Lee v Grigor [2005] FCA 25

Lee v Grigor [2005] FCA 25

Committee 292's findings were affected by jurisdictional error because it misunderstood the meaning of exceptional circumstances, failed to ask what gave rise to the claimed exceptional circumstances and whether they fell within Reg 11(b), and distracted itself from the correct statutory question by taking into account the irrelevant consideration of the need for Korean patients to integrate within the wider community. The s 92 challenge to the adjudicative referral failed because the Director had presented Dr Lee with the option of approaching the Director to negotiate a s 92 agreement and Dr Lee did not respond or raise that possibility.

Jurisdiction
Australia
Judgment Date
07 February 2005
Procedural Posture
Application for Judicial Review of Decisions Under the Professional Services Review Scheme / Final Judgment on Judicial Review Claims After Constitutional Questions Were Severed
Outcome
Application allowed in part; Committee 292's findings set aside and matter remitted to the Director.
Legal Topics
['professional Services Review Scheme' 'inappropriate Practice' 'prescribed Pattern of Services' '80/20 Rule' 'exceptional Circumstances' 'jurisdictional Error' 'irrelevant Considerations' 'procedural Fairness' 'section 92 Agreement']
['administrative Law' 'health Law'] ['professional Services Review Scheme' 'inappropriate Practice' 'prescribed Pattern of Services' '80/20 Rule' 'exceptional Circumstances' 'jurisdictional Error' 'irrelevant Considerations' 'procedural Fairness' 'section 92 Agreement']

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Procedural Posture

Application for Judicial Review of Decisions Under the Professional Services Review Scheme / Final Judgment on Judicial Review Claims After Constitutional Questions Were Severed

Legal Issues

  1. 1 ["Whether the Acting Director's adjudicative referral was affected by jurisdictional error by reason of an erroneous construction of s 92 or denial of procedural fairness." 'Whether Committee 292 made jurisdictional errors in finding that Dr Lee engaged in inappropriate practice and that exceptional circumstances did not exist under s 106KA(2) of the Health Insurance Act 1973 (Cth) and Reg 11(b) of the Health Insurance (Professional Services Review) Regulations 1999 (Cth).' 'Whether Committee 292 asked the wrong question or took into account irrelevant considerations concerning integration of Korean patients into the Australian community.']

Ratio Decidendi

Committee 292's findings were affected by jurisdictional error because it misunderstood the meaning of exceptional circumstances, failed to ask what gave rise to the claimed exceptional circumstances and whether they fell within Reg 11(b), and distracted itself from the correct statutory question by taking into account the irrelevant consideration of the need for Korean patients to integrate within the wider community. The s 92 challenge to the adjudicative referral failed because the Director had presented Dr Lee with the option of approaching the Director to negotiate a s 92 agreement and Dr Lee did not respond or raise that possibility.

Court Disposition

Application allowed in part; Committee 292's findings set aside and matter remitted to the Director.

Orders

  • ['The finding by the first respondents that the applicant engaged in inappropriate practice and the finding that exceptional circumstances did not exist, must be set aside.' 'The matter should be remitted to the Director to determine whether a referral to another, differently constituted, Professional Services...