FEDERAL COURT OF AUSTRALIA

Tisdall v Webber [2010] FCA 501

THE COURT ORDERS THAT:

1.         The amended application filed 28 August 2009 be dismissed.

2.         The applicant file and serve, by 4 June 2010, written submissions as to the orders which he contends should be made in respect of the costs of the application.

3.         The respondents file and serve, by 4 June 2010, written submissions as to the orders which they contend should be made in respect of the costs of the application.

4.         The applicant file and serve, by 18 June 2010, written submissions in reply on the question of costs.

5.         Liberty to apply on not less than three days’ notice in writing to the other party be reserved to each party.

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.

REASONS FOR JUDGMENT

1                     “Inappropriate practice” by a general medical practitioner may be constituted by, amongst other things, the practitioner’s provision of 80 or more services on 20 or more days during a 12-month period.  This is known as the “80/20 rule”, and is the effect of s 106KA of the Health Insurance Act 1973 (Cth) (“the Act”), read with Reg 10 of the Health Insurance (Professional Services Review) Regulations 1999 (Cth) (“the Regulations”).  Dr Peter Tisdall, the applicant now before the Court, was found to have engaged in inappropriate practice of that kind.  That finding was made in the final report, dated 9 July 2009, of Professional Services Review Committee Number 325, which found, first, that Dr Tisdall, in relation to his rendering of professional services between 5 January and 21 August 2000, had engaged in inappropriate practice and that, secondly, that there were no exceptional circumstances affecting the rendering of the services on those days.

2                     By his amended application filed on 28 August 2009, Dr Tisdall applies under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”), so far as is relevant, for declarations that the final report prepared by the second, third and fourth respondents, who constituted Committee 325 (“the Committee”), was affected by legal error, and that it be set aside, and for consequential orders removing the decision of the Committee to this Court, quashing it, and remitting it for determination according to law.

3                     Before this Court, Dr Tisdall’s primary contention was that the Committee had failed properly to understand and to apply what is meant by “exceptional circumstances” as that phrase appears in s 106KA(2) of the Act.  Consequently, he contended, the Committee’s decision is affected by legal error so as to entitle him to the relief outlined above.  Before moving to analyse whether that is so, it is convenient to set out the somewhat convoluted factual and procedural background to the application.

Factual and procedural background

4                     Section 86 of the Act, as it was in force at the relevant time, conferred on the Health Insurance Commission (“the Commission”) a power to make an investigative referral to the Director appointed pursuant to Pt VAA, Div 2 of the Act.  The Commission acted under that power by issuing such a referral, dated 13 December 2001.

5                     The Director, performing his investigative function under s 89 of the Act, had invited Dr Tisdall to make submissions about what course the Director ought take.  By his submissions dated 4 January 2002, Dr Tisdall sought to persuade the Director to dismiss the investigative referral (as the Director is empowered to do by s 91 of the Act).  The Director was not persuaded to do so.  Acting under s 93(1) of the Act, the Director then made an adjudicative referral, which was dated 14 February 2002, establishing Committee 325 (“the First Committee”) and referring to it the investigation of the matters specified in the investigative referral.  On 5 June 2002, the First Committee held its hearing.  Having provided a draft report to Dr Tisdall for his comment, the First Committee published its final report on 23 January 2003.

6                     On 19 February 2003, Dr Tisdall commenced proceedings in the Federal Magistrates Court; those proceedings were then transferred to this Court, and came on for hearing before Gray J on 19 October 2004.  Dr Tisdall’s case before his Honour was substantially the same as his case before me:  namely that the Committee (the First Committee before Gray J, and, as shall appear, the Second Committee before me) had erred in its finding that there were no exceptional circumstances in the period in which he was said to have breached the “80/20 rule” and that had the concept of “exceptional circumstances” been properly applied, the First Committee should have found that circumstances of that type had obtained at the relevant time.  Dr Tisdall then, as now, attacked the findings of the First Committee insofar as it had accepted, generally, his submissions as to factual matters pertaining to the general circumstances of his practice, but had declined to accept that those matters amounted to “exceptional circumstances” in the relevant sense.

7                     By his decision of 8 April 2005, Tisdall v Kelly (2005) 219 ALR 152, Gray J accepted the First Committee’s reasoning as to the lack of exceptional circumstances.  His Honour expressed his conclusion on the issue at 172-4 of that report, where the following key passages occur;

… I am of the view that PSRC 325 did not fall into error in the present case in adopting the view that it adopted about the meaning of “exceptional circumstances”. In my view, PSRC 325 was correct in the conclusions it reached. It then proceeded to apply its view to the circumstances that the applicant had advanced as exceptional. It accepted that there was an on-going shortage of doctors in the Kyabram district and found that this was common in rural and some urban areas and not unique to Kyabram. It referred to the fact that other doctors in town had been able to make practice management decisions that did not involve them seeing the same large number of patients as the applicant. It believed that the applicant was similarly capable of limiting his patient numbers had he wished to do so. It referred to the fact that he had mentioned closing his books, but had not in fact done so. It did not accept that a shortage of doctors was exceptional on the facts of the case, because the applicant could have limited his patient numbers through more effective practice management. In addition, it took the view that the shortage was not an exceptional occurrence on particular days.

…

This examination of PSRC 325’s approach to the issues raised by the applicant as exceptional circumstances makes it clear that, in this respect, PSRC 325’s report was not tainted by any error of law. Even if it took the wrong view about the meaning of reg 11(b) of the 1999 regulations (and I do not accept that it did), PSRC 325 still looked in detail at every circumstance put forward by the applicant as an exceptional circumstance. In the case of those which were on-going circumstances, PSRC 325 found first, in each case, that the circumstance was not exceptional for reasons other than its on-going nature, and added as an additional reason that the circumstance was of a long-standing nature. In other words, in each case, PSRC 325 found as a fact that the circumstances advanced were not exceptional without resort to its view that exceptional circumstances were most likely to be episodic or intermittent. Only when it had reached the conclusion that, for reasons other than this view, the circumstances concerned were not exceptional, did it then turn to the fact that the circumstances were not episodic or intermittent. In the case of each circumstance advanced, the findings of PSRC 325 were capable of standing quite apart from its view based on considerations of time. Those findings of fact cannot be overturned in this court. They are not tainted by any error of law.

8                     In light of the decision of the Full Court of this Court in Oreb v Willcock (2005) 146 FCR 237, the matter was remitted, by order of this Court of 30 January 2006, to the Committee for determination according to law.  This led the Director, on 13 March 2006, to make a further adjudicative referral to a differently-constituted committee, to which I shall refer as “the Second Committee”, which comprised the second to fourth respondents in these proceedings.  The Second Committee held its hearing on 28 July 2006.  It provided its draft report to Dr Tisdall on 16 June 2008, and published its final report on 9 July 2009.  It is the Second Committee’s final report which is under attack in these proceedings.

The Second Committee’s report

9                     The Second Committee’s relevant findings of fact are conveniently set out at paragraphs 45 to 51 of its final report.  As that passage will assume some significance, it is convenient to set it out in full:

Existence of exceptional circumstances

45                 The Committee accepts that there was a chronic doctor shortage in rural Australia during the referral period, and that Kyabram and its surrounding area also suffered from a relative shortage of doctors, compared to metropolitan centres. The Committee also accepts that there was a lack of cooperation between Dr Tisdall and a number of other doctors in Kyabram during the referral period, and that some doctors in Kyabram may have had limited hours of practice.

46                 The Committee agrees that during the referral period there was a higher doctor-patient ratio in Kyabram than in metropolitan areas. Nevertheless, between three and seven other practitioners worked on each of the days on which Dr Tisdall rendered 80 or more services, at an average bulk-billing rate (over those days) of 46.52%. The number of services rendered by those practitioners indicates that substantive practices were open and likely had capacity to see additional patients. For example, on each of the relevant days the three busiest other practitioners rendered at least 10 services but no more than 43 services. The average number of services rendered by the three busiest other practitioners ranged from 17.67 per practitioner (quietest day) to 34.3 services per practitioner (busiest day).

47                 The question the Committee is required to answer is whether there was an absence of services for Dr Tisdall’s patients on the days on which he rendered 80 or more services (having regard to the location of his practice). Although the Medicare Australia data shows that a number of other practitioners were practising on the relevant days, Dr Tisdall submits that those doctors were not available to see Dr Tisdall’s patients either because they have closed their books to all new patients or because they refused to see Dr Tisdall’s patients in particular (because of ill feelings towards Dr Tisdall). The Committee does not accept that other practitioners would have refused to see Dr Tisdall’s patients and consequently, does not consider there to have been an absence of services for Dr Tisdall’s patients on the days on which he rendered 80 or more services.

48                 The Committee accepts that, for Dr Tisdall’s patients, alternative psychiatric, counselling and radiology services were limited. The Committee notes that Dr Tisdall’s patients were in no different a situation to patients seeing other doctors in the town and it is not convinced that this constituted anything exceptional about Dr Tisdall’s practice. The Committee is not convinced that there was an absence of those services for Dr Tisdall’s patients and further, whatever the limits on alternative care were, those limitations did not ‘affect’ Dr Tisdall’s servicing, in the sense of causing him to render more services than he otherwise would have. The Committee considers that the performance of those specialist services would have resulted in longer consultations and hence in Dr Tisdall rendering fewer  attendances for the day in question rather than more.

49                 The Committee does not consider that Kyabram and its surrounding area was an area, in itself, of lower socio-economic standing, though it accepts that persons from disadvantaged backgrounds resided in the region and that such persons would have been attracted to a practice that bulk-billed to the extent that Dr Tisdall did…

50                 The Committee is satisfied that there were practitioners in the region who bulk-billed a significant proportion of their patients. Consequently, the Committee does not consider there was an absence of services for Dr Tisdall’s disadvantaged patients on the days on which he rendered 80 or more services.

51                 The Committee is not satisfied that Aboriginal, Turkish and Italian patients saw Dr Tisdall because of an absence of services for them. To the extent that Dr Tisdall’s reference to those patients related to their need for bulk-billing, this issue has already been discussed above. To the extent it is based on language difficulties, the Committee notes that Dr Tisdall used an interpreter for his Turkish patients, a service available to all other doctors in the region, and that Dr Tisdall spoke only limited Italian. The Committee accepts that these patients saw Dr Tisdall because he showed empathy towards them and they felt comfortable with him. This, however, does not evidence an absence of services for those patients and the Committee finds that there were services available for these patients.

10                  Dr Bleechmore of Counsel, who appeared before me for Dr Tisdall, submitted that the Second Committee having made those findings, it should then;

… have found that there was an absence of other medical services for the applicant’s patients, within the meaning of the Regulations, and gone on then immediately or directly to consider the causal question whether that “absence” affected the rendering of services provided by the applicant. It should not have allowed its consideration of the “absence” issue to be infected by considerations relating to whether the relevant conditions were exceptional, in the ordinary meaning of the term. Similar consideration would apply to excursions into reasonableness and unreasonableness, rarity, comparison with other practices, conventions and the like.

11                  Support for that approach was said to flow from Oreb, supra, the Full Court authority to which I have referred.  The principle which has been established, relevantly for present purposes, by Oreb is that “exceptional circumstances” may exist in one of three ways.  First, they may, for the purposes of s 106KA(5), be unusual or out-of-the ordinary in a general or contextual sense.  Secondly, they may be established by pointing to an unusual level of need for medical care, as is contemplated by Reg 11(b).  Thirdly, they may be constituted by an “absence” of other medical services available to the patients of the person to whom the investigation relates.  Any of those bases may be advanced, the Full Court held, in support of an argument that “exceptional circumstances” existed, but in each case there must be some causal link – in the sense that the “exceptional circumstances” “affected” the person’s practice – see s 106KA(1).  Justice Lander, with whom Black CJ and Wilcox J agreed (at 239-4) reasoned, at 266-9, on this issue as follows;

[178]   I will come to the Regulations shortly. However, before doing so, I should observe that a general practitioner might seek to establish "exceptional circumstances" without reference to the Regulations. Section 106KA(5) preserves a general practitioner's right to establish exceptional circumstances without reference to the Regulations. If the general practitioner seeks to invoke the provisions of s 106KA(2) without reference to the Regulations the general practitioner must establish that exceptional circumstances existed. In that case, the general practitioner will need to establish that the circumstances, whatever they were, were exceptional in the sense that they are unusual or out of the ordinary. As I have said, however, it is not appropriate to substitute other words for the words in the statute. The test must remain, were the circumstances exceptional? If the general practitioner establishes that exceptional circumstances existed, he must then establish that those circumstances affected the rendering or initiating of services by that general practitioner on a particular day or particular days. In establishing that the exceptional circumstances affected the rendering or initiating of services, the general practitioner does not need to establish that those circumstances were the only circumstances affecting that matter. Indeed, the general practitioner does not need to establish the circumstances were the dominant circumstances affecting the rendering or initiating of services. The section only requires that the exceptional services affected the services rendered or initiated by the general practitioner. "Affected" is used in s 106KA(2) in the sense of acted upon or influenced. Thus, there must be a relationship between the exceptional circumstances and the rendering or initiating of services in the sense that the former acted upon or influenced the latter. However, the exceptional circumstances need not be the only matter acting or influencing the rendering or initiating of services. Other matters which might be quite unexceptional might also affect the rendering or initiating of services.

[179]   Whether there are other matters affecting, in the sense of acting upon or influencing the rendering or initiating of services, is quite irrelevant unless it can be established that they were the only matters affecting the rendering or initiating of services so that it can be said that the exceptional circumstances did not affect the rendering or initiating of services.

[180]   The general practitioner's management of his practice will, in all cases, affect the way in which he or she renders or initiates services. The hours that general practitioner works will affect the number of patients that general practitioner sees. It may be that by reducing the hours the general practitioner will reduce the number of services rendered. However, that does not mean that a general practitioner cannot establish that exceptional circumstances affected the rendering or initiating of services. The general practitioner's management of the practice becomes irrelevant if the general practitioner has established that exceptional circumstances affected the rendering or initiating of services on the particular day or days.

[181]   Of course, the general practitioner must establish also that those exceptional circumstances existed and affected the services rendered or initiated on the particular day or days. The particular day or days are any of the days identified by the Committee which form part of the prescribed pattern of services in s 106KA(1).

[182]   A regulation has been made under s 106KA(5). Regulation 11 has been promulgated to provide circumstances which are, by force of that subsection, exceptional circumstances.

[183]   Regulation 11 has two separate limbs and in the second limb two criteria.

[184]   In neither limb does a practitioner have to establish exceptional circumstances according to the general meaning of that term in s 106KA(2) because the two limbs are separately, by force of s 106KA(5) of the Act, exceptional circumstances.

[185]   Regulation 11(a) will operate in conjunction with s 106KA(2) to extinguish a particular day from the decision-maker's consideration of s 106KA(1) if the general practitioner can establish that an "unusual occurrence causing an unusual level of need for professional attendances" "that affected the rendering or initiating of services by the practitioner" occurred on that particular day or those particular days.

[186]   For that paragraph of the regulation to be enlivened the occurrence must be unusual. That means it must be out of the ordinary or indeed exceptional. An unusual circumstance will also be an exceptional circumstance. An unusual or exceptional circumstance is a circumstance which is out of the ordinary. Whilst an unusual circumstance is something which is out of the ordinary or exceptional, there is no warrant for using those words in lieu of the word unusual in a consideration of this subregulation. The question is always whether the occurrence was unusual.

[187]   Not only must the occurrence be unusual, that unusual occurrence must also cause an unusual level of need for professional attendances. An unusual level of need must be a level which is out of the ordinary or indeed, again, exceptional. The deemed "exceptional circumstances" in reg 11(a) are circumstances which would ordinarily be considered to be exceptional circumstances because two unusual circumstances must operate together, the second being consequent upon the first.

[188]   Therefore, if a particular set of circumstances prevailed over the whole of the period under consideration and operate, eg, on all of the particular days under consideration within that relevant period, it would be hard to say that those circumstances are exceptional, unusual or out of the ordinary. That must be so because there must not only be an unusual occurrence but that must itself cause an unusual level of need for professional services.

[189]   It is hard to think of a set of circumstances which are unusual which would operate over the relevant period and on 20 or more days during that period, especially where the relevant period might be as long as one year. If the occurrence operated over the whole of the period and on all of the particular days, it might be said that those circumstances are usual. That is not to say that reg 11(a) can never operate if the unusual occurrence operates to cause the unusual level of need during the whole of the period, but it is difficult to think of circumstances in which it would apply.

[190]   Therefore, for the operation of reg 11(a), ordinarily it will ordinarily be a single event which pertains to a particular day or particular days which operates to allow the decision-maker to conclude that, in respect of that particular day or particular days, there was an unusual occurrence which caused an unusual level of need for professional services.

[191]   Regulation 11(a) is deemed by s 106KA(5) to be circumstances that amount to exceptional circumstances. As has already been shown, a practitioner may argue that exceptional circumstances exist without relying upon reg 11. That is permissible: s 106KA(5). The practitioner may simply claim that circumstances other than those contained in reg 11 are exceptional circumstances. That being so, the circumstances in reg 11(a) must be something other than the exceptional circumstances predicated in s 106KA(2). If it were otherwise, there would be no need for reg 11(a).

[192]   Once the general practitioner has established the circumstances in reg 11(a), the next question for the decision-maker, in this case the Committee, is whether the unusual occurrence which has caused an unusual level of need for professional attendances "affected the rendering or initiating of services by the [general practitioner]": s 106KA(2).

[193]   It is always a two-step inquiry. First, whether reg 11(a) has been made out and, second, whether those circumstances affected the rendering or initiating of services by the general practitioner on the particular day or days identified by the Committee which form part of the prescribed pattern of services in s 106KA(1).

[194]   In conducting the second stage of the inquiry the Committee will consider the affect on the rendering and initiating of services by the practitioner in the same way as previously advised. The reg 11(a) circumstances need not be dominant. Other circumstances which affect those matters will only be relevant if they are to exclude the reg 11(a) circumstances from affecting those matters.

[195]   Different considerations apply in relation to reg 11(b).

[196]   Regulation 11(b) recognises that a medical practitioner may have to render a greater number of services than usual because of an absence of medical services for that medical practitioner's patients during the relevant period, because of the location of the medical practitioner's practice and the characteristics of the medical practitioner's patients (emphasis added).

[197]   Regulation 11(a) requires an examination of an unusual occurrence causing an unusual level of need for professional attendances on the particular day or days which are found to be relevant for the purpose of the prescribed pattern of services in s 106KA(1).

[198]   Section 106KA(2) requires an inquiry into whether, on a particular day or particular days during the relevant period, exceptional circumstances existed. That again is directed to the particular day or days.

[199]   Regulation 11(b), however, directs the inquiry into the absence of other medical services for the general practitioner's patients "during the relevant period".

[200]   The relevant period is the period referred to in s 106KA(1), which is the whole of the period being the period up to 12 months over which the prescribed pattern of services is said to have occurred. In this case, the relevant period is from 24 January 2000 to and including 8 August 2000.

[201]   The inquiry in reg 11(b) is in relation to the whole of the period under review, not simply the particular day or days. However, because the purpose of assessing exceptional circumstances is to determine whether any of the days which otherwise form part of the prescribed number of days under s 106KA(1) should not be reckoned, in the end result, the inquiry under reg 11(b), although over the whole period, must relate to the particular day or days.

[202]   Thus it is easier to envisage circumstances which would prevail for the whole of the year which would come within reg 11(b).

[203]   For example, the general practitioner might practise in a remote country area which cannot attract any other general practitioners for the whole period under investigation. If that is so, the general practitioner has, without more, satisfied reg 11(b) to the extent that he or she has established an absence of other medical services for patients of that general practitioner during the relevant period, having regard to the location of that general practitioner's practice. If the general practitioner can also establish that the characteristics of his or her patients has impacted upon the absence of other medical services then the general practitioner will have made out that exceptional circumstances exist. Therefore, it seems to me that it is possible that the circumstances contemplated in reg 11(b) could operate over the whole of the period and still be exceptional circumstances because, as I have said, reg 11(b) deems those circumstances to be exceptional. Whilst those circumstances might exist over the whole period, the question for the decision-maker is still whether they operated on the particular day or days which have been reckoned as determining the pattern of services.

12                  In the light of what Lander J there set out, Dr Tisdall’s primary attack on the Second Committee’s final report was that it, contrary to what is required by the Full Court’s reasoning, conflated a general or contextual notion of “exceptional circumstances” with the definitions of that term provided by Reg 11.  This, the applicant contends, was an error of law and entitles him to the declarations he seeks in his amended application.  As well or alternatively, Dr Tisdall submits, that the Second Committee employed an erroneous standard of proof in evaluating his claims, and that this, too, led it into an error of law.  Finally, he says, the Second Committee’s failure to consider his circumstances cumulatively evinces, in itself, an error of law.  It is convenient to consider in turn each of the errors which the applicant has imputed to the Committee.  Before doing so, though, I shall outline something of the nature of the task confronting the Court on an application like the present.

This Court’s task

13                  Before the Court, it will be recalled, is an application which seeks declaratory relief under s 39B of the Judiciary Act to the effect that the Second Committee’s final report was affected by an error or errors of law, and consequential relief that the decision be quashed and remitted to the Second Committee for determination according to law.  The question for this Court in those circumstances is one of whether the Second Committee had misdirected itself as to, or misapplied, the relevant legal test or tests.  In this connexion it is to be borne in mind that the Second Committee is a “tribunal” in the same sense as that term has been used by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 271-2.  The High Court there regarded as “well settled” a statement by a Full Court of this Court (in Collector of Customs v Pozzolanic Enterprises (1993) 43 FCR 280, at 287) that the reasons of such a decision-making body are not to be;

construed minutely and finely with an eye keenly attuned to the perception of error…the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

14                  Any error upon which this Court may fix in granting relief of the type sought in Dr Tisdall’s amended application will therefore not be constituted by a mere infelicity of expression, or less than ideal structure in formulating the Second Committee’s final report, or upon any other formal defect, however perceived, in what, it is to be remembered, is the result of the deliberations of a committee the members of which are medical, not legal, practitioners.  On that footing, I turn to examine the first of the legal errors Dr Tisdall claims was committed by the Second Committee.

The Second Committee’s reasoning as to “exceptional circumstances”

15                  As already noted, the first error for which Dr Tisdall contends arises from the Second Committee’s reasoning as to whether his practice during the referral period was affected by “exceptional circumstances”.  Dr Bleechmore’s submission on this point, as I understood it, was that the Second Committee conflated its consideration of “exceptional circumstances” as that term may ordinarily be understood, with the connotation of the expression as it appears in Reg 11 of the Regulations.  That approach was said to be inconsistent with the Full Court in Oreb, the relevant passage of which is set out above at [11] and was erroneous because Dr Tisdall had only ever relied on Reg 11.

16                  Regulation 11 was at the relevant time, and is now, in these terms:

11        Exceptional circumstances

For subsection 106KA (5) of the Act, the following circumstances are declared as constituting exceptional circumstances:

(a)   an unusual occurrence causing an unusual level of need for professional attendances;

(b)   an absence of other medical services, for patients of the person under review during the relevant period, having regard to:

(i)         the location of the practice of the person under review; and

(ii)        characteristics of the patients of the person under review.

Note   For relevant period, see s 106KA of the Act.

17                  It was submitted that, applying Reg 11(b), the Second Committee ought, first, to have found that there was an “absence of other medical services”. Paragraph 45 of the Second Committee’s report, reproduced at [9] above, was said to support a finding of such an “absence”.  The Second Committee ought then, it was submitted, to have moved to consider the causal question of whether the “absence” so found “affected the rendering or initiating of services” by Dr Tisdall so as to enliven the exculpatory effect of s 106KA(2) of the Act which provides:

If the person under review satisfies the Committee that, on a particular day or particular days during the relevant period, exceptional circumstances existed that affected the rendering or initiating of services provided by the person, the person is not taken by subsection (1) to have engaged in inappropriate practice on that day or those days.

Instead, Counsel for Dr Tisdall submitted, the Second Committee allowed its own notions of “exceptional circumstances” to intrude upon and “infect” its analysis.

18                  Those contentions, as Ms Henderson of Counsel, who appeared for the respondents, pointed out, simply ignore paragraphs 46 to 51 of the Second Committee’s report, and the considerations referred to in those paragraphs.

19                  In my view, the relevant sense of “absence” extends beyond a literal, physical absence of other medical services available to Dr Tisdall’s patients.  In the context of Reg 11, the term connotes a lack of readily or reasonably available alternative medical services for those patients, bearing in mind, as contemplated by sub-paragraphs (i) and (ii) of Reg 11(b), the location of the practice at issue, and the characteristics of the relevant patients.  For there to be an absence in this sense, it is not sufficient that the alternative services be merely limited, as the Second Committee was prepared to find they had been.  I do not consider that, read as a whole and with the benevolence enjoined by Wu Shan Liang, the Second Committee’s report discloses any error in its application of the concept of “absence” erected by Reg 11(b).

20                  The question remains, however, whether the Second Committee’s reasoning was “infected” by “considerations relating to whether the relevant conditions were exceptional, in the ordinary meaning of the term”.  Notwithstanding the Second Committee’s remark at par 48 of its report that it was unable to differentiate between Dr Tisdall’s patients and those of other doctors in the town, I am unable to discern in that paragraph any misunderstanding or misapplication of the relevant legal test.  Ms Henderson pointed, in this connexion, to the fact that the second sentence in par 48 begins by reciting “[t]he Committee notes...” which was said to indicate the making of a mere observation by the Second Committee.  That is a reading of the relevant portion of the Second Committee’s report which is open.  However, I do not regard it as necessary to come to a concluded view on the precise meaning of the words used because, given what was said by the High Court in Wu Shan Liang, it is tolerably clear that the Second Committee considered that the scarcity of psychiatric counselling and radiology services affected everybody attending general practitioners in Kyabram and the surrounding area.  In the absence of any evidence that Dr Tisdall’s patients had a disproportionate need for medical services in the scarce categories which he supplied, I consider that the Second Committee correctly identified and discharged the task required of it by Reg 11(b), upon which Dr Tisdall elected solely to rely.  I have not been persuaded by submissions on his behalf that the Second Committee’s reasoning in this respect was “infected” by an extraneous consideration.  It therefore follows that no error of law has been demonstrated under this head.

The Second Committee’s employment of an erroneous standard of proof

21                  Dr Tisdall’s next attack on the Second Committee’s report was that it erected an erroneous standard of proof as manifested by par 48 of the final report, where the it recorded that it was “not convinced” of various matters.  Section 106KA(2) of the Act, Dr Bleechmore submitted, required only that a committee be “satisfied” by the person under review of the relevant matters.  By appearing to require that it be “convinced”, it was said, the Second Committee had employed a higher, and erroneous, standard of proof.  In support of this contention, I was referred to the New Shorter Oxford English Dictionary, wherein “convinced” is defined, thirdly and relevantly, as “persuade to believe firmly…”, a much higher standard, so it was said, than mere satisfaction.

22                  In response, Ms Henderson referred me to Wu Shan Liang, and, generally, to the principles reiterated in that case, to which I have already adverted.  She then invoked, alternatively, Sok v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 170, at 175-6, where Branson J had preferred, over a definition in the Oxford English Dictionary, a definition of “violence” in the Macquarie Dictionary (3^rd ed) which, her Honour noted, “importantly is an Australian dictionary”.  Relevant for present purposes is the Macquarie Dictionary’s definition of “convince” as “to persuade by argument or proof; cause to believe in the truth of what is alleged”.

23                  I have not found it necessary to choose between the competing definitions of “convinced” to which I have been referred.  That is because, when the Second Committee’s reasons are read as a whole, it is clear that the expression the Committee “is not convinced” where twice appearing in par 48 of those reasons is used interchangeably with “the Committee does not accept” in par 47, “does not consider” in pars 47, 49 and 50 and “The Committee is not satisfied” in par 51.  Correspondingly, I interpret the expression “is not convinced” as used by the Second Committee as being the negative equivalent of the expressions “The Committee accepts” in pars 48, 49 and 51, “The Committee considers” in par  48, “The Committee is satisfied” in par  50 and “the Committee finds” in par 51.

24                  From the repeated use in such close proximity to each other of the cognate expressions which I have identified, and allowing for the Second Committee’s understandable concern to achieve elegant variation, I am confident that, when it expressed itself in the relevant passages as “not convinced”, it was imposing no higher onus of proof than is imported by the requirement in s 106KA(2) that the person under review “satisfies the Committee” of the existence of “exceptional circumstances … that affected the rendering or initiating of services provided by the person …”  This conclusion, I consider, is supported by the approach endorsed in Wu Shan Liang and precludes the imputation to the Second Committee of the error of law suggested under this head.

The Second Committee’s failure to consider the cumulative effect of all circumstances

25                  This third limb of attack by the appellant on the Second Committee’s report overlaps substantially with his contentions in relation to the “absence of other medical services”, addressed at [17]-[19] above.  The Second Committee, it was submitted on behalf of Dr Tisdall, considered individually a variety of factors supporting his contentions as to absence, namely that;

(i)         other doctors refused to see his patients,

(ii)        other doctors limited their hours of practice and closed their books to new patients,

(iii)       other doctors lacked specialist skills, particularly psychiatric counselling and radiology;

(iv)       the characteristics of his patients disposed them to seek out the applicant rather than other doctors, and

(v)        other doctors did not bulk bill to the same extent he did…

Despite its consideration of each of these matters individually, it is contended on behalf of the applicant that the Second Committee:

fell into error in failing to consider the collective cumulative impact of these factors, and failed to make an assessment as to whether, considered cumulatively, they established an absence of other medical services for the applicant’s patients during the relevant period.

26                  Regulation 11 has been reproduced at [16] of these reasons.  It is true that paragraph (b) of Reg 11 erects two criteria to which a Committee is to have regard in determining, whether, during the relevant period, there was an absence of other medical services for patients of the person under review.  However, each of those criteria could operate to support a conclusion of a relevant absence.  For example, the nearest specialist provider of psychiatric counselling might be located 200 kilometres from the practice of the person under review.  However, that factor alone would not be an absence constituting special circumstances as contemplated by Reg 11.  It would be necessary, in addition, for a significant proportion of the patients of the person under review to have the characteristic of requiring psychiatric counselling.

27                  The mere fact that the two criteria specified in Reg 11(b)(i) and (ii) are capable of operating in conjunction does not entail that a committee is required in each case to evaluate them “cumulatively” as Dr Bleechmore put it.  In the present case, the Second Committee correctly identified the location of Dr Tisdall’s practice in Kyabram where there was a “relative shortage” of general practitioners.  However, as explained at pars 46 and 57 of its reasons set out at [9] above, it did not regard that location with its attendant relative shortage of other general practitioners as constituting exceptional circumstances affecting the rendering by Dr Tisdall of general practitioner services on a particular day.  That, presumably, was because the Second Committee was not satisfied that a sufficient number of Dr Tisdall’s patients to reduce his provision of services on that day below the permitted maximum of 80 could not have attended other general practitioners in Kyabram.

28                  In pars 48 to 51 of its reasons, the Second Committee examined each category of Dr Tisdall’s patients who it seems were proposed by him as possessing characteristics which would permit a finding of an absence of other medical services for those patients as contemplated by Reg 11(b)(ii).  In pars 48 of its reasons the Second Committee considered, as a single cohort, those of Dr Tisdall’s patients who required psychiatric, counselling or radiology services.  It did so against the background of its acceptance that sources other than Dr Tisdall for the provision of those specialist services were limited in Kyabram and the surrounding district.  In that respect, the Second Committee did evaluate cumulatively the two criteria identified in Reg 11(b)(i) and (ii).  However, there was obviously a lack of evidence that on a particular day when Dr Tisdall’s services exceeded 80 in the characteristics of the assumed group of patients had “operated” to contribute to the excess as explained by Lander J in Oreb (supra) at 269 [203].

29                  The same reasoning clearly informed pars 49 and 50 of the Second Committee’s decision, where the relevant cohort of patients with a characteristic proposed as having contributed to an absence of other medical services were those from “disadvantaged backgrounds” who preferred to attend a practice which offered extensive bulk-billing as Dr Tisdall did.  The Second Committee’s conclusion rested on its acceptance as a matter of fact that there were other practitioners in the Kyabram region from whom bulk-billing was available on the days in question.

30                  The Second Committee took a similar approach in par 51 of its reasons when it examined another cohort of patients claimed to have collectively a particular characteristic, namely, those of Aboriginal, Turkish or Italian ethnicity, towards whom Dr Tisdall showed a special empathy.  As appears expressly from par 51 of the Second Committee’s reasons, it did consider that postulated cohort of patients cumulatively with the different cohort characterised by its need or preference for bulk-billing.  Nevertheless, it remains clear that, however the characteristics of any particular group of patients might have been accumulated, the Second Committee found itself unable to be satisfied that the needs of that group had contributed to an excess above 80 of services rendered by Dr Tisdall on a particular day.  It was not incumbent on the Second Committee to exclude as having contributed to each relevant excess every possible combination of the characteristics of his patients which had been propounded by Dr Tisdall.  As Ms Henderson submitted;

Had the application claimed that his practice consisted entirely of Turkish patients of lower socio-economic status who required psychiatric counselling, it might have been appropriate for the Tribunal to consider all of those matters cumulatively. He did not make such a claim, so it was appropriate for the Committee to consider separately each of the individual factors that the applicant raised in support of his argument that his circumstances fell within reg 11.

I indicate parenthetically that it is far from obvious that, had each possible combination of the suggested characteristics been examined, the factual conclusion reached by the Second Committee would have been different.  In any case, that was a matter for the Second Committee and not this Court.

Conclusion

31                  For the reasons which I have endeavoured to explain, I am unable to perceive in the Second Committee’s final report any of the errors of law for which Counsel for Dr Tisdall has contended.  It follows that the declarations sought in the amended application should not be made and that the consequential relief is unavailable.  Given the nature of the case, I shall receive further written submissions from each party on the issue of costs.  The orders of the Court will be:

1.         The amended application filed 28 August 2009 be dismissed.

2.         The applicant file and serve, by 4 June 2010, written submissions as to the orders which he contends should be made in respect of the costs of the application.

3.         The respondents file and serve, by 4 June 2010, written submissions as to the orders which they contend should be made in respect of the costs of the application.

4.         The applicant file and serve, by 18 June 2010, written submissions in reply on the question of costs.

5.         Liberty to apply on not less than three days’ notice in writing to the other party be reserved to each party.

Associate:

Dated:         26 May 2010