FEDERAL COURT OF AUSTRALIA

Mukherjee v Medicare Participation Review Committee [2010] FCA 233

Citation:		Mukherjee v Medicare Participation Review Committee [2010] 2010 FCA 233

Appeal from:		Re Gopal Mukherjee and Medical Participation Review Committee [2009] AATA 484

Parties:		DR GOPAL MUKHERJEE v MEDICARE PARTICIPATION REVIEW COMMITTEE

File number(s):		NSD 763 of 2009

Judges:		COWDROY J

Date of judgment:		17 March 2010

Catchwords:		ADMINISTRATIVE LAW – Judicial Review – Decision of Administrative Appeals Tribunal – Medical Participation Review Committee – s 124F Health Insurance Act 1973 (Cth) – Disqualification for 3 months – Whether Tribunal required to make a finding on ‘actual awareness’ after finding applicant ‘not wholly aware’ –Whether Tribunal considered other available penalties – Whether Tribunal substituted itself as expert witness – Inadequacy of reasons – Wednesbury unreasonableness – Effect of guilty plea on awareness – Appeal dismissed

Legislation:		Administrative Appeals Tribunal Act 1975 (Cth) s 43 Crimes Act 1914 (Cth) s 20(1)(a) Health Insurance Act 1973 (Cth) ss 79A, 128B, 124D(2), 124E, 124F, 124FAA, 124J Migration Act 1958 (Cth) s 501

Cases cited:		Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 cited Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223 cited Civilian Aviation Safety Authority v Central Aviation Pty Limited [2009] FCAFC 137 cited Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 cited Craig v The State of South Australia (1995) 184 CLR 163 cited Dornan and Others v Riordan and Others (1990) 24 FCR 564 cited House v The King (1936) 55 CLR 499 cited Lafu v Minister for Immigration and Citizenship and Another (2009) 110 ALD 302 cited Lafu v Minister for Immigration and Citizenship and Another (2009) 112 ALD 1 cited Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited Minister for Human Services and Health v Haddad and Another (1995) 58 FCR 378 cited Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 cited Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 cited Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 cited Re Dixit and Minister for Health and Aged Care [2001] AATA 452 cited Re Gopal Mukherjee and Medical Participation Review Committee [2009] AATA 48 affirmed Re Markey and Minister for Human Services and Health and Another [1996] AATA 668 cited Re Sanjeev Relan and Medicare Participation Review Committee [2009] AATA 567 distinguished Rich and Another v Australian Securities and Investments Commission [2004] 220 CLR 129 cited Tickner and Others v Chapman and Others (1995) 57 FCR 451 cited

Date of hearing:	23 November 2009

Place:	Sydney

Division:	GENERAL DIVISION

Category:	CATCHWORDS

Number of paragraphs:	83

Counsel for the Appellant:	Mr M. A. R. Robinson with Ms A. B. Douglas-Baker

Solicitor for the Appellant:	Unsworth Legal

Counsel for the Respondent:	Ms M. Allars with Mr A. Stafford

Solicitor for the Respondent:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 763 of 2009

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

DR GOPAL MUKHERJEE

Appellant

AND:

MEDICARE PARTICIPATION REVIEW COMMITTEE

Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	17 MARCH 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Appeal be dismissed.

2. The Appellant pay the costs of the Respondent.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 763 of 2009

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

DR GOPAL MUKHERJEE

Appellant

AND:

MEDICARE PARTICIPATION REVIEW COMMITTEE

Respondent

JUDGE:	COWDROY J
DATE:	17 MARCH 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 On 30 June 2009 the Administrative Appeals Tribunal (‘the Tribunal’) affirmed a decision of the Medicare Participation Review Committee (‘the MPRC’) in Re Gopal Mukherjee and Medical Participation Review Committee [2009] AATA 484, 30 June 2009. That decision held that pursuant to s 124F of the Health Insurance Act 1973 (‘the Act’) the appellant should be fully disqualified from access to Medicare benefits for a period of three months. In consequence, Medicare benefits were not available for any professional services provided by the appellant during the disqualification period.

2 By Notice of Appeal filed on 27 July 2009 the appellant appeals the decision of the Tribunal.

FACTS

3 On 25 September 2007 the appellant, who was legally represented, pleaded guilty before the Local Court at Burwood to 63 charges of making or authorising a false statement regarding Medicare benefits, contrary to the provisions of s 128B(1) of the Act.

4 Section 128B(1) provides:

Knowingly making false statements relating to medicare benefits etc.

(1) A person shall not make, or authorise the making of, a statement (whether oral or in writing) if the person knows that the statement is:

(a) false or misleading in a material particular; and

(b) capable of being used in connection with a claim for a benefit or payment under this Act.

Penalty: $10,000 or imprisonment for 5 years, or both.

5 The appellant was convicted of each offence. The appellant was sentenced by her Honour Magistrate Carolyn Jane Barkell on 25 September 2007, and the sentence imposed was divided between the charges. Dr Mukherjee was ordered to perform 100 hours of community service; to be released on his own recognizance under s 20(1)(a) of the Crimes Act 1914 (Cth) to be of good behaviour for a period of three years, self in the amount of $500; and during that time to accept the care of Dr Sharat Lal, psychiatrist, or his delegate to take medication as prescribed and attend counselling as directed; and to make reparation in the sum of $9,453.70 to Medicare Australia.

6 On 7 January 2008 a delegate of the Minister for Health and Ageing acting pursuant to s 124D(2) of the Act notified the Chairperson of the MPRC of the details of convictions relating to the appellant. Thereafter, pursuant to s 124E of the Act, the Chairperson set up a committee and pursuant to s 124J of the Act convened a hearing by the MPRC which was conducted on 14 May 2008.

7 Before the MPRC the appellant tendered several medical reports. Dr Doron Samuell, a psychiatrist, provided a report dated 24 September 2007. Dr Samuell was consulted by Dr Mukherjee on 27 August 2007 and 18 September 2007. Dr Samuell obtained a history from the appellant of a long standing depressive illness which is referred to later in this decision. Dr Samuell considered that the appellant was suffering from a mood disorder at the time he committed the offences.

8 Another psychiatrist, Dr Sharat Lal, also provided a provided a report dated 24 September 2007. Dr Lal became the treating doctor for the appellant for his depressive illness and he expressed the opinion that the appellant’s condition had contributed significantly to his ‘aberrant behaviour’.

9 The MPRC considered the medical evidence concerning the appellant. On 15 July 2008 the MPRC made the following determination:

Pursuant to s 124F of the Act, Dr Gopal Mukherjee is fully disqualified for access to Medicare benefits for three months.

10 By Application for Review of Decision filed on 27 August 2008 in the Tribunal, the appellant applied to have the decision of the MPRC reviewed, raising three grounds, namely:

1. The MPRC failed to give sufficient weight to the overwhelming subjective case before it.

2. The MPRC’s determination is unreasonable and punitive.

3. The MPRC impermissibly made findings of fact in respect of the appellant’s mental health which were not open to it on the evidence.

11 After delivery of the MPRC’s decision, Dr John Murray Wright, consultant psychiatrist, was consulted by the appellant’s solicitors for an opinion. Dr Wright did not interview the appellant but provided a medical report to the appellant’s solicitors dated 15 December 2005. His report answered questions asked of him by the appellant’s solicitor based upon the reports of Dr Samuell and Dr Lal. Dr Wright stated, inter alia:

Both his treating psychiatrist and the expert psychiatrist, asked for an opinion on Dr Mukherjee, concluded that it was likely that offences for which he was charged and pleaded guilty occurred during an episode of mood disorder.

I find myself in agreement with these opinions.

12 Dr Wright however stated that periods of ‘complete normality interspersed with periods of depression’ could exist in a person.

TRIBUNAL FINDINGS

13 The Application came on for hearing before Senior Member Mrs Josephine Kelly on 4 February 2009. In her decision dated 30 June 2009 the learned Senior Member rejected each ground of the application for review. The Tribunal considered the medical evidence comprised in the reports of Dr Lal, Dr Samuell and Dr Wright but rejected the appellant’s submissions that he was never fully aware of what he was doing and that he could not make the distinction between honest and dishonest conduct when he was hypomanic. The Tribunal made the following finding:

I agree with the MRPC’ conclusion that Dr Mukarjee’s [sic] illness contributed significantly to the commission of the offences. I do not consider that he was wholly unaware of what he was doing. It is somewhat difficult to understand Dr Mukherjee’s stance taken before the MPRC and this Tribunal given that he had pleaded guilty to the offence of knowingly making false statements.

14 The Tribunal member affirmed the decision of the MPRC.

THE APPEAL

15 The appellant’s Notice of Appeal dated 27 July 2009 relies upon five grounds of appeal, namely that the Tribunal failed to take into account relevant considerations; failed to make a finding regarding the appellant’s ‘actual awareness’; substituted itself as expert witness; failed to provide adequate reasons; and Wednesbury unreasonableness. At the hearing of the appeal the pivotal issue turned on the mental state of the appellant at the time of the commission of the offences, and the adequacy of the Tribunal’s reasons concerning the capacity of the appellant to distinguish between honest and dishonest conduct. The Court will consider the submissions raised by the appellant and make findings in respect of those submissions.

Ground 1 – The Member failed to take into account relevant considerations

16 The appellant relied upon four elements in his first ground of appeal. The first element that claimed that the Tribunal had overlooked the objects of Part VAA of the Act was abandoned.

17 In the appellant’s second submission the appellant contended that the Tribunal failed to take into account a relevant consideration, namely how the action of the MPRC ‘would improve the performance of the… applicant … rather than penalise or punish him or his patients’. The appellant refers the Court to Re Sanjeev Relan and Medicare Participation Review Committee [2009] AATA 567 at [35].

18 Relan concerned the review of a determination made by the MPRC under s 124FAA of the Act, not under s 124F. Section 124F(1) of the Act requires the MPRC to make a determination in respect of the offence committed by the practitioner. Section 124F of the Act empowers the MPRC (described in the Act as ‘the Committee’) to make determinations and relevantly provides:

Determinations in relation to relevant offences and relevant civil contraventions

Determinations

(1) Subject to subsections 124J(8) and 124T(3), a Committee established under subsection 124E(1) in relation to a practitioner shall make a determination in relation to the practitioner in respect of the commission by the practitioner of any relevant offence or relevant civil contravention that is the subject of a notice under section 124D…

(2) A Committee established under subsection 124E(1) in relation to a practitioner shall, in making a determination in relation to the practitioner, determine that:

(a) no action should be taken against the practitioner;

(b) it should counsel the practitioner;

(d) the practitioner is disqualified in respect of one or more of the services mentioned in subsection (4A); or

(e) the practitioner is fully disqualified; or

(f) in relation to a practitioner who has engaged in a relevant offence or a relevant civil contravention under Division 2 or 3 of Part IIBA:

(i) any other practitioner who is employed, or engaged under a contract for services, by the practitioner is taken to be disqualified while so employed or so engaged; or

(ii) …

(3) In making a determination under subsection (2) in relation to a practitioner, a Committee shall:

(a) without limiting the generality of the matters to which it may have regard in making the determination, have regard to the nature of, and the circumstances concerning the commission of:

(i) each relevant offence of which the practitioner has been convicted; and

(ii) …

(b) comply with guidelines in force under section 124H.

(4) A determination under subsection (2) shall be made in writing.

Disqualification

(4A) If a Committee determines under paragraph (2)(d) or (f) that a practitioner is, or is taken to be, disqualified, it must specify in the determination whether the practitioner is fully disqualified or disqualified in respect of one or more of the following:

(a) the provision of specified professional services, or the provision of professional services other than specified professional services;

(b) the provision of professional services to a specified class of persons, or the provision of professional services to persons other than a specified class of persons;

(c) the provision of professional services within a specified location, or the provision of professional services otherwise than within a specified location.

(5) …

19 In Relan s 124FAA was applicable because the applicant, having entered into two agreements under s 92 of the Act in respect of inappropriate practice, was the subject of a notice which was issued under s 106X of the Act referring his conduct to the MPRC. The Tribunal in Relan considered that a variation of the MPRC’s decision was necessary because the disqualification would cause hardship to the patients of the particular practice, and not because it would cause undue hardship to the medical practitioner: see Relan at [33]–[34].

20 The Court observes that Relan did not consider the criteria to be applied under s 124F and was related to unique circumstances. In the present appeal, unlike the circumstances in Relan, there was no evidence of any effect upon the appellants patients. Further, there was no evidence that the appellant had particular language skills which could be used for the benefit of his patients. This was a decisive issue in the MPRC’s deliberations in Relan.

21 The improvement of the performance of the practitioner is not a factor which the Tribunal was bound to take into consideration, as such consideration is not identified in s 124F as a matter to which regard must be paid. In these circumstances, the fact that the Tribunal did not consider this fact does not constitute a basis for jurisdictional error: see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at [39].

22 The Court finds that the decision in Relan has no application to the present appeal.

23 Thirdly it is submitted that the Tribunal member failed to consider how the determination of three months full disqualification from participation in the Medicare scheme would achieve or fulfil the objects in s 79A or the purpose in s 124F of the Act.

24 In regard to s 79A of the Act, Part VAA establishes the Professional Services Review Scheme for the purpose of determining whether a practitioner has engaged in inappropriate practice. Section 79A which is contained in Part VAA states:

The object of this Part is to protect the integrity of the Commonwealth medicare 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.

25 However the relevant section in this proceeding is s 124F which is not found in Part VAA but rather in Part VB. Part VB, unlike Part VAA, does not contain an objects clause. Accordingly, it was not necessary for the Tribunal to determine how the disqualification would achieve the objects of s 79A of the Act.

26 As to the submission that the Tribunal member failed to take into account the purpose for the exercise of power in s 124F of the Act, the Court makes the following observations.

27 It is the function of the MPRC to identify those practitioners who have demonstrated that their conduct in the Medicare Scheme should be reviewed: see Re Markey and Minister for Human Services and Health and Another [1996] AATA 668 at [16]. The disqualification awarded to such person is primarily intended to ensure the integrity of the Scheme’s operation and it is not to be seen as a form of penalty or punishment simpliciter: see Re Dixit and Minister for Health and Aged Care [2001] AATA 452 at [23]. In Minister for Human Services and Health v Haddad and Another (1995) 58 FCR 378, the Full Court at 385 said:

It is important to keep in mind that the Act is not directed to questions of professional misconduct as such but rather to ensuring the effective operation and administration of the Medical Benefits and Hospital Services Insurance Scheme constituted and regulated by the Act.

The Tribunal, in assessing the appropriate sanction, was not however under an obligation to specifically state the purposes of the Act in its decision. The Tribunal was required to assess the sanction in regard to the relevant considerations as included in the Act. Purposes of the Act are not statements of the relevant considerations that a decision-maker is required to state in their reasons. Such considerations are found within the text of s124F. The Court therefore rejects this submission.

28 Next it is submitted that the Tribunal member failed to consider other or alternative sanctions or penalties applicable under s 124F(2) and why they were not acceptable or preferable to the penalty or sanction imposed.

29 The following extract from the Tribunal decision makes clear the fact that the Tribunal Member did consider alternate penalties:

Taking into account all the evidence and the particular matters put to me on behalf of Dr Mukerjee [sic], I have decided that it is appropriate to affirm the decision made by the MPRC.

I have considered the possible determinations in this case that may be made pursuant to s 124F(2) of the Act, which are:

Take no action against the practitioner

Counsel the practitioner

Reprimand the practitioner

Partially disqualify the practitioner; and/or

Fully disqualify the practitioner.

I have also taken into account that Dr Mukherjee has undertaken treatment of his psychiatric disorders since being hospitalised in 2007, that his mood has been stable since that time, and that he has not been consuming alcohol. I appreciate the full disqualification is the most serious sanction that can be imposed, however, it is for a limited period. In my view, the nature and the number of offences committed, and the length of time during which they were committed, support the determination made by the MPRC, which I affirm.

30 The length of any period of disqualification, or other penalty, is a matter relevant to the exercise of the discretion of the MPRC as provided by s 124F(2). In this instance the MPRC determined that disqualification was warranted. The MPRC reached its decision following consideration of the appellant’s illness, the period of time over which the offences were committed, the treatment the appellant had undergone, and of the appellant’s awareness of the seriousness of the offences as well as his contrition. It was only after considering those matters that the MPRC determined that disqualification was appropriate. The Tribunal also had reference to similar matters, including the findings of the MPRC. The Tribunal similarly determined that disqualification was the appropriate sanction given the circumstances.

31 These matters were relevant to the issue of sentencing. Even if such sentence did include an element of deterrence, that does not lead to the conclusion that the penalty is unwarranted or that some other penalty should have been applied. In Rich and Another v Australian Securities and Investments Commission [2004] 220 CLR 129 per McHugh J at [42]–[43], it was held that a period of disqualification may contain an element of punishment.

32 No error has been established in the determination of the disqualification imposed.

Ground 2 – The Appellant’s ‘awareness’

33 The Tribunal found that the appellant was not ‘wholly unaware of what he was doing’ when the offences were committed. The appellant submits that, having made such finding the Tribunal Member failed to make any finding as to the nature and extent of the appellant’s actual awareness at the time of the commission of the offences and therefore of the nature and extent of his culpability of his actions.

34 The MPRC’s finding was based upon its assessment of the appellant, and of the medical evidence. The report of Dr Wright stated, inter alia;

In relation to your specific question about whether a patient with such a condition (undiagnosed and untreated bipolar disorder) would have periods of complete normality interspersed with hypomania and major depression, it has been my experience in treating such patients over a number of years that there can indeed be periods of complete normality interspersed with through periods of depression, hypomania and mixed affective states. The impact of this can be that the individual is subject to behavioural and judgmental changes as influenced by a mood disorder at certain times, and at other times is not so affected.

35 The Tribunal found at [19]–[20]:

I do not consider that Dr Mukherjee’s evidence given to the MPRC about when he was or was not able to distinguish honest from dishonest behaviour persuasive. His evidence on this question before the MPRC was contradictory. Contrary to Mr Ainsworth’s submission, I do not consider that his statement that he was unable to distinguish honest from dishonest behaviour when he was depressed but not hypomanic, supports the argument that he was never fully aware of what he was doing. Rather, it seems to me to contradict it. As I understand that statement, it means that he could make that distinction when he was hypomanic.

I agree with the MRPC’s conclusion that Dr Mukarjee’s [sic] illness contributed significantly to the commission of the offences. I do not consider that he was wholly unaware of what he was doing. It is somewhat difficult to understand Dr Mukherjee’s stance taken before the MPRC and this Tribunal given that he had pleaded guilty to the offence of knowingly making false statements.

36 The Tribunal was required to consider circumstances in which each of the offences occurred, as required by s 124F(3)(a) of the Act. The Tribunal’s finding upon the submission of ‘awareness’ was made while rejecting a submission made by the appellant that at no time during the course of committing the offences was the appellant fully aware of his actions. The question of the appellant’s ‘awareness’ was not a mandatory requirement for the Tribunal to consider. The ‘culpability’ of the appellant for his conduct was established in view of the appellant’s guilty pleas made in answer to the charges brought against him in the Burwood Local Court, as are more fully considered hereunder. Accordingly, the ground of appeal is rejected.

Ground 3 – Substitution as an expert witness

37 The appellant alleges that the Tribunal Member ‘impermissibly substituted herself as an expert witness and informed herself at [20] as to the respondent’s “awareness” having regard to his psychiatric illnesses during the periods of the commission of the “relevant offences”’. It is submitted that the Tribunal Member was therefore obliged to warn the appellant ‘that she proposed to take such action’.

38 The Tribunal had before it evidence that the appellant had pleaded guilty to breaches of 63 offences against s 128B(1) of the Act (set out in [4] above). One of the essential elements of each offence is knowledge on the part of an accused that the proscribed conduct took place knowingly. Such was clearly established in Haddad at 385 where the Full Court said at [E]:

Under s 128B, on the other hand, the prohibition is on a person making or authorising the making of a statement if the person knows that the statement is false or misleading in a material particular and is capable of being used in connection with a claim for a benefit under the Act.

39 The appellant pleaded guilty to all charges brought against him and he was convicted of each charge. For the purpose of s 124F(3)(a)(i), the MPRC (and the Tribunal) was obliged to consider the nature of, and circumstances concerning the commission of each relevantoffence. It was therefore obliged to considerthe fact that the appellant had pleaded guilty before the Burwood Local Court to charges involving the false making of claims. By the appellant’s plea of guilty, he thereby must be taken to have acknowledged that he committed the offences ‘knowingly’ and therefore had ‘awareness’ of the criminality of his actions Further, the Tribunal, in view of the decisions referred to below, could not decide to the contrary.

40 In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 the Full Court considered the circumstances of SRT, a respondent who had been convicted of manslaughter in the Supreme Court of New South Wales who sought to challenge his deportation before the Administrative Appeals Tribunal. The Full Court considered whether the Tribunal could go behind the conviction. At [46] the Full Court stated:

While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point. Serious practical questions would arise if the position were otherwise. The tribunal could arrive at its own decision as to that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial. Accepted trial procedures would be absent. The Crown would not be a party: cf Minister for Immigration and Ethnic Affairs v Gungor at 445-446 per Fox J.

41 See also Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 where her Honour said at [41]:

First, it seems to me to be clear beyond argument that the administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based (Spackman, Daniele, Gungor and SRT).

42 In view of the above authorities the Tribunal was entitled to conclude, on the basis of his pleas of guilty, that the appellant was aware of the conduct.

43 The appellant has not submitted that there was no evidence on which to found the factual findings of the Tribunal. Nor could it be said that there has been a wrongful exercise of the Tribunal’s discretion: see House v The King (1936) 55 CLR 499 at 504-505. The finding of the Tribunal that the appellant was ‘wholly unaware of what he was doing’ is no more than a rejection of the submission which was put to the Tribunal, namely that the appellant was not fully aware of his actions when the offences were committed.

44 Accordingly the Court finds that appellant’s convictions under s 128B provided ample grounds for the Tribunal member’s finding. The Tribunal did not substitute itself as an expert witness and thus for the reasons provided above, the Court rejects this ground of appeal.

Ground 4 – Inadequacy of Reasons

45 The appellant claims that the Tribunal Member failed to set out her reasons or adequate reasons for her assessment as she was required to do by s 43 of the Administrative Appeals Tribunal Act 1975 especially at [19]–[24] of her determination.

46 The Tribunal’s reasons at [19] to [24] are as follows:

19. I do not consider that Dr Mukherjee’s evidence given to the MPRC about when he was or was not able to distinguish honest from dishonest behaviour persuasive. His evidence on this question before the MPRC was contradictory. Contrary to Mr Ainsworth’s submission, I do not consider that his statement that he was unable to distinguish honest from dishonest behaviour when he was depressed but not hypomanic, supports the argument that he was never fully aware of what he was doing. Rather, it seems to me to contradict it. As I understand that statement, it means that he could make that distinction when he was hypomanic.

20. I agree with the MRPC’s conclusion that Dr Mukarjee’s [sic] illness contributed significantly to the commission of the offences. I do not consider that he was wholly unaware of what he was doing. It is somewhat difficult to understand Dr Mukherjee’s stance taken before the MPRC and this Tribunal given that he had pleaded guilty to the offence of knowingly making false statements.

21. I have taken into account the magistrate’s remarks on sentencing and the findings made by the MPRC. I emphasise that this matter is before me for review on its merits. I note that the written submissions filed on behalf of Dr Mukherjee did not seem to appreciate that this Tribunal was undertaking a review of the MPRC’s decision on that basis.

22. Taking into account all the evidence and the particular matters put to me on behalf of Dr Mukerjee, I have decided that it is appropriate to affirm the decision made by the MPRC.

23. I have considered the possible determinations in this case that may be made pursuant to s 124F(2) of the Act, which are:

take no action against the practitioner

counsel the practitioner

reprimand the practitioner

partially disqualify the practitioner; and/or

fully disqualify the practitioner.

24. I have also taken into account that Dr Mukherjee has undertaken treatment of his psychiatric disorders since being hospitalised in 2007, that his mood has been stable since that time, and that he has not been consuming alcohol. I appreciate that full disqualification is the most serious sanction that can be imposed, however, it is for a limited period. In my view, the nature and the number of offences committed, and the length of time during which they were committed, support the determination made by the MPRC, which I affirm.

47 The appellant submits that while the Tribunal affirmed the decision of the MPRC, it did not adopt the MPRC’s reasons. The appellant contends that the Tribunal never had regard to specific facts or factors in reaching its decision. Instead, the appellant submits, the Tribunal member merely stated repeatedly, ‘I have taken into account’ the various portions of the evidence but nowhere did she deal in detail with the factual considerations.

48 The appellant refers the Court to the decision of the Full Court in Dornan and Others v Riordan and Others (1990) 24 FCR 564. In that decision the Court found that a substantial failure to provide reasons for a decision, in circumstances where a statement of reasons is required for the exercise of power under the statute by the decision-maker, constitutes an error of law. The Court has also been referred to the decision of the Full Court in Civilian Aviation Safety Authority v Central Aviation Pty Limited [2009] FCAFC 137 at [49]–[50] in which a similar finding was made.

49 Section 124F(3)(a) mandates the Tribunal to have regard to the nature of, and circumstances concerning the relevant offences. The Tribunal is not required to refer to every piece of evidence and every contention made by the appellant in his written reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46].

50 The Court has considered the decision of the Tribunal but cannot discern any failure as alleged. The Tribunal considered all salient facts, and gave reasons for its decision. The Tribunal’s reasons for its decision are not to be construed ‘minutely and finely with a eye keenly attuned to the perception of error’: see Politis v Federal Commissioner of Taxation (1998) 16 ALD 707 at 708; see also Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; see also Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 272.

51 During oral submissions the appellant claimed that the Tribunal failed to recognise that between the date of the first offence on 12 July 2002 and the date of the final offence on 5March 2004 there was a period of six months, namely between April 2003 to September 2003, when no offences were committed. However such submission is a demonstration of the appellant’s overly critical approach to the decision. For the reasons above, the Court rejects this ground appeal.

Ground 5 – Constructive failure to exercise jurisdiction or Wednesbury unreasonableness

52 The appellant submits that there was a constructive failure on the part of the Tribunal to exercise jurisdiction in that her exercise of power was so unreasonable that no reasonable person could have so exercised it: see Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223. The Notice of Appeal contained nine particulars marked (a) to (i) inclusive.

53 In particular (a) the appellant claims that there was irrationality or illogicality in the Tribunal’s finding because the Tribunal Member failed to have any or proper regard to the opinions and findings of medical experts.

54 The Court finds that the Tribunal considered the medical reports, as is evident from its decision at [15]–[18] as follows.

15. I have taken into account the evidence of Dr Lal and Dr Samuell, and in particular the extracts from their evidence relied on by Mr Ainsworth. In his report dated 24 September 2007 Dr Lal said that both major depression and hypomania can impair judgment significantly, or exacerbate underlying compulsive behaviours. Dr Lal concluded:

“I have no doubt that Dr Mukherjee’s condition has contributed significantly to his aberrant behaviour”.

16. Dr Samuell's diagnosis was slightly different. He thought Dr Mukerjee suffered from Bipolar Disorder type one or two. Dr Samuell said:

“The grandiosity, poor judgment and impulsivity around the time of the alleged offences is strongly suggestive of a mood disorder”.

17. Dr Wright agreed with the opinions of Dr Lal and Dr Samuell, which he summarised as:

(they) concluded that it was likely that the offences for which he was charged and pleaded guilty occurred during an episode of mood disorder.

18. Dr Wright then said:

“In relation to your specific question about whether a patient with such a condition (undiagnosed and untreated bipolar disorder) would have periods of complete normality interspersed with hypomania and major depression, it has been my experience in treating such patients over a number of years that there can indeed be periods of complete normality interspersed with through periods of depression, hypomania and mixed affective states. The impact of this can be that the individual is subject to behavioural and judgmental changes as influenced by a mood disorder at certain times, and at other times is not so affected”.

The Tribunal, contrary to the appellant’s submission, clearly had regard to the medical evidence. The Court accordingly rejects this submission.

55 Particular (b) alleges that the Tribunal failed to consider how or by what means three months full disqualification from participation in the Medicare scheme would achieve or fulfil the objects of the Act.

56 The issues for determination by the Tribunal did not require it to specifically state how the disqualification of the appellant would adhere or fulfil the objects of the Act. The matters relevant to the MPRC’s (and the Tribunal’s) decision are stated in s 124F as follows:

(3) In making a determination under subsection (2) in relation to a practitioner, a Committee shall:

(a) without limiting the generality of the matters to which it may have regard in making the determination, have regard to the nature of, and the circumstances concerning the commission of:

(i) each relevant offence of which the practitioner has been convicted…

In s 124F of the Act the objects of the Act are not referred to. The Tribunal was required to consider the relevant considerations as set out in s 124F. The Tribunal did so. Accordingly the Tribunal fulfilled its proper function.

57 If the appellant’s submission is intended to refer to the objects set out in s 79A of the Act, for reasons already considered, they have no application to the matters for consideration under s 124F.

58 At [24] of the decision the Tribunal stated:

I appreciate that full disqualification is the most serious sanction that can be imposed, however, it is for a limited period. In my view, the nature and the number of offences committed, and the length of time during which they were committed, support the determination made by the MPRC, which I affirm.

59 As already referred to, it is recognised that a period of disqualification may contain an element of punishment: see Rich per McHugh J at [42]–[43]. Disqualification is prescribed as one of the methods to be considered by the MPRC to ensure the integrity of the Medicare system. The Tribunal is not required to state why it agreed with the MPRC’s determination of disqualification, other than the observations which it stated in [24] of the Tribunal’s decision.

60 The appellant points out that s 124F(3)(b) of the Act requires the MPRC, when making its determination, to comply with ‘guidelines in force under s 124H’. Since it is common ground that there were no guidelines current, the appellant submits that the Tribunal should at least have considered the former guidelines.

61 The Court finds that, since no guidelines were current, neither the MPRC nor the Tribunal was required to consider the expired guidelines. The Tribunal considered the sanction imposed by the MPRC and concluded that it was appropriate.

62 In particular (c) the appellant alleges that the Tribunal found that the appellant was ‘partly aware of what he was doing in the commission of the relevant offences, but failed to determine how that reflected in or should be taken account when considering “the nature and number of offences committed and the length of time during which they were committed”’.

63 The actual finding of the Tribunal was: ‘I do not consider that he was wholly unaware of what he was doing’. The Tribunal, by making such statement recognised that the appellant was suffering from a mood disorder. However that disorder was not sufficient to negative the appellant’s mens rea at the time the offences were committed. Further, the Tribunal specifically referred to the pleas of guilty when it made its observation that the appellant was not ‘wholly unaware’.

64 Having referred to the fact that the appellant was not ‘wholly unaware’ and the pleas of guilty, the Tribunal member then considered the various sanctions available. In finding that disqualification for three months was the appropriate sanction, the Tribunal must be taken to have considered the member’s assessment of the appellant’s awareness.

65 Particular (d) alleges that the Senior Member determined ‘crucial findings in a rolled-up wrapped-up fashion’ that did not demonstrate an appreciation of the task at hand, nor did the Tribunal member explain the basis of those findings. The appellant submits that the Tribunal member’s reasons are inadequate and that instead of engaging in an active intellectual exercise when considering the critical issues, the Tribunal member provided her reasons in a ‘wrapped-up’ or ‘rolled-up’ fashion. The appellant relies upon Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 in support of his submission.

66 In Lafu the Full Court considered the cancellation of a visa, such cancellation becoming effective following completion of the holder’s gaol sentence. The appellant applied to the Administrative Appeals Tribunal for a review of the delegate’s decision. The decision was affirmed. The appellant then appealed to this Court. The first respondent (the Minister) had issued a Direction providing guidance to decision-makers when making a decision to refuse or cancel a visa under s 501 of the Migration Act 1958 (Cth). One of the matters to be considered under the Direction was whether visa refusal or cancellation ‘would prevent (or inhibit the commission of) like offences by other persons’. The Tribunal did not discuss the content of the Direction in its deliberations. On appeal to this Court, a single judge affirmed the Tribunal decision: see Lafu v Minister for Immigration and Citizenship and Another (2009) 110 ALD 302. On appeal, the Full Court concluded that the single judge had erred in finding that the Tribunal’s reasons constituted an ‘active intellectual process’ (see Tickner and Others v Chapman and Others (1995) 57 FCR 451 at 462) as the single judge had not considered the specific issue of general deterrence.

67 In the present proceedings however, the Court is satisfied that the Tribunal member engaged in an active intellectual process. The Court has found that there is no issue which has not been addressed by the Tribunal which the Tribunal was bound to address. As was explained by Brennan J in Peko-Wallsend at [61];

A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered.

The Court is unable to find any basis upon which the Full Court’s decision in Lafu assists the appellant.

68 Particular (e) alleges that the Senior Member failed to take into account the fact that the appellant had been in medical practice ‘for in excess of 20 years and that he has already been fully punished for the commission of the relevant offences’.

69 The Tribunal recorded that the appellant had been in practice for 25 years as set out in paragraph [11] of its decision when it stated:‘He has worked in the same practice at Fairfield for 25 years’. Further, the Tribunal was fully aware of the sentences ordered by Magistrate Barkell in the Burwood Local Court as is evident from the specific reference to such penalties in the Tribunal’s reasons. The submission of the appellant seems to ignore both of these considerations.

70 Particular (f) alleges that the Senior Member failed to consider that the three month disqualification was out of proportion to the kinds of determination previously handed down by the Tribunal. Such claim overlooks the issues already considered, namely that the Tribunal considered all other possible sanctions, and determined that the three month disqualification was warranted.

71 Particular (g) claims that the Tribunal member failed to consider other or alternative sanctions. The Tribunal member was satisfied, having considered the various sanctions available that disqualification for a period of three months was appropriate. Other alternative sanctions were considered: see [23] of the Tribunal’s decision reproduced at [46] of this judgement. There is no unreasonableness as alleged.

72 By particular (h), the appellant claims that the Tribunal member failed to set out ‘the inconsistencies in the applicant’s evidence and to state their import in her decision’.

73 There was no obligation on the part of the Tribunal member to state inconsistencies in the appellant’s evidence. The significant inconsistency which the Tribunal referred to was in respect of the appellant’s submissions before the Tribunal as to the appellant’s ‘awareness’ compared to his pleas of guilty. On this question, the Tribunal Member said:

It is somewhat difficult to understand Dr Mukherjee’s stance taken before the MPRC and this Tribunal given that he pleaded guilty to the offence of knowingly making false statements.

74 Having referred to the inconsistency the Tribunal member then went on to consider the penalty which should be imposed. There is no unreasonableness, in the Wednesbury sense, in the Tribunal’s process.

75 By Particular (i) the appellant claims that the Tribunal’s decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds and that as such the Tribunal member misconceived its purpose or function.

76 The Court is unable to find any error in the conduct of the Tribunal as alleged. The convictions and punishment under the criminal law do not operate to save the appellant from any sanction under s 124F of the Act. The Court is satisfied that the Tribunal has not identified the wrong issues, nor asked itself a wrong question, nor ignored relevant material. Nor has it relied upon irrelevant material or made any erroneous finding or reached a mistaken conclusion: see Craig v The State of South Australia (1995) 184 CLR 163 at 179. In these circumstances, the Court adopts the observations referred to in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] wherein Gleeson CJ and McHugh J referred to a claim of irrational and unreasonable findings as merely being a way of describing disagreement with the decision.

77 The appellant also submitted that the Tribunal failed to pay regard to the sentencing remarks of Magistrate Barkell upon the appellant’s conviction at the Burwood Local Court wherein the Magistrate specifically rejected the Crown’s submission that the appellant’s gambling and alcohol misuse had remained untreated, and found that there was ‘a major mood disorder’ which was being addressed.

78 The claim that the sentencing remarks were overlooked cannot be sustained in view of the Tribunal specifically addressing this issue: see [21] to [24] of the Tribunal’s decision reproduced at [46] of this judgement.

79 In view of such consideration the Tribunal clearly referred to the sentencing remarks of Magistrate Barkell. In these circumstances the Court can find no basis for the claim that the Tribunal’s decision is so unreasonable that no reasonable decision-maker could have arrived at such decision: see Wednesbury. Ground 5 of the appeal is therefore rejected.

80 From the body of the appellant’s reply submissions as well as their oral argument, the Court can discern one further submission raised by the appellant.

81 The appellant submits that the Tribunal member cited and applied the wrong legal test when referring to the ‘nature and number of offences committed’ at paragraph [24] of the Tribunal decision when in fact, s 124F(3)(a) requires the MPRC, when making determinations under s 124F(1), to have regard to the ‘nature of, and the circumstances concerning the commission of’ each relevant offence.

82 The Court finds that this submission is misconceived. The Tribunal clearly understood the correct test to be applied, as s 124F(3) of the Act was quoted in the Tribunal’s decision at [7]. The Court is satisfied that the words ‘nature and number’ were used by the Tribunal member in a general sense to arrive at a finding concerning the suitability of suspension as a sanction in preference to other sanctions that were available. The Court holds that the ‘circumstances’ of the relevant offences as referred to in s 124F(3)(a) could include the ‘number’ of relevant offences. The Tribunal member was not seeking at [24] of the Tribunal’s decision to again cite the relevant test precisely. As such the Tribunal member did not err as claimed.

CONCLUSION

83 For the reasons referred to above, the Court orders that the appeal be dismissed with costs.

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 17 March 2010

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