Doan v Health Insurance Commission [2002] FCA 1160

Procedural Posture

Administrative Law Judicial Review Application Under S 39 B of the Judiciary Act 1903 (cth) and S 5 of the Administrative Decisions (judicial Review) Act 1977 (cth) / Final Judgment in the Federal Court of Australia on an Application Challenging an Investigative Referral, an Investigation and a Notice to Produce Documents or Information Under the Professional Services Review Scheme

Legal Issues

1. 1 ["Whether the second respondent's instigation of an investigation under s 89(1) of the Health Insurance Act 1973 (Cth) was a reviewable decision or conduct under the Administrative Decisions (Judicial Review) Act 1977 (Cth)." 'Whether Investigative Referral 312 complied with s 86(1) by referring identifiable conduct rather than being too wide, vague or uncertain.' 'Whether Investigative Referral 312 complied with s 86(4)(b) by setting out reasons why the Health Insurance Commission considered Dr Doan may have engaged in inappropriate practice.' 'Whether any non-compliance with s 86(4)(b) would invalidate the referral and the subsequent investigation.' "Whether the Health Insurance Commission had power to make Investigative Referral 312 after Investigative Referral 277 and the second respondent's decision to take no further action following Pradhan v Holmes [2001] FCA 1560." 'Whether the Health Insurance Commission failed to take into account relevant considerations, acted for an improper purpose, was estopped, or abused its power in making Investigative Referral 312.' 'Whether the notice to produce documents or information under s 89B could be impugned if the challenge to the investigation failed.']

Ratio Decidendi

The application failed because the Director's commencement of an investigation under s 89(1) was the performance of a statutory obligation rather than a reviewable decision, and it did not amount to a decision not to dismiss the referral. In any event, Investigative Referral 312 validly identified the conduct and gave proper, adequate and intelligible reasons under s 86(4)(b). The further referral was not prohibited and the preconditions for a new referral were met after the Director took no further action on Investigative Referral 277. No relevant consideration, estoppel, improper purpose or abuse of power ground was established, and the dependent challenge to the s 89B notice therefore...

Court Disposition

Application dismissed with costs.

Orders

• ['The application be dismissed.' "The applicant pay the respondents' costs of the application."]