Kitchen v Director of Professional Services Review Under s 83 of the Health Insurance Act 1973 (Cth) [2019] FCA 1978

Kitchen v Director of Professional Services Review Under s 83 of the Health Insurance Act 1973 (Cth) [2019] FCA 1978

The applicant did not demonstrate a prima facie case that proceeding with the proposed hearing on the limited basis identified would deny him procedural fairness. The Committee had confined the proposed hearing to general and clarificatory matters, remained open to affidavit evidence and later evidence or submissions, and the investigation was ongoing rather than at a stage where denial of natural justice could be concluded. Even assuming a prima facie jurisdictional case concerning s 106K sampling methodology, the applicant had not adequately explained his delay in commencing proceedings and seeking an injunction on that basis, so an urgent interim injunction should not be granted.

Jurisdiction
Australia
Judgment Date
20 November 2019
Procedural Posture
Urgent Application for Interim Injunction / Application to Restrain the Second Respondent From Conducting a Hearing on 20 and 21 November 2019
Outcome
The application for an interim injunction was dismissed.
Legal Topics
['interim Injunction' 'procedural Fairness' 'natural Justice' 'professional Services Review' 'inappropriate Practice' 'health Insurance Act 1973 (cth)']
['practice and Procedure' 'administrative Law' 'health Law'] ['interim Injunction' 'procedural Fairness' 'natural Justice' 'professional Services Review' 'inappropriate Practice' 'health Insurance Act 1973 (cth)']

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Procedural Posture

Urgent Application for Interim Injunction / Application to Restrain the Second Respondent From Conducting a Hearing on 20 and 21 November 2019

Legal Issues

  1. 1 ['Whether the applicant demonstrated a prima facie case that he would be denied procedural fairness by the conduct of the proposed hearing.' 'Whether the balance of convenience favoured the grant of an injunction restraining the Committee from conducting the proposed hearing.' "Whether an urgent interim injunction should be granted on the basis of the applicant's submission that the Committee had no jurisdiction because the methodology required for the use of samples under s 106K of the Health Insurance Act 1973 (Cth) had not been used."]

Ratio Decidendi

The applicant did not demonstrate a prima facie case that proceeding with the proposed hearing on the limited basis identified would deny him procedural fairness. The Committee had confined the proposed hearing to general and clarificatory matters, remained open to affidavit evidence and later evidence or submissions, and the investigation was ongoing rather than at a stage where denial of natural justice could be concluded. Even assuming a prima facie jurisdictional case concerning s 106K sampling methodology, the applicant had not adequately explained his delay in commencing proceedings and seeking an injunction on that basis, so an urgent interim injunction should not be granted.

Court Disposition

The application for an interim injunction was dismissed.

Orders

  • ['The application for an interim injunction is dismissed.' 'Costs are reserved.']