Tisdall v Webber & Ors

[2011] FCAFC 76
193 FCR 260
122 ALD 49
[2011]ALMD 5260

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(Judgment by: Greenwood J)

Tisdall
v Webber (In his capacity as Director of Professional Services Review) and Ors

Court:

Judges:
Greenwood JTracey J
Buchanan J

Hearing date: 8 November 2010
Judgment date: 7 June 2011

Melbourne

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Judgment by:
Greenwood J

Background

[1] The appellant, Peter Tisdall, is a medical practitioner. He conducts a medical practice at and from Kyabram in Victoria approximately 45 kilometres from Shepparton.

[2] A Professional Services Review Committee (the committee) constituted under the provisions of the Health Insurance Act 1973 (Cth) (the Act) found, by its final report of 9 July 2009, that Dr Tisdall had engaged in inappropriate practice in relation to his rendering of professional attendances on each of 66 days during the period 5 January-21 August 2000 by engaging in a pattern of service provision prescribed by the Act; and that "exceptional circumstances that affected the rendering of [those] services did not exist on any of the [66] days".

[3] An appeal from findings of a Professional Services Review Committee does not lie, under the Act, to the Federal Court of Australia on the ground of error of law or otherwise. A decision of such a committee giving rise to findings may be a decision of an administrative character made under an enactment for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). In these proceedings however, Dr Tisdall sought by his amended application, a declaration that the unanimous decision of the three committee members was affected by legal error and should be set aside as an excess of jurisdiction; an order under s 39B of the Judiciary Act 1903 (Cth) for the issue of the constitutional writs of certiorari to remove the decision into this court and quash it, and mandamus directed to the committee members to determine the matters referred to them under the Act according to law; and an injunction restraining the determining authority (the sixth respondent) established under the Act from acting upon the committee's decision in determining the statutory consequences under s 106U of the Act arising out of the committee's findings.

[4] In this appeal, Dr Tisdall contends that the primary judge ( Tisdall v Webber [2010] FCA 501) fell into error by failing to find error of law and thus jurisdictional error on the part of the committee members in reaching the findings they made having regard to the methodological approach they adopted to answering the statutory questions before them.

[5] Although it will be necessary to consider the statutory scheme established by the Act for the examination of whether a person has engaged in inappropriate practice, in order to isolate the express and implied statutory factors to be considered by the committee members in the exercise of the power to make findings for the purposes of s 106KA(2) of the Act, the three contended errors of method said to constitute errors of law on the part of the committee and thus an excess of jurisdiction by the decision-makers, are these.

[6] First, in determining whether "exceptional circumstances" existed on any of the 66 days in question and whether those circumstances on any one or more of those days "affected" Dr Tisdall's rendering of services, the committee was required to be affirmatively satisfied by Dr Tisdall of certain matters of fact relevant to whether there was on that day or those days an "absence of other medical services for [his] patients" having regard to the location of his practice and the characteristics of his patients: reg 11(b) of the Health Insurance (Professional Services Review) Regulations 1999 (Cth) (the Regulations). In finding that there were no exceptional circumstances that affected the rendering of services on any of the 66 days, the committee reached conclusions not open to it, it is said, on the evidence, by rejecting the uncontradicted body of evidence put before the committee by Dr Tisdall and his witnesses and substituting for that evidence its own view of what would have been likely to have occurred, on the facts, on a relevant day or days, thus giving rise to a question of law of whether it was open to the committee to reach a state of non-satisfaction of the relevant statutory matters in that way. The first ground of challenge raises the question of the extent to which the committee members could properly reach a state of satisfaction or otherwise on the relevant statutory matters, under the statutory scheme, by reference to their own professional experience as general practitioners in making findings on an "adjudicative referral" under the scheme. The first ground of challenge also raises the question of whether statistical data put before the committee by Medicare Australia (the fifth respondent), and relied upon by the committee to support its conclusions, in fact provides support for those conclusions.

[7] The second ground of challenge is the contention that the committee analysed the factual question of an absence of other medical services for Dr Tisdall's patients on any of the relevant days (having regard to the statutory considerations: the reg 11(b) question) by asking a different and more general question of whether Dr Tisdall's patients were exceptional or differentiated in some relevant way rather than whether the circumstances were exceptional having regard to the statutory factors relevant to that question.

[8] The third ground of challenge is that the committee considered the sequence of Dr Tisdall's factual contentions (supported by the evidence he called) one by one and having found that each one alone did not establish the relevant factual matters to the committee's satisfaction, the committee failed to consider whether taken together all of those matters might have established to its satisfaction an absence of other medical services in a statutory sense.

The relevant statutory provision

[9] The committee in conducting its adjudicative function has recited at [16] of its reasons a version of s 106KA which takes the form of that section as amended by the Health Insurance Amendment (Professional Services Review and Other Matters) Act 2002 (Cth) (the 2002 Amending Act) which commenced operation on 1 January 2003. The committee was asked in the discharge of its adjudicative function to determine whether Dr Tisdall had engaged in inappropriate practice in the period 5 January-21 August 2000 inclusive. That question involves asking whether Dr Tisdall's conduct at the relevant time constituted inappropriate conduct having regard to the statutory content of that term at that time. The relevant statutory instrument to apply is the version of the Act as it stood during the period under examination rather than the terms of the section commencing 1 January 2003. However, there is no material difference between the two provisions although for the sake of completeness the nature of the change ought to be identified. Section 106KA as it stood during the referral period is set out below. For ease of reference, the elements of the section which were later amended have been emphasised in italics and underlining. 106KA Patterns of services

(1) Subject to subsections (2) and (2A), if, during a particular period (the relevant period ), the circumstances in which some or all of the referred services were rendered or initiated constituted a prescribed pattern of services, the conduct of the person under review in connection with rendering or initiating services during that period in those circumstances is taken, for the purposes of this Part, to have constituted engaging in inappropriate practice .

(2) If the person under review satisfies the Committee that, on a particular day or particular days during the relevant period, exceptional circumstances existed that affected the rendering or initiating of services by the person, the person's conduct in connection with rendering or initiating services on that day or those days is not taken by subsection (1) to have constituted engaging in inappropriate practice .

(2A) However, subsection (2) does not affect the operation of subsection (1) in respect of the remaining day or days during the relevant period on which the person rendered or initiated referred services even if the circumstances in which the referred services were rendered or initiated on that day or those days would not, if considered alone, have constituted a prescribed pattern of services.

(3) The regulations may prescribe, in relation to:

(a)

a particular profession; or

(b)

an identified group or groups of practitioners in a particular profession;

circumstances in which services of a particular kind or description that are rendered or initiated constitute, or do not constitute, a prescribed pattern of services for the purposes of subsection (1).

(4) The circumstances that may be prescribed under subsection (3) as circumstances in which services that are rendered or initiated constitute a prescribed pattern of services include, but are not limited to, the rendering or initiation of more than a specified number of services, or more than a specified number of services of a particular kind, on each of more than a specified number of days during a period of a specified duration.

(5) The circumstances that constitute exceptional circumstances for the purposes of subsection (2) include, but are not limited to, circumstances that are declared by the regulations to be exceptional circumstances.

(6) This section only applies to services rendered or initiated after the commencement of this section.

(7) This section does not preclude the Committee from making a finding under this Subdivision (other than section 106KB) in relation to conduct during a particular period in connection with rendering or initiating services without considering whether or not the circumstances in which the services were rendered or initiated constituted a prescribed pattern of services.

[10] Schedule 1 of the 2002 Amending Act made changes to s 106KA of the Act in the following terms and emphasis is given by italics and underlining to the areas of change: 76 Subsections 106KA(1) and (2)

Repeal the subsections, substitute:

(1) Subject to subsections (2) and (2A), if, during a particular period (the relevant period ), the circumstances in which some or all of the referred services were rendered or initiated constituted a prescribed pattern of services, the person under review is taken, for the purposes of this Part, to have engaged in inappropriate practice in providing those services .

(2) If the person under review satisfies the Committee that, on a particular day or particular days during the relevant period, exceptional circumstances existed that affected the rendering or initiating of services provided by the person, the person is not taken by subsection (1) to have engaged in inappropriate practice on that day or those days .

77 Subsection 106KA(2A )

Omit "rendered or initiated", substitute "provided".

78 Subsection 106KA(7 )

Omit "conduct during a particular period in connection with rendering or initiating services", substitute "the provision of services during a particular period".

[11] Although s 106KA(1) and (2) took the form set out at [10] of these reasons at the date of the committee's decision on 9 July 2009, the question of whether Dr Tisdall's conduct constituted engaging in inappropriate practice was a matter to be determined having regard to the version of the Act set out at [9] of these reasons. Part 3 of the Regulations (containing regs 7-11) was introduced into the Regulations by the Health Insurance (Professional Services Review) Amendment Regulations 1999 (No 1) (No 346) which commenced on 1 January 2000. Throughout the entire review period (and at the date of the committee's decision), reg 11 was in the following terms: 11 Exceptional circumstances

For subsection 106KA (5) of the Act, the following circumstances are declared as constituting exceptional circumstances:

(a)

an unusual occurrence causing an unusual level of need for professional attendances;

(b)

an absence of other medical services, for patients of the person under review during the relevant period, having regard to:

(i)

the location of the practice of the person under review; and

(ii)

characteristics of the patients of the person under review.

The scheme of the Act

[12] Before examining those grounds of challenge, the statutory scheme established by the Act needs to be considered.

[13] Part VAA of the Act establishes "a scheme under which a person's conduct can be examined to ascertain whether inappropriate practice is involved": s 80(1). Part VAA also provides for action that can be taken in response to inappropriate practice. Division 2 of Pt VAA creates an administrative structure for the review of conduct by a Director of Professional Services Review and a Professional Services Review Panel. Division 3 concerns the referral of a person's conduct for review by a Professional Services Review Committee constituted under Div 4 of Pt VAA of the Act.

[14] Under s 82(1) of Pt VAA a practitioner (in Dr Tisdall's case, a medical practitioner: s 81(1)), engages in inappropriate practice if the practitioner's conduct in connection with rendering (or initiating) services (being a service for which a medical benefit was payable at the time the service was rendered or initiated: s 81(1)) is such that a Professional Services Review Committee constituted under the Act could reasonably conclude, in the case of a general practitioner (being Dr Tisdall's case) that the conduct would be "unacceptable to the general body of general practitioners".

[15] However, engaging in a prescribed pattern of services can also give rise to engaging in inappropriate practice. Section 106KA(1), taken in conjunction with reg 10 of the Regulations, provides, subject to s 106KA(2), that if in a 12-month period, 80 or more services (being "professional attendances" as defined by reg 7 of the Regulations) are rendered on each of 20 or more days, the person rendering those services is taken for the purposes of Pt VAA to have engaged in inappropriate practice.

[16] Section 106KA(2) provides, as it applies in this case, that if Dr Tisdall satisfies the committee that on a particular day or particular days (within the 66 days in issue), first, exceptional circumstances existed, and second, those circumstances affected the rendering of his services, Dr Tisdall's conduct in connection with rendering 80 or more services on that day or those days is not taken by s 106KA(1) to have constituted engaging in inappropriate practice. Section 106KA(2A) preserves the operation of s 106KA(1) in respect of any remaining days not shown by Dr Tisdall to the committee's satisfaction to constitute exceptional circumstances.

[17] The circumstances that constitute exceptional circumstances include those circumstances declared by the Regulations to be exceptional circumstances (s 106KA(5)) and reg 11 of the Regulations provides that those circumstances set out at reg 11(a) and (b) (see [11] of these reasons) are exceptional circumstances.

[18] Sections 83, 84 and 85 of the Act provide for the appointment of a medical practitioner by the portfolio minister as the Director of Professional Services Review; the appointment of practitioners to a Professional Services Review Panel and the appointment of practitioners as deputy directors and, more specifically, the appointment of medical practitioners as deputy directors. Section 86 provides for an "investigative referral" of a person's conduct to the director to consider whether the person has engaged in inappropriate practice in connection with the rendering of services in a particular period. The director, under s 93(1) of the Act, may elect to set up a Professional Services Review Committee and make an "adjudicative referral" to such a committee "to consider whether conduct by the person under review in connection with rendering or initiating services specified in the adjudicative referral ... constituted engaging in inappropriate practice". The services that may be specified in the adjudicative referral are any of the services specified in the investigative referral to the director: s 93(7).

[19] A s 93 committee was established on 14 February 2002 to consider an adjudicative referral from the Acting Director of Professional Services Review of whether Dr Tisdall's conduct in connection with rendering all services provided by him within Australia during the period 5 January to 21 August 2000 (inclusive) constituted inappropriate practice under the Act. The scope of that referral was confined to whether Dr Tisdall had engaged in a prescribed pattern of services: the s 106KA question. The adjudicative referral by the acting director was challenged by Dr Tisdall in Federal Court proceedings and on 30 January 2006 orders were made remitting the matter to the committee for determination of the referral according to law. On 13 March 2006, the Director of Professional Services Review made an adjudicative referral to the committee in the same terms as the earlier referral. The committee was constituted in accordance with s 95 of the Act on 13 March 2006 to consider the matters referred to it.

[20] Dr Tisdall conceded before the committee that on 66 days during the referral period he had rendered 80 or more services constituted by professional attendances falling within reg 7 of the Regulations. The committee was constituted by a deputy director (a medical practitioner and chairperson) and two general practitioners: s 95(1) of the Act. Section 95(2) provides that the chairperson and the panel members must be practitioners who belong to the profession in which the practitioner was practising when he or she rendered the referred services and (in the case applicable to Dr Tisdall), if the practitioner is a general practitioner, the panel members must be general practitioners: s 95(5) of the Act.

[21] By s 98(3) the committee may for the purposes of inquiry into a matter that is the subject of the referral, inform itself in any manner it thinks fit. The committee must hold a hearing if it appears to it that the person under review may have engaged in inappropriate practice in rendering the referred services: s 101(2). The committee held such a hearing. A person under review, subject to the committee's reasonable limitations, is entitled to attend the hearing; be accompanied by a lawyer; call witnesses to give evidence; put on statements or affidavits of evidence; produce written statements going to character; question persons giving evidence; and address the committee on questions of law and on the merits: s 103. In the conduct of the hearing, the committee may inform itself on any matter in any way it thinks appropriate: s 106(2). The committee is not bound by the rules of evidence: s 106(2). It may take evidence on oath or affirmation (s 106A) and a committee member may by an instrument in writing summon a person (other than the person under review) to appear at a hearing to give evidence and produce such documents as are referred to in the summons: s 106B. Section 106EA of the Act addresses conduct in contempt of the committee.

[22] A committee is to make findings only in respect of services specified in the adjudicative referral: s 106H(1). A final report must be prepared setting out the findings of the committee members where, as here, the committee members were unanimous in their findings: s 106L(1)(a). Where the committee is divided, the report must set out the findings of the majority and also those findings of the other committee member or members.

[23] Division 5 of Pt VAA sets out the functions and powers of the determining authority established under s 106Q(1) having regard to the committee's findings. In circumstances where a Professional Services Review Committee has made findings of inappropriate practice, a draft, and ultimately a final determination, must be formulated by the determining authority: ss 106T and 106TA of the Act. A draft or final determination, made in reliance upon a committee's finding of inappropriate practice, must contain one or more of the directions set out at s 106U(1)(a)-(h) subject to the considerations set out at s 106U(1A)-(4). The directions at s 106U(1)(a)-(h) include, if the person under review is a practitioner, that the practitioner be disqualified in respect of either the provision of specified services; the provision of services to a specified class; the provision of services within a specified location; or that the practitioner be fully disqualified.

[24] It follows from a consideration of the scheme adopted by the Act that, in the exercise of the adjudicative power (s 93 and Div 4 of the Act) to consider and make findings as to whether Dr Tisdall's conduct in rendering services specified in the referral under s 93(7) constituted engaging in inappropriate practice by reason of engaging in a pattern of prescribed services for the purposes of s 106KA, the committee must act judicially. It must act according to the principles established in Avon Downs Pty Ltd v Commissioner of Taxation (1949) 78 CLR 353 at 360 ; [1949] ALR 792 at 793 ( Avon Downs ) per Dixon J; R v Connell ; Ex parte Hetton Bellbird Colliers Ltd (1944) 69 CLR 407 at 429-32 per Latham CJ; Craig v South Australia (1995) 184 CLR 163 at 179 ; 131 ALR 595 at 602 ; 39 ALD 193 at 199 per the court; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225 ; [2001] HCA 30 at [82] ( Yusuf ) per McHugh, Gummow and Hayne JJ. Provisions such as ss 98(3) and 106(2) of the Act are generally regarded as facultative and in some senses free a decision-maker from the constraints applicable to courts of law although, notwithstanding those freedoms from constraint (in a limited sense), the administrative decision-maker must nevertheless act judicially.

[25] Although Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 ; 66 ALR 299 ( Peko-Wallsend ) concerns questions of the scope of judicial review under the ADJR Act (which has a wider reach into non-jurisdictional error than the supervisory jurisdiction grounding the constitutional writs: Re Minister for Immigration and Multicultural and Indigenous Affairs ; Ex Parte Applicants S 134/2002 (2003) 211 CLR 441 ; 195 ALR 1 ; 71 ALD 545 ; [2003] HCA 1 at [36]-[43] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ), Mason J observed at CLR 39-41; ALR 308-10 in as a matter of general principle that the factors a decision-maker is bound to consider in making a decision are determined by a construction of the statute conferring the power. The statute might exhaustively state those matters or merely state them in an inclusive way. If not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.

[26] Mason J also observed in Peko -Wallsendat CLR 40; ALR 309 that in the context of judicial review on the ground of taking into account irrelevant considerations, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined except, in so far as there may be found in the subject-matter, scope and purpose of the statute, some implied limitation on the factors to which the decision-maker may legitimately have regard. In Yusuf at [73] McHugh, Gummow and Hayne JJ observed that it is essential to begin the question of isolating the relevant factors by considering the statutory scheme as a whole. It may emerge that the considerations that are, or are not, relevant to the decision-maker's task are to be identified primarily, perhaps even entirely, by reference to the particular piece of legislation rather than the particular facts of any case before the decision-maker: Yusufat [73]. In Yusufat [74] their Honours observed that the considerations at [73] do not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration but "[W]hat is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law . They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts". [Emphasis added.]

The questions before the committee

[27] Having regard to the concession made by Dr Tisdall before the committee that on each of the 66 days during the referral period he had rendered 80 or more services (as defined) the question to be determined by the committee by reference to the Act in making findings arising out of its adjudication of the matters relevant to the referral was whether having regard to reg 11(b), it could be satisfied by Dr Tisdall, that on each of the 66 days during the referral period there was, as a matter of objective analysis, an absence of other medical services for patients of Dr Tisdall having regard to the statutory matters of the location of Dr Tisdall's practice and the characteristics of his patients seeking services on each of those days. If the committee could be so satisfied, the second question for it under s 106KA(2) of the Act was whether it could be satisfied that those circumstances affected, in a causal sense, the rendering of Dr Tisdall's services on each of those days: Oreb v Wilcock (2005) 146 FCR 237 ; 88 ALD 584 ; [2005] FCAFC 196 at [10] per Black CJ and Wilcox J and at [230]-[232] per Lander J.

The notion of "absence"

[28] The primary judge at [19] regarded the notion of "absence", in its statutory setting, as extending beyond a literal absence and connoting a lack of "readily or reasonably available" alternative medical services for Dr Tisdall's patients having regard to the reg 11(b) factors. As Buchanan J observes, that formulation of the statutory concept of absence (accepted by the appellant) is consistent with the "practical approach" to reg 11(b) adopted by Dowsett J in Hatcher v Fry (2009) 183 FCR 1 ; [2009] FCA 1573 at [16] in formulating the question to be asked by a Professional Services Review Committee, namely (as applied in this case), if a patient of Dr Tisdall on the relevant days during the referral period could not have seen Dr Tisdall within an appropriate timeframe (that is, within a reasonable timeframe) would the patient have been able, reasonably, to consult another medical practitioner? An answer to that question will involve consideration of the elements of a counter-factual contention based upon an assumption that the patient could not have seen Dr Tisdall. The question, of course, for the committee is slightly different to that formulated by Dowsett J. It is whether, having regard to the relevant factors, the committee can be affirmatively satisfied by Dr Tisdall (having regard to the body of evidence put to it for adjudication by the committee members as general practitioners), on the matter of objective counter-fact, whether a patient of Dr Tisdall would have been able, reasonably, to see another medical practitioner rather than Dr Tisdall. Many considerations may be relevant to that question but they include questions of access to alternative practitioners, the location of the practice of an alternative medical practitioner, the hours during which such a practitioner might be available and the patient numbers or patient cohort seeking access to the alternative medical practitioner.

[29] The exercise of the power to make findings of fact under s 106KA(2) turns upon the state of satisfaction of the committee members. Section 106KA(2) does not confer an unconfined discretion upon the committee members. Their state of satisfaction (so far as Dr Tisdall's case is concerned as put) must be reached (or not reached) having regard to the statutory matters in s 106KA(2) and reg 11(b). On the question of judicial review of a decision-maker's state of satisfaction of a relevant statutory matter, Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118 and 119 ; 9 ALR 481 at 487 and 488 said this:

It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he [or she] can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts. Hughes and Vale Pty Ltd v New South Wales ( No 2 ) itself was a case of that kind. Where the authority is required to be satisfied of the existence of particular matters of objective fact , the position may be very different. It may then be possible to show clearly not only that the material facts existed but that an authority acting in accordance with its duty could have reached no other conclusion than that they existed. [Emphasis added apart from the reference to Hughes .]

[30] As to judicial review of an opinion or state of satisfaction of a decision-maker see also Avon Downs (above) per Dixon J at CLR 360; ALR 793 on the strength of suppositions made by a decision-maker. Where a decision-maker is bound to take a factor into account but fails to do so or takes into account a factor not relevant to the statutory factors, the requisite state of satisfaction (or not) is not reached as a matter of law: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 ; 267 ALR 204 ; 115 ALD 493 ; [2010] HCA 23 at [53]-[54] ( Saeed ) per the court. Where the exercise of the statutory power to make findings is conditional upon a particular opinion or state of satisfaction, an inquiry for the court may be whether the opinion has really been formed at all, as a matter of law: Saeedat [53]; Foster v Minister for Customs and Justice (2000) 200 CLR 442 ; 173 ALR 585 ; 60 ALD 609 ; [2000] HCA 38 at [7] and [8] per Gleeson CJ and McHugh J.

[31] Although the grounds of review that fasten upon the use made of relevant or irrelevant considerations are essentially concerned with the proper application of the law by the decision-maker rather than the process of decision-making and fact-finding, the process of decision-making itself may also miscarry in a way reflecting an error of law. Want of logic is not synonymous with error of law. The authorities which deal with the question of an absence of evidence to support a finding as compared with a finding reflecting a lack of logic but nevertheless supported by "some basis" in evidence, were considered by the Full Court in Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272 ; 249 ALR 762 ; [2008] FCAFC 108. Rather than recast those comments, I will simply note what I said at [98] and [99] (French J agreeing at [3], subject to his Honour's own reasons; Weinberg J agreeing at [41]), in these terms, in part:

[98] However, at common law, want of logic is not synonymous with error of law ( Bond , per Mason CJ at CLR 356; ALR 38; ALD 23-4, with whom Brennan, Toohey and Gaudron JJ agreed) and as to inferences, "so long as there is some basis for an inference -- in other words, the particular inference is reasonably open -- even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place" (his Honour's emphasis, Bondat CLR 356; ALR 38; ALD 23-4 per Mason CJ). On the other hand, where a statute requires the decision-maker to discharge particular duties, "irrationality of the kind described by Deane J in Australian Broadcasting Tribunal v Bond may involve non-compliance with the duty" ( Re MIMA ; Ex parte S 20/2002 (2003) 198 ALR 59 ; 73 ALD 1 ; 77 ALJR 1165 ; [2003] HCA 30 at [9] per Gleeson CJ). In the context of the particular statutory framework relating to protection visas under the Migration Act 1958 (Cth) and the role and duty of the Refugee Review Tribunal, Gummow and Hayne JJ (with whom Gleeson CJ agreed) in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 ; 78 ALD 224 ; 78 ALJR 992 ; [2004] HCA 32 at [38] observed that although the question of whether protection obligations relevantly arose included a consideration of factual matters, "the critical question is whether the determination [by the Tribunal] was irrational, illogical and not based on findings or inferences of fact supported by logical grounds" and "inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error".

[99] In Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 ; 160 ALR 543 ; 53 ALD 1 ; [1999] FCA 1 at [25], Black CJ, von Doussa and Carr JJ observed that want of logic in drawing an inference will not of itself constitute an error of law. Their Honours also noted, however, that a want of logic "may sound a warning note to put one on inquiry whether there was indeed any basis for the inference drawn": see also NAMM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 32 per French, Lindgren and Finkelstein JJ; Minister for Immigration and Multicultural and Indigenous Affairs v W306/01A [2003] FCAFC 208 per French, Hill and Marshall JJ; NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 per Tamberlin, Emmett and Weinberg JJ; W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 per French, Lee and Carr JJ; NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 per Heerey, Sundberg and Crennan JJ; VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 per Kiefel, Marshall and Downes JJ, applying these principles ...

[32] In Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 ; [2001] FCA 744, Sundberg, Emmett and Finkelstein JJ observed that the question of whether there is any evidence of a particular fact is a question of law and whether a particular inference can be drawn from facts found is also a question of law.

[33] The committee noted that in the course of oral evidence before it on 28 July 2006, Dr Tisdall accepted that he had rendered 80 or more services on 66 days during the referral period: [18]. The committee also noted that Dr Tisdall by his submissions of 1 May 2006 and 28 March 2007 contended that exceptional circumstances within reg 11(b) of the Regulations existed throughout the referral period: [18]. Dr Tisdall thus contended that the matters the subject of all the evidence he put on before the committee applied to all of the 66 days in question.

The relationship between professional attendances and patients seen

[34] There was some confusion during the course of the hearing of the appeal as to whether the provision of 80 or more services on each of the 66 days represented 80 or more professional attendances on 80 or more patients or 80 or more services provided to some lesser number of patients. That matter seemed important to the Full Court as the cohort of Dr Tisdall's patients who might have sought out other medical services in the referral period was arguably relevant to the question of whether alternative medical services were available (or absent) for them in the catchment as a practical matter. There is arguably, or at least rationally, a potential relationship between the demand-side cohort of patients seeking medical services on any day during the referral period and the supply-side availability of other medical practitioners to provide the required medical services. The only question of interest, of course, on that topic to the court in the course of the appeal was whether it was clear to the committee from its reasons whether it regarded (or not) 80 or more professional attendances as attendances upon 80 or more individual patients. The Full Court was not seeking to establish that matter of fact to its own satisfaction as that is entirely a matter for the committee, but rather was seeking to identify the treatment of that matter by the committee.

[35] The Medicare Australia statistics before the committee recorded that the total number of patients seen by Dr Tisdall during the review period was 3930 "distinct patients" and on the relevant 66 days Dr Tisdall saw 2626 "distinct patients". The committee accepted that the adjudicative referral "provided evidence" that Dr Tisdall had rendered 80 or more "professional attendances" on each of the 66 days: [18]. The committee therefore proceeded on the basis that each of the 80 or more services provided by Dr Tisdall represented a professional attendance upon a separate patient on the day.

[36] In order to make that position clear, the parties were asked whether a joint position could be put before the court identifying on each of the 66 days on which Dr Tisdall provided 80 or more services, whether he attended 80 or more patients. The parties by a joint memorandum of 16 November 2010 said that only those services represented by professional attendances for the purposes of reg 7 of the Regulations were taken into account by the committee when determining whether Dr Tisdall had rendered 80 or more services.

[37] The following table sets out the number of reg 7 professional attendances by Dr Tisdall on each of the 66 days across the referral period and the corresponding number of patients seen in respect of those professional attendances each day. Sometimes, the number of patients is identified as an alternative number. In some cases, professional attendances were made upon patients with the same name and it is not clear whether one patient received both services or whether two patients received one service, and on other occasions it can be established that two professional attendances (services) were made upon the same patient.

[38] However, it is clear from [18] and [19] of the committee's reasons that the committee proceeded from the very outset on the footing that 80 or more services represented at least 80 or more professional attendances upon 80 or more patients on each of the 66 days. The total number of professional attendances upon patients across the 66 days was 5710 (having regard to the lower of the alternative numbers -- alternative 1) or 5719 (having regard to the higher of the alternative numbers -- alternative 2). Since all of those professional attendances were represented by 2626 "distinct patients", it follows that each of those 2626 patients was seen by Dr Tisdall, on average, across the 66 days 2.17 times (alternative 1) or 2.18 times (alternative 2). Those statistics represent averages. It may be, for example, that Dr Tisdall saw a patient on four or five occasions across the 66 days in relation to one or more medical problems and another patient on simply one occasion.

[39] Nevertheless, it is clear that the committee proceeded on the footing that each professional attendance, in effect, represented a service provided to a separate patient on the relevant day. It follows that on each of the 66 days Dr Tisdall saw not less than 80 patients and on the busiest day (day 30) he saw 105 patients. Set out below is the table.

The case put to the committee

[40] At [21] the committee notes that Dr Tisdall contended for an absence of other medical services for his patients in the region where he practised because of:

(a)

a chronic shortage of doctors in Kyabram;

(b)

the lack of cooperation between Dr Tisdall and other doctors in Kyabram (other doctors refused to see Dr Tisdall's patients);

(c)

the decision of other doctors in Kyabram to limit their hours of practice and close their books to new patients;

(d)

the lack of other doctors with specialist skills, particularly psychiatric counselling and radiology; and

(e)

the characteristics of Dr Tisdall's patients, including:

(i)

the disadvantaged, including those from lower socio-economic groups such as pensioners and drug users, and the elderly and infirm members of the community; and

(ii)

those from particular ethnic backgrounds, including Italian, Aboriginal and Islamic backgrounds; and

(f)

circumstances where other doctors in Kyabram did not bulk-bill to the same extent as Dr Tisdall did.

The committee's adjudication of the case

[41] On 28 July 2006, the committee conducted a hearing and took evidence from Dr Tisdall. At [10] the committee notes that it received from Dr Tisdall's advisers statutory declarations in support of the absence of alternative medical services during the referral period from Mr Wayne Sullivan (the Chief Executive Officer of the Kyabram & District Memorial Community Hospital); Mr Brian Thomson (the Manager of the Ngwala Willumbong Cooperative, an indigenous organisation); Dr William Orchard (a psychiatrist); Dr Ian Collie (a pharmacist in Kyabram); Ms Jean Courtney (the Director of Nursing at the Tongala & District Memorial Aged Care Service and a board member of the Kyabram & District Memorial Community Hospital); Dr Tisdall and Mr Nilgun Atalmis (an interpreter for the Turkish Community in the Shepparton region). Dr Tisdall's advisers made four separate written submissions to the committee.

[42] At [29] of its reasons the committee notes Dr Tisdall's submission of 1 May 2006 that during each week (during the referral period), Monday-Friday, Dr Tisdall saw patients between 9 am and 7.30 pm (approximately 11 hours each day) and on Saturday he saw patients from 8 am to 1 pm (5 hours) although sometimes the Saturday hours were much longer; on Sunday, Dr Tisdall conducted an emergency clinic; he remained on call for 24 hours for his patients; from 8 am each morning for about 30 minutes he conducted a round of his patients at the hospital and from 8.30 am each morning he wrote medical reports for 30 minutes; he saw his hospital patients in the evening until about 9 pm; he conducted outpatients services at the hospital for an hour on each Monday and Thursday morning undertaking minor procedures such as excising lesions and fixing fractures; and, he performed operations at the hospital for three to 4 hours on Wednesday mornings.

[43] At [22] the committee notes Dr Tisdall's oral evidence that during the 2000 calendar year there were six other practitioners (seven in all) practising in Kyabram. The committee notes that the nearest public hospital was in Shepparton (45 kilometres away) and patients had to wait up to 7 hours to be treated there. Smaller hospitals operated in Echuca (also 45 kilometres away) and in Kyabram.

[44] At [25] the committee notes the evidence of Mr Sullivan that all of the doctors in Kyabram practised a number of areas of medicine including anaesthetics, broader medical services, minor surgical procedures and obstetrics. At [26] the committee notes the oral evidence of Mr Michael Robertson, the Chief Executive Officer of the Murray Plains Division of General Practice that Kyabram's catchment for patients included Undara and encompassed in 2002, 17,000 people. The committee noted Dr Tisdall's submission of May 2006 that during the referral period the doctor/patient ratio (in the catchment) was 1:2000 (which suggests a catchment of 14,000 people) as compared with a metropolitan ratio of 1:960. As to the demand for medical services, the committee notes at [28] Ms Courtney's evidence that the quality of Kyabram's hospital and its services elevated Kyabram to a medical centre attracting additional people from outside the region (or catchment) seeking medical services.

[45] At [30] the committee notes Dr Tisdall's oral evidence that he saw 4500 patients in the calendar year 2000. Dr Tisdall gave evidence that during the referral period he had left a group practice comprising other Kyabram doctors to establish his own practice. Those doctors, he told the committee, worked normal hours and took holidays regularly. He told the committee that those doctors were antagonistic towards him because he had chosen to leave and set up his own practice. He told the committee that many of his patients had told him that other Kyabram doctors would not treat them because they were aligned with him.

[46] As to after-hours services, Dr Tisdall gave oral evidence to the committee that the other Kyabram doctors operated two rosters at the Kyabram Hospital and that Dr Tisdall was permitted to join the roster only in relation to patients requiring after-hours emergency medical care and only in respect of patients who were not already seeing a doctor, with the result, it was said, that Dr Tisdall was required to be on-call for all of his patients for 24 hours each day, 7 days a week, and only in an emergency would one of the other Kyabram doctors treat a patient of Dr Tisdall.

[47] As to the contended shortage of doctors in the Kyabram catchment, the committee notes at [23] the evidence of Mr Sullivan that the catchment may be between 12,000 to 16,000. The committee also notes at [24] Mr Sullivan's evidence that he had heard anecdotally that other doctors (apart from Dr Tisdall) in Kyabram had closed their books. The committee also notes at [24] that Mr Sullivan's evidence on that point was supported by the evidence of Ms Courtney, Mr Collie and Dr Tisdall in his own oral evidence. Buchanan J in his Honour's reasons at [114] notes the content of Mr Sullivan's evidence on that matter and the evidence of the other deponents.

[48] As to the aspects of the characteristics of Dr Tisdall's patients, the committee at [34] notes the evidence of Dr Orchard that Dr Tisdall had a reputation for caring for the under-privileged and that patients would travel long distances to see him because of their trust in him. At [34] the committee notes the evidence of Mr Collie that a large proportion of the Turkish and Italian communities around Kyabram saw Dr Tisdall as he was highly regarded. At [36] the committee notes the evidence of Mr Atalmis, an interpreter in Shepparton, that members of the Turkish community preferred to see Dr Tisdall because he understood their culture, was prepared to go out of his way to help them when they required medical services, and was willing to bulk-bill them if they were receiving social security benefits. The committee notes Mr Atalmis's evidence that there is quite a large Turkish community in and around Shepparton and that he acted as an interpreter for the Turkish patients of Dr Tisdall at least twice a week during 2000 and 2001. The committee notes at [35] Dr Tisdall's statutory declaration of 29 March 2007, by reference to a table, showing that he saw between four and 13 Turkish patients (an average of 8.81 Turkish patients) and between two and 13 Italian patients (an average of 7.19 Italian patients) on the days reflecting a random selection of the 66 days on which he rendered 80 or more services.

[49] At [35] the committee notes that Dr Tisdall gave evidence to the committee that Turkish, Italian and Aboriginal patients saw him because he was willing to bulk-bill them and because, in Dr Tisdall's view, he believed those groups considered that he had a particular understanding of their cultural and religious sensitivities and in addition Dr Tisdall speaks some Italian. At [34] the committee notes Dr Orchard's evidence in support of Dr Tisdall that Dr Tisdall is the only practitioner in the area who regularly bulk-bills. At [34] the committee notes Mr Collie's evidence that Dr Tisdall bulk-bills a large number of his patients, typically the less well-off members of the community. At [33] the committee notes Dr Tisdall's evidence that he bulk-billed pension and health card holders which Dr Tisdall said constituted 45% of his practice. The committee notes Dr Tisdall's estimate that 30% of his patients were pensioners and a large number were drug users.

[50] At [37] the committee notes the evidence of Mr Thomson that Mr Thomson, the manager of the Ngwala Willumbong Coperative, referred residents of the Percy Green Memorial Alcohol and Drugs Centre, run by the cooperative, to Dr Tisdall because Dr Tisdall was prepared to see the residents at short notice and bulk-bill them for his services. The committee notes that this contrasted, Mr Thomson said, with the lack of other doctors who were willing to bulk-bill or to see patients with alcohol or drug problems.

[51] As to the preference of patients to see Dr Tisdall, Dr Tisdall gave evidence that his Italian, Turkish and Aboriginal patients found it very comfortable to see him, especially the Aboriginal patients, because of Dr Tisdall's empathy with them. The committee notes at [38] Dr Tisdall's evidence that Italian patients came to see him because he could speak some of their language and he demonstrated empathy with them. The committee notes that he contended that the Turkish patients came to see him because nobody else, in all probability, wanted to see them. He said that certainly there was no bulk-billing for those patients (from other doctors) and again, that he had empathy with those cultural groups. The committee notes at [39] Dr Tisdall's suggestion of anecdotal evidence that other doctors avoided providing services to Islamic and Aboriginal patients.

[52] At [27] the committee says that it understands its task is to "determine whether or not there was an absence of other medical services for patients of Dr Tisdall during the relevant period, having regard to the location of Dr Tisdall's practice and the characteristics of his patients". At [47] the committee observes that it is required to answer whether there was "an absence of services for Dr Tisdall's patients on [the 66 days] (having regard to the location of his practice)". At [45]-[48] the committee records its conclusions as to locational factors and the catchment; at [49] the socio-economic mix of the people in the catchment; and at [50] and [51] some brief passing reference to the Aboriginal, Turkish and Italian patients of Dr Tisdall.

[53] As to the matters of fact accepted by the committee, it found at [45] that during the referral period there was "a chronic doctor shortage in rural Australia ... and that Kyabram and its surrounding area also suffered from a relative shortage of doctors, compared to metropolitan centres" (emphasis added); there was "a lack of cooperation between Dr Tisdall and a number of other doctors in Kyabram"; and "some doctors may have had limited hours of practice".

[54] Those findings and those that followed at particularly [46] and [47] were informed by the committee's use of statistics provided by Medicare Australia.

The committee's reference to statistics provided by Medicare Australia

[55] The committee's use of the Medicare Australia statistics began with a factual matter drawn from an exhibit to one of Dr Tisdall's statements. The exhibit disaggregated the locations of Dr Tisdall's patients. The committee notes at [40] that four postcode locations represented the geographic source of 75% of Dr Tisdall's patient base: Kyabram (plus two communities), Postcode 3620, 4538 patients or 41.64%; Shepparton (including three communities), Postcode 3630, 1943 patients or 17.83%; Ardmona (plus three communities), Postcode 3629, 899 patients or 8.25%; and Cooma (plus four communities), Postcode 3616, 834 patients or 7.65%.

[56] Although the committee did not make an express finding as to the catchment or the scope of the "location" of Dr Tisdall's practice other than a reference at [45] to "Kyabram and its surrounding areas", the same reference at [49] and a reference at [50] to practitioners "in the region", the references to the four postcode locations (and identified towns and communities) seems to be an acceptance by the committee of the description of the catchment (and thus the location) for Dr Tisdall's practice consisting of between 12,000 and 16,000 people.

[57] The committee then notes at [41] that many of the patients who saw Dr Tisdall on one or more of the 66 days also saw another medical practitioner at some point across the period 5 January 2000 to 21 August 2000. A patient who saw Dr Tisdall on 11 January 2000 (one of the 66 days) may have seen another medical practitioner in May or June or July and it may have been on a day in those months when Dr Tisdall saw 80 or more patients or perhaps some other day. Similarly, a patient who saw Dr Tisdall on 4 August 2000 (one of the 66 days) may have seen another medical practitioner on a day in February, March or April which may have been one of the relevant 66 days in those months, or not.

[58] The committee notes at [41] that eight medical practitioners across the period 5 January 2000 to 21 August 2000 also engaged in 301 attendances upon some patients that Dr Tisdall saw drawn from the 66 day patient breakdown (2626 patients in all) in the postcode area 3620 (being the main locational catchment for Dr Tisdall). The 301 attendances, of course, may represent 301 different people or some lesser number of individuals who had, in all, 301 attendances. Dr Tisdall saw on all of those 66 days either 5710 or 5719 patients (alternatives 1 and 2) represented by a patient cohort of 2626 individuals. Those 301 attendances upon the eight other medical practitioners in that postcode catchment represent 5% of the attendances on Dr Tisdall in the 66 day period.

[59] Similarly, 30 medical practitioners across the referral period also engaged in 232 attendances upon some patients that Dr Tisdall saw in the 66 days (recognising that those 232 attendances may represent a lesser number of individuals) in the postcode area 3630 (the second highest locational area for Dr Tisdall). Those 232 attendances represent 4% of Dr Tisdall's attendances in the 66 days.

[60] Nine medical practitioners across the referral period engaged in 122 attendances upon some patients that Dr Tisdall saw in the 66 day period in the postcode area 3629: the third highest locational area for Dr Tisdall. Those 122 attendances represent 2% of Dr Tisdall's attendance in the 66 day period.

[61] Finally, the committee notes that seven medical practitioners across the referral period also engaged in 121 attendances upon some patients that Dr Tisdall saw in the 66 days in the postcode area 3616: the fourth highest locational area for Dr Tisdall. Those 121 attendances represent 2% of Dr Tisdall's attendances over the 66 days.

[62] These statistics at [41] deal with attendances by "other medical practitioners (not specialists)". At [41] the committee then refers to other statistics concerning medical practitioners described (more broadly) as "distinct other medical practitioners" (which presumably is a reference to attendances by other medical practitioners which includes the first group, and also specialists). The committee notes that across the referral period 868 individual patients (within the cohort of 2626 patients) saw 552 distinct other medical practitioners giving rise to 2958 visitations or attendances. The first group of attendances at [41] by general practitioners represents 776 attendances and thus the second group of attendances by other medical practitioners represents 2182 attendances constituting the aggregate 2958 attendances in all.

[63] In noting the statistics related to the first group of medical practitioners, the committee refers only to attendances not patient numbers although the attendances are said to reflect consultations with "many patients". If the attendances directly reflect patient numbers, the 776 Group 1 attendances may amount to 776 individuals, that is, different patients. The description "individual patients" can be misleading because each attendance concerns an attendance upon an individual patient but the total number of attendances may involve a lesser number of separate or individual persons. In other words, a person may have had more than one attendance upon a medical practitioner.

[64] If 868 individual patients gave rise to 2958 attendances upon all other medical practitioners throughout the referral period, each of those individuals had, on average, 3.4 attendances upon other medical practitioners across the relevant period.

[65] The reference at [41] to the very large number of other medical practitioners (552) in the aggregated numbers for all medical practitioners (including specialists) as compared with the comparative number of other general practitioners noted by the committee in the four postcode locations (that is, 8, 30, 9 and 7 general practitioners) suggests that many of those attendances upon 552 "distinct other medical practitioners" may be attendances upon specialists across the medical discipline. If so, a question would arise as to the utility of the statistic as Dr Tisdall is a general practitioner seeing patients who according to the relevant test might otherwise reasonably have seen (or not, having regard to the regulation 11(b) factors) another general practitioner. If there were relevant attendances upon 552 "distinct other medical practitioners", were those 552 distinct other medical practitioners practising in the catchment or does the reference to 552 distinct other medical practitioners have some further contextual explanation or other explanation suggesting relevant substitutability within a reasonable period?

[66] The first group of statistics discussed at [41] of the committee's reasons concerning 776 attendances (in all) upon other medical practitioners, at some point during the referral period, by some patients who saw Dr Tisdall on some of the 66 days show a statistically small number of "other" attendances for each postcode location (5%, 4%, 2% and 2%) as compared with the total attendances on the 66 days upon Dr Tisdall. From the total cohort of 2626 patients who saw Dr Tisdall on the 66 days, 5710 or 5719 attendances (alternatives 1 and 2) were made upon Dr Tisdall in those 66 days and 776 other attendances were made on other medical practitioners at some unidentified point between 5 January 2000 and 21 August 2000. That represents in all 6486 attendances (5710 + 776 attendances), of which 88% were made upon Dr Tisdall. That suggests that in almost nine out of 10 attendances by the 2626 patients who saw Dr Tisdall on those 66 days and who also otherwise acquired medical services in the referral period, the patients did so either because they chose to see Dr Tisdall or had to see Dr Tisdall. The second possibility may be consistent with an inability on the part of patients on the 66 days to reasonably access services from other medical practitioners in the catchment.

[67] Was it relevant to consider whether 776 attendances occurred on other medical practitioners at some unidentified point during the referral period by some patients who saw Dr Tisdall on some of the 66 days? Section 106K(A)(2) taken together with reg 11(b) of the Regulations and the adjudicative referral provides, in effect:

If Dr Tisdall satisfies the Committee that, on a particular day or particular days during the period 5 January 2000 to 21 August 2000, an absence of other medical services existed for the patients of Dr Tisdall having regard to the location of Dr Tisdall's practice and the characteristics of his patients, that affected the rendering ... of services by Dr Tisdall, Dr Tisdall's conduct in connection with rendering ... services on that day or those days is not taken by subsection (1) to have constituted engaging in inappropriate practice. [Emphasis added.]

[68] Dr Tisdall's case put to the committee was that there was an absence of other medical services throughout the whole of the referral period that affected his rendering of services. That approach may have been adopted because it was too forensically difficult to show (or satisfy the committee of) an absence of other medical services on each and every individual day (and thus in the aggregate all 66 days). Since the contended inappropriate practice was said to consist of a statutory pattern of services within the referral period, Dr Tisdall may have chosen to satisfy the committee that a general pattern of absence of other medical services subsisted across the entire referral period.

[69] Having put his case of an absence of other medical services on the relevant 66 days on the footing that there was an absence across the entire referral period (which necessarily applied to all 66 days) it was at least relevant for the committee in considering the case as put, to consider whether some of the patients who saw Dr Tisdall on some of the 66 days also saw other medical practitioners during the referral period and if so, how many. Such an analysis in adjudicating the case actually put to the committee might have tended to show something about access to other services throughout the referral period from which an inference might or might not arise about "absence" on the relevant days , although the raw statistics do not reveal the underlying reasons for attendances.

[70] At [42] the committee notes that in postcode 3620 on each of the 66 days, the statistics show that between three and seven other medical practitioners (an average of 5.8 practitioners) "worked" rendering, on the statistics, 114 medical services per day, on average, between them. The committee also notes at [42] that during the referral period (not just the 66 days) from postcode 3620, 10 other medical practitioners rendered 19,711 services at a bulk-billing rate of 46.16% (compared with Dr Tisdall's rate of 73.20%) and seven of those 10 medical practitioners rendered more than 1900 services (at a bulk-billing rate of 34%).

[71] It follows that if 5.8 (on average) other medical practitioners rendered 114 services (on average) in all on each of the relevant 66 days, each of the other medical practitioners, on average, therefore rendered 19.65 services on each of those 66 days for postcode 3620 (the main locational catchment for Dr Tisdall). If 10 other medical practitioners (which presumably includes the three to seven medical practitioners earlier mentioned concerning the rendering of services on the 66 days) rendered 19,711 services, each medical practitioner, on average, rendered 1971 services throughout the period 5 January 2000-21 August 2000. That period (leaving aside all weekend services) consists of 179 days (Monday-Friday) at an average of 11.01 services rendered by each of those 10 medical practitioners each week-day during the referral period.

[72] Perhaps these averages taken together with the statistics at [41] explain Dr Tisdall's submission noted by the committee at [43] that the statistics suggest that the proportion of patients who saw Dr Tisdall in the referral period and who also saw other medical practitioners in the location (postcode zones) of his practice was "very small".

The reason for looking at the statistics

[73] The point of examining the statistics is not to substitute the court's view on the ultimate question on the merits or the facts for that of the committee, but simply to examine the content of the statistics to consider what might be revealed by them so as to understand how they were used by the committee and whether they represent any evidence of a relevant matter where reliance was placed upon this data by the committee.

Further findings

[74] Apart from the committee's findings already mentioned at [50] of these reasons, the committee also accepted that during the referral period there was a higher doctor-patient ratio in Kyabram than in metropolitan areas: [45]. The committee at [46] then relied upon the statistics at [42] for postcode location 3620 (demonstrating that between three and seven medical practitioners worked on each of the relevant 66 days) as "indicat[ing] that substantive practices were open " and " likely had capacity to see additional patients". [Emphasis added.]

[75] The committee infers at [46] from the fact that other medical practitioners (three to seven practitioners) rendered some services (19.65 services on average, it seems) on each of the 66 days, that those medical practitioners, on the facts, likely had (that is, more likely than not, had) the capacity to render medical services to Dr Tisdall's patients. In that sense, the committee must have concluded that those statistics (three to seven medical practitioners open and working) are a proxy , on the facts, for the conclusion that had Dr Tisdall not been available to see his patients on those 66 days, those patients would have been able, reasonably, to see one of the other medical practitioners so working.

[76] The committee however does not say that or say why that might be so apart from an inference drawn from the foundation fact of three to seven other medical practitioners open and working in the location on the 66 days. Nor does the committee refer to the statistics for each postcode zone analysed at [41] of its reasons which were presumably thought to be relevant that almost nine out of 10 attendances (in the circumstances discussed at [63] of these reasons) were, in fact, directed to Dr Tisdall, or why.

[77] To support its state of non-satisfaction of the statutory factors, based on an inference of no absence of other medical practitioners to render services to Dr Tisdall's patients on the relevant days, the committee also notes at [46] that on each of the 66 days the "three busiest other practitioners rendered at least 10 services but no more than 43 services" and the "average number of services rendered by the three busiest other practitioners ranged from 17.67 services per practitioner (the quietest day) to 34.3 services per practitioner (the busiest day)".

[78] The foundation fact of importance to the committee was that the three busiest other medical practitioners rendered not less than 10 but not more than 43 services and, on average, rendered 17.67 services on the quietest day and 34.3 services on the busiest day.

[79] Although the committee does not express its state of non-satisfaction of the central matter of absence on the following basis, the inferential reasoning seems to be this. Since the three busiest other medical practitioners in the postcode catchment were rendering not less than 10 services and not more than 43 at an average of 17.67 services on the quietest day and 43.3 services on the busiest day (over the relevant 66 days), the rendering of 80 or more services by Dr Tisdall on those 66 days in the same postcode catchment is so substantially beyond the pattern of rendering of services by other medical practitioners for that catchment (4.5 times the average of the busiest three practitioners on the quietest day and 1.8 times the busiest day average of those three practitioners) that some, at least, of the patients of Dr Tisdall on each of those 66 days could likely have been seen by the other medical practitioners in the catchment because the capacity margin between their pattern of rendering on those days and that of Dr Tisdall allows that inference to be drawn.

[80] However, the statistical pattern of rendering by itself does not support an inference of latent or actual capacity to provide services to Dr Tisdall's patients on those 66 days. It may well aid in an analysis of the facts giving rise to the statistical pattern of rendering by focussing the inquiry and causing the committee in an adjudicative or deliberative way to analyse why one practitioner is seeing many more patients than others and, more importantly, whether the reason or reasons are, in fact, those advanced by the person under review relevantly connected with the reg 11(b) factors.

[81] Dr Tisdall sought to demonstrate an absence of other medical services by reference to the statutory factors and, in effect, sought to answer a suggested inference of likely capacity in other medical practitioners to render the relevant services by asserting the merits of the uncontradicted body of evidence demonstrating the elements of the case described at [37] of these reasons. In one sentence, the committee disposes of the entirety of that body of evidence by saying this (at [47]):

[47] The Committee does not accept that other practitioners would have refused to see Dr Tisdall's patients and, consequently, does not consider there to have been an absence of services for Dr Tisdall's patients on the [66] days ...

[82] Accordingly, there are two reasons why the committee is not satisfied of an absence of other medical services. First, the committee formed a view that other medical practitioners likely had the capacity to see and render services to Dr Tisdall's patients. Second, those medical practitioners, having that capacity, would not have refused to see Dr Tisdall's patients. Neither of these explanations for the committee's state of non-satisfaction actually deals with the evidence put to the committee by Dr Tisdall.

[83] There is no further analysis of the foundation evidence (but for some specific matters to be mentioned shortly) or any explanation for its rejection. There is no adverse credit finding made concerning the direct evidence of Dr Tisdall or an explanation for the rejection of the evidence of disinterested witnesses such as Mr Wayne Sullivan, Ms Jean Courtney, Mr Michael Robertson, Mr Ian Collie, Mr Brian Thomson or Mr Nilgun Atalmis. It seems to me, having regard to these matters, that the committee has not, as a matter of law, reached the relevant opinion and formed the relevant state of satisfaction in the sense contemplated by Saeed and Foster .

[84] Moreover, the committee relies upon the statistics discussed at [77] of these reasons to find "likely capacity" in other practitioners to see Dr Tisdall's patients and second a disposition, on the part of those practitioners, to see Dr Tisdall's patients, without addressing the question of whether those practitioners could reasonably, in fact, have seen those patients within a reasonable timeframe having regard to the locational factors and the characteristics of Dr Tisdall's patients. In that sense, I agree with Buchanan J that the committee has not considered, expressly, the important practical question of whether the patients could reasonably have obtained other medical services had they not been seen by Dr Tisdall.

[85] It may be that the committee's finding that substantive practices were open on the 66 days, coupled with the two suppositions that first, those practitioners likely had capacity to see additional patients and second, would do so, contains a further supposition that Dr Tisdall's patients on the relevant days could likely have been seen within a reasonable timeframe . The committee does not say that. Even if an assumption is made that the test formulated at [27] of the committee's reasons and applied by it asks whether Dr Tisdall's patients would have been able, reasonably, to consult other medical practitioners who had that capacity and disposition, the two suppositions at the threshold are not soundly based in the sense that they are not open simply on the statistics and fail to reflect any analysis of the underlying facts. In Avon Downsat CLR 360; ALR 793, Dixon J said this:

But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income ... If [the commissioner] does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.

[86] Although the committee members are entitled to consider and undertake their adjudicative function concerning the statutory factors against the background of their own professional experience as general practitioners especially having regard to s 95 of the Act which requires the committee to be comprised of general practitioners in a case where a general practitioner is the person under review, the committee members are not entitled to make findings of fact informing its state of non-satisfaction of those statutory factors based upon assumptions of likely capacity and likely disposition to see patients, unsupported by actual evidence, or simply based upon inferences drawn from statistics which do not reveal facts about the reasons for statistical rates of attendance.

[87] This is especially so when the consequences for a citizen of findings made on such a footing is that the citizen might be deprived either for a time or entirely of an entitlement to earn an income from undertaking the provision of services.

[88] At [48] of the committee's reasons, it accepts that for Dr Tisdall's patients alternative psychiatric counselling and radiology services were limited. The committee notes that Dr Tisdall's patients were in no different circumstances to patients seeing other doctors in Kyabram. The committee found that it was "not convinced that this [the limited access to alternative psychiatric counselling and radiology services] constituted anything exceptional about Dr Tisdall's practice". [Emphasis added.] The committee further finds that it is "not convinced that there was an absence of those services for Dr Tisdall's patients and further, whatever the limits on alternative care were, those limitations did not 'affect' Dr Tisdall's servicing, in the sense of causing him to render more services than he otherwise would have". The committee explained the reason for that conclusion, in part at least, on the footing that "the performance of those specialist services would have resulted in longer consultations and hence in Dr Tisdall rendering fewer attendances for the day in question rather than more". [Emphasis added.]

[89] At [49] the committee gave consideration to the socio-economic standing of the Kyabram catchment and considered that Kyabram and its surrounding area was not, in itself, of lower socio-economic standing although the committee accepted that persons from disadvantaged backgrounds resided in the region and that such persons would have been attracted to a practice that bulk-billed for services to the extent of Dr Tisdall's bulk-billing practices. However, the committee was satisfied that there were other practitioners in the region who bulk-billed a significant proportion of their patients and "[c]onsequently, the Committee does not consider there was an absence of services for Dr Tisdall's disadvantaged patients on the [66] days". [Emphasis added.] At [51] the committee found that it was not satisfied that "Aboriginal, Turkish and Italian patients saw Dr Tisdall because of an absence of services for them". In addressing the evidence, the committee found at [51] that "[T]o the extent that Dr Tisdall's reference to those patients related to their need for bulk-billing, this issue has already been discussed above [49]" and to the extent that Dr Tisdall's references to patients from these cultural groups which exhibited a disposition to consult with him "is based on language difficulties, the Committee notes that Dr Tisdall used an interpreter for his Turkish patients, a service available to all other doctors in the region, and that Dr Tisdall only spoke limited Italian".

[90] The committee accepted at [51] that Aboriginal, Turkish and Italian patients saw Dr Tisdall because he showed empathy towards them and they felt comfortable with him. The committee concluded that these factors did not "evidence an absence of services for those patients and the Committee finds that there were services available for these patients".

[91] Although the Constitution provides for a distribution of powers with the result that the exercise of supervisory review of administrative decision-making by Ch III courts does not engage the merits of administrative decision-making, the administrative decision-maker must reach findings within the process of decision-making which are open and supported by some evidence. If there is any evidence to support the findings, the decision is not susceptible of review on the footing that the court in the exercise of original jurisdiction might not or would not have made those findings. The relevant tests are set out at [24]-[26] and [29]-[32] of these reasons. It seems to me that it was not open to the committee to reach a state of non-satisfaction on the basis of the statistics upon which it relied in the absence of any process of reasoning revealing the statutory factors informing those statistics and in circumstances where in one brief sentence the committee rejected the totality of Dr Tisdall's evidence and that of his witnesses.

[92] Accordingly, an order ought to be made removing the decision of the committee into this court and quashing it together with an order that the matter be remitted to the committee for further consideration with a view to examining the question as framed by this court in the context of the statutory factors having regard to the evidence of Dr Tisdall and his witnesses together with an explanation of the Medicare Australia statistics upon which the committee chooses to rely.