Dr Sherman, J. & Anor v Medicare Participation Review Committee & Anor [1995] FCA 577

Dr Sherman, J. & Anor v Medicare Participation Review Committee & Anor [1995] FCA 577

The Review Committee's determination that it should consider whether the applicants had breached an undertaking given by them under section 23DF of the Health Insurance Act 1973 involved an error of law. The undertakings had unequivocally been given by Dr. Konopnicki alone; therefore, only he fell within the statutory definition of ‘approved pathology authority’ and ‘approved pathology practitioner’. Furthermore, the time limitation in s.124D(2) was directory, not mandatory, so substantial compliance sufficed.

Jurisdiction
Australia
Judgment Date
07 August 1995
Procedural Posture
Judicial Review Application / Final Judgment With Orders
Outcome
Each determination in writing of the Review Committee dated 18 March 1993 be quashed; each proceeding otherwise dismissed; costs adjourned.
Legal Topics
['judicial Review' 'medicare Participation Review Committee Determinations' 'statutory Interpretation' 'medical Practitioner Undertakings']
['administrative Law' 'health Law'] ['judicial Review' 'medicare Participation Review Committee Determinations' 'statutory Interpretation' 'medical Practitioner Undertakings']

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Procedural Posture

Judicial Review Application / Final Judgment With Orders

Legal Issues

  1. 1 ['Whether a written undertaking under Division 2 of Part IIA of the Health Insurance Act 1973 can be given by a person other than the person identified in the writing' 'Whether the limitation of time in s.124D(2) of the Health Insurance Act 1973 is mandatory or directory']

Ratio Decidendi

The Review Committee's determination that it should consider whether the applicants had breached an undertaking given by them under section 23DF of the Health Insurance Act 1973 involved an error of law. The undertakings had unequivocally been given by Dr. Konopnicki alone; therefore, only he fell within the statutory definition of ‘approved pathology authority’ and ‘approved pathology practitioner’. Furthermore, the time limitation in s.124D(2) was directory, not mandatory, so substantial compliance sufficed.

Court Disposition

Each determination in writing of the Review Committee dated 18 March 1993 be quashed; each proceeding otherwise dismissed; costs adjourned.

Orders

  • ['The determination in writing of the Medicare Participation Review Committee dated 18 March 1993 that it should consider whether Doctor John Sherman breached an undertaking given by him be quashed.' 'The determination in writing of the Medicare Participation Review Committee dated 18 March 1993 that it should...