FEDERAL COURT OF AUSTRALIA

Dik v Director of Professional Services Review [2024] FCA 370

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review of the second respondent’s final determination be dismissed.

2.    The application for an extension of time for judicial review of the third respondent’s final report be dismissed.

3.    The applicant pay the first respondent’s costs on an agreed or assessed basis.

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

REASONS FOR JUDGMENT

RAPER J:

Introduction

1    The applicant, Dr Dik, now 80 years of age, worked during the relevant period at a general practitioner “super clinic” in Coffs Harbour. Dr Dik has been a medical practitioner for over 40 years, having practised surgical and emergency medicine in and around Lebanon, thereafter as a surgeon in Greece before emigrating to Australia. Dr Dik holds a PhD in traumatology and orthopaedic surgery and has worked as a medical officer for the World Health Organization. After working overseas, he worked in Australia for the Royal Flying Doctor Service and in Indigenous health. In 2015, Dr Dik moved to Coffs Harbour.

2    Dr Dik was found, by the third respondent (Committee), on 23 September 2022, to have engaged in inappropriate practice, as defined in s 82(1) of the Health Insurance Act 1973 (Cth), following a process conducted under the Professional Services Review Scheme. The review did not arise from any patient complaint but rather as a result of a statistical analysis of Dr Dik’s billing under the Medicare Benefits Schedule and prescribing under the Pharmaceutical Benefits Scheme undertaken by the Department of Health. It was not found that Dr Dik double-billed for the time he spent with patients. The relevant issues giving rise to the finding of “inappropriate practice” related largely to failures to meet MBS requirements, to provide adequate clinical input and to keep adequate records. As required under s 106U of the Act, the second respondent (Determining Authority), then made certain prescribed directions, and ordered, on 25 May 2023, that Dr Dik be reprimanded, counselled, disqualified for 18 months and required to repay 90% of the benefits paid for certain MBS services, in the amount of $517,215.96.

3    Dr Dik filed a further application for an extension of time and a further amended originating application for judicial review on 13 November 2023. By his further application for an extension of time, Dr Dik seeks an extension of time to be able to seek review of the decision of the Committee. I made orders on 21 November 2023 joining the Committee as the third respondent in these proceedings and otherwise listed the application for an extension of time for hearing together with his further amended originating application for judicial review.

4    Dr Dik seeks by his further amended originating application for judicial review orders quashing the final determination (or FD) of the Determining Authority and, to the extent that the extension of time is granted, the final report (or FR) of the Committee, along with corresponding declarations and relief by way of prohibition and injunction. Dr Dik advanced 52 grounds of review in support of his application.

5    The first respondent (Director) opposes the application. The Determining Authority and Committee each filed notices submitting to any order the Court makes in the proceeding, save as to costs.

6    There are three questions for determination arising from this application:

(1)    whether to grant Dr Dik leave to extend time (by 388 days) to seek review of the Committee’s decision;

(2)    if leave is granted, whether the Committee committed jurisdictional error; and

(3)    whether the Determining Authority committed jurisdictional error.

7    For the reasons which follow leave to extend time is refused, no jurisdictional error is established and the application must be dismissed.

The Professional Services Review Scheme

8    It is worthwhile understanding the parameters of the Scheme first because this framework informs the consideration of each of the issues arising in this case.

9    The Scheme is provided for under Pt VAA of the Act.

10    Section 80 of the Act summarises the “main features” of the Scheme:

80 Main features of the Professional Services Review Scheme

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

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

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

(4)     Following a review, the Director must:

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

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

(c)     make a referral to a Committee.

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

(6)     A referral to a Committee initiates an investigation by the Committee into the provision of the services specified in the referral. The Committee can investigate any aspect of the provision of the referred services and its investigation is not limited by any reasons given in a request for review or a Director’s report following a review.

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

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

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

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

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

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

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

(b)     the reasons for the finding; and

(c)     an opportunity to respond.

11    It is “a scheme for reviewing and investigating the provision of services by a person to determine whether the person has engaged in inappropriate practice”: s 80(2) of the Act.

12    The Scheme involves several levels of review and consideration: Li v Determining Authority [2022] FCA 1448 at [11]. First, the Director, at the request of the Chief Executive Medicare, can decide whether to review the provision of services by a person: ss 80(3) and 86 of the Act. Secondly, following that review, the Director may make a referral to a Professional Services Review Committee, which “initiates an investigation by the Committee into the provision of the services specified in the referral”: s 80(6). The Committee can “investigate any aspect of the provision of the referred services and its investigation is not limited by any reasons given in a request for review or a Director’s report following a review”: s 80(6). Committee members must belong to professions or specialities that are relevant to the investigation: s 80(7). Thirdly, if a committee finds that the person under review has engaged in “inappropriate practice”, the finding is reported to the Determining Authority. The Determining Authority then decides what action to take: s 80(10).

13    The Director summarised the Scheme in the following way, which I accept: (1) the Director conducts the initial review; (2) if it progresses, a specialist committee conducts the investigations and determines whether the person has engaged in “inappropriate practice”; and (3) the Determining Authority decides what action to take.

14    Section 79A of the Act provides that the object of Pt VAA, which establishes the Scheme, 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”.

15    Section 82(1) of the Act defines “inappropriate practice” as conduct in connection with rendering or initiating services that would be “unacceptable to the general body” of the practitioner’s peers. As observed by Perry J in Selia v Commonwealth of Australia [2017] FCA 7 at [9]–[11]:

9.    The Act has the practical effect of requiring those medical practitioners who wish to practise as general practitioners to participate in the Medicare scheme which in turn requires those practitioners not to engage in inappropriate practice: Wong v Commonwealth [2009] HCA 3; (2009) 236 CLR 573 (Wong) at 638 [224] (Hayne, Crennan and Kiefel JJ). As their Honours then held, “[i]t therefore follows that the Health Insurance Act practically compels those practitioners to abide by a particular standard of professional behaviour in connection with rendering or initiating services” (Wong at 638 [224]).

10.    That practical compulsion arises by reason of the provisions for the payment of Medicare benefits in respect of professional services. In this regard, s 10(1) of the Act provides that a Medicare benefit is payable for a professional service where, relevantly, medical expenses are incurred in respect of a professional service rendered in Australia. The amount of the benefit payable is calculated as a set percentage of the Schedule fee being (leaving aside services part of an episode of hospital treatment) 100% of the Schedule fee for a service prescribed by regulations or in any other case, 85% of the Schedule fee (see s10(2)(aa) and (b) respectively). Section 14 provides that the amount of Medicare benefit payable in respect of a professional service shall not exceed the medical expenses incurred in respect of the professional service save for certain cases covered by private health insurance. Section 19 prescribes that Medicare benefits are not payable in respect of certain professional services, including where the test is not reasonably required or there has been a failure to record prescribed details of the service provided. Specifically, s 19(5) and (6) provide that:

(5)    Unless the Minister otherwise directs, a medicare benefit is not payable in respect of a health screening service, that is to say, a professional service that is a medical examination or test that is not reasonably required for the management of the medical condition of the patient.

(6)    A medicare benefit is not payable in respect of a professional service unless the person by or on behalf of whom the professional service was rendered, or an employee of that person, has recorded on the account, or on the receipt, for fees in respect of the service or, if an assignment has been made, or an agreement has been entered into, in accordance with section 20A, in relation to the medicare benefit in respect of the service, on the form of the assignment or agreement, as the case may be, such particulars as are prescribed in relation to professional services generally or in relation to a class of professional services in which that professional service is included.

11.    Section 20 provides that the Medicare benefit in respect of a professional service is payable by the Medicare Australia CEO on behalf of the Commonwealth to the person who incurs the medical expenses in respect of that service. However, where a Medicare benefit is payable to an eligible person in respect of a professional service (the eligible person), s 20A provides that the eligible person may enter into an agreement with the person by whom (or on whose behalf) the professional service is rendered (the practitioner) in accordance with the approved form under which the eligible person assigns her or his right to payment of the Medicare benefit to the practitioner and the practitioner accepts the assignment in full payment of the medical expenses incurred in respect of the professional service. Section 20A(3) provides that where an assignment takes effect or an agreement under s 20A is entered into with respect to a Medicare benefit, the Medicare benefit is (subject to an exception not presently relevant) payable in accordance with the assignment or agreement. In the present case there were assignments pursuant to s 20A of the Act.

12.    In short, therefore, as the Full Court held in Selim v Lele [2008] FCAFC 13; (2008) 167 FCR 61 at 80 [47] (in a passage expressly approved by French CJ and Gummow J at 595 [68] on appeal in Wong):

Those sections [i.e. 10, 20 and 20A] assume that a medical practitioner has rendered a professional service to an eligible person and has rendered a fee for that service, and provides a scheme whereby either the eligible person, if he or she has paid that fee, becomes entitled to a Medicare benefit or, if the eligible person has not paid that fee, the medical practitioner becomes entitled to the Medicare benefit. Those sections provide for the payment of a medical practitioner’s fee for a professional service when that professional service has been rendered in response to an eligible person’s request.

16    The Director is an independent statutory officer appointed under s 83 of the Act who manages the Scheme. In accordance with s 80(4) of the Act, once the Director undertakes their review, they must: (a) decide to take no further action in relation to the review; (b) enter into an agreement with the person under review; or (c) make a referral to a committee.

17    If the Director refers the review to a committee, s 93(1) provides that the committee is to “investigate whether the person under review engaged in inappropriate practice in providing the services specified in the referral”. Section 80(6) relevantly provides that:

A referral to a Committee initiates an investigation by the Committee into the provision of the services specified in the referral. The Committee can investigate any aspect of the provision of the referred services and its investigation is not limited by any reasons given in a request for review or a Director’s report following a review.

18    If the Director makes a referral, the referral is to be accompanied by a written report for the committee undertaking the investigation: s 93(6).

19    The committee can hold hearings and require the production of documents: ss 80(8), 101 and 105A. If the committee finds that the person under review has engaged in inappropriate practice, the finding is to be reported to the Determining Authority: ss 80(10) and 106L(3)(b). It is then up to the Determining Authority to decide what action to take: s 80(10). As a consequence, the Determining Authority’s power is limited to determining what action to take, and does not include making independent findings of its own regarding whether there has been inappropriate conduct.

20    The Determining Authority is required to make a draft determination before making a final determination: s 106T. It is then required to issue a final determination: s 106TA. The content of the final determination is relevantly prescribed by s 106U(1)(cb) (in relation to repayment) and s 106U(1)(g)(i) and (h) (in relation to disqualification). Section 106U is to be read in light of the object of Pt VAA of the Act, set out in s 79A: Selia at [151]. Consistent with the language of s 79A, the nature of the power under s 106U is “protective” and its purpose is not punitive: Selia at [153]. The power’s protective character means that it can be used for compensatory and deterrent purposes (both general and specific): Selia at [153].

The Committee’s final report

21    In its final report, the Committee made the following findings of inappropriate practice in relation to specified MBS services billed during the review period (1 May 2016 to 30 April 2017):

(a)    100% of MBS item 36 services (professional attendance: a general practitioner consultation of at least 20 minutes) — failure to meet MBS requirements, including minimum time requirements; failure to keep adequate records; on some occasions, inadequate clinical input;

(b)    29 of 29 MBS item 44 services reviewed (professional attendance: a general practitioner consultation of at least 40 minutes) — failure to meet MBS requirements, including minimum time requirements; failure to keep adequate records; on some occasions, inadequate clinical input;

(c)    100% of MBS item 715 services (ATSI health assessment: a medical practitioner attendance on a patient of Aboriginal or Torres Strait Islander descent) — failure to meet MBS requirements;

(d)    100% of MBS item 721 services (chronic disease management: a medical practitioner attendance for the preparation of a GP Management Plan) — global failure to meet MBS requirements; inadequate clinical input; failure to keep adequate records; use of templates lacking in clinical utility;

(e)    100% of MBS item 723 services (chronic disease management: a medical practitioner attendance to coordinate the development of team care arrangements (TCAs)) — global failure to meet MBS requirements; inadequate clinical input; failure to keep adequate records; use of templates lacking in clinical utility;

(f)    100% of MBS item 732 services (chronic disease management: a medical practitioner attendance to review or coordinate a review of a GP Management Plan or TCAs) — global failure to meet MBS requirements; inadequate clinical input; failure to keep adequate records; no clear clinical benefit in rendering the service;

(g)    100% of MBS item 2717 services (mental health treatment: preparation by a medical practitioner of a GP mental health treatment plan lasting at least 40 minutes) — failure to meet MBS requirements; failure to keep adequate records; insufficient clinical input; use of templates lacking in clinical utility;

(h)    30 of 30 MBS item 5040 services reviewed (professional attendance: an after hours general practitioner consultation at consulting rooms of at least 20 minutes) — failure to meet MBS requirements, including minimum time requirements; failure to keep adequate records; on some occasions, inadequate clinical input;

(i)    12 of 12 MBS item 5060 services reviewed (professional attendance: an after hours general practitioner consultation at consulting rooms of at least 40 minutes) — failure to meet MBS requirements, including minimum time requirements; failure to keep adequate records; on some occasions, inadequate clinical input;

(j)    19 of 30 MBS item 10997 services reviewed (service provided on behalf and under supervision of practitioner: service provided to a person with chronic disease by a practice nurse or an Aboriginal and Torres Strait Islander health practitioner on behalf and under supervision of a medical practitioner) — failure to meet MBS requirements;

(k)    24 of 29 MBS item 30064 services reviewed (removal of subcutaneous foreign body) — failure to meet MBS requirements; failure to keep adequate records;

(l)    25 of 26 MBS item 30185 services reviewed (definitive removal of palmar or plantar warts) — failure to meet MBS requirements;

(m)    3 of 5 MBS item 66716 services reviewed (TSH (thyroid-stimulating hormone) quantitation) — failure to meet MBS requirements; insufficient clinical justification; and

5 of 5 MBS item 66833 services reviewed (25-hydroxyvitamin D quantification) — failure to meet MBS requirements; insufficient clinical justification.

The Determining Authority’s final determination

22    The Determining Authority handed down its final determination on 25 May 2023. The Determining Authority directed that:

(a)    the Director reprimand Dr Dik;

(b)    the Director counsel Dr Dik;

(c)    Dr Dik repay the amount of $517,215.96, equating to 90% of the benefits paid for the MBS item 36, 44, 715, 721, 723, 732, 2717, 5040, 5060, 10997, 30064, 30185, 66716 and 66833 services in connection with which Dr Dik was found to have engaged in inappropriate practice (repayment direction); and

(d)    Dr Dik be fully disqualified from rendering MBS services for 18 months (disqualification direction).

When the final determination took effect

23    Under s 106V(1) of the Act, the final determination took effect on the 35th day after the day on which a copy of the decision was given to Dr Dik. If, before that 35th day, proceedings are instituted in respect of the final determination then, under s 106V(2), the final determination does not take effect until after those proceedings are finalised.

24    Dr Dik was given a copy of the decision on 25 May 2023. The 35th day after the decision was given to him was therefore 29 June 2023.

25    Dr Dik lodged his originating application at 11:25 pm on 28 June 2023. Under r 2.25(3) of the Federal Court Rules 2011 (Cth), his originating application is taken to have been filed on the following day, 29 June 2023, because it was filed after 4:30 pm on 28 June 2023. As a result, the proceeding was not instituted until the 35th day after the decision was given to him, and the final determination was not stayed under s 106V(2).

26    On 21 November 2023, I made an order staying the repayment direction in the final determination pursuant to s 15(1)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), such that, unless set aside, the final determination takes effect as set out in s 106V(2) as though this proceeding had been commenced within 35 days of 25 May 2023. I also made an order on 21 November 2023 granting Dr Dik an extension of time to seek judicial review of the final determination. These orders reflected the consent position of the parties.

The grounds of review

27    Dr Dik seeks review of the final report and final determination pursuant to s 5 of the ADJR Act. There was no dispute that the Court’s jurisdiction is enlivened in this case.

28    The grounds of the application were lengthy and contained purportedly 52 grounds.

29    With respect to the proposed grounds concerning the final report (which Dr Dik requires leave to advance), on the basis of Dr Dik’s application, the parties’ submissions and what was submitted at hearing, I understood them to be as follows:

(a)    a ground as to “double billing”;

(b)    a ground regarding the Committee’s use of “partial patient record samples” without considering the entirety of the medical record (for example, failing to consider the Aboriginal and Torres Strait Islander health check – Adults (25-49 years) form as part of its consideration of MBS item 715, failing to consider the relevant K10 forms and general practitioner mental health treatment plan re MBS item 2717, and by preparing patient summaries, which were abridged versions of the complete record);

(c)    a ground as to the Committee’s approach to assessing what would be acceptable to the general body of the profession;

(d)    a ground as to a failure to give reasons in respect of s 82(1)(d); and

(e)    a ground as to procedural fairness.

30    With respect to the grounds concerning the final determination, as best I was able to discern and as the Director understood them, they fell into the following five broad categories:

(a)    a ground concerning MBS item 715;

(b)    a ground concerning the repayment and disqualification directions;

(c)    grounds concerning failure or constructive failure to consider submissions;

(d)    a ground concerning particular evidence before the Committee; and

(e)    a ground concerning Authority’s adoption of Committee’s findings.

Summary of Dr Dik’s oral submissions

31    Dr Dik was a medical practitioner of long standing with significant Australian and international experience. Dr Dik is aggrieved by what he perceives to be the incorrect motivation for the review (the unsubstantiated allegation of double-billing), which, after that was found to be incorrect, “shifted” to a review essentially in his view based on record-keeping for which the “punishment” (in the form of directions issued by the Determining Authority) was not warranted by the offending conduct. According to Dr Dik, he worked extremely hard, six days a week, to provide a significant service to many vulnerable members of the Coffs Harbour community. There is and was no evidence of any complaint from patients within his community; rather, the complaint comes from computer-generated data maintained by the Department of Health. Whilst he accepted his medical records were “sub-optimal”, he submitted that this was due to the fact that he actively listened to his patients and treated them and the under-resourcing of the clinic meant that he could not maintain records at the level required.

32    Dr Dik contended that the allegation of “double-billing” despite being found during the Committee’s review to be without foundation, formed the motivation for the continuation of its review and ultimately infected the Determining Authority’s reasons.

33    In addition, Dr Dik submitted that by use of the sampling methodology the Committee was not able to make its findings of inappropriate practice and failed to have regard the entirety of the medical record, and with respect to particular MBS items, relevant additional documents. For example, for an MBS item 715 consultation, an Aboriginal and Torres Strait Islander health check form is also required to be completed and, in Dr Dik’s submission, should have been considered by the Committee.

34    Dr Dik considers that the Committee failed to have regard to the extent of his skill and experience as a surgeon when considering the allegations concerning MBS item 30185 and his particular recognised qualifications in mental health when considering the MBS item 2717 allegations.

35    Dr Dik submitted that he was denied procedural fairness because all his submissions and evidence, the monthly Australian Health Practitioner Regulation Agency (AHPRA) reports and the commendations from his supervisors and patients were ignored. In addition, he submitted that the Committee was biased, in part because of the actions of Mr Bruce Topperwien, an employee of the Professional Services Review agency, during the hearing process.

36    With respect to the Determining Authority’s decision, Dr Dik submitted that it was not able to make the directions it did, by reason of its reliance on the Committee’s unsubstantiated findings. In particular, Dr Dik made submissions as to the unreasonableness, harshness and unfairness of the determination that he repay $517,215.96, which will lead to his house being taken. This is said to be particularly so given that Dr Dik is being asked to repay almost the entirety of the sum provided to the Clinic (of which he only received 60%) and where it is not disputed that Dr Dik did still perform a significant number of services for patients.

Final report — Extension of time application

37    Dr Dik was required, when invoking this Court’s jurisdiction, under s 5 of the ADJR Act, to file his application, by the 28th day after the statement of the terms of that decision and its accompanying reasons were furnished to him: ss 11(1) and 11(3) of the ADJR Act. The Committee’s final report issued on 23 September 2022. Dr Dik was furnished with it on the same day by way of a letter sent to his then-solicitor. Dr Dik’s application for an extension of time was filed on 13 November 2023, alongside his further amended originating application (which now sought to impugn the Committee’s decision, in addition to the decision of the Determining Authority). Dr Dik accepts that his application is out of time. If granted, time would be extended by 388 days.

38    The Court has an unfettered discretionary power to extend time which often requires what has been described as a multi-factorial evaluation, including the applicant usually having to provide an adequate explanation for delay: Norouzi v Director of Professional Services Review [2020] FCA 1524 at [20].

39    Dr Dik explained the delay on the basis that he was 79 years old at the time, was suicidal and had not worked since December 2017. He contended that he did not realise the significance of the Committee’s findings in the final report, given that the Determining Authority did not hand down the final determination until May 2023. He submitted that the delay occasions no irremediable prejudice to the Committee or any of the other respondents.

40    Dr Dik submitted that the balance of convenience and fairness is with him and, in support of this contention, he made the following submissions:

(a)    he is 80 years old and a pensioner;

(b)    an 18 month disqualification would end his medical career and reputation;

(c)    the repayment direction (which requires repayment of $517,215.96, being 90% of the benefits paid to Dr Dik for the MBS items in connection with which he was found to have engaged in inappropriate practice) is disproportionate and unfair noting that he was on a 60:40 billing arrangement with the clinic in which he worked;

(d)    the repayment direction requires him to sell his joint property and would render him homeless; and

(e)    he served thousands of patients from 1992 as a multicultural drug and alcohol counsellor, and then as a GP between 2003 and 2018 served in a number of locations, including rural and remote locations.

41    For the following reasons, leave is refused. Dr Dik was represented at the time the Committee’s report was published and it was provided to his then solicitors. A 388 day extension sought by Dr Dik would be antithetical to the integrity of the scheme for an extension of time to be granted to challenge a committee’s decision in these circumstances: at Norouzi at [43]. The Scheme delineates between the fact finding processes of the Committee and the Determining Authority’s making of determinations. By the Act’s operation, it may be inferred that Parliament contemplated reasonable expedition would attend the Scheme’s processes and that any challenge to the Committee’s decision be made before the provision of its report to the Determining Authority. This is evident from the time limits imposed on the Committee, the Determining Authority and persons under review throughout the process. The Scheme required, under s 106L(3)(a) of the Act, that Dr Dik be given a copy of the Committee’s final report, which occurred on 23 September 2022. The Committee is required to give a copy of its final report to the Determining Authority not earlier than one month after the day on which a copy of the report is given to the person under review: s 106L(3)(b). This lacuna has relevance which will be observed further below. Section 106SA requires that the Determining Authority give the person under a review a written invitation (within one month of being given the Committee’s final report) to make written submissions to it, having regard to the Committee’s final report and any information given by the Director under s 106S, about the directions the Authority should make in relation to the person. The invitation for submissions must state that the submissions may be made “within 1 month”: s 106SA(2).

42    Accordingly, these provisions reveal that, after a one month lacuna between the furnishing of the Committee’s final report to the affected person and providing it to the Determining Authority, it is expected that within a short period the Determining Authority will invite submissions and be provided with them and must give its draft determination to the person under review within one month after the last day on which the person under review has made submissions: s 106T(1A). The Determining Authority must then, within one month after the end of the 14 day period within which the person under review may make submissions, having taken those submissions into account, make its final determination (s 106TA(1)), but failure to do so within one month does not affect the validity of the determination: s 106TA(2). Given the extensive provision for time limits, s 106TB permits time to stop running where an injunction or other court order prevents the act or further acts from being taken.

43    As observed by Logan J in Norouzi, it is implicit in s 106TB that this Court’s jurisdiction might have been invoked to challenge the final report of the Committee before the provision of the report to the Determining Authority, and that the subsequent progression of the remaining statutory processes might be stayed: at [30]. As observed by Logan J, with whom I agree, when considering the above-mentioned provisions, and other provisions under the Act:

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 …

44    Notably, the review period in respect of which the Committee’s review and findings were made between 1 May 2016 and 30 April 2017. Accordingly, seven years have elapsed since the relevant conduct occurred. However, it is evident that the review processes took a significant time, whilst the referral to the Committee occurred in September 2018, the Committee did not complete its report until over four years later, in September 2022.

45    In addition, by reason of my reasons below, the merits of the proposed challenge do not support the grant of an extension and for the following reasons, are without merit.

46    The grounds that Dr Dik would advance if an extension were granted are summarised below.

Ground as to “double-billing”

47    Dr Dik contended that an initial allegation of double-billing fuelled the referral by Professor Julie Quinlivan, Director of Professional Services Review and that, despite that allegation being found to be without foundation, it motivated and infected the ultimate findings of both the Committee and the Determining Authority. It is clear that the referral includes a concern regarding services being “billed twice”.

48    Dr Dik relied upon correspondence received by his then legal representative, on 9 December 2019, from Ms Kylie Neville, a Principal Legal Officer within the Professional Services Review agency. In that correspondence, Ms Neville stated:

You will recall that on 1 March 2019, the Committee adjourned the matter generally so it could make enquiries from Medicare and Dr Dik’s practice about the double billing issue identified during the hearing.

All Medicare billing data was at that time maintained through the Department of Human Services (DHS). Following the Committee’s enquiries, DHS confirmed the original data from which the sample was drawn (and summarised in the data sets attached to the original referral from Medicare to the Director, PSR) did not reflect widespread double billing, which appeared inconsistent with the PIRT reports (provided at page 1 of the clinical records for each patient) and which were relied upon by the Committee at the hearing. They were otherwise unable to confirm the double billing of particular items identified therein.

Billing information obtained from the Coffs Harbour practice did not assist, as the practice was unable to produce all billing data for the relevant period and did not provide reconciliation statements.

In the circumstances, and to the extent the Committee may have expressed any concern as to double billing on any particular date of service, the Committee does not propose to make any findings against Dr Dik in that regard.

(Emphasis in original.)

49    Consistent with that correspondence, and contrary to Dr Dik’s submission, it appears that the Committee was cognisant of the same and specifically acknowledged during the subsequent hearing on 27 February 2020 that the Department had been unable to verify the double billing allegation and ultimately had decided to not investigate this matter as part of its review any further. Furthermore, after it found that the Department was unable to verify the double billing allegations, in order to provide Dr Dik with confidence in the data and sampling process, the Committee told him that it had asked the Department to rerun the random samples for all MBS items under review. I could discern no aspect of the Committee’s ultimate findings in its final report, nor in the Determining Authority’s reasons, from which it could be said that there was an infection of its reasoning.

Ground as to “partial patient record samples”

50    Dr Dik submitted that the Committee erred with respect to its findings concerning MBS items 36, 44, 5040 and 5060 in considering “partial patient record samples”. In his further amended originating application, Dr Dik states that the Committee’s “reliance on partial samples” produced an “unfair impression” and led to its “harsh findings”.

51    It is clear from the final report that the Committee did not use the sampling method with respect to all of the MBS items that were the subject of review. As evident from [2] and [224]–[226] of the final report, the Committee adopted the sampling methodology with respect to MBS items 36, 715, 721, 723, 732 and 2717 but not with MBS items 44, 5040, 5060, 10997, 30064, 30185, 66716 and 66833.

52    The Scheme expressly allows a Committee to adopt a sampling method of the kind undertaken in this case. Section 106K provides:

106K Committee may have regard to samples of services

(1)     The Committee may, in investigating the provision of services included in a particular class of the referred services, have regard only to a sample of the services included in the class.

(2)     If the Committee finds that a person has engaged in inappropriate practice in providing all, or a proportion, of the services included in the sample, then, the person under review is taken, for the purposes of this Part, to have engaged in inappropriate practice in the provision of all, or that proportion, as the case may be, of the services included in the class from which the sample is chosen.

(3)     The Minister may, by legislative instrument, make determinations specifying the content and form of sampling methodologies that may be used by Committees for the purposes of subsection (1).

(4)     The Committee may use a sampling methodology that is not specified in such a determination if, and only if, the Committee has been advised by a statistician accredited by the Statistical Society of Australia Inc that the sampling methodology is statistically valid.

53    As is evident from s 106K(2), where the Committee finds that a person has engaged in inappropriate practice in providing all, or a proportion, of the services included in the sample, then the person under review is taken to have engaged in inappropriate practice in the provision of all, or that proportion, of the services included in the class from which the sample was chosen.

54    The Committee applied the Health Insurance (Professional Services Review – Sampling Methodology) Determination 2017 to the sample.

55    The consequence of this sampling method can be seen in the Committee’s conclusions, at [224]–[226], extracted as follows:

224.     The Committee proceeded in accordance with the sampling methodology provided for in s 106K of the Act for the classes of services being MBS items 36, 715, 721, 723, 732, and 2717.

225.     For ease of reference the following tables indicate the outcome of the Committee's examination of Dr Dik’s conduct in connection with providing the MBS services listed in the paragraph immediately above.

226.     With regard to the MBS item 44, 5040, 5060, 10997, 30064, 30185, 66716 and 66833 services, the Committee did not use the sampling methodology. Instead the Committee made findings on each of the services examined.

56    Accordingly, by way of example, when the Committee considered the MBS item 36 allegation, it was aware that over the relevant period Dr Dik billed this item in relation to 1288 services. However, as permitted by operation of s 106K, the Committee only considered 30 attendances. Of those 30 attendances the Committee found that they all involved inappropriate practice and, as allowed by s 106K(2), extrapolated that allegation out as applying to the whole class (that is, the 1,288 attendances).

57    In his written submissions, the Director submitted that the precise nature of Dr Dik’s complaint in respect of this ground was unclear. The Director noted the different approaches taken by the Committee to different MBS items. With respect to MBS item 36, the Committee proceeded in accordance with the sampling methodology provided for in s 106K of the Act. With respect to MBS items 44 (29 services examined), 5040 (30 services examined) and 5060 (12 services examined), the Committee made findings on each of the services examined instead of using the sampling methodology and without any extrapolation. The Director contended that it was open to the Committee to take each approach that it did, noting that the sampling methodology is expressly contemplated in s 106K.

58    I can discern no error in the approach the Committee took to its task when adopting the sampling methodology.

59    At hearing, Dr Dik rearticulated this ground in two different ways. First, as a claim that the Committee had made its decision on the basis of incomplete patient records, and secondly, regarding a failure to take into account the Health Assessment record when considering MBS item 715.

60    With respect to the first additional claim, Dr Dik alleged that the clinic where he had worked had failed to provide complete patient records to the Committee for its review, but he was unable to provide any evidence of this failure. As a generalised example, Dr Dik indicated that, for MBS item 2717 services, he would always prepare a “K10” form, but no such form was included in the court book. When taken to an example of the Committee’s consideration of an MBS item 2717 service in the final report, Dr Dik said that this report only included a summary of the patient records, not the full record. It was, for instance, missing a K10 and, while it referred to a GP mental health plan form, it did not extract the form in the final report. In short, Dr Dik’s submission at hearing appeared to be first that the final report contained only relatively brief summaries of the patient records; and secondly that this showed that the Committee had made its decision based only on partial patient records.

61    In response to this reformulated allegation, the Director referred to paragraph [20] of the final report, where the Committee indicated that it had relied on material that included “the medical records that were produced in respect of the services that were examined by the Committee” (Exhibit 4 to the final report) and “the additional medical records produced to the Committee for lists 1, 4, 5, 6 and 7” (Exhibit 17 to the final report). The Director also referred to paragraphs [4] and [15] of the final report, where the Committee indicated that it had issued two notices to produce to the Coffs Harbour GP Super Clinic. The Director suggested that it was implicit that those documents were in fact produced.

62    Exhibits 4 and 17 were not before the Court. The reason for this, according to the Director (whose representatives had prepared the court book) was that the exhibits would be many hundreds of pages, being all of the medical records that were the subject of the Committee’s inquiries, and that separately there were concerns about including patient records in the court book. It is for Dr Dik to establish jurisdictional error. I am not able to decide one way or another whether the complete record was provided. However, even if it was incomplete, Dr Dik has not established how the provision of the “K10” form (even if it was not provided), could have had any material effect on the Committee’s finding in this regard. With respect to MBS item 2717, the Committee considered 27 specific occasions where this was billed and gave specific reasons for its findings in this regard both in the body of the report at [166]–[181] and in appendix 7. In particular, reference is made to Dr Dik’s template entries and the use of the GP mental health treatment plan template and the Committee refers to specifically looking at this form and it being “essentially a blank template”.

63    With respect to the second additional claim, whilst difficult to discern, it appeared that Dr Dik contended an additional ground of review challenging the Committee’s findings in the final report concerning MBS item 715, namely its failure to consider additional portions of the medical record (namely the Health Assessment form completed with respect to each patient). Dr Dik tendered, at hearing, a copy of this form, entitled the “Aboriginal and Torres Strait Islander health check – Adults (25-49 years)”. Dr Dik submitted that when assessing whether he had engaged in inappropriate practice when billing MBS Item 715 services, account should have been taken (and was not) of the details contained in this form.

64    The Committee’s findings regarding MBS item 715 are contained both in the relevant portion of the final report, at [127]–[142], and also in appendix 3. That appendix contains the Committee’s consideration of the 30 instances where Dr Dik billed for the item as evident from the health records of identified patients. The appendix extracts parts of the medical record that were considered, for example the practice nurse’s note and Dr Dik’s progress note and thereafter the Committee describe further aspects of the medical record considered, the evidence of Dr Dik given at the hearing with respect to the particular record and its “Reasons for finding of inappropriate practice”.

65    Dr Dik appeared to concede during the hearing before me that the ATSI health check form is described in the final report, by the Committee, was the “Health Assessment document”. It is evident from the Committee’s reasons contained in the body of its report and in the appendix that it did consider these documents, contrary to Dr Dik’s submission. The Committee, at [137], referred to Dr Dik’s production of such a document “in most cases, using templates” and then commented on the use of those templates as being “somewhat generic, including fields for many of the things required for a health assessment”, finding that the “documents were essentially blank” stating:

137.    ... However, in respect of each assessment that required clinical input the document merely recorded that there were no identified issues.

138.    It was entirely unclear from the documentation what, if any, assessments were made in order to conclude that there were no identified issues. Some required assessments were not documented and, given the cursory nature of the completion of the health assessment document, on some occasions known health problems do not appear to have been addressed. It was therefore difficult to see how the Health Assessment document could have assisted the patient in any way. Dr Dik did not appear to have any regard for the purpose of the documentation, being a core element of the MBS item 715 service, and noted that “we are treating patients, not document”.

66    It is evident from a review of appendix 3 that specific attention is given by the Committee to the content of the Health Assessment document for individual patients, for example at page 168 of the appendix, reference is made to the content of the particular Health Assessment document where the patient’s overall health is described as being “generally well and healthy” and risk factors are referred to. On another occasion, when reviewing the circumstances surrounding the billing, the Committee refers to “the file includes two Health Assessment documents bearing the date of service” and goes on to consider the detail of those assessments.

67    Accordingly, I do not accept the gravamen of Dr Dik’s submission that the content of this form was ignored when the Committee undertook its analysis.

Ground as to the Committee’s approach to assessing what would be acceptable to the general body of the profession

68    Dr Dik submitted that, although the Committee found that reg 7 of the Health Insurance (Professional Services Review Scheme) Regulations 2019 (Cth) does not apply to him, it nevertheless “enliven[s] consideration of what would be acceptable to the general body of the profession in [his] exceptional circumstances”. In his submission, reg 7 ought to have informed the Committee’s assessment of what would be acceptable to the general body of the profession.

69    For the following reasons I do not accept Dr Dik’s contention.

70    Regulation 7 of the Regulations provides:

7 Exceptional circumstances in relation to inappropriate practice

For the purposes of subsection 82(1D) of the Act, each of the following circumstances are exceptional circumstances for a particular day for a practitioner:

(a)    an unusual occurrence causing an unusual level of need for relevant services on the day;

(b)    an absence, on the day, of other medical services for the practitioner’s patients, having regard to:

(i)    the location of the practitioner’s practice; and

(ii)    the characteristics of the practitioner’s patients.

71    It is evident that reg 7, on its terms, only applies with respect to findings of “inappropriate practice” under s 82(1D) of the Act. No such finding was made in this case.

72    However, the Director accepted that a relevant consideration, when determining whether Dr Dik had engaged in “inappropriate practice” included a consideration of Dr Dik’s circumstances, which he says were “exceptional”.

73    Dr Dik submitted that the following exceptional circumstances ought to have been taken into account, contending that the inappropriate practice found by the Committee “did not occur in a vacuum and was not motivated by greed”:

i)    I was often the only doctor at the Clinic on weekends as the other doctors refused to work weekends.

ii)    I was the only doctor at the Clinic much of the time.

iii)    If I refused to work Saturdays or Sundays, they would close the Bawrunga GP Super Clinic despite advertising that It was open, deprived sick and disadvantaged people of medical care.

iv)    following my departure, the Clinic no longer operated on weekends.

vi)    I was in poor health.

vii)    My patients included a high number of underprivileged, unemployed, poor, and migrants in addition to Aboriginals.

viii)    I was unfamiliar with and had a lack of training in the Australian Medical system at the time of the commencement.

ix)    I had not received proper training about billing Medicare services.

x)    There was a lack of constructive criticism by practice supervisors of my billing.

xi)    I am from a migrant (Palestinian) background and my broken English, particularly my writing skills were not as good as locally trained doctors as a consequence, I struggled with billing Medicare services which placed me at an inherent disadvantage when I needed proper training and supervision about billing Medicare services.

xii)    The Clinic had unreliable administrative staff and there were deficiencies.

xiii)    At the same time, there was pressure from the practice staff on which I was forced to rely and I was under pressure from the practice Manager.

xiv)    I received little support in my "billings" from the doctors who were supposed to be supervising me and from practice staff, placing me at a disadvantage.

xv)    I did not act fraudulently or in bad faith and did not seek to take advantage of Medicare.

74    Dr Dik also made specific reference to the two matters identified in reg 7(b) as being relevant to considering whether circumstances are “exceptional” with regard to the absence of other medical services for patients, being (i) the location of the practitioner’s practice; and (ii) the characteristics of the practitioner’s patients.

75    In relation to the location of the practice, Dr Dik submitted that the location of the clinic that he worked at in Coffs Harbour was remote, such that other doctors could not be attracted to work there. This, he contended, imposed an unfair work burden on him, at a time when he was in his mid-to-late 70s. He submitted that he had loyally and successfully served the clinic, which had been established in a regional area using funding from a grant to an Aboriginal organisation, when few doctors could be found to work there.

76    In relation to the characteristics of his patients, Dr Dik submitted that he had helped and successfully treated his patients, including a disproportionately large number of “Aboriginal patients experiencing social disadvantage and suffering illnesses attendant to life style in an environment of overwork, long hours, and often lacking needed supervision”. He also contended that he had a high number of patients in his care, numbering over a thousand, while his peers averaged 500 patients. He stated that he tried never to have a patient wait longer than an hour, and that he was required to work six days a week and over 60 hours per week.

77    The Committee did not commit a jurisdictional error by failing to take into account the matters contained in reg 7, as that provision was not applicable. Regulation 7 concerns s 82(1D) of the Act, where a “prescribed pattern of services” is involved and therefore reg 7 is irrelevant to this case, where the Committee instead applied the definition of “inappropriate practice” under s 82(1) of the Act.

78    In addition, Dr Dik submitted that the Committee applied erroneously the Regulations which came into effect in 2019 rather than regulations applicable during the period that the patient services were provided and billed which he submitted affected the “partial recording and patient records”. It is true that the Committee did apply the 2019 Regulations. However the Committee stated, in its reasons, that while it had applied the (current) 2019 Regulations, it had also proceeded to consider Dr Dik’s conduct in the context of the previous regulations, the Health Insurance (Professional Services Review) Regulations 1999 (Cth), and considered even if the previous regulations applied to Dr Dik’s conduct, this would not cause it to change any of the findings expressed in its final report at [28]. Dr Dik made no submission as to how, by application of the new Regulations, any error manifested nor how I could not accept that the Committee had in any event found even if the former regulations were applied its conclusions would be the same.

79    Furthermore, even if Dr Dik were arguing that ground on a broader basis, namely that the Committee when attending to its task under s 82(1) was required to take into account his (exceptional or otherwise) circumstances, using those matters stipulated in reg 7 as a guide or otherwise, it is evident from the Committee’s report that it did take his circumstances into account (whether through the reg 7 prism or otherwise). The Committee repeatedly referred to Dr Dik’s circumstances. In the Executive Summary to the final report it specifically referred to him servicing a large volume of patients in a regional area as the primary medical practitioner and where his registration was the subject of supervision requirements that were substantially not fulfilled but did not accept that these factors detracted from his accountability for his billing practices. The Committee’s report contained a specific part dealing with the evidence regarding his supervision history and acknowledged that it had “significant doubts” about the adequacy of his supervision: at FR[48]. Under the heading “Dr Dik’s practice during the review period”, the Committee considered Dr Dik’s evidence as to the conditions under which he practised, including the transient nature of practice staff, that at times he was the only doctor on duty and worked very long hours and on weekends: at FR[51]–[58]. In this part of its report, the Committee catalogued, in detail, Dr Dik’s evidence as to the pressure and responsibility he felt for treating a large number of patients with complex medical conditions: at FR[59]–[75]. The Committee thereafter considered Dr Dik’s evidence and submissions as to his billing of services and record keeping. The Committee’s report then considered Dr Dik’s submissions as to his specific circumstances: at FR[99]–[102], [109].

Ground as to a failure to give reasons in respect of s 82(1)(d)

80    Dr Dik submitted that the Committee had a duty to give reasons and, for the purpose of applying s 82(1)(d), should have said what would be acceptable to the general body of the profession in his exceptional circumstances.

81    Section 82(1)(d) provides:

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 (other than a service of a kind referred to in paragraph (c) of the definition of service in subsection 81(1)) is such that a Committee could reasonably conclude that:

…

(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.

82    Dr Dik submitted that the Committee had applied the standard in s 82(1)(d) (conduct that would be unacceptable to the general body of the members of a profession) but that this was “not based on a definition”. Dr Dik’s submission is unclear. Section 82(1)(d) is a definitional provision. The Committee found that Dr Dik had breached s 82(1)(d) and therefore was required as it did to identify the standard set by s 82(1)(d): at FR[23]. Then, the Committee, in a logical way, considered the level of prescription of record-keeping in the Regulations: at FR[25]–[29]. This was logical given the issue underlying many of the findings related to inadequacy in record-keeping. The Committee then considered the context in which the relevant conduct occurred (relevant to whether his conduct would be unacceptable to his peers): Dr Dik’s training and experience, registration and supervision, his practice during the review period and specifically his billing and record-keeping practices: at FR[30]–[96]. The Committee gave general comments, in particular their views regarding whether his circumstances “explain the deficiencies identified by the review” (at [109]) and whether the deficiencies in administration displaced his responsibility (at [111]). Again, the Committee was attending to the task required of it under s 82(1)(d), considering Dr Dik’s circumstances and what they said about whether or not his practices were inappropriate. The Committee then went on to set out, by MBS item number, its findings with respect to each billing item, supplemented by the lengthy associated appendices. In respect of each, the Committee identified the deficiencies, and why they were not acceptable within the context of general practice.

Ground as to procedural fairness

83    Dr Dik submitted that the Committee conducted its process in a way that lacked transparency and was not understandable to him. He contended that the Committee had ignored his statements and submissions, his regular supervisors’ reports, the fact of his continuous AHPRA registration (noting that, if he had deficiencies, AHPRA would not have continued his registration from 2003 to 2018) and his achievements in continuous education (citing his certificates from 2003 to 2016 from the Royal Australian College of General Practitioners).

84    For the reasons already given above, I do not accept Dr Dik’s submission that the Committee ignored his submissions and evidence. It is clear from the content of the final report that the Committee repeatedly referred to and engaged with his evidence and submissions, not only in the body of the report but also in its appendices.

85    Dr Dik submitted that the Committee ignored his surgical background and the benefit to the health system by him performing certain skin procedures which would otherwise have had to have been done by a dermatologist. I am unable to accept this submission. When addressing Dr Dik’s submission regarding him undertaking skin procedures, the Committee, identified in its final report, these treatments under MBS item 30185. The Committee had already referred to Dr Dik’s surgical background earlier in its report. It is apparent from the Committee’s reasons that its concern, with respect to this billing practice, arises from the volume of Dr Dik’s billing of this service when compared to his peers (him being the third highest provider of this item nationally). The Committee, rather than ignoring it, referred to Dr Dik’s submission seeking to explain this variance to his peers, which Dr Dik explained as being as a result of his surgical experience and that he had become known in the community has performing this service. Ultimately, rather than ignore Dr Dik’s submission, the Committee did not accept it.

86    Further, Dr Dik submitted that account should be taken of the commendation received from Dr Lehane, a histopathologist. The letter formed part of the materials that were before the Committee. It cannot be assumed that it was not taken into account: Watt v Thomas [1947] AC 484 at 492; Dodds v Comcare (1993) 31 ALD 690. The fact that the Committee did not refer to it is unsurprising, given that the Committee otherwise, at a high level, dealt with the gravamen of Dr Dik’s submission as to how his level of expertise which could explain the statistical variance.

87    Relatedly, Dr Dik also made an allegation of bias, largely based on the fact that the Committee recalled him for the purpose of conducting further oral hearings in February 2020. It appeared, though was unclear, that Dr Dik’s allegation was one of actual rather apprehended bias. Nevertheless, given that he did not expressly distinguish between the forms of bias, it is appropriate to consider both.

88    Actual bias would require proof that the Committee had prejudged the issues and could not be swayed by the evidence at hand. In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 Gleeson CJ and Gummow J described the test for actual bias in the following way (at [72]):

The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

89    In Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127, a case that involved a finding of actual bias, Burchett J held that “a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic or approach”.

90    It is worthwhile restating the seminal test for apprehended bias in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ:

First, it requires the identification of what is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

91    This test has equal application to administrative decision-makers as well as to judges: Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438 at [69] per McHugh J, see also at [20] per Gleeson CJ; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 at [21] per Kiefel CJ and Gageler J.

92    In Hot Holdings, McHugh J elucidated the following principles concerning the reasonable apprehension of bias at [74]:

In some cases, a reasonable apprehension of bias may arise simply from the close connection of a decision-maker with a person who may be affected by the outcome of the decision. The relationship of the parties may be so close and personal or the person interested in the outcome so influential or dominant that a fair-minded person might reasonably apprehend that the decision-maker might not make the decision impartially. In Webb v The Queen, Deane J said that an apprehension of bias could arise from a relationship, or direct experience or contact, with persons interested or involved in the decision. His Honour cited as an example a relationship between a decision-maker and a dependent spouse or child who has a direct pecuniary interest in the outcome of the decision. An inference of a reasonable apprehension of bias in such cases will be easier to draw when the mechanics of the decision-making process are not known. However, whether or not the mechanics of the process are known, no conclusion of apprehended bias by association can be drawn until the court examines the nature of the association, the frequency of contact, and the nature of the interest of the person associated, with the decision-maker. It is erroneous to suppose that a decision is automatically infected with an apprehension of bias because of the pecuniary or other interest of a person associated with the decision-maker. Each case must turn on its own facts and circumstances.

93    In CNY17, Kiefel CJ and Gageler J identified the two Ebner steps (extracted above) as being “necessary to provide the foundation for the third and critical step” in relation to establishing an apprehension of bias, being “assessing whether the fair-minded lay observer might reasonably apprehend in the totality of the circumstances that the articulated departure might have occurred”: at [21].

94    I am not satisfied that the allegation of bias (whether actual or apprehended) is made out based on the fact of multiple hearings being held. The Committee’s hearing was split and held over eight days from December 2018 to March 2019. A further hearing was conducted on 27 and 28 February 2020. Rather than this being symptomatic of bias, it appears from the Committee’s reasons, that these additional hearings and the related lacunae afforded Dr Dik the opportunity to be heard and that the course that the hearing took in part reflected the volume of services to be examined.

95    In addition, Dr Dik submitted at hearing that the bias in part arose because of the involvement of Mr Topperwien, whom Dr Dik alleged — without specific reference to the transcript of the Committee hearings — intervened aggressively in discussions of medical issues during the Committee’s process despite not being a doctor and wrote “aggressive letters” to Dr Dik. There is no basis to conclude that Mr Topperwien, who was not the decision-maker (even if an interest were established), had any influence on the Committee’s procedure or findings.

Final determination — Review application

96    Dr Dik’s grounds of review with respect to the final determination of the Determining Authority may be catalogued in the following way.

Ground concerning MBS item 715

97    Dr Dik contended that the Determining Authority’s purported finding at paragraph [4(c)] of the final determination that 100% of MBS item 715 services involved “inappropriate practice” was legally unreasonable. Furthermore, either in connection with this ground or as a means of particularising the unreasonableness in question, Dr Dik claimed that the Determining Authority failed to consider that applying the prescribed sampling methodology in accordance with s 106K(1) and (3) of the Act “without regard to his other evidence carries an inherent risk of producing a false positive as to over-servicing” because of Dr Dik’s high patient load.

98    At paragraphs [3] and [4(c)] of the final determination, the Determining Authority stated:

3    Professional Services Review Committee No. 1159 (the Committee) has given the Determining Authority a copy of its final report concerning Dr Dik (the Report).

4    The Report contains a finding that Dr Dik engaged in inappropriate practice in connection with the services referred to below (the Services):

…

(c)    100% of the MBS item 715 services…

99    As is evident from paragraph [4(c)], when read alongside the definition of “Report” in the preceding paragraph, the “finding” that Dr Dik asserts that the Determining Authority made was in fact merely a reference to findings already made by the Committee in the final report. The Scheme allocates the fact-finding functions in reviewing and investigating a practitioner to the Committee. I accept the Director’s submission that there was no scope for the Determining Authority to proceed on a different basis with respect to MBS item 715 or any of the additional services that were the subject of the Committee’s final report, because the Determining Authority’s task was confined to determining the appropriate direction to be made pursuant to s 106U: Sevdalis v Director of Professional Services Review (No 2) [2016] FCA 433 at [81]–[82] and Selia at [131]. For similar reasons, Dr Dik’s other contentions relating to methodology and high patient load are also not accepted.

100    In addition, Dr Dik submitted that he performed MBS item 715 services in circumstances where the initial assessment was done by nurses, whom he named, and whom he said performed a pre-assessment, checking eligibility and confirming with Medicare that the service could proceed. Dr Dik also identified others in the clinic who were involved in checking eligibility for items to be performed upon need. Again, the substance of this submission concerns, the factual basis underpinning the Committee’s findings rather than with respect to the very different task being undertaken by the Determining Authority.

Ground concerning the repayment and disqualification directions

101    Dr Dik contends that the Determining Authority’s directions that he repay the sum of $517,215.96 and be disqualified from rendering MBS services for 18 months were harsh, unreasonable, and failed to account for the exceptional circumstances in which he found himself. He also characterised the repayment direction as “disproportionate and unfair”. In addition, Dr Dik contended that the Determining Authority’s “findings and penalty” were such that an inference could be drawn that “it failed to place sufficient weight on [his] efforts to remediate [his] sub-optimal performance standard”.

102    The concept of legal unreasonableness is very different from unreasonableness per se. A discretionary power, conferred by statute, must be exercised reasonably Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [26], [29], [63], [88]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [80]; Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; 96 ALJR 464 at [31]. However, the Court’s jurisdiction in determining whether an administrative decision is vitiated by legal unreasonableness is strictly supervisory: Li at [66]; SZVFW at [83]. The Court is precluded from reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the discretion should be exercised by the decision-maker, in this case the Determining Authority: Li at [66]; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230–1. There are two contexts in which the conclusion of legal unreasonableness may be reached by the supervising Court — upon the identification of an underlying jurisdictional error in the decision-making process or with respect to the decision’s outcome: Plaintiff S183/2021 at [43]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [44].

103    To succeed in his challenge based on legal unreasonableness concerning the repayment direction and the disqualification direction under the ADJR Act, Dr Dik needed to show that the making of the decision was so unreasonable that no reasonable person could have made the decision: Wednesbury, as expressed in the ADJR Act, ss 5(1)(e) and (2)(g); see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.

104    Of particular relevance in this case, when considering the legal unreasonableness standard, as Perry J observed in Selia at [104], findings of unreasonableness ought not be made “lightly” (citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [40]–[41]), especially given that the decisional freedom of the decision-maker is augmented where “the Parliament has constituted the decision-making body as an expert body required to make decisions including having regard to its own expertise on matters of judgment such as professional standards”. In Selia, Perry J held that a committee constituted under the Scheme was such a body, in light of the Act providing that a committee “must be constituted by members belonging to the professions or specialities relevant to the investigation”: Selia at [104].

105    By extrapolation, in line with Selia, the Determining Authority is also such a body, in view of the statutory requirements that it (a) be chaired by a medical practitioner (s 106ZPA(1)(a), Act); (b) contain members “who are practitioners in the same professions as the person or persons who rendered or initiated the service to which the report relates” (s 106ZPA(1)(c) and (2)(e)); and (c) decide the consequences of any findings of inappropriate practice made by a committee (s 106U). As a consequence, therefore, the Court should apply similar caution before finding that the Determining Authority’s decisions under s 106U prescribing the consequences of Dr Dik’s inappropriate practice were legally unreasonable.

106    Accordingly, the jurisdiction of this Court to overturn the Determining Authority’s repayment and disqualification findings is very limited. Even if I were of the view that the decision was unjust or unfair or unreasonable (in the ordinary sense), I am not permitted to act upon that view. Legal unreasonableness addresses the “legality of government action, rather than its correctness”: Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019; 227 FCR 1 at [259], citing Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–6. As the Director submitted, it was a matter for the Determining Authority to determine what was “fair and just” in Dr Dik’s case: SZVFW at [13] and Li.

107    Dr Dik submitted that the decision regarding repayment was vitiated by legal unreasonableness given the requirement that he repay 90% of the Medicare billings occurred where Dr Dik had only received 60% of those billings and his practice received the remaining 40%. For the following reasons, this contention does not establish legal unreasonableness.

108    It is worthwhile understanding Dr Dik’s submission as made to the Determining Authority. Dr Dik did not expressly refer to the 60:40 split in his submissions to the Determining Authority, but did note that the GP super clinic “received a substantial portion of the billings”. In his submissions to the Determining Authority, Dr Dik said:

I ask for leniency from the DA when deciding the reimbursement amount, also taking into account that the owner of the GP Superclinic received a substantial portion of the billings pursuant to the agreement I entered at the time.

109    At [50] of the final determination, the Determining Authority acknowledged this submission and stated that “Dr Dik submits that any request to repay a substantial sum would be disastrous and he asks for leniency in this regard, noting that the practice owner received a substantial proportion of the billing in the review period”.

110    In his written submissions before this Court, Dr Dik referred to the fact of the 60:40 split and the fact that he had to repay the entirety of the penalty:

The penalty to repay the amount of $517,2.15.96 when I was on a 60% - 40% fee billing sharing arrangement with The Bawrunga GP Super Clinic but I am responsible for repaying 100% of the penalty. The rebate was received from Medicare to the account of GP Super Clinic, not to my bank account. As a pensioner the penalty is disproportionate and unfair…

111    At hearing, Dr Dik referred to the split:

The second point is where fairness to pay the whole amount, five hundred, seventeen thousand something, when I have been paid 60 per cent of that amount, where I should pay 90 per cent now.

Where the fairness to pay the whole amount – I mean 100 per cent, which is now 90 per cent – where I get 60 to 40. I get 60 per cent to 40 to the clinic. I didn’t receive the whole amount.

112    The Determining Authority has the discretion to determine the extent of repayment. I am not in a position to substitute my view, regardless of whether I think it is harsh or unfair, unless it is of such a magnitude that no reasonable person could have come to the Determining Authority’s conclusion.

113    The Determining Authority’s discretionary power to require whole or partial repayment is informed by the statutory purpose of the power. The Determining Authority’s power under s 106U to make these kinds of directions, is not punitive, it is protective and can be used for compensatory and deterrent purposes (both general and specific). By protective, this means its purpose is to protect patients and the community by ensuring that medical practitioners are deterred from participating in the Scheme where they engage in inappropriate practice: s 79A(a); see Selia at [151]–[154], Sevdalis at [146]–[148]. It is also to protect the integrity of the Scheme, and therefore taxpayers, where doctors are required to repay to the government monies expended by the Commonwealth from having to meet the costs of services provided as a result of inappropriate practice: s 79A(b) of the Act.

114    As part of the Determining Authority’s consideration of the extent of repayment it directs, it will necessarily need to balance the effect on the individual (for the purpose of specific deterrence) but also on ensuring that general deterrence (the medical profession is deterred by reference to the consequences of this kind of inappropriate practice) is achieved.

115    I accept what underpins Dr Dik’s submission, that the Determining Authority, when determining the extent of repayment, was required to give consideration to the surrounding circumstances, which included Dr Dik’s circumstances. However, the Determining Authority’s discretion is not fettered by a requirement that it consider any particular matters or the weight to be attributed to them.

116    In this case the Determining Authority had taken into account, inter alia, findings of the Committee that Dr Dik had billed for professional attendances, for which the MBS requirements were not met, including that there was insufficient clinical content to justify the time attendance and/or there was no detailed patient history, Dr Dik’s clinical input was insufficient, the medical record inadequate such that there was an absence of clinical indication for the management (including the billing and co-billing of certain services) undertaken by Dr Dik: at FD[13]–[31], [38], [39], [41]. In addition, the Determining Authority took into account the observations of the Committee that the paucity of Dr Dik’s records was “so poor that the Committee could not be satisfied of the adequacy of Dr Dik’s relevant clinical skills during the review period” and that Dr Dik’s billing practices went beyond mere inadvertency but indicated that he had little regard for MBS regulatory requirements: at FD[35] and [40].

117    I understood that part of Dr Dik’s submission was that he had in fact provided the patients with the services he had billed for and that he had focussed his efforts and attention on being attentive to his patients rather than writing everything down. Obviously, the maintenance of adequate medical records is essential to patient care. The integrity of that record assures the maintenance of an accurate patient history for current and future treatment, as well as for compliance purposes. The integrity of the Scheme, to protect patients and to ensure that inappropriate billing practices do not occur, depends upon it. It holds medical practitioners to account to the community and the Government. In any event, as is evident from the aspects of the Committee’s findings, adverted to by the Determining Authority, the findings of the Committee went well beyond the adequacy of Dr Dik’s medical record.

118    With respect to the percentage of the amount billed (and paid) by the Government for the medical service required to be repaid, it is to be noted that the Determining Authority did not direct complete repayment, but rather 90% of benefits for services rendered: at FD[63]. Accordingly, consistent with the power under s 106U(1)(cb), the Determining Authority recognised that it had, and did exercise, the power to require something less than the whole repayment. The Determining Authority identified this as an “appropriate repayment direction” (at FD[61]) in light of the “egregious degree of inappropriate practice, which undermined the Medicare scheme in the review period”, and some instances of apparently deliberate non-compliance: at FD[61]. The Determining Authority did not accept that there were “any substantial mitigating factors” in the review period which explained the reasons for inappropriate practice: at FD[62]. These matters are relevant to both specific and general deterrence. In particular, the Determining Authority noted the need for medical practitioners to take personal responsibility for ensuring regulatory compliance: at FD[62].

119    The Authority stated that it had “given serious consideration to directing that full repayment be made” but was “satisfied that Dr Dik’s personal circumstances warrant[ed] a partial repayment direction being made”: at FD[63]. The Determining Authority expressly stated that Dr Dik’s personal financial circumstances “were considered … in allowing a 10% reduction in the total benefits received by Dr Dik”: at FD[63].

120    As to whether a medical practitioner is required to repay, in full, the amounts billed for the services rendered, regardless of what the medical practitioner ultimately receives after satisfaction of his or her commercial obligations to their practice or, for example, a rental landlord, this is a matter which falls within the remit of the Determining Authority. On one view, the fact the medical practitioner only received a portion of the amount from the Government may be relevant in the circumstances. If the medical practitioner only received a small fraction of the amount and had limited personal control over the billings, this may be relevant. However, on the other hand, there is a countervailing view— consistent with the thrust of the Determining Authority’s reasoning (which was emphatic): All medical practitioners assume personal responsibility for ensuring regulatory compliance (at FD[62]). In addition, in this case, the Determining Authority relied upon the Committee’s finding that “Dr Dik had personal control over his billings, notwithstanding pressures that may have been exerted by the practice”: at FD[62]. Indeed, s 106U(1)(cb) expressly contemplates repayment in whole or in part “whether or not” that amount had been paid to the person (namely, the medical practitioner).

121    Ultimately, I am of the view that there was an evident logical connection between the conduct and repayment direction, noting its statutory purpose and the balancing of all the identified factors including the seriousness of the conduct in question and the assessment of Dr Dik’s personal circumstances. It is not for me to stand in the shoes of the Determining Authority and make my own decision but rather to determine whether its direction was within the decisional freedom conferred upon it. This is particularly so given the decisional freedom of the decision-maker is increased where Parliament has created an expert decision-making body to make the decision informed by its own expertise on matters of judgment such as professional standards and here akin to a regulator, to take into account industry-specific matters informing the appropriate level of repayment to achieve deterrence. It is my view that the direction was within the decisional freedom conferred on the Determining Authority, and therefore the decision was not vitiated by legal unreasonableness.

122    With respect to the disqualification direction, the Determining Authority indicated that it had considered: (a) its concerns about whether Dr Dik had demonstrated appropriate insight (had failed to understand the seriousness of the Committee’s findings) (at FD[65]); (b) the universal findings of inappropriate practice across all MBS services reviewed (at FD[66]); (c) the wide-ranging nature of the Committee’s reasons (at FD[66]); (d) the Committee’s findings that Dr Dik either “grossly misunderstood” the relevant MBS requirements or was “ignorant in billing” (at FD[66]); (e) that Dr Dik’s practice in the review period fell well below expected standards (at FD[67]); (f) that the disqualification period would provide Dr Dik with time to reacquaint himself with MBS regulatory requirements (at FD[67]); and (g) that Dr Dik would still be able to “undertake other roles within the medical professions, for example in a hospital setting” which would allow for greater supervision (at FD[68]).

123    There was an evident logical connection between the decision to disqualify Dr Dik from rendering all MBS services for 18 months (as opposed to the maximum of three years) and these considerations. Whilst there is an obvious, acute personal effect on Dr Dik as a consequence of this direction, it was a matter for the Determining Authority (in its exercise of the discretion in s 106U) to determine the appropriate weight to be attributed to his evidence about his personal circumstances: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164. The above–mentioned parts of the final determination showed that the Determining Authority expressly took these matters into account. I can discern no error in the Determining Authority’s determination in this regard.

124    It is my view that the repayment and disqualification decisions were, as the Director submitted, squarely within the Determining Authority’s decisional freedom.

Grounds concerning failure or constructive failure to consider submissions

125    Dr Dik submitted that the Determining Authority either failed to consider all the submissions that he made, or gave such little weight to them as to amount to a constructive failure to do so. He further contended that, having appropriately identified the relevant considerations in its 1 November 2022 letter inviting him to make submissions, it was obliged to properly consider his responses, and clearly had not done so.

126    I do not accept Dr Dik’s submission. The Determining Authority’s final determination summarised Dr Dik’s submissions in detail: at FD[46]–[56]. In its subsequent analysis, it engaged with those submissions, and gave reasons as to the extent to which it took them (or did not take them) into account.

Grounds concerning particular evidence before the Committee and the purported adoption of the Committee’s findings

127    Dr Dik submitted that a particular email sent by the Professional Services Review agency to his then-solicitor on 9 December 2019 “was apparently not given to the Determining Authority by the Committee as an annexure to its Final Report” and was therefore not before the Determining Authority for its consideration. Dr Dik contended that the email gave context that was lost when it was not provided to the Determining Authority. The relevant part of the email said:

Following the Committee’s enquiries, DHS confirmed the original data from which the sample was drawn (and summarised in the data sets attached to the original referral from Medicare to the Director, PSR) did not reflect widespread double billing, which appeared inconsistent with the PIRT reports…

128    Specifically, Dr Dik submitted that the Determining Authority’s “finding” at paragraph [4(i)] of the final determination that he engaged in inappropriate practice in connection with 12 MBS item 5060 services had been made without regard to this email. It followed, in Dr Dik’s submission, that the Determining Authority was unaware of what he described as “the anomaly” identified in the agency’s 9 December 2019 email, and that this resulted in an outcome that is unreasonable.

129    In fact, as is discussed above at [99], the Determining Authority at paragraph [4] of the final determination was not making findings of its own, but was merely summarising the findings of the Committee. It was the Committee, not the Determining Authority, that found that Dr Dik engaged in inappropriate practice in connection with the provision of 12 MBS item 5060 services. Accordingly, this ground must be rejected. As stated above, the Determining Authority’s function is to act on the findings of the Committee, and that it does not need to replicate the Committee’s fact-finding. In any event, as set out above, the email in question was sent during the course of the Committee’s review process and was overtaken by the findings in its final report.

130    Relatedly, Dr Dik submitted that the Determining Authority fell into error when it adopted the Committee’s findings in relation to inappropriate practice based on partial patient record samples. For the same reasons, this ground must be rejected on the basis that the Determining Authority’s task under the Scheme is confined to determining the appropriate direction to be made pursuant to s 106U. As a result, it was required to act on the findings of the Committee.

Conclusion

131    For these reasons, leave to extend time for judicial review of the Committee’s final report is refused. Otherwise, the application must be dismissed with costs.

Associate:

Dated:    16 April 2024