FEDERAL COURT OF AUSTRALIA

Raiz v Director of Professional Services Review [2024] FCAFC 91

ORDERS

THE COURT ORDERS THAT:

1.    Leave is granted to the appellant to amend his notice of appeal in the form attached to his written submission filed on 26 April 2024.

2.    The appeal is allowed.

3.    The notice of contention is dismissed.

4.    The parties are to provide an agreed minute of consequential orders and relief, including as to costs, within 14 days of the publication of these reasons or failing agreement their competing orders with brief submissions not exceeding three pages and in which case subject to any further order of the Court, consequential orders will be made on the papers.

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

REASONS FOR JUDGMENT

THE COURT:

1    The appellant Dr Raiz is a specialist anaesthetist. He is aggrieved by two matters. One, a decision made by the Director of Professional Services Review in March 2018 to make a referral to a Professional Services Committee pursuant to Part VAA of the Health Insurance Act 1973 (Cth) to investigate his provision of services. The other, the conduct of a hearing by the Committee on various days in June, July and August 2019, when the appointed Chairperson was absent for the first three days of a six-day hearing. The result of the hearing was that on 30 September 2021, the Committee published a draft Report of its preliminary findings which made recommendations adverse to him. On 10 March 2022, Wheelahan J made orders restraining the Committee from taking further action in respect of the draft Report, until the conclusion of these proceedings.

2    In February 2022, the appellant commenced a proceeding for judicial review, and amended it pursuant to orders made on 29 July 2022. The primary judge heard the review in September 2023, and dismissed it for reasons published on 30 October 2023: Raiz v Director of Professional Services Review (No 2) [2023] FCA 1293 (PJ).

3    On 27 November 2023, the appellant filed a notice of appeal from the decision of the primary judge. It has been the subject of amendments, most recently due to a change of counsel. The appellant now relies on an Amended Supplementary Notice of Appeal, as attached to his written submissions. The appeal was argued by reference to the grounds in that document and the appellant should have leave to amend in its terms.

4    For convenience in these reasons each reference to a statutory provision is to the Act, unless stated otherwise. References in these reasons to the respondent or to the Director are to the first respondent. The second respondent entered a submitting appearance.

5    Despite the six amended grounds of appeal, two issues emerged as dispositive during oral submissions: (1) did the Director consider the appellant’s submissions made pursuant to s 89C(1)(b) before deciding to set up the Committee pursuant to s 93 (as required by s 89C(2)); and (2) did the absence of the Chairperson on three days of the Committee hearings invalidate its proceeding or otherwise deprive the appellant of procedural fairness.

6    For the reasons that follow, we have concluded that the appellant fails on the first issue but succeeds on the second. The appeal must be allowed. It should be said at the outset that the arguments before us differed somewhat from the way in which they were put to the primary judge, and for that reason the primary judge is not to be criticised for concluding that the application before her failed.

EVENTS LEADING TO THE REVIEW APPLICATION

7    The appellant’s practice is concerned with dental anaesthesia and sedation. He provides his professional services to patients at dental clinics. Necessarily, his on-site work colleagues are ordinarily a dental surgeon and assistant nurses. He claims Medicare benefits for the provision of his services. On 3 March 2017, a delegate of the Chief Executive of Medicare corresponded with the Director and requested a view of the provision of services by the appellant during the period 1 August 2015 to 31 July 2016 pursuant to s 86. The delegate expressed concerns relating to the time claimed for the provision of services and made certain observations about a “pattern” of claims. Copies of certain correspondence between the appellant and the delegate were attached.

8    On 6 April 2017, the Director corresponded with the appellant, advised him that she had received the review request and that she had decided to undertake a review, having concluded that “there is a possibility that you have engaged in inappropriate practice”. That decision was made pursuant to s 88A. On 20 December 2017, the appellant (together with representatives appointed by his professional indemnity insurer, including a lawyer) attended a meeting with the Director. That meeting did not assuage the concerns of the Director. On 21 December 2017, the Director advised the appellant that she had completed her review and had not made a decision under s 91 to take no further action in relation to the review. As required by s 89C, the Director attached the report setting out her reasons for not making the s 91 decision and invited the appellant to make written submissions by 5pm on 16 February 2018 about the action that she should take in relation to the review.

9    The appellant provided his submission under cover of a letter dated 21 February 2018, comprising 12 pages and approximately 500 pages of supporting attachments. The Director received from her department an email on 2 March 2018 at 8:55am which attached the letter and which, on the submissions of the appellant, “purported” to summarise the content of his submission and which noted that a hard copy of the submission with its attachments was on the Director’s desk. The departmental email did not recommend to the Director that a particular decision be made by her. Rather, it proceeded on the basis that: “in the event you are minded to refer this matter to a Committee”, then certain documents were attached for her review.

10    The Director responded by email sent at 9:26am on 2 March 2018. The Director thanked the departmental officer for “the update” and then stated:

I’ll review the file and make a decision next week

I’m inclined to refer to a Committee at this stage

11    Submissions were put on behalf of the appellant that because this email was sent from the Director’s iPhone, we should infer that the Director was not in the office and therefore did not have the benefit of the entirety of the submission. As the argument developed that point fell away when the appellant conceded that the operative decision was made on 9 March, by which time the Director had ample time to consider the submission. Whether she did in fact, is a different issue.

12    At 4:33pm on 2 March 2018, Mr Andrew Shelley, special counsel to the Professional Services Review Agency, emailed the Director and proposed the names of three persons suitable for appointment to a Committee. The nominees were Dr Coleman, Dr Vanden Driesen and Dr Walker. Later that day, the Director emailed Dr Coleman for the purpose of ascertaining her availability. On 5 March 2018 at 8:59am, the Director emailed Mr Shelley and notified him that Dr Walker had agreed to appointment as Chairperson of the Committee. On 6 March 2018, the Director advised Mr Shelley that:

All committee members are on board. Can the necessary paperwork please be prepared.

In reflecting on this matter, I have a particular concern about the recording of schedule 4 and 8 drugs. I have a concern over the practitioner bringing his own drugs to the clinics, and due to the poor recordkeeping, a concern this may have resulted in one vial being used for more than one patient. I have a concern that the amount of drug administered to a patient and the residual amount at the end of the procedure that is discarded are not co-signed, which makes it open to misuse as it is not possible to independently verify all drug (sic) can be accounted for. Given procedures are not happening in a controlled environment such as an operating theatre, the possibility for abuse is higher, so controls ought to be tighter.

Please make sure this concern is raised in the referral.

13    On 9 March 2018, the Director signed instruments to establish the Committee to investigate possible inappropriate practice by the appellant, corresponded with each of the Committee members to that effect and corresponded with the solicitors for the appellant.

14    The instruments record that, in accordance with s 93(1), the Director had determined to set up the Committee, named each of the appointees including Dr Walker as the Chairperson, specified the matters referred within the review period of 1 August 2015 to 31 July 2016 and attached her written report prepared in accordance with s 93(6)(b). That report, inter alia, listed in paragraph 4 the “material considered” including the submission and when addressing the reasons for making the referral referenced:

Dr Raiz’s submissions, which are referred to below, have not allayed the concerns that were expressed in my section 89C report.

15    There is further specific reference in the report to the submissions at paragraphs [15] – [18] and [21] – [23], including the supporting material attached to the submission at [24] – [26].

16    The correspondence addressed to the solicitors for the appellant in part stated:

I refer to my letter dated 21 December 2017 which accompanied my section 89C report.

I have considered your written submissions dated 21 February 2018.

I have decided to refer this matter to a Professional Services Review Committee (PSR) Committee under section 93 of the Health Insurance Act 1973 (Act).

In accordance with sections 93 and 95 of the Act, I have established PSR Committee No 1095 to investigate whether or not you have engaged in inappropriate practice as defined by section 82 of the Act in providing the services specified in the referral.

17    On 5 June 2019, the appellant was advised that the Committee would commence the holding of hearings on 20 June 2019, which it did. It is common ground that the Chairperson, Dr Walker was not present for the first three days of the hearing on 20 and 21 June and 16 July 2019. The transcript for 20 June 2019 begins with Dr Coleman declaring the hearing to be open and that she was “the presiding member of the Committee today”. She continued that Dr Walker: “is unexpectedly unavailable today and tomorrow. She will be given the transcript of this hearing and will join us at the subsequent hearing date.”

18    We pause to observe that the appellant was represented by counsel at the hearing, who raised no objection to the absence of Dr Walker. The transcript for the fourth day of the hearing on 17 July 2019 records that Dr Walker was present. At the outset, Dr Walker said in part:

I resume this hearing that 9.39 on Wednesday the 17th. Those present are the same as before the adjournment with the exception of myself. My name is Dr Martine Walker. I’m a general practitioner and I am a deputy director of the Professional Services Review. Could I ask you to introduce yourselves.

…

I’ve had a chance to read the transcripts – not from yesterday but from the previous two days – so I’ve got a fairly good sense of what has been going on, and thank you for your understanding at the first hearing and yesterday as well, but it was necessary at the time. The questions that I’ve got out of reading those transcripts, I would just like to clarify with Dr Raiz a few things because, to me, it’s still not quite clear, having read the transcripts on a few points. Dr Raiz, the first question that I would like to ask you is, I’m still unsure when your pre-anaesthetic consults happen and, as risk of repetition – I apologise because I know you’ve said it before – but I just wanted to hear it for myself.

19    Once again, counsel for the appellant did not raise any objection to the non-participation of Dr Walker at the first three days of the hearing, to her obvious error in contending that she was only absent for two of those days or to the fact that she proposed to ask questions based on her reading of the transcript. Dr Walker then proceeded to ask a number of detailed questions of the appellant.

20    On 1 and 2 August 2019, the Committee held the fifth and sixth days of the hearing. Dr Walker was present.

21    On 30 September 2021, the Committee issued its draft Report pursuant to s 106KD and provided a copy to the appellant. It comprises 403 pages. It contains many preliminary findings of fact adverse to the appellant and is replete with preliminary findings of inappropriate practice, some of which are based on adverse credit findings.

22    On 11 February 2022, the appellant filed his review proceeding.

THE PROCEEDING BEFORE THE PRIMARY JUDGE

23    It is fair to observe that the course of the review proceeding was protracted, particularly by various amendments that were made to the originating application and the articulation of the appellant’s claims in the form of a Further Amended Statement of Claim dated 24 April 2023, together with his interlocutory application for non-standard discovery, which the primary judge determined on 7 July 2023: Raiz v Director of Professional Services Review [2023] FCA 771.

24    Nine grounds of review were pressed before the primary judge, of which only two remain relevant: whether the Director lawfully made the referral decision pursuant to s 89C and whether the proceeding of the Committee was lawful, in the absence of the Chairperson for three days.

25    The primary judge rejected the appellant’s first contention for the reasons set out at PJ [36] – [89]. In summary, her Honour did not accept that it should be inferred that the Director failed to personally consider the submission before making the decision to establish the Committee, contrary to s 89C(2) which requires the Director to take into account any submission that is made before deciding to refer a matter to a Committee. Her Honour reasoned that this ground failed as a matter of statutory construction and fact.

26    On the construction question, it had been submitted to her Honour that the Director made the referral decision on 2 March 2018, being the day when the Director stated that she was “inclined to refer to a Committee at this stage” and had made availability inquiries of the proposed members. The primary judge rejected that submission on the basis that the operative decision is that required by s 89C(2)(c) to “make a referral to a Committee under section 93”, which decision was made by the Director on 9 March 2018. Expressing an inclination to establish a Committee, or making approaches to proposed Committee members, were not the decisions required to be made by the Director: PJ [68] – [73]. As her Honour succinctly expressed the statutory requirements at [69]:

The making of the Referral is the unequivocal manifestation of a decision that has been made by the Director not to take no further action in accordance with s 91, coupled with having not reached an agreement with Dr Raiz under s 92…

27    The appellant now accepts the correctness of that conclusion.

28    The primary judge also rejected the submission that it should be inferred that the Director failed to give personal consideration to the submission before deciding to make the referral to the Committee on 9 March 2018: PJ [74] – [89]. Her Honour comprehensively considered the factual material, but ultimately was unpersuaded that she should draw the inference urged by the appellant.

29    Her Honour commenced at PJ [75] with a reference to Justice Griffiths’ summary of the content of a statutory obligation to take into account a matter in EVW20 as litigation representative for AFF20 v Minister for Home Affairs (No 3) [2023] FCA 866 at [27] [33]. At PJ [76], her Honour following Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 at [41], reasoned that the Director “is not obliged to consider each and every statement within [the submission] but must consider [the submission] and representations as they relate to the document as a whole”. Her Honour concluded that the terms of the referral supported the conclusion that the Director did give “active intellectual consideration” to the submission, and that the appellant had failed to discharge his onus to the contrary: PJ [77].

30    The primary judge refused to draw an adverse inference that, because the Director did not give evidence, she should accept the inference urged by the appellant: PJ [78]. Next her Honour proceeded to analyse the content of the submission and the surrounding documents, which caused her to conclude at PJ [81] that none of this material supported the appellant’s contention.

31    As to the absence of the Chairperson for part of the Committee hearing, her Honour recorded the appellant’s submission at PJ [116] that upon a proper construction of s 96A, it was not lawful for the Committee to conduct the hearing. Section 96A relevantly provides that if a Panel member “ceases to be a Panel member” or “for any other reason, is unable to take part in the investigation”, then the remaining committee members may “if the person under review consents” constitute the Committee for the purpose of completing the investigation and preparing the report. We pause at this juncture to observe that the primary judge decided this contention based on the argument as framed by reference to s 96A, whereas before us, the appellant’s arguments focus on other provisions of the statutory scheme.

32    The primary judge dismissed the challenge under this ground because, correctly, s 96A did not apply as it is concerned with the permanent unavailability of the member, which was not the case with Dr Walker.

THE APPEAL TO THIS COURT

33    Having engaged new counsel, the appellant’s arguments are now more sharply focused and, by application of appropriate “judicial economy” (Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593 at [7] – [8]), there are two grounds (1 and 7) that are dispositive. The grounds (with our interpolation) are:

(a)    Ground (1) the primary judge erred in failing to find that the Director had decided/committed to and did make a referral to set up a Committee for the purposes of s 89C(2) without having taken into account the submissions, adequately or at all; and

(b)    Ground (7) the primary judge erred in failing to conclude that the absence of Dr Walker from three days of the Committee’s hearings without the appellant’s consent meant that the Committee proceedings were invalid.

34    There is also the respondent’s Notice of Contention to the effect that the primary judge ought to have exercised her discretion to refuse relief based on the appellant’s “lengthy and unexplained delay” in seeking review of the decision of 9 March 2018 and of the Committee embarking on the hearing without the Chairperson in attendance.

The statutory scheme

35    Part VAA is very prescriptive. It commences with the statutory object at s 79A:

Object of this Part

The object of this Part is to protect the integrity of the Commonwealth Medicare benefits, dental benefits and pharmaceutical benefits programs and, in doing so:

(a)    protect patients and the community in general from the risks associated with inappropriate practice; and

(b)    protect the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice.

36    Section 80 describes the main features as follows:

Main features of the Professional Services Review Scheme

(1)    This section summarises the main features of the Professional Services Review Scheme established by this Part.

(2)    The Professional Services Review Scheme is a scheme for reviewing and investigating the provision of services by a person to determine whether the person has engaged in inappropriate practice.

(3)    The Chief Executive Medicare can request the Director to review the provision of services by a person and the Director must decide whether to undertake a review.

(4)    Following a review, the Director must:

(a)    decide to take no further action in relation to the review; or

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

(c)    make a referral to a Committee.

(5)    If the Director enters into an agreement with the person under review, the agreement must be ratified by the Determining Authority before it takes effect. Having an agreement ratified avoids a Committee investigation.

(6)    A referral to a Committee initiates an investigation by the Committee into the provision of the services specified in the referral. 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.

(7)    Committee members must belong to professions or specialities relevant to the investigation.

(8)    Committees can hold hearings and require the person under review to attend and give evidence. Committees also have the power to require the production of documents (including clinical records).

(9)    Committees can base findings on investigations of samples of services.

(10)    If a Committee finds that the person under review has engaged in inappropriate practice, the finding will be reported to the Determining Authority. The Determining Authority decides what action to take.

(11)    Provision is made throughout the scheme for the person under review to make submissions before key decisions are made or final reports are given.

(12)    A Committee cannot make a finding of inappropriate practice unless it has given the person under review:

(a)    notice of its intention to do so; and

(b)    the reasons for the finding; and

(c)    an opportunity to respond.

37    What is inappropriate practice is defined under the subheading “unacceptable conduct” at s 82. Relevantly for present purposes, if the conduct of a practitioner in rendering services is such that a Committee “could reasonably conclude that: (b) if the practitioner rendered or initiated the services as a specialist (other than as a consultant physician) in a particular specialty – the conduct would be unacceptable to the general body of specialists in that specialty.” This may include a pattern of services: s 82A.

38    The Director of Professional Services Review is a medical practitioner appointed by the Minister to that office (s 83) and separately there is a Professional Services Review Panel consisting of practitioners appointed by the Minister: s 84. By s 86, the Chief Executive Medicare may in writing request the Director to review the provision of services if “there is a possibility” that the person may have engaged in inappropriate practice in the provision of the services. If that request is made, the practitioner must be advised within seven days of that fact: s 87. After the receipt of a request, the Director’s decision-making commences with s 88A which provides:

Director must decide whether to review

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

(2)    The Director must decide to undertake the review if, after considering the request and any other relevant information the Director has obtained, it appears to the Director that there is a possibility that the person has engaged in inappropriate practice in providing services during the review period.

(3)    If the Director does not make a decision under subsection (1) within the period of 1 month specified in that subsection, the Director is taken to have decided, at the end of that period, to undertake the review.

(4)    The Director must give written notice of the decision to:

(a)    the person; and

(b)    the Chief Executive Medicare.

(5)    The notice must be given within 7 days after the decision is made but failure to give the notice within that time does not affect the validity of the decision.

(6)    If the Director decides to undertake the review, the notice given to the person under review under paragraph (4)(a) must set out the terms of section 89B.

(7)    Failure to comply with subsection (6) does not affect the validity of the decision.

(8)    If the Director decides not to undertake the review, the notice given to the Chief Executive Medicare under paragraph (4)(b) must include the grounds for the decision.

39    If the Director decides to undertake a review, it is a matter for the Director to determine how to proceed and the review is not limited by the reasons included in the request: s 88B. There are provisions available to the Director to require the production of documents or for the giving of information: s 89B. The procedure that applies following a review is set out at s 89C:

Director's action following review

(1)    Following a review of the provision of services by a person, the Director must either:

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

(b)    give the person under review:

(i)    a written report setting out the reasons why the Director has not made a decision under section 91; and

(ii)    an invitation to make written submissions to the Director, within 1 month, about the action the Director should take in relation to the review.

(2)    If the Director gives the person under review a report and invitation under paragraph (1)(b), the Director must, as soon as practicable after taking into account any submissions made as mentioned in subparagraph (1)(b)(ii):

(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.

40    It is open to the Director to consult before reaching a decision on a review, and in particular the Director may consult a Panel member: s 90. The Director may decide to take no further action where s 91 applies if satisfied that there are insufficient grounds, or the circumstances are such that would make a proper investigation by the Committee impossible: s 91. One option that is open to the Director is to enter into a written agreement with the person under review, which contains an acknowledgement of engagement in inappropriate practice and specifies the action taken in consequence: s 92. Referrals to a Committee are dealt with at s 93:

Referral to a Committee

(1A)    This section applies if it appears to the Director that a person under review may have:

(a)    provided services during the review period; and

(b)    engaged in inappropriate practice in the provision of the services.

(1)    The Director may, by writing, set up a Committee in accordance with Division 4, 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.

Note:    Investigating whether the person under review engaged in inappropriate practice in providing the services may include investigating whether the services were provided by the person or another person.

(2)    If the referral arises from a request made by a Committee to the Director under subsection 106J(1), the Director may, instead of setting up a Committee under subsection (1), make the referral to the Committee that made the request.

(3)    Subject to this section, the content and form of a referral must comply with any guidelines made under subsection (4).

(4)    The Minister may, by legislative instrument, make guidelines about the content and form of referrals.

(6)    If the Director makes a referral, the Director must:

(a)    prepare a written report for the Committee, in respect of the services to which the referral relates, giving reasons why it appears to the Director that the person under review may have engaged in inappropriate practice in providing the services; and

(b)    attach the report to the referral.

Note:    The reasons given by the Director may relate solely to the services being rendered or initiated in circumstances that constitute a prescribed pattern of services.

(7)    Within 7 days after making the referral, the Director must give a copy of the referral and report to the Chief Executive Medicare and the person under review.

(7A)    The copy given to the person under review must be accompanied by a written notice setting out the terms of sections   102, 106H and 106K.

(7B)    The services that may be specified in the referral are any or all of the services provided by the person under review during the review period.

(7C)    Subsection (7B) is not limited by the terms of the Director's report under subparagraph 89C(1)(b)(i).

(7D)    Failure to comply with subsection (7) or (7A) does not affect the validity of the referral.

(8)    If, in the course of the review that gave rise to the referral:

(a)    the Director formed an opinion that any conduct by the person under review caused, was causing, or was likely to cause, a significant threat to the life or health of any person and sent a statement of his or her concerns to a person or body under section 106XA; or

(b)    the Director formed an opinion that the person under review failed to comply with professional standards and sent a statement of his or her concerns to an appropriate body or bodies under section 106XB;

the referral must contain a statement that the Director formed that opinion and set out the terms of the statement sent to the person, body or bodies.

(9)    The Director must disregard any opinion formed as mentioned in subsection (8) when making the referral.

41    A time limit is imposed upon the Director’s decision-making by s 94. If a period of 12 months expires after the Director makes a decision to review the provision of services by a person, without one of the statutory decisions having been made, then the Director “is taken” to have made a decision that no further action will be taken. The constitution of the Committee is dealt with at s 95 as follows:

Constitution of Committees

(1)    A Committee set up under section 93 in connection with a referral consists of the following members appointed by the Director:

(a)    a Chairperson who is a Deputy Director; and

(b)    2 other Panel members; and

(c)    if subsection (6) applies--not more than 2 additional Panel members.

(1A)    If the person under review is not the practitioner who rendered or initiated all of the referred services, the Panel members referred to in paragraph (1)(b) must be members of professions or specialties relevant to the field or fields of practice of the practitioner or practitioners who rendered or initiated the referred services.

(2)    If the person under review is the practitioner who rendered or initiated all of the referred services, the Chairperson, and the other Panel members referred to in paragraph (1)(b), must be practitioners who belong to the profession in which the practitioner was practising when the services were rendered or initiated.

(3)    Subject to subsection (4), the other Panel members referred to in paragraph (1)(b) must also be:

(a)    if the practitioner rendered or initiated the referred services as a consultant physician in a particular specialty--consultant physicians in relation to that specialty; or

(b)    if the practitioner rendered or initiated the referred services as a specialist (other than a consultant physician) in a particular specialty--specialists in relation to that specialty; or

(c)    if the practitioner rendered or initiated the referred services as a general practitioner--general practitioners.

(4)    If the practitioner rendered or initiated the referred services as more than one kind of medical practitioner mentioned in subsection (3), then:

(a)    each other Panel member referred to in paragraph (1)(b) must be a medical practitioner of at least one of those kinds; and

(b)    those members must, in combination with each other, be medical practitioners of each of those kinds.

Example 1:  A practitioner renders referred services as a consultant physician in 2 different specialties. Subsection (4) is satisfied if:

(a)    one other Panel member is a consultant physician in the first specialty and one other Panel member is a consultant physician in the second specialty; or

(b)    both other Panel members are consultant physicians in both specialties.

Example 2: A practitioner renders referred services as a consultant physician in a particular specialty and as a general practitioner. Subsection (4) is satisfied if:

(a)    one other Panel member is a consultant physician in that specialty and one other Panel member is a general practitioner; or

(b)    both other Panel members are consultant physicians in that specialty and general practitioners.

(6)    The Director may appoint an additional Panel member or additional Panel members referred to in paragraph (1)(c) if the Director thinks it is desirable to do so in order to give the Committee a wider range of clinical expertise, having regard to the services specified in the referral.

(7)    An additional Panel member must be a member of a profession or a specialty relevant to a field of practice of the practitioner, or any of the practitioners, who rendered or initiated the referred services.

(8)    Any Panel member whom the Director consulted under section 90 in relation to the referral must not be appointed as a member of the Committee.

42    There is a statutory basis available for the person under review to challenge appointments to a Committee on the grounds of actual or apprehended bias: s 96. Section 96A applies if a Committee member is unavailable:

If Committee members are unavailable

(1)    If, before the Committee starts its investigation, a Committee member ceases to be a Panel member or, for any other reason, is unable to take part in the investigation, the Director may appoint another Panel member to the Committee as a replacement.

(2)    If:

(a)    the Committee has started its investigation; and

(b)    before the Committee completes its final report, a Committee member ceases to be a Panel member or, for any other reason, is unable to take any further part in the investigation or preparation of reports;

the remaining Committee members may, if the person under review consents, constitute the Committee for the purpose of:

(c)    if the Committee's investigation is not yet complete--completing its investigation; and

(d)    preparing the Committee's reports.

(3)    If the person under review does not consent to the remaining Committee members constituting the Committee, the Director must set up another Committee under subsection 93(1).

43    Sections 97 to 106F are concerned with the proceedings of a Committee. The Chairperson of the Committee must convene the first meeting within 14 days after the appointment of the Committee members, and must convene “such other meetings” of the Committee as are necessary for the efficient conduct of its affairs: s 97(1) and (3). A Committee “may regulate the proceedings of its meetings as it thinks fit”, meetings must be held in private and “for the purposes of its inquiry into the provision of the services specified in the referral” the Committee may “inform itself in any manner it thinks fit”: s 98.

44    Section 99 deals with “other procedural matters relating to meetings” of a Committee and provides:

(1)    The Chairperson is to preside at all meetings at which he or she is present.

(2)    If the Chairperson is absent, the members present are to elect one of their number to preside.

(3)    The quorum for a meeting is a majority of Committee members.

(4)    A question arising at a meeting is decided by a majority of votes of Committee members present and voting.

(5)    The Committee member presiding has a deliberative vote only.

(6)    If there is an equality of votes:

(a)    the question is taken to be unresolved; and

(b)    the Committee member presiding may direct that the question be reconsidered at a time and place that he or she fixes.

45    Hearings of a Committee are dealt with at s 101:

(1)    The Committee may, at any meeting, hold a hearing at which evidence is given, and/or documents are produced, to the Committee.

(2)    The Committee must hold a hearing if it appears to the Committee that the person under review may have engaged in inappropriate practice in providing the referred services.

46    Notice of an intended hearing must be given to the person under review at least 14 days before the day of the proposed hearing, must give particulars of the referred services to which the hearing relates and may require an individual to attend and give evidence: s 102. Section 103 prescribes the procedures for conduct of a hearing involving an individual:

Rights of persons under review at hearings--individuals

(1)    A person under review who is an individual (whether or not a practitioner) is entitled, subject to any reasonable limitations or restrictions that the Committee may impose:

(a)    to attend the hearing; and

(b)    to be accompanied by a lawyer or another adviser; and

(c)    to call witnesses to give evidence (other than evidence as to the person's character); and

(d)    to produce written statements as to the person's character; and

(e)    to question a person giving evidence at the hearing; and

(f)    to address the Committee on questions of law arising during the hearing; and

(g)    after the conclusion of the taking of evidence, to make a final address to the Committee on questions of law, the conduct of the hearing and the merits of the matters to which the hearing relates.

(2)    A lawyer accompanying the person under review is entitled, on behalf of the person under review, subject to any reasonable limitations or restrictions that the Committee may impose:

(a)    to give advice to the person under review; and

(b)    to address the Committee on questions of law arising during the hearing; and

(c)    subject to subsection (4), after the conclusion of the taking of evidence, to make a final address to the Committee on questions of law, the conduct of the hearing and the merits of the matters to which the hearing relates.

(3)    The Committee may allow an adviser (other than a lawyer) of the person under review, subject to any reasonable limitations or restrictions that the Committee may impose:

(a)    to give advice to the person under review; and

(b)    subject to subsection (4), after the conclusion of the taking of evidence, to make, on behalf of the person under review, a final address to the Committee on the merits of the matters to which the hearing relates.

(4)    If the person under review is accompanied both by a lawyer and by an adviser who is not a lawyer, a final address to the Committee may be made either by the lawyer or by the other adviser, but not by both of them.

(5)    Any fees or expenses in respect of the services of a lawyer or other adviser accompanying the person under review or in respect of witnesses called by that person are payable by that person.

47    Similar provisions apply to the conduct of the hearing that concerns a body corporate: s 103A. An individual who fails to appear, to give evidence or to answer questions at a hearing, having received notice pursuant to s 102 and without reasonable excuse, runs the risk that the Committee may nonetheless proceed with the hearing (s 104) and is at risk of disqualification by the Director (s 105). Certain offence provisions also apply to that type of conduct: s 105AA.

48    A Committee may require the production of documents or the giving of information: s 105A. Section 106 is an additional provision that applies to the conduct of the hearing:

(1)    Subject to this Subdivision and the regulations, the procedure for conducting the hearing is within the discretion of the Committee member presiding at the meeting in question.

(2)    The Committee is not bound by the rules of evidence but may inform itself on any matter in any way it thinks appropriate.

(3)    If a document is produced at a hearing:

(a)    a Committee member may inspect the document; and

(b)    the Committee member presiding at the hearing may retain the document in his or her possession for such reasonable period as he or she thinks fit; and

(c)    a Committee member may make copies of, or take extracts from, that document.

(4)    The Committee member presiding at a hearing may adjourn the hearing from time to time as he or she thinks fit.

49    Evidence at a hearing may be taken on oath or affirmation (s 106A), a summons may be issued to a person to appear and to give evidence (s 106B) and there are consequences for a failure to attend in obedience to a summons (s 106D). A person who appears as a witness at a hearing (whether summonsed to or not) may commit an offence if he or she fails to be sworn or to make an affirmation or to answer questions required to be answered by a Committee member: s 106E. A person who obstructs or hinders a Committee, or disrupts a hearing, may be guilty of contempt: s 106EA. Finally, for present purposes, a Committee member has in the performance of his or her duties statutory immunity, as do persons appearing on behalf of another person and witnesses: s 106F.

GROUND 1 OF THE APPEAL

Submissions

50    Contrary to the submission made by the appellant’s then senior counsel before the primary judge and his written case in this Court, senior counsel for the appellant, Mr Brennan SC, accepted in oral argument that the point in time to determine whether the Director took account of the submissions is 9 March 2018, when she signed the formal instruments to establish the Committee and to refer the matters to it for investigation. As the matter has developed, there is no live issue that the summary of the submission provided to the Director on 2 March 2018 was sufficient: cf Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11 at [36]. It was deficient in that it failed to contain “a full account of the essential content” of the submission.

51    Thus, the issue is whether the appellant (before the primary judge) discharged his onus to prove, by inference from the documents, that the Director failed to comply with the obligation to take into account the submission before deciding to make the referral to the Committee, which is the requirement of s 89C(2)(c).

52    Mr Brennan submits that despite the fact that the Director had the submission between 2 and 9 March 2018, a period clearly sufficient to take it into account (to read, understand and to evaluate it: cf Plaintiff M1 of 2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [36]), it should be inferred that she did not do so for three reasons. As developed in oral argument, the submissions vary from those put in writing. First, the referral report was written by the in-house lawyer, Mr Shelley, without any prior consultation with the Director and was provided to her for signature. That inference, it is said, flows from the instruction given by the Director to Mr Shelley on 6 March 2018 requesting “can the necessary paperwork please be prepared”. The contended inference gathers strength in that, assuming the Director and Mr Shelley each read the submission and “without any communication between the two of them”, they each identified the same aspects of the submission as being material for inclusion in the report. As submitted, that is possible, but very unlikely.

53    Second, in many respects there is no reference in the referral report to material matters as contained in the submission; in particular the offer made by the appellant to negotiate with the Director and enter into an agreement pursuant to s 92 and to a detailed supporting report of Dr Sinclair, which is relevant to the conduct of the same type of practice as the appellant. The contention is that the report fails to grapple with matters of substance in the submission, which supports the inference that it was not read.

54    Third, the “inescapable inference” that the unsigned version of the report, the instruments of appointment, each letter to the Committee members and the letter to the solicitors for the appellant were each prepared by Mr Shelley and provided to the Director for signature. From that premise, it is said that there are only three logical possibilities as to what happened:

(1)    the Director did not personally read the submission, or any part of it, but did read and consider the summary and Mr Shelley’s draft reasons and having done so “was satisfied that she had been informed of all the essential content of the submissions and was content to make the decision on that basis”; or

(2)    the Director read the whole of the submission, considered the matters raised therein and identified the matters which she considered material and of weight. Having proceeded in that way, the Director was satisfied that on reading the draft reasons prepared by Mr Shelley, that they were ad idem on those parts that were material, and those which were not; or

(3)    the Director was untruthful in that her reasons were different to those drafted by Mr Shelley, but she adopted the latter notwithstanding her own assessment.

55    On that submission, the first proposition does not result in a valid decision because it is said that the summary and draft reasons were each insufficient and the second and third are each implausible.

56    Mr Brady KC for the Director answers these submissions as follows. First, as to the contention that the Director left it to Mr Shelley to prepare the report, did not personally consider the submission, simply adopted his views as her own and therefore it is implausible that the Director and Mr Shelly each identified identical material matters arising from the submission, is not how the case was put to the primary judge. The appellant framed his case in accordance with the Further Amended Statement of Claim, where the issue was whether the logical inference is that the Director made the referral decision on 2 March 2018 “before having personally read the applicant’s submissions” and based on “the mere summary” provided earlier that day. That claim is no longer made. No contention of the type as now formulated was pleaded and, had it been, the respondent’s case may have been prepared and argued differently.

57    Secondly, the Director included in the report the matters that she considered material, was not required to engage with every argument of the appellant in the submission and the absence of any reference to the offer by the appellant to negotiate an agreement as allowed by s 92 is unsurprising because s 92(6) prohibits the Director from disclosing to a Panel member the content of any communication relating to proposals for an agreement.

58    Thirdly, this is not a case to the effect that the Director failed to take account of a relevant consideration. Rather, it is whether one should infer, from the material that was before the primary judge, that the Director did not consider the submission. The report makes multiple reference to the submission, including express statements that it had been considered by the Director. The appellant is not able to discharge his onus to infer to the contrary.

Resolution

59    The appellant must identify error in the finding of the primary judge at PJ [74]-[89] where, following a comprehensive review of the facts, her Honour:

(1)    Rejected the contention that the Director did not give active intellectual consideration to the Submission: PJ [77];

(2)    Did not draw an adverse inference by reason of the fact that the Director did not give evidence: PJ [78]-[80];

(3)    Emphasised that the Director stated that the referral was based on her consideration of a list of materials, including the submission: PJ [81] – [82]; and

(4)    Rejected the contention that she should infer that the Director did not consider the submission because the referral does not mention the suggestion made by Dr Raiz that consideration should be given to entering into an agreement pursuant to s 92: PJ [83] – [88].

60    The appellant invited the primary judge to draw inferences based on the decision record and the affidavit evidence. The credibility of witness evidence was not in issue. The appellant is correct therefore to submit that the duty of this Court is to consider for itself the inference that is to be drawn from the material: Lee v Lee (2019) 266 CLR 129 at [55] – [56]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2022) 292 FCR 595 at [44].

61    Mr Brennan in some detail took us through, in chronological order, the relevant documents commencing with the email from the departmental officer to the Director of 2 March 2018 which attached the submission of the appellant together with a letter from Dr Mark Sinclair, a specialist anaesthetist. We have summarised a good deal of the material in the introductory section of these reasons. Mr Brennan particularly emphasised the “inclination” expressed by the Director on 2 March 2018 to refer the matter to a Committee “at this stage”, and that Mr Shelley later that day proposed the names of the three intended committee members to the Director (but did not submit that there was anything irregular in so doing). He further drew attention to the email from the Director to Dr Coleman of 2 March 2018 to the effect that she had not been successful in speaking by telephone but sought to discuss “a Committee I wish to establish to review the practices of a Canberra anaesthetist”, the request to Mr Shelley of 6 March 2018 to prepare the necessary paperwork (noting that “all committee members are on board”) and that by 9 March 2018, Mr Shelley had in fact prepared the necessary paperwork comprising the pro forma letters to each Committee member, the formal instruments of appointment of each, the letter to the appellant and the referral report.

62    Despite the fact that the letter to the appellant of 9 March 2018 in the second paragraph expressly states: “I have considered your written submissions dated 21 February 2018”, Mr Brennan submits that the absence of any reference to the report of Dr Sinclair together with the remarkable coincidence that the reasons of the Director for making the referral precisely aligned with the reasons as prepared by Mr Shelley, supports the inference that the Director did not personally give consideration to the submission. Indeed, Mr Brennan describes the coincidence of reasoning between Mr Shelley and the Director as “implausible, in the extreme”. On that analysis, it is submitted that we should infer that the Director simply adopted the reasons of Mr Shelley as her own.

63    We reject the appellant’s submissions for three reasons. First, the implausible coincidence argument was not the case that was framed before the primary judge. Although it is uncommon upon an application for judicial review, the appellant chose to frame the issues for decision by the primary judge in accordance with his Further Amended Statement of Claim. Paragraph [11] of that document contended that the Director made the decision to establish the Committee and to make the referral to it “without having personally read or taken [the appellant’s] submissions into account” which turned on four facts and inferences contended therefrom. In summary, the Director received only a summary of the submissions on 2 March 2018, half an hour thereafter advised the departmental officer that she was inclined to refer the matter to a Committee, accepted the names proposed by Mr Shelley later that day and signed the relevant instruments of appointment and referral on 9 March 2018. From those facts the appellant pleaded:

The logical inference is that the [director] had contacted the Committee members about accepting those appointments at some time before 2 March 2018 and hence before having received the mere summary from Ms Lardnar on 2 March 2018 and before having personally read [the appellant’s] submissions sometime in the following week…

64    Having now abandoned the 2 March contention, it is not in our view open to the appellant to make a new case that the coincidence between the reasons prepared by Mr Shelley and those of the Director strongly supports the inference that personal consideration was not given by the Director to the submission. Mr Brady is correct that this alteration in the case, were it to be allowed, would likely cause material prejudice to the respondent in that if this had fairly been put as the case below, it could have been addressed by evidence (such as an affidavit from the Director and/or from Mr Shelley). It is the possibility that the point could have been addressed below which precludes the argument on appeal: Water Board v Moustakas (1988) 180 CLR 491; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at [51] – [52].

65    Second, although the submission comprised 500 pages, it should not be overlooked that a significant volume of that material (384 pages) comprised clinical records which had already been provided to and assessed by the Director, approximately 86 pages comprised discussion papers of at best marginal relevance, approximately 23 pages comprised letters of support from other practitioners and the six-page report of Dr Sinclair. It is now common ground that the Director had a sufficient opportunity to consider the entirety of the submission. She plainly was not obliged to read every sentence and every word comprising the materials attached to the submission, especially given her familiarity with the matter.

66    Third there is direct evidence that the Director did consider the submission. On 2 March 2018 she stated that she would “review the file” in order to make a decision in the following week. On 6 March 2018 she stated that “in reflecting on this matter” she held a particular concern about the recording of schedule 4 and schedule 8 drugs (a matter addressed by the appellant in the submission). And in the letter to the appellant of 9 March 2018 the Director expressly stated that she had considered the submission, but nonetheless had decided to refer the matter to a Committee under s 93. There was ample time for the Director to consider the submission between 2 and 9 March 2018. The inference which the appellant invites cannot be reconciled with the evidence to the contrary.

67    For these reasons, the primary judge was correct to conclude that the appellant failed to discharge the onus of establishing that the Director did not consider the submission before deciding to refer the matter to the Committee. This ground fails.

GROUND 7 OF THE APPEAL

68    This ground is put in two ways: it was not open to the Committee to conduct the hearing in the absence of the Chairperson and, in any event, in doing so the appellant was denied procedural fairness.

Submissions

69    Before the primary judge, the appellant’s arguments focused on s 96A which is concerned with permanent unavailability of a Committee member, either before an investigation is commenced (in which case the Director may appoint another Panel member) or thereafter and prior to completion of the final report, in which case the remaining members with the consent of the person under review may continue. If consent is not given, the Director must set up another committee and the process commences afresh. The primary judge was correct to reason that s 96A has no application to the present case at PJ [124]-[125].

70    In this Court, the appellant’s argument tacks differently. No reliance is placed on s 96A. Rather, distinction is drawn between meetings of a Committee (where s 99 regulates the conduct of a meeting in the absence of the Chairperson) and the conduct of a hearing which is required where it appears to the Committee that the person under review may have engaged in inappropriate practice: s 101(2). Where a Committee determines (or is required) to hold a hearing at which oral evidence is given, by necessary implication the scheme of the Act requires each member to be present. That conclusion it is said flows from the prescriptive scheme at ss 101-106F which requirements do not apply to ordinary meetings. In context, the rights that a person has in the conduct of a hearing “are apt to be undermined if Committee members have no obligation to be present for hearings.” The appellant submits that on the approach of the primary judge, a Committee member may not attend any hearing day and decide the matter on the papers- a most unlikely result in the statutory scheme.

71    In the alternative, the appellant submits that at the hearing, the appellant’s credibility was put in issue which resulted in adverse findings in the draft Report. It was procedurally unfair for that to occur and for those findings to be made where the Chairperson was absent for three days of the hearing.

72    For the respondent, Mr Brady makes no submission that, despite the appellant’s representation at the hearing by counsel, when no objection was taken to proceeding in the absence of the Chairperson, the appellant waived any entitlement to insist that each member be present for the duration of the hearing. In his submission, s 99 is dispositive: the Chairperson is to preside at all meetings at which he or she is present and if absent, the members present are to elect one of their number to preside. The quorum for a meeting is a majority of Committee members. The appellant’s arguments apply an unnecessary gloss to the clear meaning of that statutory text where there is no contextual or purpose warrant for doing so. If Parliament had intended a hearing to operate differently to a meeting, it would have said so.

73    As to the procedural fairness contention, the respondent submits the statutory scheme is multi-layered in providing for several tiers of decision-making with multiple opportunities for response by a person under review: Yoong v Chief Executive, Medicare [2021] FCA 701; (2021) 177 ALD 48 at [73]-[74], Rangiah J, where his Honour described the four tiers of decision-making as “a carefully calibrated regime with inherent checks and balances to ensure a thorough and fair process”. Section 99, as a component of that scheme, simply has effect according to its terms and there is no basis to displace it by implication of another layer of procedural fairness.

Resolution

74    The appellant’s first point must be accepted and it is unnecessary to address the second. Once the Director makes a decision following review to make a referral to and set up a Committee under ss 89C(2)(c) and 93(1), the Committee comprises the Chairperson who is a Deputy Director and two other Panel members: s 95(1). Where what is in issue is the professional services rendered or initiated by the practitioner, each Committee member must be a member of the profession in which the practitioner was practising at the relevant time (s 95(2)) and if the practitioner was a consultant physician in a particular speciality, each Panel member, apart from the Chairperson must be from the same speciality: s 95(3).

75    The Professional Services Review Panel is established by s 84, consisting of practitioners appointed by the Minister. Textually it is each Panel member so appointed who collectively act to perform the functions and to exercise the powers of the Committee. That is unmistakably clear from s 95(1): a Committee once set up “consists of” the appointed Panel members. There is no power to delegate and, as will be seen, other provisions speak to the collective duty of the Committee in carrying out its functions.

76    Section 96A provides that where before an investigation is commenced a Committee member ceases to be Panel member or “for any other reason” is unable to take part in the investigation, then another Panel member may be appointed to the Committee as a replacement. However, if the investigation has commenced and a Committee member ceases to be a Panel member, or is unable to take any further part, the remaining members may not proceed absent consent from the person under review. With respect to the reasoning of the primary judge at PJ [124]-[125] (though in fairness her Honour addressed the way in which the argument was put to her), this provision is concerned with two aspects of permanent inability to act, because a member ceases to be a Panel member and is therefore ineligible to be a Committee member or where the member is otherwise unable to take part in the investigation. It is not concerned with temporal non-attendance at a hearing. By implication, however, if consent is required for the lawful reconstitution of a Committee once it has embarked on an investigation, it is difficult to understand why other provisions operate to different effect in the case of temporary non-attendance of a Panel member at a hearing.

77    Distinction is drawn in the statutory scheme between meetings of a Committee and hearings. The starting point is s 97. The Committee must convene the first meeting within 14 days of the appointment of the members and the Chairperson must convene “such other meetings…as are necessary for the efficient conduct of its affairs”: s 97(1), (3). Procedural aspects of meetings are addressed at ss 98 and 99. The regulation of proceedings at a meeting is left to the Committee “as it sees fit” and meetings are held in private: s 98. Section 99 then deals with “other procedural matters relating to meetings” where the following may be noted. The Chairperson presides at meetings “at which he or she is present” and if “absent” the members present are to elect one of their number to preside, noting that the quorum for a meeting is a majority of the Committee members. At a meeting questions that arise are decided by a majority of votes of the members “present and voting”, subject to a deliberative vote of the presiding member.

78    These provisions may be contrasted with the conduct of a hearing were s 106 applies. The “procedure for conducting the hearing is within the discretion of the Committee member presiding at the meeting in question”, rather than the Committee proceeding as it thinks fit in the case of a meeting. If as the respondent contends a hearing is no different to a meeting, this provision would be otiose.

79    Returning to the ordered arrangement of the statutory scheme, there is no section numbered 100 and the next provision is s 101 titled: Hearings. The Committee “may, at any meeting, hold a hearing at which evidence is given, and/or documents are produced”, but no discretion applies where it appears to the Committee that the person under review may have engaged in inappropriate practice, in which case the Committee is obliged to hold a hearing: s 101(2).

80    Once the Committee determines (or is obliged) to hold a hearing, notice is required to be given to the person under review of the time and place proposed for the hearing (s 102) and the individual then has each of the rights conferred by s 103. In summary, to attend the hearing, to be represented by a lawyer or another adviser, to call witnesses and to give evidence and to address the Committee. These rights are not expressed to apply to meetings of the Committee. A person who is given notice to attend a hearing but fails to do so, may suffer the consequences provided for at s 104 (the hearing may proceed nonetheless), s 105 (disqualification) and/or may be liable for the commission of an offence contrary to s 105AA. The formality and prescriptive content of these provisions sits uneasily with the respondent’s construction of s 99, the effect of which is that the Chairperson may be entirely absent from a hearing at which there may be such drastic consequences for the person under review.

81    There are other provisions that are difficult to reconcile with the respondent’s construction submission. Evidence at a hearing may be taken on oath or affirmation (s 106A), a Committee member may by instrument in writing summon a person to appear at a hearing to give evidence and to produce documents (s 106B), a person served with a summons must not fail to obey it (s 106D), nor refuse or fail to be sworn or to make an affirmation or to answer a question that he or she is required by a Committee member to answer (s 106E). These provisions operate harmoniously with the rights conferred upon the person under review by s 103 to adduce his or her own evidence and to question any person who gives evidence at a hearing.

82    Section 106G is concerned with the action to be taken by a Committee “for the purposes of” its investigation. It “is the duty of the Committee to carry out its functions so that its final report is given to the Determining Authority” within specified timeframes: s 106G(2). That duty is imposed collectively, and provision is made for unanimous and majority findings in the case of a draft and final report, respectively at ss 106KD and 106L.

83    We return to the respondent’s submission that s 99 is determinative because it sets the quorum for meetings of a Committee. It is generally the case that where a statute creates a body and confers functions and powers to be exercised by appointed members and does not fix a quorum, the function cannot be performed nor the powers exercised by some of the members: Green v R (1891) 17 VLR 329 at 333, Higinbotham CJ; Municipality of St Leonards v Williams (1966) Tas SR 166, Burbury CJ and McGinty v Medical Council of Tasmania [2009] TASSC 31 at [37]-[39], Porter J. The absence of specification of a quorum evinces an intention that statutory power “is only to be exercised by the whole body and not by some of the members of it”: Hedges v Australasian Conference Association Ltd [2003] NSWSC 1107 at [73], Young CJ in Eq.

84    The issue in this case is whether the specification of a quorum for a meeting at s 99(3) applies when the Committee proceeds upon a hearing. Mr Brady submits that it does, drawing on the analogy of a Venn diagram where a hearing is properly understood as a subset of a meeting. There are two difficulties with that argument. One, as submitted by Mr Brennan, is that it does not acknowledge that not all Committee meetings are hearings.

85    The other is that Panel members are appointed to a Committee because they have qualifications and fields of practice relevant to the referral (s 95) to achieve informed decision-making, which point was made with some force by Burbury CJ in St Leonards. In that case the Local Government Act 1962 (Tas) provided for the establishment of a Municipal Commission comprising individuals with defined expertise for the purpose of reporting to the executive government on matters affecting municipalities. No quorum was provided for. The Commission proceeded to a hearing to take evidence on a matter without one of the appointees being present. The evidence was that one commission member was incapacitated by illness from participating at all. A challenge to the constitution of the Commission was upheld. At 167 and 173, his Honour respectively reasoned that:

I should have thought that was the plain purpose of Parliament in setting up a commission in which professional qualifications and practical experience is so nicely balanced that any decision of the commission should only be reached at a sitting at which all those nominated by Parliament for their particular qualifications or experience were present and able to make their own contribution. Otherwise the purpose of the legislature in endeavouring to ensure an informed decision might well be frustrated.,

…All Members must be present at a meeting to give the benefit of their particular qualifications and experience , and in that sense all members must participate in a decision or report. But it is not necessary that after their deliberations all members of the commission should be unanimous, and clearly the majority can bind the minority. This is a very old established principle of law going back to the days of Lord Coke in the seventeenth century.

86    In G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1987) 7 NSWLR 503 legislation established a tribunal comprising a judge of the Industrial Court as the chair and two assessors for the purpose of making an industrial award. The function of the assessors was to “assist and advise the chair” but not to adjudicate on matters before the tribunal. The judge sat alone to take evidence and the assessors did not participate in the making of the award. The court held the award invalid. The reasoning of Burbury CJ in St Leonards was approved by Kirby P and Hope JA (at 513-514) with the consequence explained at 514:

[I]t was not for the parties to waive or ignore the statute. To the extent that any regulation or agreement departed from the statutory requirement, it would have no effect……Here the obligation is imposed by the statute. And what is involved is not a matter of procedure but one relating fundamentally to the constitution of the decision-making body itself.

The result of this analysis is that the Tribunal in making the award was not properly constituted. The award it purportedly made is thereby invalidated.

87    The purpose of which Burbury CJ spoke is clearly the purpose that is sought to be achieved through the scheme of the Act for peer review of the provision of professional services consequent upon the Director’s determination to make a referral to a Committee. It is achieved by the qualification, fields of practice and specialties requirements for Panel members at s 95(1A) to (4). As to the Chairperson, he or she must be the Deputy Director of Professional Services Review appointed in accordance with s 85, following the Minister’s consultation with “such organisations and associations, representing the interests of the profession to which the practitioner belongs” as the Minister thinks appropriate.

88    In a sequel to the St Leonards decision, the Full Court of the Supreme Court of Tasmania subsequently held that non-attendance by some commission members at some days when inquiries were conducted (29 out of 92 days of inquiry) did not invalidate the subsequent report of the commission: Re Municipal Commission of Tasmania (1968) 16 LGRA 211, Burbury CJ, Crawford and Neasey JJ. The reasons why readily distinguish that case from the present.

89    The statutory function required the commission to enquire into various matters and provide a report to the Governor. It was not charged with the duty of enquiring into allegations of fact. It was open to the commission to inform itself as it thought fit and to “gather such factual information and opinions as it will”: 214. It was not obliged to conduct a hearing or to receive evidence from witnesses or submissions from interested persons. The Court observed at 215 that:

No doubt the Commissioners will find it more convenient to meet and discuss points as they go along. No doubt they will find it convenient to meet for the purpose of receiving written and oral submissions from interested local bodies. But there is nothing in the statute to require all six commissioners to meet for such purposes.

90    In contrast the statutory scheme of the Act defines the subject matter as whether a practitioner engaged in inappropriate practice in the provision of services and for the purpose of that inquiry, the Commission must hold a hearing, which is adversarial in nature, in accordance with each of the prescriptive requirements at ss 102-106E. That is very different to the conduct of an open inquiry about matters pertaining to local government ranging across many municipal areas.

91    When these provisions are considered as a whole, it is clear in our view that s 99 is confined in its operation to meetings of a Committee and does not extend to the procedure that must be applied to the conduct of a hearing. In stark contrast to the procedure of a Committee meeting at ss 98 and 99, the conduct of a hearing is the subject of far greater prescription, conferral of rights and the imposition of obligations at ss 101 to 106E.

92    That being so, the silence of the statutory scheme about any temporary absence of a Panel member at a hearing is telling. Implicitly, it is the Committee comprising each of the appointed Panel members that is charged with the duty of carrying out its functions to prepare a final report and, where it does so by conducting a hearing, it must proceed as constituted under s 95. That is a minimum requirement, confirmed by the inability of the Committee to proceed after commencing an investigation where a Panel member ceases to hold appointment as such or is otherwise permanently unavailable, in which case the entire process must begin again (absent consent): s 96A. If a Panel member is temporarily not present on an appointed hearing day, it necessarily follows that the Committee has no statutory authority to conduct the hearing and proceeding without a member is not the conduct of the hearing required by the Act. By proceeding otherwise than in accordance with the authority conferred by the Act, the Committee fell into jurisdictional error: Minister for Immigration and Border Protection v SZMTA (2018) 264 CLR 421 at [81]-[83]. Nettle and Gordon JJ. It follows, that the hearing was not validly conducted and the draft Report is not one made in accordance with the Act.

Notice of Contention

93    The Notice of Contention requires determination of whether the appellant should nonetheless be refused relief. The appellant seeks more than an order that the appeal be allowed. To be effective he asks for declaratory relief that the decision of the Committee to prepare the draft Report which sets out its preliminary findings is void and of no effect, a writ of prohibition or alternatively an injunction restraining the Committee from proceeding with the investigation and an order that the draft Report be quashed. Each form of relief is discretionary and may be refused in cases of unexplained delay: Bechara v Bates (2021) 286 FCR 166 at [160], Allsop CJ, Markovic and Colvin JJ.

94    The respondent contends that the appellant was represented at the hearing by a solicitor and counsel and was aware of the absence of the Chairperson on 20 and 21 June and 16 July 2019 but took no step to challenge the validity of the Committee hearing until 11 February 2022 when he filed the first iteration of his originating application. No explanation has been provided for the delay (by which we infer there is no affidavit of the appellant by way of explanation).

95    We do not consider that this is a case of unwarrantable or unreasonable delay to adopt two of the adjectives deployed in earlier cases (see Bechara at [158] and [164]). Whilst a period of approximately two years and seven months elapsed from the first absence of the Chairperson to the commencement of the review proceeding, much depends on the context. The review process did not proceed with alacrity. The request was made to the Director to undertake a review on 30 March 2017. Despite the Director informing the appellant on 6 April 2017 that she had received the request and had decided to undertake a review, she did not meet with the appellant until 20 December 2017. On 21 December 2017, the Director invited the appellant to make a submission as to the action that she should take. The submissions were provided on 21 February 2018. The Director constituted the Committee on 9 March 2018. It was not until 5 June 2019 , some 15 months later, that the Committee advised the appellant that it would hold hearings commencing on 20 June 2019. The hearings proceeded on various dates in June, July and August 2019. The final day of oral evidence and submissions was 2 August 2019, but the hearing did not conclude on that day. The Committee indicated that it would resume the hearing in October 2019.

96    Thereafter on 21 August 2019, the appellant requested transcripts of the fifth and sixth hearing days and foreshadowed that he would provide expert reports by 15 September 2019. He also advised that his experts were unavailable to resume the hearing in October 2019, whereupon the Committee vacated those dates. Correspondence about the appellant’s intent to adduce expert reports occurred between 1 November 2019 and 13 March 2020. Within that period the appellant variously promised the delivery of expert reports but they did not materialise, despite ultimately being promised by 16 March 2020. There is then another large gap in the chronology. The next relevant step occurred on 16 April 2021, when the Committee corresponded with the appellant and requested his expert reports by 11 June and submissions by 25 June 2021, and indicated that failing receipt of that material it would proceed to prepare its draft Report. The appellant did not provide his material.

97    On 30 September 2021, the Committee issued its draft Report. On 11 February 2022, the appellant commenced his review proceeding.

98    It is appropriate to observe that this chronology evidences delay on the part of both the Committee and the appellant. The difficulty with the respondent’s delay contention is that whilst it was open to the appellant to seek declaratory and injunctive relief (and or prohibition) on the ground that the Committee was not lawfully constituted on and from the first day of the hearing, the self-evident difficulty in proceeding by that pathway is that the appellant would have met the obvious hurdles of fragmentation and the undesirability of multiplicity of proceedings. Each is ordinarily a strong discretionary factor to refuse relief. It is also the case that the appellant had prepared his case to the Committee, allocated time to appear and briefed counsel on his behalf. Had he objected at that stage it would have been necessary to apply for an adjournment so that an application with supporting evidence may be prepared. The Committee may not have granted an adjournment. It was open to the Committee to proceed in the appellant’s absence (s 104), had he decided to leave at that point and pursue a judicial remedy.

99    Further, as submitted by Mr Brennan, it was not until 30 September 2021 that the appellant was advised of an actual finding of inappropriate practice (albeit in draft form) and it was not unreasonable for him to participate in the process to that point by setting out his case in the expectation that he may convince the Committee to find in his favour.

100    There are other considerations. The invalid constitution of the Committee is a fundamental matter that raises issues of public interest and importance in the operation of the Act’s provisions, which favours a grant of relief.

101    Further, as we have noted the Act is prescriptive in relation to the composition of the Committee. Depending on the nature of a procedural irregularity, it may be possible for a party to consent to it (expressly or otherwise), without the entity in question falling into jurisdictional error. In this matter however, the Committee was not constituted in accordance with the Act and so lacked jurisdiction. That is not a procedural irregularity that can be cured by consent or acquiescence.

102    The consequence is that the Committee’s draft Report is affected by material jurisdictional error.

103    For these reasons, we are not satisfied that relief should be refused on discretionary grounds.

OUTCOME

104    We grant leave to amend the notice of appeal, allow the appeal, dismiss the Notice of Contention and make orders for the filing of agreed consequential orders, including as to costs, or if not for the filing of submissions.

Associate:

Dated:    5 July 2024