Federal Court of Australia

Norouzi v The Director of the Professional Services Review Agency [2020] FCA 1524

ORDERS

THE COURT ORDERS THAT:

1.    As to the second respondent’s decision by its final report of 11 November 2019:

(a)    insofar as the applicant has applied under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) for an extension of time within which to apply for an order of review in respect of that decision, that application be dismissed; and

(b)    the application for orders under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) in respect of that decision be dismissed.

2.    As to the third respondent’s final determination made on 11 May 2020:

(a)    the direction that the applicant repay the amount of $459,555.55, being the medicare benefits that were paid for the MBS items 597 and 599 services in connection with which the applicant was found by the second respondent to have engaged in inappropriate practice, less the amount for the item that the applicant repaid voluntarily, be quashed;

(b)    the question as to whether the applicant ought to be directed to repay, in whole or in part, the said amount of $459,555.55 be remitted to the third respondent for reconsideration according to law; and

(c)    save as aforesaid, the application for orders under the ADJR Act and the Judiciary Act in respect of that determination be dismissed.

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

REASONS FOR JUDGMENT

LOGAN J:

1    Dr Hamid Norouzi, the applicant, has instituted judicial review proceedings in respect of decisions adverse to him made under the Professional Services Review Scheme (scheme), established under Pt VAA of the Health Insurance Act 1973 (Cth) (HIA).

2    In 1946, s 51 of the Constitution was amended so as to add, by the insertion of placitum (xxiiiA), a new head of Commonwealth legislative power, a power to make laws with respect to, “The provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances”. That placitum is the apparent source of legislative competence for the HIA.

3    Uninstructed by authority, one might perhaps be forgiven for thinking that the HIA offered a paradigm example of a violation of the parenthetical qualification to that placitum, which prohibits civil conscription. The prospect that a medical practitioner might be able to practise without agreeing to accept, as part of the HIA’s medicare benefits system, assignments from patients of the benefits for which the HIA provides in payment for professional services provided is very unlikely. An integral part of eligibility to receive such assignments is a medical practitioner’s subjection to the scheme.

4    Under the scheme, medical (and certain other health) practitioners can be found to have engaged in “inappropriate practice”, a term defined in s 82 of the HIA. Such a finding was made in respect of Dr Norouzi on 11 November 2019 by the second respondent, a professional services review committee (committee) (designated as “Professional Services Review Committee No. 1187), established under Pt VAA of the HIA. That is one of the adverse decisions which Dr Norouzi seeks to challenge.

5    As a sequel to the committee’s decision, the third respondent, a Determining Authority established under s 106Q within Pt VAA of the HIA, decided, by a final determination made on 11 May 2020, that the following consequences (listed together with the related statutory provision) should, by direction, be visited upon Dr Norouzi:

(a)    the first respondent, the Director of Professional Services Review (Director), or the Director’s nominee, reprimand Dr Norouzi (s 106U(1)(a) of the HIA); and

(b)    the Director, or the Director’s nominee, counsel Dr Norouzi (s 106U(1)(b) of the HIA); and

(c)    Dr Norouzi repay the amount of $459,555.55, being the medicare benefits that were paid for the Medicare Benefits Schedule (MBS) items 597 and 599 services in connection with which Dr Norouzi was found to have engaged in inappropriate practice, less the amount for the item that Dr Norouzi repaid voluntarily (s 106U(1)(cb) of the HIA); and

(d)    Dr Norouzi be disqualified from rendering MBS items 585, 588, 591 and 594 services for a period of 6 months starting when the determination takes effect (s 106U(1)(g)(i) and s 106U(3)(b) of the HIA).

6    The Determining Authority’s decision is the other adverse decision which Dr Norouzi seeks to challenge.

7    Impressionistically, it might perhaps be thought there is practical compulsion for participation in the medicare system, including subjection to the scheme, such that the legislative provision for the making of each of these adverse decisions is an incident of a form of civil conscription.

8    However, that impression is at odds with authority at ultimate appellate level. In Wong v The Commonwealth (2009) 236 CLR 573 (Wong), a challenge to the validity of the scheme, based on an asserted violation of the parenthetical qualification mentioned, was rejected by an emphatic majority of the High Court. The view which prevailed in Wong as to the effect of the HIA, as evidenced by its citation with approval by Hayne, Crennan and Kiefel JJ, at [226], was that first expressed by Dixon J in a dissenting judgment in British Medical Association v The Commonwealth (1949) 79 CLR 201, at 278, in respect of a predecessor legislative scheme which also looked to s 51(xxiiiA) for its source of legislative competence, “[t]here is no compulsion to serve as a medical [practitioner], to attend patients, to render medical services to patients, or to act in any other medical capacity, whether regularly or occasionally, over a period of time, however short, or intermittently”. In Wong, only Heydon J, at [278], in dissent, saw invalidity in, that “the practical compulsion created by ss 10, 20 and 20A on medical practitioners to operate under the medicare scheme means that the Commonwealth is directing them, through its legislation, to comply with Pt VAA”.

9    Recognising the recent and emphatic conclusion that the HIA, including the scheme, did not constitute a form of civil conscription but declining to allege that the scheme was not a law with respect to medical and dental services (left open by Hayne, Crennan and Kiefel JJ in Wong, at [215]), Dr Norouzi did not contend that it could have no lawful application to him.

10    It will be necessary later in these reasons for judgment to return to Wong in order to consider, by reference to observations about the scheme made in that case and to the extent necessary in the circumstances, certain submissions made on behalf of Dr Norouzi about the committee’s finding.

11    Dr Norouzi instituted judicial review proceedings on 7 June 2020. In both its original and final, further amended form, his originating application invokes this Court’s jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) (Judiciary Act) and, further or alternatively, at least seeks to invoke this Court’s jurisdiction under s 8 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

12    It is necessary to add a qualification about the invocation of the Court’s jurisdiction under the ADJR Act because, in circumstances such as the present where a decision and related reasons were furnished in writing, s 11(1) and s 11(3) of the ADJR Act require that an application be filed by the 28th day after the statement of the terms of that decision and its accompanying reasons were furnished to an applicant. The Court is granted a discretion to extend that time: s 11(1)(c) of the ADJR Act.

13    As to the committee’s decision, the originating application was filed no less than 181 days after that event.

14    With the Determining Authority, the committee submits that, insofar as Dr Norouzi seeks under the ADJR Act to challenge its decision, the application has been made outside the prescribed 28 day period and that there is no occasion for the granting to Dr Norouzi of an extension of time. They further submit, as to the alternative invocation of jurisdiction under s 39B of the Judiciary Act in respect of the committee’s decision, that, while no formal time limit is applicable, the granting of relief in the exercise of that jurisdiction is discretionary. They submit that, here, the delay is so gross that the Court ought, as a matter of discretion and in all of the circumstances, to decline to grant relief in the exercise of that s 39B jurisdiction. Submissions on the extension of time point, as with other issues in the proceeding, were not separately advanced on behalf of the Director.

15    That the granting of relief under s 39B is discretionary and that delay by an applicant in the institution of proceedings is a relevant consideration in that regard were recently confirmed by the Full Court in Daley v Child Support Registrar [2020] FCAFC 161, at [43], by analogy with observations made in relation to the High Court’s jurisdiction under s 75(v) of the Constitution in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, at [53].

16    It is convenient first to consider whether, in relation to the committee’s decision and as to the ADJR Act, an extension ought to be granted to Dr Norouzi and, as to the Judiciary Act, whether the Court ought to decline to grant relief.

17    That there is, in respect of the committee’s decision and as to the ADJR Act, a need for an extension of time is, in my view, settled by s 3(3) of that Act, which provides:

(3)    Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision.

Whatever doubt there might have been, given the staged process for which the scheme provides, as to whether the committee’s decision, as opposed to that of a Determining Authority, had the necessary quality of finality in order to amount to a decision for the purposes of the ADJR Act is put to rest by this subsection. That is because the HIA makes a final report by the committee a precursor to the exercise of power by a Determining Authority. The presence of s 3(3) in the ADJR Act makes it unnecessary to reach any concluded view on what might otherwise have been the position in its absence. That acknowledged, it is only within the remit of a committee to reach a conclusion as to whether there has been “inappropriate practice”. That inclines me to the view that a committee’s decision would have the requisite quality of finality about it in any event.

18    The discretion under the ADJR Act to grant an extension of time to an applicant is not fettered. Nonetheless, in the few years following the commencement of that Act, a number of considerations commended themselves to various judges of the Court as relevant, in the circumstances of a given case, to the exercise of that discretion. These considerations were notably collected and analysed by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley Developments), at 348 – 350, which has proved an enduringly authoritative source of guidance. It must be emphasised that these considerations are neither exhaustive nor to be applied uncritically as if some form of check list and divorced from the circumstances of a given case.

19    One of the early cases to which Wilcox J referred in Hunter Valley Developments was Lucic v Nolan (1982) 45 ALR 411 (Lucic v Nolan) in which Fitzgerald J had, at 416, observed that the prescription of a time limit meant that the prima facie position was that an application brought out of time ought not to be entertained. This observation was referred to with approval by Tracey J in Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426, at [12], in the analogous context of the granting of an extension of time within which to appeal, in a passage recently in turn approved by Anderson J (with whom Perram and Wigney JJ agreed in this regard) in Jamsek v ZG Operations Australia Pty Ltd (2020) 297 IR 210, at [158]. To hold that this is the prima facie position is really but a way of emphasising that it is for an applicant to demonstrate that there is occasion for the granting of an extension. To put it higher than that, by requiring, for example, special circumstances to be demonstrated, would be to add an unwarranted gloss to the text of s 11(1)(c) of the ADJR Act.

20    Determining whether there is occasion may, in turn, often require a multi-factorial evaluation in which not all of the factors in a given case may tend in favour of or against the granting of an extension. Overwhelmingly however, usually, an applicant will have to provide by evidence an adequate explanation for the delay.

21    In this case, Dr Norouzi provided no personal evidentiary explanation, by affidavit or otherwise. Seemingly recognising this deficiency, it was instead submitted on his behalf: “It may be inferred that the explanation for the delay is that the disciplinary process outlined in Part VAA of the [HIA] had not been completed. Dr Norouzi participated in that ongoing process by providing two submissions to the [Determining Authority].” Another submission was that there could be no prejudice to the committee by the granting of an extension of time. It was further submitted that, as jurisdiction had alternatively and in any event been invoked by reliance upon s 39B of the Judiciary Act, which was not subject to a time limitation in relation to institution, that was itself reason to grant the extension. The latter proposition was said to be supported by an approach taken by Mortimer J in Sevdalis v Director of Professional Services Review (No 2) [2016] FCA 433 (Sevdalis v Director of Professional Services Review (No 2)), at [25].

22    The prospective merits of a proposed application under the ADJR Act can be relevant to whether or not to grant an extension. That does not mean that an applicant must demonstrate that he is likely to succeed, only that there is sufficient merit to warrant the granting of an extension. It is perfectly possible for there to be such merit and yet for an application ultimately to fail after a substantive hearing. Further, it does not necessarily follow that demonstration of merit in prospective grounds of review on the basis mentioned will always supply a determinative answer in relation to whether or not to grant an extension. As Finkelstein J noted in Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400, at 413, in a passage referred to with approval by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, at [12], “an invalid administrative decision can have operational effect”.

23    Just as an “operational effect” may, especially after a lengthy lapse of time, persuade a court in the exercise of a discretion, not to grant what has come to be termed in recent times federally as a “constitutional writ”, so too, in relation to the granting under the ADJR Act of an extension of time, may an operational effect mitigate against the granting of an extension. The purpose of a power to grant an extension of time is the attainment of justice. That is not necessarily coincident with the advancement of the interests of an applicant.

24    In his pleadings, Dr Norouzi did not distinguish between proposed grounds of review under the ADJR Act and jurisdictional error grounds under s 39B of the Judiciary Act in respect of the committee’s decision. As they came to be pleaded in the further amended originating application, the grounds of challenge to the committee’s decision were as follows:

1.    The decision involved an error of law or was otherwise contrary to law by the Committee misconceiving the nature of its function or asking itself a wrong question or identifying the wrong issue by forming its own “view about what it means for urgent treatment to be required”, rather than addressing whether conduct in connection with rendering or initiating services would be unacceptable to either the general body of medical practitioners, or the general body of general practitioners.

1A.    The decision involved an error of law by applying the wrong test. The Committee purported to apply s82(1)(d) of the [HIA], which considers the Applicant’s conduct by reference to the “general body of [medical practitioners]”. The Committee ought to have applied the test set out in s82 (1)(a) of the [HIA], which considers Applicant’s conduct by reference to the “general body of general practitioners”.

2.    The decision involved an error of law by misconstruing or misapplying the phrase “patient’s medical condition requires urgent treatment” in Items 597 and 599 of Schedule 1 of the Health Insurance (General Medical Services Table) Regulation 2016 (Cth).

Particulars

(a)    The Committee took an impermissibly narrow interpretation of “treatment” by excluding reassurance, advice, advice and instructions, diagnosis, ruling out of differential diagnoses, and urgent assessment from “treatment” having regard to the scope, nature and purpose of the clause 2.15.1 and items 597 and 599 of Schedule 1 of the Health Insurance (General Medical Services Table) Regulation 2016 (Cth).

(b)    The Committee took an impermissibly narrow approach to “treatment could not be delayed until the start of the next in-hours period”.

(c)    The Committee failed to consider whether the Applicant’s opinion as to the urgency of treatment would be acceptable to the general body of medical practitioners in the circumstances that existed and on the information available when the opinion was formed, and, in turn, whether the decision to bill the service as item 597 or 599 was conduct which would be unacceptable to the general body of relevant practitioners.

3.    The making of the decision was an improper exercise of power by taking irrelevant considerations into account, namely, the findings that the regulatory requirements of MBS items 597 and 599 were not met in circumstances in which:

(a)    The decisions “to bill an urgent rather than non-urgent Medicare item” were not “conduct” in connection with rendering or initiating services for the purposes of section 82 of the [HIA];

(b)    The Committee misconstrued or misapplied the requirements of items 597 and 599;

(c)    There was no logical pathway to the findings that the regulatory requirements of MBS items 597 and 599 were not met because the Committee failed to make critical intermediate findings of fact which were probative to the questions of whether, in relation to each professional attendance:

(i)    The Applicant was of the opinion that the patient’s medical condition required treatment within the unbroken after-hours period in, or before, which the attendance was requested;

(ii)    In the circumstances that existed and on the information available when the opinion was formed, the Applicant’s opinion would be acceptable to the general body of medical practitioners; and

(iii)    The treatment identified as being required within the unbroken after-hours period could not be delayed until the start of the next in-hours period.

4.    In the alternative to ground 3(c), that a breach of the rules of natural justice occurred or a breach of the procedures required by sections 106H, 106KD(1A) and 106L(1B) of the [HIA], when read together with section 25D of the Acts Interpretation Act 1901 (Cth), to provide the Applicant, for his response, the reasons on which the Committee intended to base its finding of inappropriate practice including findings on material questions of fact.

5.    The decision involved an error of law in that the Committee could not reasonably conclude that the conduct would be unacceptable to the general body of medical practitioners in circumstances in which it had received reputable minority opinion evidence that the conduct was not unacceptable to general practitioners practising in after-hours medical deputising services.

6.    The decision involved a breach of the rules of natural justice in that the Committee failed to properly consider the submissions of the Applicant.

[sic]

25    The detailed bases upon which the Determining Authority and the committee opposed the granting of an extension will be evident enough from what follows, which takes up and expands upon those bases.

26    The committee’s final report containing its decision of 11 November 2019 and related reasons were conveyed to Dr Norouzi on behalf of the committee under cover of a letter of 11 December 2019. Dr Norouzi received the decision and reasons the following day, 12 December 2019.

27    The giving of the committee’s report to Dr Norouzi was required by s 106L(3)(a) of the HIA. That provision also required the committee to give a copy of its final report to the Director. Thereafter, s 106L(3)(b) of the HIA required that there be a pause of at least one month by providing that the committee was to “give the final report to the Determining Authority not earlier than 1 month after the day on which a copy of the report is given to the person under review”.

28    The HIA does not expressly state, either in the description in s 80 of the “main features” of the scheme or otherwise, that the purpose of this one month pause is to enable the person under review, here Dr Norouzi, to institute an application for review under the ADJR Act (or the Judiciary Act) of the committee’s decision within the time provided by that Act. However, when regard is had to s 106TB of the HIA, that to me does seem to be the purpose of the one month specification in s 106L(3)(b).

29    By s 106SA of the HIA, the Determining Authority is obliged to “give the person under review a written invitation to make written submissions to the Authority, having regard to the Committee’s final report and any information given by the Director under section 106S, about the directions the Authority should make in the draft determination relating to the person”. In the ordinary course of events, that invitation must be given within one month after the Determining Authority has been given the committee’s final report: s 106SA(3) of the HIA. However, that period for the doing of that act is one of those which s 106TB terms an “original action period”.

30    Section 106TB expressly contemplates that the doing of an act such as the extending of a Determining Authority’s invitation within a related original action period might be prevented by an injunction or other court order. Implicit in s 106TB is the proposition that the jurisdiction of a court of competent jurisdiction might have been invoked so as, presently materially, to challenge the final report (decision) of the committee and that such a court might be persuaded that progression of the statutory processes ordained by Pt VAA of the HIA should be stayed, pending the hearing and determination on its merits of the court challenge. One way in which the decision of a committee might be challenged in a court of competent jurisdiction is by an application made under the ADJR Act within the time prescribed by that Act. In turn, a court seized with such an application might stay the operation of a committee decision under review by an order made pursuant to s 15 of the ADJR Act. Another means of challenge is, of course, by way of an application under s 39B of the Judiciary Act.

31    This feature of Pt VAA was relevantly highlighted by the Determining Authority and the committee in opposing the granting of an extension of time.

32    There are other indications within Pt VAA of the HIA that Parliament contemplated that reasonable expedition would attend the scheme’s processes. At the very outset of the processes, if the Director decides to review the provision of services by a person, the Director cannot, without consequence, leave that decision unactioned. If, before the end of the period of 12 months after making the decision, the Director has not either referred the matter to a committee, reached an agreement with a practitioner or decided to take no further action, the effect of s 94(1) of the HIA is “the Director is taken to have made a decision at the end of that period to take no further action in relation to the review”.

33    Although s 106G(5) of the HIA provides in respect of a committee that, “Failure to give the final report to the Determining Authority within the period of 6 months, or that period as extended, does not affect the validity of that report”, s 106G nonetheless makes elaborate provision in relation to what is at least an aspirational, timely completion of a committee’s function. Inbuilt into the completion of a committee’s function is the allowance of an opportunity to a person under review to make submissions suggesting changes to a draft report of the committee but a one month time period attends that opportunity: s 106KD(3) of the HIA.

34    All of the various time limits specified in Pt VAA which attend processes which occur prior to the giving of the committee’s report to the Determining Authority can be seen to balance reasonable expedition with procedural fairness to a person under review and also to manifest the desirability of closure in respect of the review of the provision of a service and the contingency that there may be a repayment obligation in respect of the benefit paid or other consequences in respect of the provision of that service.

35    Another evident purpose in the various specified time limits is that there be reasonable proximity between any review and the provision of the service concerned. At the very outset of the Pt VAA processes, in relation to the request by the Chief Executive Medicare to the Director to review provision of services, s 86(2) of the HIA ordains that, “The period specified in the request must fall within the 2 year period immediately preceding the request”.

36    In Lucic v Nolan, at 416, Fitzgerald J, having observed in respect of public administration decisions that it seemed a “broadly accurate” feature of the ADJR Act that there was “a legislative intention that certain standards are to be observed in respect of such decisions and actions”, stated:

[That] is not the only public interest to be served. Other matters of proper public concern which are readily identifiable as relevant to the review of administrative acts and decisions include the need for finality in disputes, the efficient use of public resources, the appropriate allocation and expenditure of public funds …

37    In my view, such public interest considerations loom large in the present case and tell against the granting of an extension of time.

38    The review period with which the committee was concerned covered the period from 1 September 2016 to 31 August 2017 inclusive (Review Period). Were the committee’s decision to be quashed, under s 16 of the ADJR Act if an extension were granted (or quashed by certiorari in aid of relief under s 39B akin to a constitutional writ), in excess of four years would have elapsed since the commencement of the period within which the provision of particular services under claimed item numbers occurred.

39    The Court could not, on judicial review, reach any conclusions of its own as to whether inappropriate practice had occurred in substitution for those of the committee. Depending upon the basis of quashing, the submissions of the parties, and the pleaded review grounds including alleged denial of natural justice, a remitter to the committee as presently constituted may not be apt were Dr Norouzi to succeed in his application. It might be necessary to remit the matter to the Director to set up a different committee under s 93(1) of the HIA. The HIA provides for ad hoc, bespoke committees drawn from a panel of practitioners (some of whom are additionally appointed as Deputy Directors of Professional Services Review – see Division 2 of Pt VAA). Dr Norouzi would have to be offered an opportunity to challenge the appointments to any reconstituted committee: s 96, HIA.

40    In any event, even if the matter were apt for remitter to the existing, respondent committee, there is, in light of the experience offered by the progress of committee proceedings to date in this matter, at least a realistic contingency that committee deliberations on remitter might not be finalised this year.

41    Were the committee’s decision to be set aside, it would necessarily follow that the Determining Authority’s decision would also have to be set aside.

42    Under the scheme, the provision of the committee’s final report is not just a condition precedent to the processes and decision of the Determining Authority. The Determining Authority’s decision is informed by that committee report, as well as any submissions which the person under review cares to make in response to an invitation: s 106SA(1) of the HIA. Even if it were otherwise valid, a decision of the Determining Authority could not stand if the committee’s decision were quashed. All of the expenditure of public funds entailed in the deliberations of the Determining Authority to reach that decision would necessarily be set at nought if the committee’s decision were set aside.

43    A decision of the committee to issue a final report, as in the present case, is not unexaminable on judicial review. However, when an application under the ADJR Act is not made within the time prescribed or when the court’s jurisdiction under s 39B of the Judiciary Act is not invoked within a reasonable time after such a decision, those engaged in the administration of the HIA are entitled to assume that this particular phase of the staged processes ordained by Pt VAA of that Act is a closed chapter. I accept the submission made on behalf of the committee and the Determining Authority that it is antithetical to the integrity of the scheme for an extension of time to be granted to challenge a committee’s decision after a lengthy delay. Having regard to the ordained progression of a review by a committee, an unexplained, six month delay in the institution of a challenge may readily be classified as such a lengthy delay.

44    Apart from the wasting of the expenditure of public funds (and the related time of professionally qualified persons) relating to the Determining Authority’s decision, other public administration consequences flowing from a lengthy delay can be envisaged in the ordinary course of public administration according to law. As a matter of constitutional law, expenditures under the HIA must be paid by parliamentary appropriation from Commonwealth Consolidated Revenue: s 81 and s 83 of the Constitution. The Minister and those advising him for this purpose would be entitled to assume, when preparing budget estimates for parliamentary consideration of expenditure likely to be incurred in the administration of the HIA, that no provision need be made for the contingency of a fresh review, perhaps by a differently constituted committee. Similarly, the Director would be entitled to assume that those members of the panel who constituted the committee in the present case can be redeployed if needs be to another committee and that there is no need to make provision for the contingency that other panel members might have to be found to replace them in the event that it was necessary again to undertake the review. Such panel members, too, could be deployed to other tasks if needs be. There was no direct evidence of such consequences. The point of mentioning them is to highlight that public administration is neither static nor able to draw upon an inexhaustible supply of human and financial resources. It is inherently likely that there will be an opportunity cost in public administration by permitting, after a lengthy delay, challenges on judicial review to administrative decisions hitherto, for good reason, entitled to be regarded as final.

45    Of course, in a personal sense, neither the members of the committee, the Determining Authority nor the Director might suffer prejudice by the granting of an extension of time to Dr Norouzi but that says nothing about the impact on an efficient use of public resources, a consideration highlighted by Fitzgerald J in Lucic v Nolan.

46    Contrary to Dr Norouzi’s submission, the evidence does not support an inference that he was always intending to challenge the committee’s decision but considered that this must await the completion of the last of the Pt VAA stages via the Determining Authority making a decision. There is not a hint in Dr Norouzi’s then solicitor’s letter of 28 January 2020 to the Determining Authority that he regards the committee’s decision as unlawful and reserves his rights to challenge it. Rather, as is made pellucid by paragraph 1.2 of that letter, his then stance was to accept the conclusion of inappropriate practice but to put forward submissions in mitigation as to the consequences which ought to follow from that in a decision by the Determining Authority:

1.2    This finding, together with the substantial practice and billing changes undertaken by Dr Norouzi demonstrates insight into the matters raised, and the significant emotional and financial burden arising from this prolonged process, offers the Determining Authority assurance that the concerns about practice will not be repeated. It is submitted that Dr Norouzi's practice should be viewed as best placed on the low end of the scale of inappropriate practice, and a corresponding minimum sanction imposed.

[Emphasis added]

47    This was not a layperson’s correspondence but rather emanated from a reputable firm of solicitors, acting on Dr Norouzi’s behalf. It would be quite inappropriate to draw any inference from the contents of the letter as to what legal advice, if any, Dr Norouzi had by then received as to the existence of rights of challenge by judicial review to the committee’s decision or the merits of the same. I draw no such inference. He did, however, patently have access to a source of such advice. It is likewise patent that the letter does not foreshadow any challenge and does not request that the Determining Authority stay its processes pending such a challenge.

48    Like observations may be made in relation to Dr Norouzi’s solicitor’s letter of 3 April 2020, which took up the ordained opportunity to make submissions concerning the draft determination of the Determining Authority.

49    What is obvious is that it was only when a determination not to his liking was made by the Determining Authority that forensic ingenuity was deployed on behalf of Dr Norouzi in an endeavour to discern legal error in the committee’s decision. Perhaps that had earlier occurred, perhaps it had not. That matters not. What does matter is that there was no hint either to the committee, or the Determining Authority or to the Director before the Determining Authority’s decision of any such error. Dr Norouzi was apparently content to allow the statutory processes under Pt VAA of the HIA to continue. The appearance is that of a person who has rested on his rights.

50    Sevdalis v Director of Professional Services Review (No 2) offers no support for the proposition that, because an alternative jurisdictional foundation is offered by s 39B of the Judiciary Act, which has no ordained time limit for the institution of a proceeding, it necessarily follows that an extension of time must be granted to an applicant who seeks further or alternatively to invoke the Court’s jurisdiction under the ADJR Act but has not so done within the time limit specified by that Act. Sevdalis v Director of Professional Services Review (No 2) is just an example of a case where respondents chose not to oppose the granting of an extension of time under the ADJR Act and, in those circumstances and given the alternative invocation of jurisdiction under the Judiciary Act, Mortimer J was disposed to grant an extension. There is no elaborate reasoning for that conclusion nor, with respect, was there any need for that, given the stance adopted by the respondents.

51    Because the discretion is not fettered, in theory, but unusually, an extension of time might be granted even where there is no, or no persuasive, explanation for delay and even where it was possible to discern some subversion of efficient public administration. The prospective merits of a proposed application under the ADJR Act might be such that the interests of justice nonetheless demanded an extension in the circumstances of a given case. As mentioned already, an extension decision can be multi-factorial and relevant factors can interplay. A truly calamitous sequel to an administrative decision obviously devoid of any lawful authority might require the granting of an extension of time even after substantial delay.

52    That is not this case.

53    Here, the prospective merits do not, as a matter of impression, appear to me to be such, when considered in conjunction with the factors already mentioned, as to warrant the granting of an extension.

54    Confidence in prospects is not enlivened by a flawed underlying premise for the proposed ADJR Act grounds. That premise is that the committee applied an incorrect standard to Dr Norouzi in assessing inappropriate practice, because he was a general practitioner and the committee ought therefore to have applied the test ordained by s 82(1)(a) of the HIA, rather than that ordained by s 82(1)(d).

55    Section 82(1) of the HIA materially provided:

82    Definitions of inappropriate practice

Unacceptable conduct

(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:

(a)    if the practitioner rendered or initiated the services as a general practitioner–the conduct would be unacceptable to the general body of general practitioners; or

…

(d)    if the practitioner rendered or initiated the services as neither a general practitioner nor a specialist but as a member of a particular profession(-)the conduct would be unacceptable to the general body of the members of that profession.

56    As a matter of ordinary English usage, one might perhaps describe Dr Norouzi, who was not a member of any specialist college during the Review Period, as a general practitioner. However, s 3 of the HIA gives the term “general practitioner” a particular meaning for the purposes of that Act:

“general practitioner” means:

(a)    a medical practitioner in respect of whom a determination under section 3EA is in force; or

(b)    a person registered under section 3F as a vocationally registered general practitioner; or

(c)    a medical practitioner of a kind specified in the regulations.

57    On the evidence, none of the paragraphs of the definition was applicable to Dr Norouzi. Thus, s 82(1)(a) of the HIA was inapplicable to him. Instead, having regard to paragraph (a) of the definition of “practitioner” in s 81 of the HIA, it was his status as a medical practitioner which brought him within the ambit of the test specified in s 82(1)(d) of the HIA, and only that test. That being so, the relevant test was whether the conduct would be unacceptable to the general body of medical practitioners. That was the test applied by the committee.

58    The subject referred to the committee by the Director pursuant to s 93(1) of the HIA for investigation and report was the rendering or initiation of services under MBS items 597 and 599 during the Review Period. During the Review Period, MBS items 597 and 599 were in similar terms. Each applied to “urgent” attendances but at different “after hours” times.

59    Exemplifying what s 80(9) of the HIA describes as a feature of the scheme, s 106K of the HIA permits a committee investigating the provision of services included in a particular class of referred services to have regard only to a sample of the services included in the class. The committee adopted this practice in the discharge of its peer review, investigating and reporting function. Its adoption of this practice is not gainsaid by Dr Norouzi.

60    The committee’s final report discloses that, in respect of the referral, the committee found that Dr Norouzi had engaged in inappropriate practice on two distinct bases:

(a)    as to 8 of the services reviewed, the committee found he engaged in inappropriate practice as a result of record-keeping deficiencies and clinical decisions; and

(b)    as to 38 of the services reviewed, the committee found that the criterion in MBS items 597 and 599 that “the patient’s condition requires urgent medical treatment”, as defined in reg 2.15.1 of the Health Insurance (General Medical Services Table) Regulation 2016, was not met.

61    No challenge was sought to be made to the finding on the first of these bases with respect to particular services. It was so much of the decision as was based on the reg 2.15.1 finding to which the grounds of review were directed.

62    Over the Review Period, there was a succession of the Health Insurance (General Medical Services Table) Regulations 2016. However, the text of reg 2.15.1 remained the substantially the same throughout:

2.15.1    Meaning of patient’s medical condition requires urgent treatment

(1)    For items 597 to 600, a patient’s medical condition requires urgent treatment if:

(a)    medical opinion is to the effect that the patient’s medical condition requires treatment within the unbroken after-hours period in, or before, which the attendance mentioned in the item was requested; and

(b)    treatment could not be delayed until the start of the next in-hours period.

(2)    For the purposes of subclause (1), medical opinion is to a particular effect if:

   (a)    the attending practitioner is of that opinion; and

(b)    in the circumstances that existed and on the information available when the opinion was formed, that opinion would be acceptable to the general body of medical practitioners.

63    A notable feature of reg 2.15.1 is its succession of conjunctions. Within reg 2.15.1(1), the presence of the conjunction “and” means that both the paragraph (a) criterion and the paragraph (b) criterion must be met. Again flowing from the presence of the conjunction “and”, for the purposes of reg 2.15.1(2), medical opinion is only to a particular effect if each of the reg 2.15.1(2) criteria is met. Equally, if the criterion in reg 2.15.1(1)(b) is not met, because it is concluded that treatment could be delayed until the start of the next in-hours period, the effect of the conjunction is that it is immaterial whether the criterion in reg 2.15.1(1)(a) is met. In turn and consequentially, it becomes irrelevant in this circumstance to consider whether each of the reg 2.15.1(2) criteria is met.

64    In respect of the 38 services sampled, the committee found that the patient’s condition did not require urgent treatment, because it was not satisfied that the treatment could not be delayed until the start of the next in-hours period; hence it was not satisfied that reg 2.15.1(1)(b) was met.

65    A committee is not a lay tribunal, entirely reliant on the presence of expert opinion from others in order to make findings of fact calling for expertise. It is constituted as a group of professional peers, charged with investigating whether there has been inappropriate practice and then making consequential findings against specified criteria. It is expected that members of a committee will “bring to his deliberations that knowledge and experience which qualified him for appointment”: Reece v Webber (2011) 192 FCR 254, at [50]; see also Selia v Commonwealth of Australia [2017] FCA 7, at [104], per Perry J.

66    As to those criteria and as summarised by Hayne, Crennan and Kiefel JJ in Wong, at [223]:

First, the conduct must be ‘in connection with rendering or initiating services’ for which a Medicare benefit or a pharmaceutical benefit is payable. Secondly, the conduct must be such as a Committee could reasonably conclude would be unacceptable to the general body of relevant practitioners.

The use of the word “reasonably” in the s 82(1) chapeau confirms what might have been treated in any event as implicit, which is that, “conduct is to be measured [by] an objectively determined standard”: Wong, at [218].

67    Dr Norouzi tendered to the committee a document entitled “peer review of medical consult notes for Dr Hamid Norouzi”. It was, as the committee noted, put forward as “evidence of the views of the general body of general practitioners practising in after-hours medical deputising services” because of the regulatory rule that Dr Norouzi’s opinion in relation to urgency “would be acceptable to the general body of medical practitioners”.

68    As to this report, the committee stated in its reasons, at [83]:

83.    At best, the report is evidence that another doctor thought Dr Norouzi’s billing decisions were generally appropriate, but:

a.    Its author and that person’s qualifications are unknown beyond what appears in the post-hearing submission, which says the author had over 10 years’ experience as a medical practitioner in Australia, 3 years’ experience in deputising, and was currently working as a general practitioner. Dr Norouzi said it was written by another doctor working in similar circumstances to himself. Nonetheless, the Committee had no real basis to assess the author’s expertise or objectivity.

b.    The author presumably did not have the benefit of a forensic examination to the extent the Committee did, including asking detailed questions of Dr Norouzi.

c.    The accuracy of the document is questionable. In the example extracted above, the patient did not have a temperature of 39° - that was history – whereas Dr Norouzi found the patient’s temperature to be 37° when he attended.

d.    The test applied by the report’s author in order to conclude that the criteria for item 597 were “met” is not apparent. There is no reference, for example, to a need for treatment that could not wait until the next in-hours period. Each summary merely involves repeating what is in the clinical record and then an assertion that billing MBS item 597 or 599 was appropriate.

e.    For some services, the conclusion that a service would have met item requirements was simply untenable. Service 29 of appendix 1 involved a history of a single, resolved episode of epistaxis and an examination finding of dry mucus in the nostril. The report states quite summarily that “billing and management is consistent with other doctors working in the after-hours field.”

[footnote reference omitted]

69    The committee later recorded, at [84], by reference to these observations, that it was not “particularly assisted” by the report.

70    Dr Norouzi’s judicial review ground 5, in particular, seeks to find error in the committee’s discounting of this report. Support for this error is said to be found in the citation of Qidwai v Brown [1984] 1 NSWLR 100 (Qidwai v Brown), at 105, by French CJ and Gummow J in in their joint judgment in Wong, at [64], fn 90 in the course of their discussion of the heritage of the inappropriate practice test found in s 82 of the HIA. In the footnote referenced part of Qidwai v Brown, Priestley JA had stated, in respect of the “infamous conduct” criterion once used in the United Kingdom and in many Australian States as a professional disciplinary criterion:

In applying this test in regard to a rule of professional practice it would be of relevance, but not conclusive, to see whether the rule said to be broken was one, as in Meehan’s case, “as to which there was no suggestion of doubt or difference of opinion in the profession”.

From this it was said to follow that the committee’s discounting of the report evinced error, because that report demonstrated that there was “doubt or difference of opinion in the profession”.

71    This submission cannot be accepted. It seeks to substitute an observation in respect of a different statutory test for the text chosen by Parliament in s 82(1)(d) of the HIA.

72    The whole point of the committee system for which Pt VAA provides is that a committee is entitled to reach its own views, on the basis of the professional training, knowledge and experience of its members, as to whether it would be “reasonable to conclude” that the conduct would be “unacceptable to the general body of [in this case medical practitioners]”. The latter, and nothing else, is the material test. I respectfully agree with an observation made by Farrell J in Nithianantha v Commonwealth of Australia [2018] FCA 2063, at [193], that conduct may be “unacceptable to the general body of medical practitioners”, “notwithstanding that some practitioners may have had a different view”. Equally, it is possible to envisage cases where it would be reasonable for a committee to conclude the general body of medical practitioners might allow that there is more than one clinical approach open in relation to the rendering of a particular service. As it is, for just the reasons it gave, this committee was not obliged to reach such a conclusion in the present case.

73    It was also put that, in various ways, the committee took an impermissibly narrow interpretation of “treatment”. Regard to the committee’s final report discloses that this submission is also one predicated on a false premise. The committee accepted that the services provided by Dr Norouzi constituted treatment. For example:

(a)    In Appendix 1, Table 3, service 21, the Committee stated, “…the Committee does not accept that reassurance and education is treatment of a kind that would usually be required urgently…”. Self-evidently, the committee has accepted that reassurance and education is treatment demurring only on the basis that it is not “usually” urgent.

(b)    In Appendix 2, Table 3, service 11, the committee stated, “The only treatment provided was reassurance, which was not urgently required in the circumstances”. Again self-evidently, the committee has accepted that reassurance is treatment, demurring only on the basis that it is not urgent “in the circumstances”.

(c)    In Appendix 2, Table 3, service 14, the committee stated, “The reassurance and advice afforded to the patient’s parents were not treatment of a kind that could not wait to the next in-hours period”. Once again self-evidently, the committee has accepted that reassurance and advice were treatment, demurring only on the basis that it was treatment that could have waited.

74    The conception of treatment adopted by the committee was that it extended to reassurance of a patient. That was exactly the conception promoted by Dr Norouzi in the present case. It is neither necessary nor desirable in these circumstances to question the correctness of that conception. It is sufficient to assume it to be correct. On the basis of that assumption and for the reasons just given, the false premise is evident.

75    The committee made it plain in its final report (at [92]) that it was “not critical, in [relation to] any service, of Dr Norouzi’s decision to see a patient. It is the decision to bill an urgent rather than non-urgent medicare item that is in issue”.

76    For the items the subject of the committee’s investigation, the meaning of whether a “patient’s medical condition requires urgent treatment” was specified by reg 2.15.1 of the Health Insurance (General Medical Services Table) Regulation 2016. As soon as the committee concluded in respect of the 38 services in question that it was not satisfied that the treatment could not be delayed until the start of the next in-hours period, it became unnecessary, for reasons already given, for it to look to the criterion in reg 2.15.1(1)(a) and thus to the criteria in reg 2.15.1(2). Its conclusion that reg 2.15.1(1)(b) was not satisfied removed this need.

77    Dr Norouzi submitted that, “The limited access to general practitioners in the area in which Dr Norouzi practised should have led the committee to then find that treatment that could not have been delayed until the next time the patient could obtain medical treatment met the requirements of ‘urgent treatment’. If this submission had any merit, and it is not necessary to express any concluded view on that subject, it would be because the specification, “in the circumstances that existed and on the information available” in reg 2.15.1(2)(2) embraced a patient’s geographic location and their inability, flowing from that location, to access transport and their condition that, in terms of reg 2.15.1(1)(a), their “requires treatment within the unbroken after-hours period in, or before, which the attendance mentioned in the item was requested”. I find it impossible though to see that there is any room for a patient’s geographic location in the reg 2.15.1(2)(b) criterion. That criterion looks to me wholly related to the patient’s medical condition itself and whether, in respect of that condition, “treatment could not be delayed until the start of the next in-hours period”.

78    As it was entitled to do, the committee reached its own conclusion, in respect of the medical conditions disclosed in the 38 services, that treatment could be delayed until the start of the next in-hours period. That being so, and for reasons already mentioned, consideration of reg 2.15.1(1)(a), and thus of the criteria in reg 2.15.1(2), became unnecessary.

79    A corollary of this last conclusion is that, insofar as Dr Norouzi’s last submission is predicated upon an alleged denial of procedural fairness constituted by a failure by the committee to address submissions that went to reg 2.15.1(1)(a) related issues, it was unnecessary for the committee to do this, in light of the reg 2.15.1(1)(b) criterion conclusion.

80    A more general foundation for an alleged denial of procedural fairness by the committee looks likewise devoid of merit. As it was required so to do, the committee furnished its draft report to Dr Norouzi for such submissions in respect of it as he was disposed to make. He made submissions to the committee in response. It is patent from the committee’s final report that the committee took those submissions into account and actively engaged with them.

81    Judicial review grounds 3(a) and 3(b) were not expressly addressed in Dr Norouzi’s submissions. I assume from this that they were not regarded as having sufficient merit to warrant the granting of an extension of time under the ADJR Act. As to ground 3(c), all that need be added to the observations already made in relation to the absence of any need in the circumstances for the committee to address reg 2.15.1(1)(a) and thus the criteria in reg 2.15.1(2) in light of the conclusion about reg 2.15.1(1)(b), is that a finding of fact is not “critical” if it is unnecessary.

82    These conclusions as to prospective merits perhaps state the position more emphatically than necessary in relation to an extension of time application. However, truly, I see no prospective merit in the grounds.

83    When the absence of prospective merit is taken into account in conjunction with the other considerations mentioned above, this is not a case for the granting of an extension of time under the ADJR Act. Neither, taking into account those same considerations and especially in light of the lengthy delay in the initiation of proceedings, is it a case where it would be apt, as a matter of discretion, to grant any relief under s 39B of the Judiciary Act in respect of the committee’s decision.

84    That leaves for consideration the challenge to the Determining Authority’s decision. No extension of time requirement attends so much of that challenge as invokes the ADJR Act as an alternative source of jurisdiction to s 39B of the Judiciary Act.

85    As pleaded in the further amended originating application, the grounds of review are:

1.    The Authority misunderstood its function and thereby constructively failed to carry out its statutory task with respect to the direction that the Applicant repay the whole amount of Medicare benefits that were paid for the MBS item 597 and 599 services, in connection with which the Applicant was found by the Committee to have engaged in inappropriate practice in the amount of $459,555.55 (less the amount for the item that the Applicant voluntarily repaid).

Particulars

(a)    The Authority was required by section 106U(1)(cb) of the [HIA] to make a direction that the Applicant repay to the Commonwealth the whole or a part of the relevant Medicare benefits;

(b)    The Authority wrongly considered itself bound by the Committee decision to direct that the whole of the relevant Medicare benefits be repaid; and

(c)    The Authority wrongly held it was not its role to embark on an inquiry as to whether it was appropriate to order part repayment of the relevant Medicare benefits.

2.    The direction that the Applicant repay the whole amount of Medicare benefits that were paid for the MBS item 597 and 599 services, in connection with which the Applicant was found by the Committee to have engaged in inappropriate practice in the amount of $459,555.55 (less the amount for the item that the Applicant voluntarily repaid), was an exercise of a power that is so unreasonable that no reasonable person could have so exercised it and was otherwise contrary to law as being legally unreasonable.

Particulars

(a)    The findings of inappropriate practice were based upon the use of urgent MBS item numbers;

   (b)    Services were actually provided by the Applicant;

(c)    It was possible for the Authority to quantify the amount which the Commonwealth should have received if the non-urgent item numbers were used in lieu of the urgent item numbers;

(d)    The direction effectively treats the services as not having occurred at all;

   (e)    The direction results in a windfall to the Commonwealth;

(f)    Further, the evidence was that the Applicant received only 50% of the Medicare benefits, 50% having been paid to his employer; and

(g)    In the circumstances, the direction was an exercise of power which was so disproportionate to the objectives of Part VAA of the [HIA] as to fall outside the area of decisional freedom for a reasonable decision-maker with a due appreciation of its statutory responsibilities.

3.    The direction that the Applicant be disqualified from rendering MBS item 585, 588, 591 and 594 services for a period of 6 months, was an exercise of a power that is so unreasonable, that no reasonable person could have so exercised it and was otherwise contrary to law as being legally unreasonable.

Particulars

(a)    The Committee’s findings of inappropriate conduct were based upon the relevant patient conditions not requiring “urgent treatment” which was an element of MBS items 597 and 599;

(b)    The new MBS item numbers 585, 588, 591 and 594 do not require an element of “urgent treatment”; rather they all require “urgent assessment”;

(c)    The services found to be inappropriate practice by the Committee required at least “urgent assessment”;

(d)    There is no rational basis for disqualifying the Applicant’s right to render the new MBS item services;

(e)    The direction involves punishment of the Applicant that goes beyond the protective objectives of Part VAA of the [HIA] and is otherwise disproportionate; and

(f)    The exercise of power to make the direction was one which no reasonable decision-maker with a due appreciation for its responsibilities could have exercised in the circumstances.

[sic]

86    By his then solicitors, Dr Norouzi put to the Determining Authority that, in respect of any repayment requirement, he ought not be required to repay the whole of the medicare benefit amounts but rather only the difference between the urgent item numbers incorrectly ascribed to the provision of the service and non-urgent item numbers which would have been applicable to the provision of the service. This submission was advanced on the basis that the committee had not found that the service was not rendered, only that it had been wrongly itemised. To require payment of the whole when a service was in fact performed and for which there was an applicable item number would, it was submitted, result in a windfall gain to the Commonwealth.

87    The submission was developed in this way by Dr Norouzi’s then solicitors in their letter of 3 April 2020 to the Determining Authority:

2.6    Dr Norouzi previously submitted that the repayment amount should be limited to the difference the billing of either MBS item 597 and 599 on each attendance, with the respective non-urgent item numbers depending on the length of the consultation (eg. MBS items 5003, 5023, 5043). It is submitted that this approach considers the findings of inappropriate practice by the Committee and does not, as the Determining Authority contended in the Draft Determination, require speculation. It is merely a question of fact, which may be answered by reference to the records provided to the Committee.

2.7    This approach is consistent with the PSR’s objective of ensuring the integrity of health practitioners and that Medicare benefits are accessed fairly, in accordance with the Medicare Benefit Schedule. It is submitted that the Draft Determination is contrary to this objective as it would allow Medicare to benefit, rather than reinstating the position each party would have been in if it were not for the findings of inappropriate practice by the Committee.

[footnote reference omitted]

88    A separate proposition advanced by Dr Norouzi in relation to repayment was that any repayment requirement should also be reduced so as to take into account his arrangement with the House Call Doctor service, pursuant to which he received but 50% of the medicare benefits paid for the provision of the services.

89    Neither of these propositions was accepted by the Determining Authority.

90    As to the first proposition, the Determining Authority reasoned, at [32]:

32.    The Committee found inappropriate practice based on its consideration the MBS item services before it. The Determining Authority rejects the proposition that the question of whether Dr Norouzi met the requirements for other types of services can be determined by reference to the Committee’s Report. The Committee made no such findings and the Determining Authority is bound by the findings that were made. The Determining Authority remains of the view that such issues were not relevant to the Committee’s investigation and would involve speculation. It is not the Determining Authority’s role to embark on such an inquiry.

91    As to the second proposition, that based on Dr Norouzi’s fee-splitting arrangement with House Call Doctor Service, the Determining Authority reasoned that, even though he may not have retained the full medicare benefits in respect of services covered by the inappropriate practice finding, “the Commonwealth nevertheless expended those monies”.

92    At the forefront of the first ground is an alleged failure on the part of the Determining Authority to understand the nature and extent of its powers, especially that conferred by s 106U(1)(cb) of the HIA:

106U    Content of draft and final determinations

(1)    A draft determination or a final determination must contain one or more of the following directions:

…

(cb)    if any medicare benefits or dental benefits for a class of services:

(i)    that were rendered or initiated by the person under review, by an employee of the person under review, or by an employee of a body corporate of which the person under review is an officer; and

(ii)    in connection with the rendering or initiation of which, or of a proportion of which, the person under review or such an employee is stated in a report under section 106L, based on a finding made under subsection 106K(2), to have engaged in inappropriate practice;

have been paid (whether or not to the person under review)—that the person under review repay to the Commonwealth the whole or a part of the medicare benefits or dental benefits that were paid for the services or that proportion of the services, as the case may be;

[Emphasis added]

93    After following the required preliminaries, the Determining Authority’s role was to make “a final determination in accordance with section 106U relating to the person under review”: s 106TA of the HIA. It is s 106TA which gives practical voice to the feature of the scheme described in s 80(10) of the HIA, “If a Committee finds that the person under review has engaged in inappropriate practice, the finding will be reported to the Determining Authority. The Determining Authority decides what action to take”.

94    It may readily be accepted that it is not the role of a Determining Authority to make any findings inconsistent with a finding of inappropriate practice in a final report of a committee. Reading s 106TA and s 106U(1)(cb) of the HIA together, it is, however, manifestly within the remit of the Determining Authority to decide whether to require repayment to the Commonwealth of the whole or a part of the medicare benefits that were paid. The emphasised words in s 106U(1)(cb) of the HIA make this clear.

95    In the circumstances of the present case, the Determining Authority was expressly requested on behalf of Dr Norouzi to exercise its power to require but part payment of the medicare benefits. It is not in any way evident either from [32] or [34] of its reasons, which look to be the critical paragraphs, or otherwise, that the Determining Authority even appreciated that it had power to require part payment. Reading the reasons as a whole and without an eye for error, the better view is that it did not.

96    Further, the part payment submission was directed to the findings of the committee that found inappropriate practice grounded in non-urgent treatment. The particular findings may be illustrated by that in respect of the service at Appendix 2, Table 3, randomly selected service number 12, 18 April 2017. Save for the characterisation as “urgent”, the committee’s findings take the performance of the service as described in Dr Norouzi’s clinical notes (as extracted) as a given and then proceeds:

The Committee is of the opinion that the general body of medical practitioners would find Dr Norouzi’s conduct in connection with the rendering of this service unacceptable for the following reasons:

The regulatory requirements of MBS item 599 were not met. Specifically, the patient's condition as diagnosed, namely a viral infection, did not require urgent treatment. Treatment was conservative (monitoring only) and advice to this effect could have waited until the next in-hours period.

97    The Determining Authority has failed to appreciate that the committee’s findings include that the services claimed to have been provided were provided but not, for the reason given by the committee, in a way that met the regulatory requirements of, in the example cited, MBS item 599.

98    It was put on behalf of the Determining Authority that the course it adopted was consistent with the views expressed by Mortimer J in Sevdalis v Director of Professional Services Review (No 2), at [81] – [82]. In particular, at [81], Mortimer J stated, “There is no scope for the Determining Authority to proceed on the basis of different, additional or inconsistent factual findings to those made by the Committee”.

99    A subsequent appeal from the orders made by Mortimer J in the original jurisdiction was dismissed: Sevdalis v Director of Professional Services Review [2017] FCAFC 9 (Sevdalis). One aspect of that appeal concerned the legality of the Determining Authority’s decision to require full payment of the medicare benefits which had been paid. In the penultimate, [39], of the Full Court’s reasons for judgment, it is stated:

The Determining Authority had regard to the appellant’s submission that he should only be directed to make a partial repayment of the Medicare benefits in issue but decided, nonetheless, to direct Dr Sevdalis to repay the whole of the Medicare benefits received by him as it was open to do.

This statement must be considered in the context of the very different circumstances of that case, which materially included findings by a committee, described, at [38], in this way by the Full Court:

[The Determining Authority] had before it the statement of concerns produced by the Committee under the Act where a Committee concludes that a doctor is causing or is likely to cause a significant threat to the life or health of patients. The Committee’s statement of concerns outlined features of Dr Sevdalis’ treatment of his patients in relation to the examined services where the Committee concluded that there was a likelihood that the treatment would cause significant threat to the health of his patients.

100    While the Full Court did not, in terms, expressly approve the statement made by Mortimer J in the original jurisdiction in relation to the scope of the Determining Authority’s role, it certainly did not cast any doubt on its correctness. It was just not necessary to consider the subject, given the issues on the appeal.

101    With respect, I do not disagree with the statements made by Mortimer J in Sevdalis v Director of Professional Services Review (No 2), at [81] – [82]. But it does not contradict a finding of a committee that a service was provided but claimed on the basis of an incorrectly specified item number, to appreciate that, in the circumstances found by that committee, a scheduled item number was always applicable to the service. That is this case. There were “non-urgent” item numbers which were put forward as applicable on the basis of the findings made by the committee.

102    The object of the scheme is expressed by s 79A of the HIA to be:

79A    Object of this Part

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

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

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

103    If it were the case that any service tainted in any way by a committee finding of inappropriate practice had to be repaid in full, there would have been no point to the inclusion as an alternative in s 106U(1)(cb) of “in part”. As was observed in Wong, at [215], there is in Pt VAA a very large conception of what constitutes inappropriate practice. Some provision of services yielding a finding of inappropriate practice will be the result of findings such as made by the committee in Sevdalis v Director of Professional Services Review (No 2); others will be the result of findings such as those made by the committee in the present case. As to a requirement for repayment, there is no “one size fits all” sequel in the subsequent decision by a Determining Authority. That decision must, inherently, be specific to the particular findings of the committee. And by express provision in s 106U(1)(cb) of the HIA, that necessarily includes the contingency of requiring part payment on the basis of those findings. In this case, and with all due respect, the Determining Authority has conspicuously failed to appreciate this in circumstances where it was expressly asked to address that subject.

104    The repayment obligation which can be required pursuant to s 106U(1)(cb) of the HIA is responsive to the object of protecting the revenue of the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice. It is not penal. That part payment is a contingency surely recognises that the result of inappropriate practice as found by a committee in some cases may require something less than repayment of the whole in order to protect the revenue of the Commonwealth. The object is certainly not enrichment of the Commonwealth in a manner inconsistent with the findings of a committee. In contrast, a decision under s 106U(1)(a) to impose a reprimand is obviously penal. In truth, s 106U provides for some penal and some protective decisions by a Determining Authority.

105    It by no means follows from the foregoing that each of the propositions put forward on behalf of Dr Norouzi offers a basis for deciding part payment only is apt. Those propositions are qualitatively different. For example, there is nothing in law which would make it follow from a committee finding that a service was rendered, and the point that, in law, and consistently with the basis of that finding, a scheduled item number, albeit not that claimed, was applicable, such that there was always an amount that, if correctly claimed, was payable, that there ought to be a further reduction of any part payment on the basis of an intramural arrangement between Dr Norouzi and House Call Doctor service. Further and fundamentally, the evaluation of such propositions is a matter for the Determining Authority, not for the Court.

106    Ground 2 is also directed to the repayment aspect of the Determining Authority’s decision but alleges unreasonableness. In my view, the flaw in the decision in relation to repayment is misapprehension of an ability to require part payment and that engaging with the submissions made to it did not require any departure from the committee’s findings, only intellectual engagement with them and the MBS.

107    In the event that I am mistaken as to this flaw, it would seem to me necessarily to follow from the approach of the Full Court in Sevdalis, which was, with respect, tolerant of a rather ordinary standard of administrative decision-making by the Determining Authority, that the decision as to requiring repayment was not unreasonable. It would just be that the Determining Authority had engaged with the submission and chosen, albeit for reasons briefly expressed, to adopt a decision with which some, perhaps even many, might not agree but which was, objectively, open. Whatever one might have thought based on earlier pronouncements at ultimate appellate level, the present disposition at that level is to regard a conclusion of unreasonableness as truly exceptional: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW), at [11], [52], and [135].

108    SZVFW is also fatal to ground 3, which also requires a conclusion of unreasonableness to succeed. Having regard to the particulars furnished under this ground and as correspondingly developed in submissions, it is, on analysis, really a solicitation to merits review. As particularised, a persuasive case is made out as to why the particular disqualification might not have been imposed by the Determining Authority. But that does not mean that, objectively, the disqualification imposed was unreasonable. It was just one of a range of possible outcomes.

109    Further, the disqualification authority found in s 106U(1)(g) of the HIA is not keyed to the very services reviewed by the committee. As was correctly pointed out on behalf of the Determining Authority, “‘Urgency’ remains a key consideration in MBS items 585, 588, 591 and 594”. Given the presently material basis of the inappropriate practice findings by the committee, and for the reasons given by the Determining Authority, a concern as to Dr Norouzi’s understanding of “urgency” was logically and rationally connected with those findings and the disqualification. This is evident from the following passage in the Determining Authority’s reasons ([36] and [37]):

36    … [The] Determining Authority is satisfied that it is important that he be given a period of time to familiarise himself with the requirements of the new item numbers to help ensure that the purposes of the scheme are met into the future.

37    In this regard, the Determining Authority notes Dr Norouzi’s further submission that in circumstances where he has ceased practising in the after-hours medical deputising sector and no longer renders after-hours MBS items, the proposed disqualification would have no practical effect. That may well be the case. Equally, however, the potential impact on Dr Norouzi and his patients would be limited for as long as he does not render those MBS item services.

110    The result therefore is that Dr Norouzi has succeeded only insofar as he has challenged the repayment determination.

111    Reading s 106U and s 106TA of the HIA together, the intention appears to be that a Determining Authority will make one final determination, which may contain one or more directions. I can see no basis for the setting aside or quashing of the whole of the final determination, only the direction as to repayment. On that subject, the matter will have to be remitted to the Determining Authority for reconsideration according to law. It will be necessary to hear from the parties as to costs.

Associate:    

Dated:    21 October 2020