent with its ordinary meaning and which is clear and capable of application. The focus is not on a decision-maker’s mental state. It is on the external manifestation of that state of mind in some irrevocable and final manner. While this meaning will always yield to the particular statutory context, the context in the present case supports giving the words “decide” and “decision” in s 88A(1) and s 94(1)(a) and (b) this meaning.

60    In assessing what constitutes “deciding” for the purpose of s 88A(1), the primary judge posited three possible options: (a) the Director making up her mind to review without communicating her decision to anyone; (b) the Director making up her mind and communicating her decision to her staff; or (c) the Director making up her mind and communicating her decision to the person and the Chief Executive in accordance with s 88A(4): J [36].

61    The primary judge rejected option (a) as plainly untenable: J [37]. That conclusion is, with respect, correct.

62    Dr Amir’s position was that option (a) was in theory sufficient (even though it may entail difficulties of proof) but that in the present appeal, option (b) was satisfied in any event because the Director made up her mind on 4 April 2019 and communicated it to her staff in an email on that day. On appeal, Dr Amir submits that the Director’s power to make a decision under s 88A(1) is a power that may be exercised repeatedly during the one month period in which the power was available to be exercised: s 88A(3). Further, Dr Amir argued that no decision under s 88A(1) can be described as irrevocable until the expiration of the one month period in s 88A(3), presumably because the Director could revisit and remake the decision within that period.

63    The critical section of the primary judge’s reasons is as follows:

[39]    … Within the statutory scheme it is necessary to know when the Director decides within the meaning of s 88A(1) because that determines the beginning of the 12 month period referred to in s 94(1). Options (a) and (b) both inevitably raise: (a) qualitative questions about the state of mind of the Director whether communicated to staff or not, and (b) legal and practical questions about the capacity of the Director to change her mind at any time until the period of one month from receipt of the request has expired.

[40]    The reliance on the ordinary meaning of “decide” (to make up one’s mind), on analysis, does not assist the submissions for Dr Amir. When has a person in fact made up their mind? It is not difficult to accept that, in ordinary usage, a person makes up their mind only once they manifest externally that their state of mind is committed to a particular position or course of action. Before that manifestation, can it be said that the person has “decided” anything? For so long as they have not manifested their settled state of mind about a matter by communicating their commitment to a position or a particular course of action, the person has not decided one way or another. They may have a strong predisposition one way or another, but the decision is made by the manifestation of the commitment to a position or a particular course of action.

[41]    The fact that s 88A(1) requires the Director to “decide”, s 88A(4) requires notice to be given of the decision, and ss 88A(5) and (7) provide that a failure to comply with the notice requirements does not affect the validity of the decision are relevant. The terms of s 88A(5) in particular (“[t]he notice must be given within 7 days after the decision is made”) support the conclusion that the decision and the notice are separate and distinct, and that the former may pre-date the latter.

[42]    This said, the better resolution of the potentially competing considerations, in my view, is to construe “decide” in s 88A(1) as meaning an externally manifested communication by the Director of an irrevocable commitment by her whether or not to undertake a review. This externally manifested communication of an irrevocable commitment by the Director might be to her staff or others (option (b)) or by the giving of notice as required by s 88A(4) (option (c)). Everything which occurs before either of these events does not involve the Director “making up” the Director’s mind because such acts, of necessity, are not final and are not irrevocable. They are subject to change as and when the Director determines within the period of one month provided for the making of the decision.

…

[45]    While this resolution of the statutory provisions may not be perfect, it is less imperfect than the approach advocated for Dr Amir. Dr Amir’s approach, as discussed, invites: (a) qualitative questions about the state of mind of the Director whether communicated to staff or not, and (b) legal and practical questions about the capacity of the Director to change her mind at any time until the period of one month from receipt of the request has expired. The approach which I prefer, subject to the deeming provision in s 88A(3), requires identification of an externally manifested communication by the Director of an irrevocable commitment by her whether or not to undertake a review. This constitutes the “decision”. In this case, the best evidence of such a decision is the letter of 16 April 2019.

64    The submissions advanced on behalf of Dr Amir fall into two parts. First, Dr Amir relies on the ordinary meaning of the word “decide” to seek to demonstrate that the primary judge erred in construing the relevant provisions. Secondly, Dr Amir contends that the primary judge erred in importing a requirement that a decision under s 88A(1) must be irrevocable when neither the Act nor the ordinary meaning of decision includes a requirement of irrevocability.

65    As to the first, the construction for which Dr Amir contends attaches a meaning to “decision” that fixes on the Director’s subjective state of mind, which Dr Amir submits is consistent, with the ordinary usage of the word. On the facts, Dr Amir contends that the 4 April 2019 decision made by the Director was communicated by the Director to her staff. Dr Amir relies on the communication not as a necessary requirement of the making of the decision but as objective evidence from which the decision in fact having been made may be inferred. Dr Amir submits that the Director’s decision communicated in the 4 April 2019 email was clear and unequivocal, namely “I have reviewed the referral and decided to conduct a review”. Dr Amir submits that many decisions in the ordinary use of that word are not communicated and are revocable. Dr Amir gives the example that one may decide to go the shops and then change one’s mind.

66    Dr Amir’s appeal to the broad ordinary meaning of the term decision must be rejected. The ordinary meaning must necessarily yield to the relevant statutory context. In the present circumstances, the relevant decision functions within the statutory scheme as the trigger to start time running on the finite period within which the Director can perform her function in the first part of the review process. To seek to anchor the temporal guillotine of the Scheme, which carries real legal consequences, to the subjective state of mind of the particular office bearer without any requirement for a committed demonstrable manifestation of that state of mind is to divorce impermissibly the meaning of the term decision from its statutory context. For the purpose of s 88A(1), what is required, having regard to the statutory scheme, is a decision that constitutes, or at least purports to constitute, a performance of the decision-making function conferred by s 88A(1). The primary judge was correct to find that the words “decide” and “decision” in s 88A(1) and s 94(1) do not focus on the Director’s mental state but rather on the external manifestation of that mental state in an irrevocable, or firm, way.

67    The second aspect of Dr Amir’s attack on the primary judge’s construction of ss 88A and 94 is premised upon the contention that the primary judge construed a decision under s 88A as necessarily being irrevocable as a matter of law. The case below did not concern whether a decision under s 88A(1) could be revoked within the one-month time period specified by s 88A(3) and re-decided before that period expired. Dr Amir’s case below was that the relevant and operative decision for the purpose of triggering the commencement of time running for s 94(1) was made on 4 April 2019. On appeal, Dr Amir submits that the primary judge erred in finding that the decision must be irrevocable because any decision made under s 88A(1) could always be revoked within the one month period specified by s 88A(3). Dr Amir submitted that there is nothing in the Act which expressly requires a “decision” to be irrevocable. Further, Dr Amir argues there are strong textual indictors that a “decision” does not have to have the quality of being irrevocable as a matter of law. It is not necessary to rehearse Dr Amir’s submissions in respect of the textual indicators relied upon in this respect because the underlying premise upon which he relies is flawed.

68    Read in context, the primary judge’s repeated use of the word “irrevocable” serves to emphasise that the manifestation of the Director’s “decision” must have the requisite character of conclusiveness, commitment or finality. The converse is that the “decision” must not be tentative, preliminary or subject to change. The Director must have decided, or be committed to a course, and not be in a state of flux or tentativeness about that course. The primary judge’s use of the descriptor “irrevocable” underscored that the decision required by s 88A must be of a firm, committed or final character: see J [42], [43], [44], [45], [47], [51], [53], [55].

69    The primary judge’s repeated references to “irrevocable” are used in connection with “commitment” (see J [40], [42], [43], [44], [45]) or with the clarity with which the Director’s “state of mind” is manifested in the communication of the decision (see J [51], [53]). The reference at J [55] to “irrevocable” highlights that the primary judge’s use of this word denotes that the decision is firm, that is, not subject to change. The primary judge considered Dr Amir’s contention that the Director in fact decided to undertake the review on 4 April 2019 and concluded that even if that was so, the Director’s email of 16 April 2019 remains to the effect that she also decided “today” (that is, on 16 April 2019) to undertake the review (at J [55]):

The result is that within the prescribed time period of one month, the Director made two decisions to the same effect. Of those two decisions, only one was irrevocable and communicated to Dr Amir, the decision of 16 April 2019. As such, it is the relevant decision for the purposes of the statutory provisions.

70    The submissions advanced on behalf of Dr Amir are premised on a contortion of the clear and plain reasoning of the primary judge and are rejected. Ground 1 must fail.

71    By Ground 2, Dr Amir contends that the primary judge applied the wrong test or asked the wrong question when concluding that the Director did not “in fact” decide to review the Appellant’s provision of services on 4 April 2019 and that her mental processes continued until 16 April 2019. Ground 2 depends on Dr Amir succeeding on his argument in relation to the construction of s 88A(1). Ground 2 therefore falls with Ground 1.

Grounds 3 and 4: Challenges to fact finding

72    Grounds 3 and 4 are as follows:

3.    The Court failed to respond to the Appellant’s substantial, clearly-articulated arguments relying upon asserted or established facts, and to the Appellant’s submissions of substance and, or in the alternative, it failed to consider the substance of the Appellant’s case.

4.    The Court erred in finding that the [Director] did not make a decision to undertake a review on 4 April 2019, that her email of that date expressed a preliminary view that she would be deciding subsequently to undertake a review, and that the [Director] made a separate decision to undertake a review on 16 April 2019.

73    These grounds may be disposed of in short compass.

74    Ground 3 is expressed as a judicial review ground on the lines of Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [27] and [95], being the failure to consider a matter that was put or a claim that was made. Counsel for Dr Amir rightly accepted that in an appeal, such as this, that ground can only succeed if the matter that is said to have been overlooked would win the day on appeal (at T27:34–47 and T28:1–14). We have considered those matters as part of our consideration of Grounds 1 and 2 above, and they are otherwise part of Ground 4 below. Ground 3 therefore adds nothing and must fail on that account.

75    Ground 4 is advanced on the hypothesis that this Court on appeal upholds Dr Amir’s construction argument, that being, with reference to the facts it seeks to make good, the proposition that the Director’s decision was made on 4 April 2019 in the sense of it having been a decision made in fact on that day. Since our conclusion on Grounds 1 and 2 means that the hypothesis is unfounded, Ground 4 does not arise and must fail.

CONCLUSION

76    Dr Amir has not demonstrated any error on the part of the primary judge. The appeal is dismissed with costs.

Associate:

Dated:    28 March 2022