REASONS FOR JUDGMENT

1                     Part VAA of the Health Insurance Act 1973 (Cth) (“the Act”) establishes the Professional Services Review Scheme (“the Scheme”).  The objects of that Scheme are set out by s 79A of the Act in the following terms:

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.

2                     The Scheme is a scheme for reviewing and investigating the provision of services by medical practitioners and others, to determine whether a person providing services at a cost to the Commonwealth has engaged in inappropriate practice.  The Scheme enables the Chief Executive Officer of Medicare Australia to request the Director of Professional Services Review (“the Director”) to review the provision of services by a person.  Following a review, one of the options available to the Director is to make a referral to the Professional Services Review Committee set up under s 93 of the Act.  In so doing, the Director is empowered by s 95 of the Act to appoint the members of that Committee.

3                     In this proceeding, Dr Chandra seeks judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) and under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) of decisions made by the Director. 

4                     The first respondent is the Director.  The applicant (“Dr Chandra”), is a registered medical practitioner and a Fellow of the Australasian College of Dermatologists.  

5                     The proceeding is concerned with the validity of decisions made by the Director to appoint and/or not to revoke the appointments of the second respondents as members of Professional Services Review Committee No 628 (“the Committee”).  The Director has established the Committee to investigate the conduct of Dr Chandra.

6                     Dr Chandra contends that each of the appointments of the second respondents to the Committee failed to adhere to the requirements for appointment under the Act because each of the second respondents lacked the attributes for appointment required by the Act.  Secondly, Dr Chandra contends that the Director erred in rejecting a challenge made by
Dr Chandra under s 96(1) of the Act, because he failed to take into account whether Dr Paver “is likely to be thought, on reasonable grounds, to be biased”: s 96(1)(b).

7                     For the reasons that follow, I have determined to dismiss Dr Chandra’s application.

the legislation

8                     The manner in which a request for and the establishment of a Professional Services Review Committee occurs under the Scheme has already been adverted to in part.  Section 93(1) identifies that the purpose of establishing a Professional Services Review Committee is so that such a Committee can investigate “whether the person under review engaged in inappropriate practice in providing the services specified in the referral”.

9                     The phrase “inappropriate practice” is defined in s 82 of the Act and relevantly provides:

(1)  A practitioner engages in inappropriate practice if the practitioner's conduct in connection with rendering or initiating services is such that a Committee could reasonably conclude that:

        …

      (b)              if the practitioner rendered or initiated the services as a specialist (other than a consultant physician) in a particular specialty--the conduct would be unacceptable to the general body of specialists in that specialty;

             …

  (3) A Committee must, in determining whether a practitioner's conduct in connection with rendering or initiating services was inappropriate practice, have regard to (as well as to other relevant matters) whether or not the practitioner kept adequate and contemporaneous records of the rendering or initiation of the services.  

10                  Section 84 of the Act provides for the establishment of the Professional Services Review Panel (“the Panel”).  The Panel consists of practitioners appointed by the Minister.  Section 85 provides that the Minister may appoint Panel members to be Deputy Directors. 

11                  Section 80 of the Act gives an outline of the main features of the Scheme. Section 80(7) provides that members of a Professional Services Review Committee“must belong to professions or specialties relevant to the investigation.”

12                  Section 95 of the Act deals in detail with the constitution of a Professional Services Review Committee.  That section empowers the Director to establish such a Committee and make appointments to it of practitioners from the Panel.  The number of persons to be appointed and the attributes of those persons, amongst other matters, are prescribed by s 95 in the following terms:

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

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

         (b)2 other Panel members; and

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

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

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

(3)     If the practitioner was at that time a consultant physician in relation to a particular specialty, the other Panel members referred to in paragraph (1)(b) must also be consultant physicians in relation to that specialty.

(4)     If the practitioner was at that time a specialist in relation to a particular specialty, the other Panel members referred to in paragraph (1)(b) must also be specialists in relation to that specialty.

(5)     If the practitioner was at that time a general practitioner, the other Panel members referred to in paragraph (1)(b) must also be general practitioners.

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

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

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

13                  In dealing with the attributes of the members of a Professional Services Review Committee, s 95(2) uses the word “profession”.  That word is defined in s 81 to include a group of persons engaged in the vocation of medicine.

14                  In relation to the requisite attributes of appointees to a Professional Services Review Committee, other than for the Chairperson, s 95(4) uses the word “specialist”.  That term is defined in s 3(1):

specialist, in relation to a particular specialty, means a medical practitioner in relation to whom there is in force a determination under section 3DB or 3E that the medical practitioner is recognised for the purposes of this Act as a specialist in that specialty, or a medical practitioner who is taken to be so recognised under section 3D.

15                  Section 3D provides for the recognition of fellows of certain “relevant” organisation[s]”as specialists.  A medical practitioner meets the criteria in s 3D if he or she is domiciled in Australia, is a fellow of the “relevant organisation in relation to the specialty” and has obtained “a relevant qualification in relation to the relevant organisation”. The relevant organisations and relevant qualifications are those organisations and qualifications declared to be so by the regulations made under the Act: s 3D(5).

16                  Regulation 4 of the Health Insurance Regulations 1975 (Cth) (“the Regulations”) declares the organisations in Schedule 4 column 2 and the qualifications in Schedule
4 column 4 of the Regulations to be, respectively, relevant organisations and relevant qualifications.  Schedule 4 relevantly provides:

17                  Section 96 of the Act provides for challenges to be made to the appointments of a member or members of a Professional Services Review Committee.  Relevantly, it provides:

(1)  The person under review may challenge the appointment of a Committee member (including an appointment under subsection (3) of this section) on the grounds that the member:

                     (a)  is biased or is likely to be biased; or

                     (b)  is likely to be thought, on reasonable grounds, to be biased.

             (2)  The challenge must:

                     (a)  be in writing; and

                     (b)  set out the basis on which the challenge is made; and

                       (c)  be given to the Director within 7 days after the person under review received a copy of the referral under subsection 93(7).

             (3)   If the Director decides that the challenge is justified, he or she must revoke the appointment and appoint another Panel member to the Committee.

                   …

(6)  As soon as practicable after making his or her decision on the challenge, the Director must give written notice of the decision to the person under review.

18                  Subdivision B of Division 4 of Pt VAA of the Act deals with the proceedings of a Professional Services Review Committee.  The Committee is empowered to hold hearings and must hold a hearing if it appears to the Committee that the person under review may have engaged in inappropriate practice: s 101.  Subdivision B makes detailed provision for the conduct of hearings, including the attendance of witnesses, the production of documents and other matters.  Having conducted a hearing, a Committee prepares a draft report of its preliminary findings on which the person under review is invited to make submissions suggesting changes: s 106KD.  Thereafter, the Committee makes a final report as to its findings and where those findings include a finding of inappropriate practice, the Committee is required to give the final report to the Determining Authority: s 106L.

19                  The Determining Authority is established by s 106Q of the Act.  The Determining Authority is empowered to make a final determination in accordance with s 106U relating to the person under review: s 106TA.  Section 106U sets out a range of consequences for the person under review which may be provided for by a final determination of the Determining Authority.  Those consequences include counselling or a reprimand, or the disqualification of the practitioner either fully or in respect of particular specified services.  Section 19B of the Act provides that medical benefits are not payable in respect of services rendered or initiated by, or on behalf of, disqualified practitioners.

the facts before the decision maker

20                  Dr Chandra is a dermatologist who during the relevant period practiced in Victoria.

21                  On 5 January 2009, a delegate of the CEO of Medicare Australia wrote to the Director pursuant to s 86(1) of the Act and requested that the Director review the provision of services by Dr Chandra for the purposes of considering whether Dr Chandra may have engaged in inappropriate practice during the period 1 September 2007 to 31 August 2008 (“the review period”).  That correspondence contained a range of information which the delegate had considered in making his decision to request a review and also contained a summary of Medicare Australia’s concerns.

22                  The information examined by Medicare Australia included statistical information relating to the number of particular services Dr Chandra had performed during the review period and a comparison of those figures against other active dermatologists in Australia during the same period.  On the basis of the statistical information relied upon by Medicare Australia, Dr Chandra was placed in the 99^th percentile for his total services rendered, when compared with all other active dermatologists in Australia during the same period.  In relation to three particular items of service, Dr Chandra ranked the highest of all providers of that service during the review period.

23                  Medicare Australia’s expressed reasons for concern noted that it had interviewed
Dr Chandra and that Dr Chandra had stated that he was a specialist dermatologist with a sub-specialty interest in skin cancer and Mohs’ micrographic surgery and that 90% of his clinical work is skin cancer related.  Medicare Australia acknowledged the distinctive features of
Dr Chandra’s specialty practice, however it remained concerned:

As to whether the quality of clinical input into the medical services claimed would fulfil peer group standards of appropriate practice, whether the itemisation is correct for the actual services rendered to the patient, and whether some of the services provided may not have been medically necessary/clinically relevant.

24                  Medicare Australia had a particular concern about MBS item 18236.  That item of service relates to the injection of an anaesthetic agent to the peripheral branch of the trigeminal nerve.  In his interview with Medicare, Dr Chandra explained that the increase in item 18236 services that he had rendered equated with the rise in the number of Mohs’ procedures he had performed.  It is apparent from Medicare Australia’s expressed reasons for concern that Dr Chandra had the practice of rendering a combination of seven MBS item 18236 blocks on the one occasion.

25                  Despite Dr Chandra’s explanation, Medicare Australia regarded this practice as unusual when compared with other providers, including those practitioners who perform Mohs’ surgery.  In relation to item 18236, Medicare Australia was concerned that Dr Chandra “may have rendered services which were not consistent with the MBS item descriptor, were not clinically relevant and/or did not have an appropriate level of clinical input.”

26                  On 24 November 2009, the Director wrote to Dr Chandra in relation to the referral.  The Director thanked Dr Chandra for his written submissions.  He advised that he had decided to refer the matter to a Professional Services Review Committee in accordance with s 93(6) of the Act. The Director attached his report.  That report set out the reasons why the Director considers that Dr Chandra may have engaged in inappropriate practice.  The Director also advised Dr Chandra, in accordance with ss 93 and 95 of the Act, that he had established the Committee to investigate whether or not Dr Chandra had engaged in inappropriate practice during the review period.

27                  In the Director’s report, the Director summarised the concerns of Medicare Australia and set out the steps undertaken by him in his review.  The report set out the material considered by the Director in making his decision to refer the matter to a Professional Services Review Committee and thereafter set out a number of findings and reasons for the making of the referral.  One of the findings of the Director related to the Director’s concern about Dr Chandra’s practice relating to item 18236.  The Director stated that Dr Chandra’s use of multiple injections may have resulted in overcharging, as there was no evidence in the records to support a requirement for multiple injections.  The Director concluded that
Dr Chandra may have engaged in inappropriate practice in that he may have:

•                      rendered services that were not clinically relevant;

•                      not satisfied the requirement of the relevant item in the MDS;

•                      not provided sufficient clinical input; and

•                      kept records that were illegible.

28                  Attached to the Director’s letter of 24 November 2009 was a copy of an instrument made by the Director in accordance with ss 93 and 95 of the Act. By that instrument, the Director established the Committee and referred to it the investigation of whether Dr Chandra had engaged in inappropriate practice in relation to all services provided by him during the review period. By that instrument, the Director appointed the members of the Committee in the following terms:

The following members are appointed to Professional Services Review Committee No.628:

(a)   as Chairperson under subsections 95(1)(a) and 95(2) of the Act – Mr Frank Ham of  Melbourne Victoria, a Deputy Director within the meaning of Part V AA of the Act, who is a medical practitioner;

(b)   as a member under subsections 95(1)(b) and 95(2) of the Act – Dr Robert Paver of Sydney New South Wales, who is a Panel Member within the meaning of Part VAA of the Act, and is a dermatologist; and

(c)   as a member under subsections 95(1)(b) and 95(2) of the Act – Professor Alan Cooper of Sydney New South Wales, who is a Panel member within the meaning of Part VAA of the Act, and is a dermatologist.

29                  On 3 December 2009, Dr Chandra’s solicitors wrote to the Director and challenged the appointments of each of the three members of the Committee.  The challenge was quite specific.  The letter noted that the challenge was made pursuant to s 96 of the Act. In relation to the challenge made to the appointment of Dr Paver as a committee member, the letter identified the challenge to be on the basis that Dr Paver “is or is likely to be biased, or is likely to be thought, on reasonable grounds to be biased.” Although no specific reference was made to paragraphs (a) and (b) of s 96(1), it is clear from the terms of the letter that the challenge against Dr Paver was made pursuant to both of those paragraphs.  The letter of
3 December 2009 brought a challenge on the same basis in relation to the appointments of each of Professor Cooper and Mr Ham.

30                  Given that at the hearing, counsel for Dr Chandra informed the Court that Dr Chandra did not press his application in relation to s 96(1) relating to either Professor Cooper or Mr Ham, I need not and will not further refer to the facts before the Director relevant to those challenges.

31                  In relation to the challenge to Dr Paver, the letter of 3 December 2009 relevantly said:

We are instructed by Dr Chandra that Professor Cooper is a non-procedural dermatologist.  We are instructed that there are two “schools” of dermatologists: those such as Dr Chandra who have a substantial procedural component to their practice, and those (of whom we understand Professor Cooper is one) who consider themselves non-proceduralists.  We are instructed that there is a level of antipathy between the two groups, such that there is a real apprehension that a non-procedural dermatologist sitting in judgment of a procedural dermatologist would have a biased view of the activities of the practitioner under review.  On our instructions, this concern is not particular to Professor Cooper and relates to any non-procedural dermatologist appointed to this Committee.  On our instructions, there are reasonable grounds for Dr Chandra to believe and any objective observer to consider that Professor Cooper is likely to be biased in undertaking the tasks required of this Committee.

32                  On that basis, Dr Chandra’s solicitors asserted that Dr Chandra’s challenge was justified and that the Director should revoke the appointment of Dr Paver and appoint another person to the Committee.

33                  On 4 December 2009 the Director wrote to Dr Chandra’s solicitors. So far as is relevant, the letter stated:

So that I can fully consider the allegation of bias made against Committee Member, Dr Robert Paver please set out more fully the nature of his previous dealings with your client.  Please also provide full particulars of the ‘disagreements’ they are alleged to have had and provide all supporting material for this.

I request this information be provided by close of business on 14 December, failing which I will make my decision regarding the challenge that you have made to Dr Paver’s appointment.

34                  Mr Chandra’s solicitors responded by letter of 11 December 2009. In relation to the
s 96(1) challenge made against Dr Paver, the letter stated as follows:

Dr Robert Paver

Mohs’ surgery has been performed in Australia since 1990.  Accreditation for fellowship training programs to this time has been provided by the American College.  We are instructed that Dr Paver and Dr Shaun Richards have been conducting a Mohs’ surgery fellowship program in Sydney.  We are further instructed that Dr Paver, as the director of the Sydney fellowship program has not been able to meet a specific requirement for American accreditation of his trainees, being the number of procedures performed by Dr Paver in each year.

We are instructed that on account of the difficulties in meeting the requirements for fellowship with the American College, it was proposed that the Australian College of Dermatologists adopt its own guidelines for Mohs’ surgery fellowship.  The College established a Committee.  Dr Chandra was appointed to the Committee, representing Victoria.

In the meantime, Dr Chandra was approached by Victorian dermatologists who were aware of his training and experience with Mohs’ surgery to establish a fellowship training program in Melbourne.  Dr Chandra considered the proposal and set up a program.  Several trainees have successfully complete [sic] their fellowship training with Dr Chandra.  Dr Chandra does not have the difficulty faced by Dr Paver.  Dr Chandra can satisfy the requirement for American fellowship in respect of the number of procedures he performs each year as director of the program.

Dr Richards was also appointed to the Committee to develop the guidelines for Australian Mohs’ surgery fellowship.  We are instructed that instead of working within the Committee process, Dr Richards and two other dermatologists prepared guidelines which if adopted by the Committee would have the effect of stopping Dr Chandra conducting a fellowship training program in Melbourne.  We are instructed by Dr Chandra that recently the Sydney program has been unable to obtain trainees as the remuneration offered compared unfavourably with the remuneration available in Dr Chandra’s training program.  If Dr Chandra were unable to run a program in Melbourne, this would be to the direct and substantial financial benefit of the program conducted by Dr Paver and Dr Richards in Sydney.

We are instructed that the guidelines developed outside the Committee process included a requirement that the director of a Mohs’ surgery fellowship program have a minimum number of years of experience following obtaining his fellowship in the surgery.  The number of years specified would have the effect of removing Dr Chandra from competition with Drs Paver and Richards for trainees for fellowship.

The guidelines developed outside the Committee would also require two accredited Mohs’ surgery fellows to conduct a training program, which the Sydney program could fulfil  (Drs Paver and Richards) and the Melbourne program run by Dr Chandra could not.  The American College requires only one accredited fellow to conduct a training program.

The proposed guidelines developed by Dr Richards and colleagues outside the Committee process are currently before the College Board.  We are instructed that these guidelines are being promoted by interests associated with the Sydney training program.  Others on the Board, including the Victorian representative, object to the guidelines which would have the effect of eliminating the training program in Melbourne.  We are instructed that the issue is becoming pressing as the American College has given notice that this is the last year in which the American College will accredit trainees outside the USA.

Dr Chandra has provided us with copies of e-mails that indicate that Dr Paver has been involved in the discussions on the proposed requirements for Mohs’ surgery training programs in Australia.

In our submission, there are irrefutable grounds to be concerned that Dr Paver is or is likely to be biased, or is likely to be thought, on reasonable grounds, to be biased.

35                  Although the Director had not invited any further submissions in relation to Mr Ham or Professor Cooper, Dr Chandra’s solicitors persisted in relation to the s 96(1) challenge relating to Professor Cooper.  Further, in relation to both Mr Ham and Professor Cooper the letter identified a new basis for challenge not previously made.  The letter asserted that Dr Chandra practiced as a procedural dermatologist.  Dr Chandra’s solicitors contended that Mr Ham was a plastic surgeon and not of the general body of procedural dermatologists.  Similarly, it was submitted that Professor Cooper did not practice as a procedural dermatologist.  The letter contended that for those reasons, the appointments of Professor Cooper and Mr Ham meant that Dr Chandra would not be reviewed by a committee of his peers or like specialists. It was asserted that neither Mr Ham nor Professor Cooper could properly form a view as to whether Dr Chandra’s conduct would or would not be acceptable to the general body of procedural dermatologists.  The letter said:

Unless all three members of the Committee are specialists in the specialty of Dr Chandra as the practitioner under review, he is not being reviewed by his peers, being the general body of like specialists.

To appoint other than a procedural dermatologist to the Committee, whether as the chairperson or as a member of the Committee, is to appoint to the Committee a person who cannot form the conclusion concerning Dr Chandra’s conduct that is required by Section 82(1)(b) of the Act.

We also refer you to Section 80(7) of the Act which provides: “Committee members must belong to professions or specialties relevant to the investigation.”  When the practitioner under review practises as a specialist, the statutory provision dictates that all three Committee members must belong to the practitioner’s specialty if they are to be relevant to the investigation and be able to make the assessment required by Section 82(1)(b).  Mr Ham is not of Dr Chandra’s specialty.  His appointment to the Committee is contrary to the requirements of Section 80(7) of the Act.  His appointment to the Committee ought be revoked and he ought be replaced by a procedural dermatologist.

36                  On 15 December 2009 the Director wrote to Dr Chandra’s solicitors in the following terms:

Thank you for your letter of 11 December 2009.

I have carefully considered the further background information provided in relation to your client’s claim of bias against Dr Paver.  I do not accept that Dr Paver is biased or likely to be biased as a result of these circumstances.

Secondly, your submission against Mr Ham’s appointment does not alter the decision I communicated on 4 December 2009.  As Chair of the Committee, Mr Ham need not actually be of the same speciality as your client, pursuant to section 95(4) of the Health Insurance Act 1973 (the Act).  In any event, I consider that he will bring a great deal of relevant skill to this Committee given his extensive experience in skin procedures.

Similarly, I reject the further reasons that you have provided for Professor Cooper’s appointment.  Professor Cooper belongs to the same speciality as your client and so meets the requirement in section 94(4) of the Act.  The fact that Dr Chandra and Professor Cooper may have some social relationship in the manner you have detailed, also does not lead me to be concerned that he may be biased in his role as a Member of this Committee.

The application before the court

37                  On 23 December 2009, Dr Chandra filed an application in this Court in the form of an application for an order of review made under the ADJR Act. The application also applied for relief pursuant to s 39B of the Judiciary Act.  The application applied for the review of seven decisions of the Director which are said to be set out in the Director’s letters of 4 December and 15 December 2009.  The seven decisions identified are as follows:

(1)     Frank Ham (“Dr Ham”) is an appropriate person to chair Professional Services Review Committee No. 628;

(2)     Robert Paver (“Dr Paver”) is an appropriate person to be a member of Professional Services Review Committee No. 628;

(3)     Alan Cooper (“Professor Cooper”) is an appropriate person to be a member of Professional Services Review Committee No.628

(4)     Dr Ham, notwithstanding that he is a plastic surgeon, will be able to participate in any discussion concerning, or form a view as to, whether the conduct of Dr Chandra falls within the definition of inappropriate practice set out in s82 of the Health Insurance Act 1973 (Cth) (“the Act”) – namely whether such conduct by Dr Chandra is acceptable to the general body of specialists of the relevant specialty, being procedural dermatologists or in the alternative dermatologists;

(5)     If Dr Ham chairs the Committee he is not likely to be thought, on reasonable grounds, to be biased;

(6)     If Dr Paver is a member of the Committee he is not likely to be biased or in the alternative is not likely to be thought, on reasonable grounds, to be biased;

(7)     If Professor Cooper is a member of the Committee he is not likely to be thought, on reasonable grounds, to be biased.

38                  The grounds of the application were specified as follows:

(1)     That a breach of natural justice occurred in the making of decisions numbered 1 and 4 set out above in that the first respondent failed to have proper regard to the whole Part VAA of the Act;

(2)     That a breach of natural justice occurred in the making of decisions numbered 1, 2, 3, 5, 6 and 7 set out above in that the first respondent failed to have proper regard to the letters dated 3 December 2009 and 11 December 2009 from the applicant’s lawyer to the first respondent, such letter setting out the matters on behalf of the applicant as to bias.  A copy of each letter is attached to this application;

(3)     That the first respondent failed properly or at all to consider the matters set out in s96(1) of the Act in reviewing the applicant’s challenge to Dr Paver’s appointment to the Committee;

(4)     That the first respondent filed properly or at all to consider the matters set out in s96(1) of the Act in reviewing the applicant’s challenge to Professor Cooper’s appointment to the Committee;

(5)     That the decision by the first respondent to appoint Dr Ham was not authorised by the Act because Dr Ham is not a member of the same specialty as Dr Chandra;

(6)     That the decision by the first respondent to appoint Dr Ham was an improper exercise of the power conferred by the Act because Dr Ham is not a member of the same specialty as Dr Chandra;

(7)     That the decision by the first respondent involved an error of law, whether or not the error appears on the record of each decision;

(8)     That there was no evidence or other material to justify the making of each of the decisions by the first respondent set out above.

Admissibility of Evidence

39                  Dr Chandra’s application was accompanied by his affidavit of 22 February 2010.  The respondents objected to the reception of the affidavit save for paragraphs 1, 2, 14 and exhibit SC-5.  The basis of that objection was that the evidence sought to be relied upon by
Dr Chandra was “fresh evidence” that was not before the Director and is of no relevance to the review of impugned decisions said to have been made by the Director.  At the hearing I determined that I would rule upon the objection in these reasons for judgment.  Both
Dr Chandra and the respondents filed written submissions addressing the admissibility of the evidence the subject of the objection.  Taking those submissions into account, I turn now to determine the objection.

40                  The admissibility of evidence on an application for judicial review of an administrative decision will depend on the ground of review and the circumstances of the case: McCormack v The Commissioner of Taxation (2001) 114 FCR 574 at [38]-[40] per Sackville J.  The touchstone for the determination of admissibility will usually be relevance.  That is, is the evidence sought to be adduced relevant to the ground of review sought to be relied upon?  Ordinarily there is no reason, in a case involving judicial review, for any evidence to be placed before the court, apart from evidence of what was before the decision-maker at the time of the decision: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [442] per Weinberg J.  However, the admissibility of evidence not before the decision maker depends upon the grounds of review on which the application relies: Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536at 539-540 per Lockhart J;Australian Retailers at [455]; Attorney-General (NT) v Hand (1988) 16 ALD 318 at 319-320 per Wilcox J; and Saint v Holmes (2008) 170 FCR 262 at [54] per Siopis J.

41                  Authorities dealing with ADJR Act challenges have recognised that in relation to particular grounds of review, evidence beyond the evidence that was before the decision maker may be relevant and admissible.  Without seeking to suggest that the following list is exhaustive, evidence beyond that which was before the decision maker may be relevant where the following grounds of review are raised:

•         the unreasonable exercise of the power given to the decision maker:  Attorney-General for the Northern Territory v Minister for Aboriginal Affairs at 539-40;  Australian Retailers at[458]; Hand at 320; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169;

•         excess of jurisdiction because of the absence of a jurisdictional fact: McCormack at [38]-[40]; Attorney General for the Northern Territory v Minister for Aboriginal Affairs at 539-540; and

•         a breach of the rules of procedural fairness: Percerep v Minister for Immigration (1998) 86 FCR 483 at 495 per Weinberg J; McCormack at [38]; Hand at 320.

42                  The position at common law is similar, if not the same.  As Denning LJ said in
R v Northumberland Compensation Tribunal, ex parte Shaw [1952] 1 KB 338 at 352:

When Certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as a rule, necessary.

See further, Ex parte Mullen; re Hood (1935) 35 SR (NSW) 289 at 296 per Jordan CJ and
R v Chairman of General Sessions at Hamilton; Ex parte Atterby [1959] VR 800 per Lowe, O’Bryan and Smith JJ.

43                  Where jurisdiction for the making of an administrative decision relies upon a question of fact, it is for the court reviewing the decision to determine whether or not the fact on which the jurisdiction of the administrator depends exists: The Queen v Cohen; Ex parte Attorney-General for the State of Queensland (1981)157 CLR 331 at 338 per Gibbs CJ.  On an application for the issue of constitutional writs, evidence will be admissible for the purpose of satisfying the Court as to the existence of the jurisdictional fact.

44                  It will often be the case that evidence supporting an allegation of bias will not have been adduced before the decision maker.  Evidence of the conduct of the decision maker (both during and possibly after the making of the decision) provides an example of the kind of fresh evidence that may be relevant to the task of the reviewing court.

45                  Evidence may also be admissible to prove the meaning of technical terms contained in material utilised by the decision maker: see Telstra Corporation Ltd v ACCC (2008) 176 FCR 153 at [48] per Rares J, and the authorities to which his Honour there refers.

46                  To overcome the objection made to Dr Chandra’s affidavit, it was necessary for
Dr Chandra to demonstrate, in relation to evidence sought to be adduced that was not before the Director, how such evidence is relevant to a ground of review raised by Dr Chandra.
Dr Chandra’s submissions did not attempt to do that, and are largely misconceived.

47                  Dr Chandra’s submissions sought to characterise almost the entirety of Dr Chandra’s affidavit as containing material that was before the Director.  In that respect, reliance was made upon novel propositions without legal foundation and/or which were otherwise unsustainable. 

48                  It was contended that some of the material was “impliedly” before the Director.  The legal foundation for such a contention was not given, nor was the contention otherwise explained. I reject it.  For the same reasons I also reject the admissibility of those parts of
Dr Chandra’s affidavit that were said to be before the Director because the “information was known” to one of the second respondents.

49                  Most of the content of Dr Chandra’s affidavit was said to be admissible because that content was either known to the Director, constructively known to the Director or would have been known to the Director if he had made reasonable enquiries.  Dr Chandra’s submission asserted that Prasad (at 169) provides support for the contention that evidence of that character is admissible.  The submission is misconceived.  In Prasad, Wilcox J was dealing with the admissibility of evidence relating to a challenge based on the exercise of a power so unreasonable that no reasonable person could have so exercised the power
(s 5(2)(g) of the ADJR Act).  In relation to such a challenge, Wilcox J expressed the tentative view that the court is entitled to consider those facts which were known to the
decision maker, actually or constructively, together with such additional facts as the decision-maker would have learnt but for any unreasonable conduct by him.  Whilst I can well understand the admissibility of evidence of that character in relation to a challenge based on unreasonableness, no such challenge has here been made by Dr Chandra.  The evidence sought to be adduced is irrelevant to any of the grounds of review upon which Dr Chandra relies.  I reject the admissibility of evidence sought to be adduced on this basis.

50                  I also reject the admissibility of the contents of Dr Chandra’s affidavit based on unsustainable assertions such as that the evidence is “impliedly the background to the challenges”, that it is “impliedly conceded” by the Director or that the contents are admissible because they are the applicant’s opinion or factual understanding.  Furthermore, I reject the invitation to regard those parts of Dr Chandra’s affidavit that I rule to be inadmissible, as part of Dr Chandra’s submission.

51                  The respondents accept that exhibit SC-5 to Dr Chandra’s affidavit is admissible.  They also accept that the correspondence between the Director and Dr Chandra to which I have already referred is admissible.  Exhibit SC-4 to Dr Chandra’s affidavit is a letter from the Director to Dr Chandra of 18 June 2009.  Though I doubt the relevance of this material, I am prepared to admit it into evidence as material before the Director.  Similarly, I will admit into evidence exhibit SC-1 to Dr Chandra’s affidavit.  Dr Chandra argues that this exhibit should have formed part of exhibit SC-5.  The respondents have not responded to that contention.  On its face, the material seems to be material that may well have been before the Director and I will admit it on that basis. 

52                  Insofar as the contents of Dr Chandra’s affidavit are sought to be justified on the basis that the material contains information already contained in either exhibits SC-5 or SC-4 or in the correspondence between the Director and Dr Chandra, there is no reason for that content to be admitted.  Insofar as that information is relevant, reliance upon it can already be made by reference to the information, in the form in which it appeared before the Director.

53                  As I have said, the submissions of Dr Chandra should have (but have not) identified how each of the contentious paragraphs or exhibits contained in Dr Chandra’s affidavit are relevant to a ground of review relied upon.  I have approached the analysis on that basis.  In my view, beyond those parts of  Dr Chandra’s affidavit which are not objected to or which I have ruled admissible, the remainder of the affidavit is not relevant to any of the grounds of review raised by Dr Chandra.  That evidence is ruled inadmissible.

54                  The evidence I have ruled to be inadmissible includes fresh evidence which
Dr Chandra seeks to rely upon in support of the proposition that, as a direct competitor of
Dr Chandra, Dr Paver stands to benefit financially from a finding that Dr Chandra has engaged in inappropriate practice.  If either apprehended or actual bias had been raised as a ground for review, that evidence would have been admissible.  That is particularly so as a reviewing court should examine for itself whether in fact bias or possible bias exists: see
Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 88-89.  However, although Dr Chandra’s challenge is in part based upon s 96(1) of the Act, neither apprehended or actual bias, nor s 5(1)(a) of the ADJR Act is raised as a ground of review.  Whilst s 96(1) of the Act deals with the subject matter of bias, the ground of review raised in relation to that provision is a failure to take s 96(1)(b) into account as a relevant consideration.  The fresh evidence sought to be relied upon is not relevant to that ground of review.

reasoning

Is the Committee constituted in accordance with the Act?

55                  In both the written and oral submissions made on behalf of Dr Chandra, a challenge was made to the appointment of both Mr Ham and Professor Cooper as members of the Committee.  The basis of that challenge was that because neither Mr Ham nor Professor Cooper were experienced in relation to Mohs’ surgery, neither of them had the necessary attributes to be validly appointed in accordance with the requirements of the Act.

56                  The members of the Committee were appointed by the Director on 24 November 2009.  The instrument of appointment is included in exhibit SC-5 to Dr Chandra’s affidavit and has been referred to already.  Accordingly, the Director’s decision to appoint Mr Ham and Professor Cooper is a decision made on 24 November 2009.  Dr Chandra’s application seeks judicial review of decisions made of the Director “set out in letters dated 4 December and 15 December 2009”. 

57                  The respondents contend that Dr Chandra’s application does not challenge the decisions of 24 November 2009 to appoint the Committee members, but only challenges the decisions made by the Director under s 96(3) of the Act.  Whilst the attempt made in
Dr Chandra’s application to identify the decisions for review is both confusing and ambiguous, the terms of the application do suggest that the decisions to appoint Mr Ham and Professor Cooper were decisions under challenge.  There is no suggestion of any prejudice to the respondents by the reason of the ambiguity. I will not exclude from consideration
Dr Chandra’s challenge to the appointment decisions as agitated by Dr Chandra at the hearing.

58                  Dr Chandra accepts that the constitution of the Committee complies with s 95(1)(a) and (b) and s 95(2). That is, Dr Chandra accepts that the Committee is constituted by a Chairperson who is a Deputy Director and two other Panel members. He also accepts that, in accordance with s 95(2), each of the members of the Committee belongs to the same profession as Dr Chandra.  However, Dr Chandra contends that the appointments of Mr Ham and Professor Cooper do not accord with what the Act requires.  Dr Chandra says that the provisions of the Act do not exclude the principles of natural justice and that those principles require that Dr Chandra be given a fair hearing.  It is then said that Dr Chandra could not get a fair hearing unless each member of the Committee had experience and expertise of Mohs’ surgery.  Such experience or expertise is said to be necessary because it is contended that “the real crux of the issues” before the Committee is Dr Chandra’s provision of services related to Mohs’ surgery.

59                  Significant reliance is placed by Dr Chandra on the fact that a Professional Services Review Committee is charged with the task of investigating whether the person under review engaged in inappropriate practice in providing the services specified in the referral to that Committee: s 93(1).  By reference to the definition of inappropriate practice in s 82(1)(c) of the Act, Dr Chandra says that the Committee appointed by the Director would need to make findings as to whether the conduct of Dr Chandra “would be unacceptable to the general body of consultant physicians” in Dr Chandra’s speciality.  Dr Chandra says that a member of a Committee who does not have the same speciality as Dr Chandra could not perform the role envisaged by the Act of a Professional Services Review Committee investigating his conduct. He submits that such a person could not properly make or contribute to a finding as to whether the conduct in question would be unacceptable to the general body of consultant physicians in the particular speciality.

60                  Counsel for Dr Chandra indicated that grounds 1, 5 and 6 of the grounds relied upon by Dr Chandra in his application were the grounds relevant to this challenge.  Neither the application itself nor the written submissions put for Dr Chandra expressly identified which of the grounds of review available under s 5(1) of the ADJR Act were being relied upon.  The grounds accompanying the application (see above, at [37]) suggest a reliance upon s 5(1)(d) and (e) of the ADJR Act.  Although no specific reliance was placed on s 5(1)(a) of the ADJR Act, which deals with a breach of the rules of natural justice, ground 1 of the grounds of the application and also the submissions initially made by Dr Chandra also contended that a breach of the requirements of natural justice had occurred in relation to the appointment decisions.  When pressed, Dr Chandra’s counsel acknowledged that there was no stand alone challenge based on natural justice but that the principles of natural justice (in particular the requirement for a fair hearing) should inform the way in which the statutory provisions in the Act relating to the making of appointments should be construed. 

61                  At the heart of this challenge is the contention that the Director has misconstrued those provisions of the Act dealing with the attributes required for the appointment of a person to a Professional Services Review Committee.

62                  Dr Chandra’s challenge is without merit and must be rejected.  The constitution of a Professional Services Review Committee is dealt with comprehensively by s 95 of the Act (see above at [12]).  There can be no doubt that when this provision was formulated, careful regard was given to the attributes necessary for members of a Committee in order to facilitate the fair and efficient investigation of a referral.  The extent of the experience or expertise of members of the Committee with the profession and/or the particular speciality of the practitioner whose conduct is under review is a matter expressly dealt with by s 95.  By so doing, Parliament should be regarded as having specifically and comprehensively addressed its intent as to the extent of experience or familiarity with the speciality of the practitioner under review that a Committee should have in order to conduct its investigation fairly and efficiently.

63                  In that respect, and in relation to an investigation of a practitioner who is a specialist in relation to a particular speciality, s 95 requires that the Chairperson of the Committee be a member of the same profession as that practitioner.  The two other members of the Committee are also required to be members of the same profession, but they are additionally required to be specialists in relation to the same speciality as that of the practitioner whose conduct is the subject of the investigation: s  95(4).

64                  It is not particularly surprising that when dealing with the constitution of a committee which is to investigate a practitioner with a particular speciality, not all of the members of the Committee are required to have that speciality.  It was obviously intended that the presiding members, being Deputy Directors, would bring to the task their status as senior Panel members and also their experience of the conduct of investigations.

65                  Mr Ham was appointed by the Director to be the Chairperson of the Committee.  The only relevant qualifications required by s 95 were that he be a Deputy Director and a member of the same profession as Dr Chandra.  There is no issue that Mr Ham held both of these attributes.  In compliance with both s 95(2) and s 80(7), Mr Ham did belong to the profession relevant to the investigation.  There is no basis for the construction of the Act for which
Dr Chandra contends.  The Director did not misconstrue the requirements of the Act in relation to the appointment of Mr Ham. 

66                  Dr Chandra is deemed by s 3D of the Act to be a specialist, and the Regulations identify his speciality as dermatology.  Those matters are not in dispute.  Nor is it in dispute that both Professor Cooper and Dr Paver are dermatologists.  Dr Chandra’s counsel accepted that the speciality of each of Professor Cooper, Dr Paver and Dr Chandra was dermatology, but contended that Dr Chandra had a “sub-speciality” in Mohs’ surgery and that Professor Cooper and Mr Ham did not.  Dr Chandra’s proposition is that the provisions of the Act require that each member of the Committee have the same sub-speciality as that of the relevant practitioner.

67                  I have already dealt with the fact that there is nothing in the Act, either expressly or impliedly, that requires the Chairperson (Mr Ham) to have the same speciality (let alone the same sub-speciality) as Dr Chandra.  None of s 80(7), s 82(1)(c), or s 95 refer to sub-specialities.  Each of those provisions uses the term “speciality” or “specialities”.  Both textually and by reference to the apparent purpose of the Act, the terms of the Act are clear and unequivocal.  The speciality of Dr Chandra and Professor Cooper is the same.  The appointment by the Director of Professor Cooper involved no misconstruction of the requirements of the Act and was perfectly consonant with those requirements.

The section 96 Challenge to Dr Paver’s Appointment

68                  Section 96(1) permits the person under review to challenge the appointment of a member of a Professional Services Review Committee on the grounds that the member:

(a)        is biased or is likely to be biased; or

(b)        is likely to be thought, on reasonable grounds, to be biased.

If the Director decides that such a challenge is justified, the Director is required to revoke the appointment.  Section 96(6) requires the Director to give written notice of the decision made to the person under review.

69                  Dr Chandra is not seeking judicial review of any decision made by Dr Paver to refuse to disqualify himself by reason of actual or apprehended bias.  No such application has been made to Dr Paver.  As I have already said, there is no reliance in this proceeding on s 5(1)(a) of the ADJR Act, which provides a breach of the rules of natural justice as a ground for judicial review.

70                  The decision the subject of judicial review is confined to the Director’s decision by letter of 15 December 2009 refusing the s 96(1) application made by Dr Chandra.  That decision is attacked by Dr Chandra on a limited basis, confined to a challenge based on the Director having failed to consider the criterion in s 96(1)(b) of the Act in rejecting
Dr Chandra’s s 96(1) application.  It is said by Dr Chandra that the failure involved an improper exercise of the power (s 5(1)(e) of the ADJR Act) and also an error of law (s 5(1)(f) of the ADJR Act).  The error of law is said to be that the Director identified the wrong issue or asked the wrong question in relation to the operation and application of s 96(1). 
Dr Chandra’s fundamental point is that the Director failed to apply the test that s 96(1) required him to apply by not addressing the second limb of that provision.

71                  There is no issue before me that, given the nature of the challenge made by
Dr Chandra, the Director was bound to take into account, consider and determine the criteria in both of the limbs of s 96(1) of the Act.  Clearly, the second limb of s 96(1) was a relevant consideration. 

72                  The inference that Dr Chandra asks me to draw is that the Director did not take into account the criterion in s 96(1)(b).  Dr Chandra relies on the words used by the Director in the second sentence of the Director’s letter of 15 December 2009: see [36] above.  The inference that Dr Chandra asks me to draw is based on the failure of the Director in the second sentence to refer expressly to the criterion found in s 96(1)(b), having expressly referred to the criterion of s 96(1)(a).

73                  It is to be noted that the second sentence deals with the non-acceptance of
Dr Chandra’s s 96(1) challenge to Dr Paver’s appointment.  That sentence is not an expression of the Director’s reasons for decision, but it can be characterised as an expression of the basis for the decision.  There was no obligation upon the Director to provide the basis for his decision.  Compliance with the requirements of s 96 required no more than a decision that the challenge was not justified and written notice of that decision to Dr Chandra: see
s 96(3) and (6).

74                  However, the Director appears to have travelled beyond his obligation under s 96 and provided to Dr Chandra an expression of the basis for his decision that Dr Chandra’s challenge was not justified.  The Director having done that, Dr Chandra is entitled to contend that there is a basis for an inference to be drawn that the Director did not consider the second limb of s 96(1) when he made his decision. 

75                  The respondents contend that the second sentence is merely an example of the kind of “unhappy phrasing” referred to in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.  They contend that it is plain from the whole course of correspondence between the Director and Dr Chandra’s solicitors that Dr Chandra had made an application against Dr Paver (and Mr Ham and Professor Cooper) based on both limbs of
s 96(1), and that the Director was addressing in his responses the whole of those challenges.  They say that it is clear that when the Director referred in correspondence to “the allegation of bias” or “the claim of bias”, he was dealing with and responding to the challenge made under both limbs of s 96(1).  In that context, the respondents contended that the reference to “your client’s claim of bias against Dr Paver” (first sentence of the letter of 15 December 2009) is to be understood as a clear reference by the Director to the whole of the challenge made.  In that context, the respondents say that the Court should be loathe to assume that the Director somehow forgot about s 96(1)(b) because of the way he phrased his finding in the second sentence. 

76                  The respondents’ position is that the second sentence is a badly expressed notification of a decision which considered and rejected both of the s 96(1) limbs of the challenge made to Dr Paver’s appointment. 

77                  Dr Chandra accepts that the Director decided to reject both limbs of the challenge.  He says, however, that the second sentence demonstrates that the Director did that without considering the criterion in s 96(1)(b).  Dr Chandra’s acceptance that both limbs of the challenge were rejected was perhaps a necessary concession to the prospect that in the absence of such a finding, it is likely that no decision to reject the challenge made pursuant to s 96(1)(b) was made by the Director and that accordingly, there can be no judicial review of a decision not made.

78                  Section 13(1) of the ADJR Act enables a person who is entitled to make an application under s 5 of that Act to request the decision maker to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and giving reasons for the decision.  Despite his obvious entitlement to do so, no such request was made by Dr Chandra.  Reasons for decision compliant with the requirements of s 13 would have clearly identified whether or not the Director took into account the criterion in s 96(1)(b).

79                  I will return later to the failure of Dr Chandra to have made a request for the Director’s reasons for decision. 

80                  Without reference to any reasons for decision from the Director, the Court is left with the far more difficult task of determining whether an inference should be drawn of the kind contended for by Dr Chandra from the terms of the second sentence. 

81                  In undertaking that task, it is important to appreciate that a notification of the basis of a decision is conceptually distinct from the decision itself: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [30] per Gaudron J; Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49 at [31] and Alexander
v Australian Community Pharmacy Authority (2010) 265 ALR 424 at [61].  What I need to be satisfied of, if Dr Chandra is to succeed, is that the decision of the Director is infected with error.  Dr Chandra cannot succeed simply by establishing that the Director’s expression of the basis for his decision is infelicitous: see Tisdall v Webber [2010] FCA 501 at [13]-[14] per Ryan J. 

82                  As a matter of logic it does not follow that an inadequate notification of the basis for a decision is the result of an inadequate decision.  That is so because it may well be the case that the failure of the Director to refer (in the second sentence) to the s 96(1)(b) criterion, is a failure in the process of communication of the basis of his decision and not a failure in the decision making process itself:  see Alexander at [88]-[89].

83                  Even where a decision maker is bound to provide reasons for decision which refer to the relevant considerations taken into account in the making of that decision, the fact that a relevant consideration has not been referred to in the decision maker’s reasons for decision is not determinative of whether that consideration was or was not in fact taken into account in the making of the decision: see Alexander [61], [84]-[90].

84                  As the analysis of the authorities in Alexander demonstrates, the whole of the circumstances of the decision must be taken into account.  An inference may not be drawn from the failure by the decision maker to refer to a relevant consideration where there are contra-indications supporting an inference that the matter was considered: see, as well, the authorities cited by Hely J in Brehoi v Attorney-General of the Commonwealth of Australia [2000] FCA 1747 at [20].

85                  I have come to the view that the Director did not fail to take account of the criterion in
s 96(1)(b).  In my view, it is more probable that the failure of the Director is a failure to express clearly the basis for his decision, rather than a failure in the decision-making process itself.

86                  Once it is accepted, as Dr Chandra has and as I do, that the decision of the Director included a rejection of that part of the challenge based on s 96(1)(b), it becomes difficult to construe the notification given in the second sentence as anything other than an imperfect expression of the basis for that decision.

87                  In reaching that conclusion I take into account a number of matters.  It is apparent that the submissions before the Director made by Dr Chandra prominently dealt with the allegation that Dr Paver is likely to be thoughton reasonable grounds to be biased.  The fact that an issue was prominent in a decision maker’s deliberations tends to support an inference that the issue was considered rather than not.  The more attention that is given to an issue, the less probable it is that in reaching its decision the decision maker either wilfully ignored or overlooked the issue: see Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675 at 686 per Stephen J (with whom Gibbs, Mason and Aickin JJ agreed) and Alexander at [95].

88                  It is notable in that respect that in the first sentence of the Director’s letter of
15 December 2009, the Director says that he has “carefully considered” the further background information which was provided to him in the letter of 11 December 2009.  That information, as the letter of 11 December 2009 shows, formed the basis for Dr Chandra’s submission that there are irrefutable grounds that Dr Paver “is or is likely to be biased, or is likely to be thought, on reasonable grounds, to be biased”.  It is difficult to accept that, having carefully considered the information provided, the Director then ignored the criteria in
s 96(1)(b), the terms of which he was specifically referred to.

89                  Further, I take into account that this was not an exercise (as is often the case) where a decision maker is left to identify what considerations are relevant to the ultimate conclusion required.  The exercise required of the Director was in no respect abstract or obscure.  It was identified for him in straightforward criteria set out in s 96(1) of the Act.  In that context it is more likely that the exercise was properly undertaken:  Alexander [92].

90                  That is especially so given that (as was conceded by Dr Chandra’s counsel) the Director is experienced and that as part of his functions he deals from time to time with challenges made under s 96(1) of the Act.  It is more likely that the task required by s 96(1) was properly undertaken in circumstances where the Director was experienced with and had regular dealings with the requirements of that provision: Alexander [93].

91                  Finally, I note that the second sentence does not contain a precise or exact repetition of the terms of s 96(1)(a).  The word “is” does not appear in the second sentence following the word “or”, as it does in s 96(1)(a).  What does follow the word “or” in the second sentence, is the word “likely” and the phrase “to be biased”.  That word and that phrase appear in s 96(1)(b).  I recognise, of course, that they also appear in s 96(1)(a).  However, the significant commonality in the words used in s 96(1)(a) and (b) supports the contention that the second sentence is the product of looseness in language, unhappy phrasing or  imprecision: see Alexander at [68] and the cases there referred to. 

The Exercise of the Court’s Discretion

92                  Had I been satisfied that Dr Chandra had made out his ground of review relating to s 96(1)(b) of the Act, I would nevertheless have refused the grant of relief in relation to that ground.  The Court has a discretion in relation to the issue of constitutional writs, and under s 16(1) of the ADJR Act, to refuse relief notwithstanding that the preconditions for the grant of relief are satisfied.The Court’s discretion is judicial and should only be exercised where the circumstances make it just that the remedy should be withheld: see SZBYR
v Minister for Immigration and Citizenship [2007] HCA 26 at [28] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ and at [53]-[54] per Kirby J.

93                  As I have already observed, Dr Chandra had the opportunity under s 13 of the ADJR Act to request that the Director provide his reasons for decision.  There can be little doubt that those reasons, if compliant with s 13 of the ADJR Act, would have identified whether or not the s 96(1)(b) criterion had been taken into account by the Director.  The provision of reasons would likely have resolved the s 96(1)(b) issue and avoided the need to litigate it. 

94                  The importance of s 13 in the scheme of judicial review under the ADJR Act was emphasised by French J in the following passage from Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162 at 178:

The section has been described as crucial and designed to ensure that the basis upon which a decision is made is able to be seen so that its legality can be tested. The obligation it imposes “demands the furnishing of reasons which make intelligible the true basis of the decision”: ARM Constructions Pty Ltd v Deputy Commission of Taxation (Cth)(1986) 10 FCR 197 at 204 per Burchett J. It is remedial, supplying the deficiency of the common law: Re Australian Institute of Marine and Power Engineers (1986) 13 FCR 124 at 130, per Gummow J. The section balances requirements that those persons affected by administrative decisions should know why they are made on the one hand and that the administration of the country be carried on effectively without undue intervention by the Courts on the other. It is designed to provide persons affected by a decision with sufficient information to decide whether to accept it or pursue the matter further with the administrative process or through the court: Ansett Transport Industries (Operations) Ltd v Secretary, Department of Aviation (1987) 73 ALR 193 at 197 per Lockhart J; Australian Institute of Marine and Power Engineers v Secretary, Department of Transport at 130, per Gummow J; Dalton v Deputy Commissioner of Taxation (Cth) (1985) 7 FCR 382 at 391–392 per Lockhart J.

95                   As that passage observed, one of the purposes of the scheme of s 13 is to provide sufficient information to a person affected by a decision so that the person can know whether litigation is necessary or not.  The opportunity for a decision maker to provide an explanation of its decision has the potential to resolve a dispute and avoid unnecessary litigation.  As French J observed, one of the purposes of s 13 is to facilitate the administration of the country being carried on effectively, without undue intervention by the courts.  The interests of justice are not served when the opportunity provided by s 13 is ignored without good cause.

96                  At the hearing, I raised with counsel for Dr Chandra why an adverse inference should not be drawn against Dr Chandra for having not requested reasons for the Director’s decision.  Counsel was unable to provideany reason as to why that was not done.  In the circumstances, I infer that there was no good cause for Dr Chandra not to avail himself of the opportunity which s 13 provided.  That conduct has not served the interests of justice, and is a factor to which I would have had regard in the exercise of my discretion, if I had been satisfied that the s 96(1)(b) ground was made out.

97                  I would also have taken into account the consequences for Dr Chandra of the exercise of my discretion to deny him relief.  If the consequences had been severe, I may not have denied relief.  In this case, a denial of relief would not have denied to Dr Chandra the opportunity of contesting the appropriateness of Dr Paver’s membership of the Committee by other means.  The authorities confirm that Dr Chandra may challenge Dr Paver directly on the basis of actual or apprehended bias: see Holmes v Mercado (2000) 111 FCR 160 and Crowley v Holmes (2003) 132 FCR 114.

98                  In those circumstances, and balancing the two considerations I have referred to, I would have denied relief on the s 96(1)(b) challenge.

conclusion

99                  For those reasons, I will make an order that Dr Chandra’s application be dismissed.

100               The usual order is that costs should follow the event and hence be paid by the losing party.  No reason has been suggested by the parties, nor do I perceive any reason as to why the usual course should not be followed in this case.  I will order that Dr Chandra pay the respondents’ costs.

Associate:

Dated:         6 July 2010