Lee v Kelly [2005] FCA 26

Lee v Kelly [2005] FCA 26

Committee 348's findings were affected by jurisdictional error because it began from a misunderstanding that exceptional circumstances were ordinarily intermittent or episodic, failed to ask whether the characteristics of Dr Lee's Korean patients and the availability of Korean-speaking doctors explained the demand for his services and were exceptional under Reg 11(b), and took into account the irrelevant consideration of the need for patients to integrate into the wider community. The s 92 challenge to the Director's adjudicative referral failed because the Director had notified Dr Lee of the option of a s 92 agreement and Dr Lee did not respond or seek to negotiate such an agreement.

Jurisdiction
Australia
Judgment Date
07 February 2005
Procedural Posture
Application for Judicial Review Under Ss 5 and 6 of the Administrative Decisions (judicial Review) Act 1977 (cth) and S 39 B(1 A) of the Judiciary Act 1903 (cth) / Review of Adjudicative Referral by the Director and Final Report Findings of Professional Services Review Committee No 348
Outcome
Application allowed in part; Committee 348'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' 'section 92 Agreement' 'jurisdictional Error' 'procedural Fairness']
['administrative Law' 'health Law'] ['professional Services Review Scheme' 'inappropriate Practice' 'prescribed Pattern of Services' '80/20 Rule' 'exceptional Circumstances' 'section 92 Agreement' 'jurisdictional Error' 'procedural Fairness']

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Procedural Posture

Application for Judicial Review Under Ss 5 and 6 of the Administrative Decisions (judicial Review) Act 1977 (cth) and S 39 B(1 A) of the Judiciary Act 1903 (cth) / Review of Adjudicative Referral by the Director and Final Report Findings of Professional Services Review Committee No 348

Legal Issues

  1. 1 ["Whether the 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 348 misconstrued or misapplied the exceptional circumstances exception in 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 348 failed to consider whether the characteristics of Dr Lee's Korean patients explained the demand for his services and whether those circumstances were exceptional." "Whether Committee 348 took into account an irrelevant consideration concerning assimilation or integration of Dr Lee's Korean patients into the wider community."]

Ratio Decidendi

Committee 348's findings were affected by jurisdictional error because it began from a misunderstanding that exceptional circumstances were ordinarily intermittent or episodic, failed to ask whether the characteristics of Dr Lee's Korean patients and the availability of Korean-speaking doctors explained the demand for his services and were exceptional under Reg 11(b), and took into account the irrelevant consideration of the need for patients to integrate into the wider community. The s 92 challenge to the Director's adjudicative referral failed because the Director had notified Dr Lee of the option of a s 92 agreement and Dr Lee did not respond or seek to negotiate such an agreement.

Court Disposition

Application allowed in part; Committee 348'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...