Tisdall v Webber & Ors
[2011] FCAFC 76193 FCR 260
122 ALD 49
[2011]ALMD 5260
(Judgment by: Buchanan J)
Tisdall
v Webber (In his capacity as Director of Professional Services Review) and Ors
Judges:
Greenwood J
Tracey J
Buchanan J
Judgment date: 7 June 2011
Melbourne
Judgment by:
Buchanan J
[94] The effect of s 106KA of the Health Insurance Act 1973 (Cth) (the Act), when read with reg 10 of the Health Insurance (Professional Services Review) Regulations 1999 (Cth) (the Regulations) is that if a practitioner provides 80 or more professional services on 20 or more days during a 12-month period he or she is taken to have engaged in "inappropriate practice". A practitioner may avoid the consequences of the presumption of inappropriate practice by identifying "exceptional circumstances". Some, but not all, matters which might constitute exceptional circumstances are prescribed by the Regulations.
[95] Section 106KA(2) and (5) of the Act provided at the relevant time: 106KA Patterns of 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'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.
...
(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.
(Since the events with which the proceedings are concerned s 106KA has been modified, but not in a way which affects the matters to be addressed or the outcome.)
[96] Regulation 11 of the Regulations provided: 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.
[97] For the purpose of the present appeal it is only reg 11(b) which requires consideration. The relevant period in the present case was between 5 January and 21 August 2000 during which period Dr Tisdall provided 80 or more individual professional services on 66 particular days.
[98] On 13 December 2001 the Health Insurance Commission (now known as Medicare Australia) made an investigative referral to the Director of Professional Services Review. The director made an adjudicative referral dated 14 February 2002 to Professional Services Review Committee No 325 (the committee). The committee published a report on 23 January 2003 concluding that Dr Tisdall had engaged in inappropriate practice on each of the 66 days and that exceptional circumstances that affected the rendering of services did not exist on any of those days. Dr Tisdall commenced proceedings in the Federal Magistrates Court of Australia for judicial review to set aside the committee's decision. Those proceedings were transferred to this court. Dr Tisdall's application was rejected by Gray J on 8 April 2005 ( Tisdall v Kelly (2005) 219 ALR 152 ; 85 ALD 544 ; [2005] FCA 365) but, after the judgment of a Full Court in Oreb v Wilcock (2005) 146 FCR 237 ; 88 ALD 584 ; [2005] FCAFC 196 ( Oreb ), the matter was remitted by consent to the committee for further determination. The reason why that happened is no longer relevant. The committee was reconstituted. It published a final report on 9 July 2009 which again concluded that Dr Tisdall had engaged in inappropriate practice and that exceptional circumstances that affected the rendering of services did not exist on any of the 66 days in question. Dr Tisdall applied again to this court; this time to set aside the second decision of the committee. On 26 May 2010 the further application for judicial review was rejected by the primary judge: Tisdall v Webber [2010] FCA 501. From that judgment the present appeal has been brought.
[99] Dr Tisdall practised in Kyabram in Victoria near Shepparton. His patients came from that region, including Shepparton itself. The essential elements of Dr Tisdall's case were that there was an absence of medical services for his patients in the region where he practised during the period under consideration because of a combination of factors, including: a chronic shortage of doctors in Kyabram; the refusal of other doctors to see his patients; the fact that other doctors had closed their books to new patients and limited their hours of practice; the lack of doctors with particular specialist skills including psychiatric, counselling and radiology services; the characteristics of Dr Tisdall's patients who included disadvantaged members of society and those from particular ethnic backgrounds; and the fact that Dr Tisdall bulk billed more than other doctors.
[100] As to those matters the committee:
- --
- accepted that there was a chronic doctor shortage in rural Australia and that Kyabram and its surrounding area suffered from a relative shortage of doctors;
- --
- accepted that there was a lack of cooperation between Dr Tisdall and a number of other doctors in Kyabram during the relevant period;
- --
- referred to evidence supporting the proposition that other doctors in Kyabram had closed their books (and made no reference to evidence to the contrary);
- --
- accepted that some doctors in Kyabram may have had limited hours of practice;
- --
- accepted that alternative psychiatric, counselling and radiology services were limited for Dr Tisdall's patients;
- --
- appeared to accept that Dr Tisdall had a reputation for caring for the underprivileged;
- --
- appeared to accept that a large proportion of the Aboriginal, Turkish and Italian communities around Kyabram saw Dr Tisdall; and
- --
- appeared to accept that Dr Tisdall bulk billed a large number of his patients, typically less well-off members of the community.
[101] However the committee declined to accept that those matters, in the circumstances, constituted exceptional circumstances or made out a case of exceptional circumstances under reg 11(b). One essential ingredient in the committee's reasoning appears to have been its conclusion (or assumption) that other practices or practitioners would probably have had the capacity to see additional patients on each of the 66 days in question and would not have refused to see Dr Tisdall's patients on those days. Those findings were supported by observations that other practitioners also bulk billed "a significant proportion of their patients". The figures given by the committee suggested that during the referral period in general, and on the 66 days in question in particular, other medical practitioners in the region bulk billed at the rate of about 46% (compared to Dr Tisdall's rate of about 73%).
[102] The paragraphs of the committee's decision in which its findings contrary to Dr Tisdall are encapsulated, and lead to its conclusion, are as follows: Existence of exceptional circumstances.
45. The Committee accepts that there was a chronic doctor shortage in rural Australia during the referral period, and that Kyabram and its surrounding area also suffered from a relative shortage of doctors, compared to metropolitan centres. The Committee also accepts that there was a lack of cooperation between Dr Tisdall and a number of other doctors in Kyabram during the referral period, and that some doctors in Kyabram may have had limited hours of practice.
46. The Committee agrees that during the referral period there was a higher doctor-patient ratio in Kyabram than in metropolitan areas. Nevertheless, between three and seven other practitioners worked on each of the days on which Dr Tisdall rendered 80 or more services, at an average bulk-billing rate (over those days) of 46.52%. The number of services rendered by those practitioners indicates that substantive practices were open and likely had capacity to see additional patients . For example, on each of the relevant days the three busiest other practitioners rendered at least 10 services but no more than 43 services. The average number of services rendered by the three busiest other practitioners ranged from 17.67 per practitioner (quietest day) to 34.3 services per practitioner (busiest day).
47. The question the Committee is required to answer is whether there was an absence of services for Dr Tisdall's patients on the days on which he rendered 80 or more services (having regard to the location of his practice). Although the Medicare Australia data shows that a number of other practitioners were practising on the relevant days, Dr Tisdall submits that those doctors were not available to see Dr Tisdall's patients either because they had closed their books to all new patients or because they refused to see Dr Tisdall's patients in particular (because of ill feelings towards Dr Tisdall). 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 days on which he rendered 80 or more services .
48. The Committee 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 a situation to patients seeing other doctors in the town and is not convinced that this constituted anything exceptional about Dr Tisdall's practice. The Committee 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 considers 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.
49. The Committee does not consider that Kyabram and its surrounding area was an area, in itself, of lower socio-economic standing, although it accepts that persons from disadvantaged backgrounds resided in the region and that such persons would have been attracted to a practice that bulk-billed to the extent that Dr Tisdall did. The Committee bases its belief on information sourced from ABS data from the 2001 Census, undertaken the year after the referral period, which shows that the median weekly income:
- •
- in Australia was $375;
- •
- in Victoria was $380; and
- •
- in the Goulburn region (incorporating Kyabram) was $347.
50. The Committee is satisfied that there were practitioners in the region who bulk-billed a significant proportion of their patients. Consequently, the Committee does not consider there was an absence of services for Dr Tisdall's disadvantaged patients on the days on which he rendered 80 or more services .
51. The Committee is not satisfied that Aboriginal, Turkish and Italian patients saw Dr Tisdall because of an absence of services for them. To the extent that Dr Tisdall's reference to those patients related to their need for bulk-billing, this issue has already been discussed above. To the extent it 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. The Committee accepts that these patients saw Dr Tisdall because he showed empathy towards them and they felt comfortable with him. This, however, does not evidence an absence of services for those patients and the Committee finds that there were services available for these patients .CONCLUSION
52. The Committee is satisfied that there were practitioners in the region who bulk-billed a significant proportion of their patients. Consequently, the Committee does not consider there was an absence of services for Dr Tisdall's disadvantaged patients on the days on which he rendered 80 or more services.
53. Dr Tisdall has not satisfied the Committee that exceptional circumstances existed which affected the rendering of any of his services. [Emphasis added.]
[103] Under the scheme established by the combination of s 106KA(2) and reg 11(b) there are two questions presented for consideration. The first question is whether, having regard to the factors mentioned in reg 11(b)(i) and (ii), there was "an absence of other medical services" for Dr Tisdall's patients during the period under review. As Lander J pointed out in Oreb (at [231]), when discussing reg 11(b):
[231] The first inquiry is to determine objectively whether there is an absence of other medical services for the general practitioner's patients.
[104] In that inquiry some meaning must be attributed to the concept of "absence" in order to test any suggestion of exceptionable circumstances and in order to weigh factual matters relied on by reference to the matters referred to in reg 11(b)(i) and (ii) -- namely, the location of the practice and the characteristics of the practitioner's patients. I will return to that issue shortly.
[105] The second question, which will arise in any case where exceptional circumstances have been found to exist, is whether such circumstances "affected the rendering or initiating of services": s 106KA(2). This question concerns whether a causal relationship has been established between the claimed exceptionable circumstances and the level at which services were provided on a particular day or days: see Oreb per Black CJ and Wilcox J at [10].
[106] The discussion in the committee's decision which preceded the "conclusion" section of its decision addressed each of the two questions I have identified at some point. For example, in [48] of its decision, the committee disposed of reliance by Dr Tisdall on an alleged lack of alternative psychiatric counselling and radiology services for Dr Tisdall's patients by first rejecting the premise that there was a relevant absence of alternative services for his patients in those respects and, second, by concluding that, in any event, any limits on alternative care in those areas did not "affect" the level of services Dr Tisdall provided. The second part of this conclusion addressed the question arising under s 106KA(2) while the first part addressed the test in reg 11(b). In respect of other matters, however, the committee clearly confined itself to the question arising under reg 11(b) and did not go on to deal with the further question which might arise under s 106KA(2). Despite that, in [53] of the committee's decision, the committee appeared to conflate the two questions.
[107] Except for the issue addressed in [48], the committee's decision must be understood as confined to a discussion of the operation of reg 11(b). It follows that if there was a flaw in its conclusions on that question, and if the matters relied on by Dr Tisdall did constitute exceptional circumstances within the meaning of reg 11(b), there remained for consideration (except perhaps in the case of the matters specifically addressed in [48]) the question of whether the established exceptional circumstances affected the level of services he provided.
[108] There is no doubt that Dr Tisdall bore the onus of persuading the committee that during the period in question there was "an absence" of services available to his patients, which affected his own provision of services: see Oreb per Lander J at [204]-[205], [208], [223]. The term "absence of other medical services" is not defined in the Act or Regulations and there are only a small number of relevant judicial comments about it. In Hatcher v Cohn (2004) 139 FCR 425 ; [2004] FCA 1548 Kiefel J said (at [57]):
[57] ... Exceptional circumstances will exist so long as there are no other medical services available to the practitioner's patients ...
[109] However, this remark, which is clearly correct so far as it goes, was not directed at providing any exhaustive statement of the circumstances which might qualify for attention. Such a strict approach would be a very limited one. Her Honour's observation was made in the course of addressing other issues and was not specifically directed to the question now under consideration.
[110] In Hatcher v Fry (2009) 183 FCR 1 ; [2009] FCA 1573 ( Hatcher ), Dowsett J dealt with the issue expressly, saying (at [16]):
[16] In my view the regulation dictates a practical approach to the availability of other medical services. Within Australia it can hardly be said that anybody has no access to medical services. For a person in Roma there would always be the option of travelling to Brisbane for such services. However such a requirement might not be practicable simply because the requirement for such services might not justify the journey. In other cases that solution would not enable the patient to obtain the required services in a suitable timeframe. In others it would simply involve too much of a disruption to a patient's day-to-day life. On the other hand, it is conceivable that in a small country town having, say, two medical practitioners, both may be so busy that neither is, in a practical sense, able to fit in the other's patients other than by seeing more patients in the same timeframe. The question to be addressed is simply whether or not, if a patient could not have consulted the applicant within an appropriate timeframe, he or she would reasonably have been able to consult another medical practitioner. Such an enquiry involves consideration of the geographical locations of other practitioners, the hours during which they were available and their history of patient numbers.
[111] Similarly, in the present case the primary judge said (at [19]):
[19] In my view, the relevant sense of "absence" extends beyond a literal , physical absence of other medical services available to Dr Tisdall's patients. In the context of Reg 11, the term connotes a lack of readily or reasonably available alternative medical services for those patients, bearing in mind, as contemplated by sub-paragraphs (i) and (ii) of Reg 11(b), the location of the practice at issue, and the characteristics of the relevant patients. For there to be an absence in this sense, it is not sufficient that the alternative services be merely limited, as the Second Committee was prepared to find they had been. [Emphasis in original.]
[112] Counsel for Dr Tisdall accepted the primary judge's statement as a correct construction of reg 11(b). Counsel for the respondents was more circumspect, suggesting simply that it was a matter for the Full Court to decide. However, she made no submission suggesting that any other construction should be preferred. In my view, the approach taken by the trial judge is consistent with that taken by Dowsett J and is to be preferred to any strict, literal, meaning requiring that no services at all be available. Accordingly, the question for attention is whether alternative services would have been available to Dr Tisdall's patients within a reasonable time.
[113] In my view, the committee did not apparently adopt, nor did it address, a test framed in that way or to that effect. In particular, it said nothing to dispel the suggestion inherent in the evidence of a number of witnesses, that requiring a patient to wait for days to see another doctor, if Dr Tisdall was available promptly, was an unreasonable delay. There was a significant body of reasonably uniform evidence put before the committee by Dr Tisdall to the effect that: there was a serious shortage of medical practitioners in and around Kyabram; doctors in the two other practices in Kyabram had limited their hours, their preparedness to see new patients and their preparedness to see Dr Tisdall's patients in particular; patients were required to wait days to see doctors other than Dr Tisdall; and Dr Tisdall was prepared to go out of his way to accommodate their circumstances. In addition, he was more prepared than other doctors in the area to bulk bill and to see patients from disadvantaged groups. The evidence was given, on oath or affirmation, by the following people:
- --
- Mr Wayne Sullivan, Chief Executive Officer of the Kyabram and District Memorial Community Hospital (the hospital);
- --
- Ms Jean Courtney, Director of Nursing at the Tongala and District Memorial Aged Care Service and a member of the board of the hospital;
- --
- Mr Michael Robertson, Chief Executive Officer of the Murray Plains Division of General Practice (of which all Kyabram general practitioners were active members);
- --
- Dr Ian Collie, a pharmacist in Kyabram practising in the vicinity of Dr Tisdall's surgery;
- --
- Mr Brian Thomson, Manager of the Ngwala Willumbong Cooperative Limited, an indigenous organisation which conducts the Percy Green Memorial Alcohol and Drugs Centre; and
- --
- Mr Nilgun Atalmis, a Turkish interpreter in Shepparton.
[114] Among the statements made by these persons, which were received as evidence by the committee, were the following: -- Mr Sullivan:
I believe other doctors have closed their books in town. I certainly, I didn't ring the surgeries, but certainly I have got that from numerous members of the community and our own staff, who have had to -- who have an issue, who have had to wait a couple of days to get in, and other people who have had to seek doctors outside of the community because the books are closed. As I said, it now [June 2002] takes three or 4 days for a doctor, to see a doctor, except in the case of emergency.-- Mr Robertson:
At this point in time [June 2002] we understand that there are 17,000 people living within the catchment area for Kyabram, and only around about nine GPs actually working. So that would tell us that by those figures alone that they are well down. It creates an acute shortage, and I am well aware that it can take many, many days for a patient to see a doctor, even when it is an urgent matter.
(Mr Robertson confirmed that this assessment applied also to the period under review.) -- Dr Collie:
There has always been a critical shortage of doctors in the region. As a result Dr Tisdall saw a large number of patients who were unable to obtain medical services from other doctors in Kyabram and elsewhere.
I believe that in 2000 and 2001 the other doctors in Kyabram had closed their books. They had much shorter surgery hours than Dr Tisdall and many had half a day off during the week. They ran a roster system for out of hours consultations.
The problem of the shortage of doctors was made worse by the fact that in 2000 and 2001 there was considerable friction between Dr Tisdall and the other doctors in Kyabram. Other doctors would not see Dr Tisdall's patients and refused to include him on their after hours roster. As a result Dr Tisdall not only had to see patients at his surgery but also had to cover his own hospital and after hours consultations.-- Mr Thomson:
My duties included obtaining medical services for residents.
Residents were then and are now predominately Aboriginal. They sometimes came directly to the Centre after being released from prison.
I have always had [difficulty] securing appointments for doctors to see residents of the Centre because of a shortage of doctors in the region generally, the lack of doctors who are prepared to bulk bill or because doctors just refused to see patients with alcohol or drug problems. This was particularly the case in 2000 and 2001.
I recall that in 2000 and 2001 residents would have to wait 7-10 days to see a Doctor in Shepparton if there was a doctor who was willing to see them.
I started to refer patients to Dr Tisdall about 11 years ago because he was willing to see them at short notice and to bulk bill for his services. Bulk billing was important as few of the patients could afford to pay the full fee usually charged by doctors.
Dr Tisdall has an understanding of alcohol and drug addicted people and of Aboriginal people generally. He goes out of his way to explain the reason for his prescribing medication for them and will obtain specialist services for them with little delay when they are required.
Sometimes when residents arrived at the Centre they had no medication and required urgent medical care. Dr Tisdall would see these patients out of hours or on Saturdays.-- Mr Atalmis:
It has always been difficult for Turkish people to get to see a doctor anywhere in the region because of the shortage of doctors. If Dr Tisdall had been not prepared to see them they were unlikely to be able to find another doctor who would see them when they required treatment.
[115] This evidence was unanswered. It was suggested by counsel for the respondents that some of it was not precisely related to the period under review, but a collateral criticism of that kind, which did not reflect the way the proceedings before the committee were conducted, does not change the general position presented. Much of the evidence indeed, as is readily apparent, was directly related to the period under review.
[116] The committee appears to have dealt with Dr Tisdall's case in large measure by making a speculative assumption that on each of the days in question other practices were open, their practitioners had the capacity to see additional patients and would have been prepared to do so. How those findings were reconciled with the argument advanced for Dr Tisdall that the doctors in question were not available to see his patients and would not do so either because they had closed their books to all new patients or because they refused to see his patients because of ill-feelings towards him (except perhaps in cases of emergency) was not explained. The committee simply declared (at [47]) that it did not accept that other practitioners would have refused to see Dr Tisdall's patients.
[117] There was no direct evidence to support this declaration. Counsel for the respondents suggested that the committee was entitled to apply its own knowledge and professional experience to the question, but there is no suggestion in the committee's decision that this was what it did, or that it was in a position to do so by possession of any independent knowledge of the facts. At best, the committee appears to have rejected Dr Tisdall's arguments, and all the unchallenged evidence on which he relied, by some process of inference from statistics supplied by Medicare. These were referred to in the decision at [41] and [42], as follows:
41. Data produced by Medicare Australia on 12 April 2007 shows that:
- •
- many patients who saw Dr Tisdall on the days on which he rendered 80 or more services also saw other medical practitioners (not specialists) during the referral period, including:
- •
- 7 medical practitioners in postcode 3616 (involving 121 attendances);
- •
- 8 medical practitioners in postcode 3620 (involving 301 attendances);
- •
- 9 medical practitioners in postcode 3629 (involving 122 attendances);
- and
- •
- 30 medical practitioners in postcode 3630 (involving 232 attendances).
- •
- 868 individual patients who saw Dr Tisdall on the days on which he rendered 80 or more services, saw 552 distinct other medical practitioners during the referral period on 2958 occasions;
- •
- Dr Tisdall saw 2626 individual patients over the days on which he rendered 80 or more services; and
- •
- Dr Tisdall saw 3930 individual patients during the referral period.
42. Medicare data produced on 19 January 2007 shows that:
- •
- in postcode 3620, on the 66 days on which Dr Tisdall rendered 80 or more services, between three and seven other medical practitioners worked on each of those days (average of 5.8). Those medical practitioners rendered, on average, over 114 services per day between them at a bulk-billing rate of 46.52% (compared to Dr Tisdall's average rate of 73.64%); and
- •
- during the referral period, 10 other medical practitioners rendered services from postcode 3620:
- (i)
- providing 19,711 services at a bulk-billing rate of 46.16% (compared to Dr Tisdall's rate of 73.20%);
- (ii)
- with 7 of those medical practitioners rendering more than 1900 services (all at a bulk-billing rate of more than 34%).
[118] During argument the court requested that the parties explain the operation of the "80/20 rule" prescribed in reg 10. In response to this request the parties, in a joint memorandum, submitted that reg 10 was concerned with the provision of services rather than patient numbers. Accordingly, they submitted that a "practitioner may render a claim for benefits for more than one attendance on a patient on the same day provided the subsequent attendances are not a continuation of the initial or earlier attendances" and that a reasonable time had elapsed between attendances.
[119] Following receipt of the parties' joint memorandum the court directed further questions to them. Those questions were:
Is it possible for the parties to put a joint position before the Court based upon an analysis of the data of Medicare Australia which identifies on each of the 66 days on which Dr Tisdall provided 80 or more services whether he attended 80 or more patients? Is there a direct relationship, in the case of the services provided by Dr Tisdall, between the number of services provided and the number of patients seen?
[120] The parties provided separate responses. Dr Tisdall confirmed that he had seen 80 or more separate patients on each of the 66 days which were the subject of the committee's attention. The respondents provided a table, based on the Medicare Australia data, which demonstrated that on 54 of the 66 days the number of "professional attendances" rendered by Dr Tisdall corresponded with the number of patients seen by him and that, on the remaining 12 days, he had provided two or more "professional attendances" to at least one individual patient on those days.
[121] Making allowance for the fact that on 12 days there was at least one instance where a patient was seen more than once, the predominant picture that emerges is that Dr Tisdall provided his services to a large number of individual patients who sought his attention on each of the 66 days in question. It may be concluded that the extent of multiple "professional attendances" to individual patients on specific days was relatively small. The same may fairly safely be said, as a generalisation, about multiple patient visits over the whole 66 days. A figure of 2626 separate individual patients over 66 days (assuming 80 patient attendances on each of those days -- that is 5280 patient attendances over the 66 days) would mean that, on average, each of the individual 2626 patients saw Dr Tisdall about twice over that period of days, if their pattern of attendance was uniform. The figures imply nothing at all about the need (or lack of need) for medical attention or the availability of such attention, beyond the fact that Dr Tisdall, at least, was available.
[122] The additional fact noted by the committee, that some patients who saw Dr Tisdall on one of the 66 days saw other practitioners in the same 9-month period, does not say anything about the absence (or otherwise) of services to them on the day of their attendance on him, using the concept of "absence" as earlier discussed. It is apparent also that some of the other practitioners referred to in the statistics were out of the region and some were interstate.
[123] It must be accepted that the patients in question sought Dr Tisdall's services. It seems implicit in the committee's conclusions that Dr Tisdall could have turned many of them away with no disadvantage to them. In my view, that premise finds no support in the statistical material referred to by the committee. It is also contrary to the only relevant evidence about that issue. Whatever the figures referred to by the committee signify (and the committee did not explain what it made of them), in my view, some further examination of the position was required before conclusions could be drawn, much less assumptions made, which had the effect of disregarding the evidence given by Dr Tisdall and by those on his behalf. The raw figures referred to by the committee did not, in my view, enable a conclusion which compels or permits rejection of the evidence on which Dr Tisdall relied.
[124] Nevertheless, it was argued by counsel for the respondents that the committee was at liberty to decline to accept the evidence on which Dr Tisdall relied, and that its decision to reject the evidence was simply a finding of fact which was not reviewable in this court. It was accepted in submissions advanced for Dr Tisdall on the present appeal that the willingness of other doctors to see Dr Tisdall's patients was a question of fact. It is true that findings of fact are not reviewable in proceedings of the character commenced by Dr Tisdall in this court. However, the question whether there is any evidence of a fact is a question of law, as also is the question whether a particular inference may be drawn from facts as found: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 and 367-8 ; 94 ALR 11 at 37 and 46-7 ; 21 ALD 1 at 23 and 31-2; see also Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 ; 270 ALR 228 ; [2010] HCA 32 at [33], [91].
[125] I accept that the question whether a conclusion is reached by a process of faulty reasoning, or is illogical, is not necessarily the same question as whether there is some evidence to support a finding of fact or from which an inference may be drawn. In Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272 ; 249 ALR 762 ; [2008] FCAFC 108 ( Wecker ) (at [95]-[100], French and Weinberg JJ agreeing) and in Australian Olives Ltd v Livadaras (2008) 172 FCR 34 ; 68 ACSR 29 ; [2008] FCA 1407 at [74]-[76] ( Australian Olives ) Greenwood J examined the authorities in the High Court and this court which have emphasised the distinction between a lack of logic (that is a faulty process of reasoning) and an absence of evidence which might permit a particular finding of fact or support a particular inference. In my respectful opinion, the position was nicely captured in a passage quoted by Greenwood J in both Wecker and Australian Olives from the judgment of an earlier Full Court (Sundberg, Emmett and Finkelstein JJ) in Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 ; [2001] FCA 744 at [34]:
[34] The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law. A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as 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 -- Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6 ; 94 ALR 11 at 37-8 ; 21 ALD 1 at 23-4.
[126] However, it may not be correct to reject illogicality as constituting an error of law in every case. In a case of suggested illogicality, or of faulty inferential reasoning, the decisive test is not whether there was an error in logic or reasoning but whether there was no foundation for the conclusion reached. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 ; 266 ALR 367 ; 115 ALD 248 ; [2010] HCA 16 Crennan and Bell JJ said (at [130]-[131]):
[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
and (at [135]):
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the "practice of homosexuality" in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.
[127] As a result, the search is always for the existence of a body of evidence which might, reasonably, sustain a relevant finding of fact or, conceivably, permit a particular inference to be drawn.
[128] It is important to bear in mind also that the inferential process is not one where speculation, guesswork or mere assumption is accommodated. So far as the work of courts is concerned, where the application of a judicial method is expected, the process of drawing an inference from available facts is not to be equated with conjecture, surmise or guesswork. The arbitrary selection of one possibility over others from an available number of possibilities by such a method is not merely lacking in logic; it fails to conform to the necessity that inferences be drawn as matters of legitimate deduction, based on probative values.
[129] In Bell IXL Investments Ltd v Life Therapeutics Ltd (2008) 68 ACSR 154 ; [2008] FCA 1457 Middleton J said (at [14]):
[14] In considering the material before the Court, the trier of fact must be careful to distinguish between inference and conjecture. A conjecture may be plausible, but it is effectively still a mere guess. An inference is a deduction from the evidence, and if reasonable can be treated as part of the legal proof to be considered in making a factual determination in any particular proceeding. Whilst sometimes it may be difficult to distinguish between conjecture and inference, nevertheless the distinction is an important one.
[130] His Honour's observations, with respect, state a fundamental principle which is authoritatively established but which is not always observed: see also Luxton v Vines (1952) 85 CLR 352 at 358 ; [1952] ALR 308 at 311, quoting Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 .
[131] Where the question is whether an error of law has been committed by an administrative tribunal, for the reasons given earlier it would seem that conjecture and guesswork might fare no worse than illogicality, according to the authorities. However, a speculative conclusion, even if not truly based on inferential reasoning, must still conform to the necessity that it be reasonably open on the material before the tribunal. Even though the committee was not bound by the rules of evidence, and was entitled to inform itself as it thought appropriate (s 106 of the Act), that did not mean that it could draw inferences, or jump to conclusions, which the available material did not adequately support.
[132] Bearing all those matters in mind, it is possible to return to a consideration of the approach taken by the committee. The committee had essentially two kinds of material before it. It had the substantially uniform body of evidence presented by Dr Tisdall attesting to the (variously expressed) chronic or acute shortage of doctors in the Kyabram area, the limitation placed by other doctors on their availability to see new patients generally or Dr Tisdall's patients in particular, the particular characteristics of certain of Dr Tisdall's patients, his willingness to see those patients without restriction and the inability or unwillingness of other doctors to provide the same services. It is possible that those matters, whether considered individually or in combination might, upon further scrutiny, be insufficient to make out an adequate case under reg 11(b) or under s 106KA(2), but there is no doubt that the evidence gave support to such a case. It could not be ignored or dismissed without some basis for doing so. Neither the fact that Dr Tisdall bore the onus of demonstrating that there was an absence of other medical services for his patients, nor the fact that the committee was not bound in law to meekly accept the evidence on which he relied, meant that the committee could simply reject his case outright.
[133] The other material available to the committee was the statistical material provided to it by Medicare. In my view, neither the raw figures referred to by the committee nor the fact that some patients who were seen by Dr Tisdall on the 66 days in question were also seen by other practitioners in the review period (or vice-versa) were sufficient, whether individually or in combination, to contradict or relevantly qualify the matters upon which Dr Tisdall relied. The material did not enable the committee to conclude that on any of the relevant 66 days, or during the period generally, other medical services were available to Dr Tisdall's patients in a way and with a degree of availability which met the tests, to which I earlier referred, expressed by Dowsett J in Hatcher and the primary judge in the present case. The statistical material did not provide evidence that there was no absence of other medical services, nor did it support an inference or conclusion to that effect.
[134] That being so, the only basis for rejecting Dr Tisdall's case to that effect was rejection, out of hand, of the evidence on which he relied. There are two problems with any suggestion that the committee was entitled to take such a course by reference to some notion of its collective experience or knowledge. First, it did not say that is what it was doing. It gave an impression of evaluating the evidence given on Dr Tisdall's behalf against countervailing factors. Those countervailing factors, however, were in the end only its assumptions, which it preferred overall the sworn evidence. Second, the principle that an administrative tribunal (or a court) is not bound to accept evidence merely because it is "uncontradicted" does not provide a licence to disregard evidence having real probative value, much less to put aside a whole body of evidence of that character. It was not submitted on the present appeal that the evidence was unworthy of consideration or lacking in probative effect, although some unconvincing attempts were made to marginalise it by reference to the period of which the witnesses spoke. In my view, those suggestions did not diminish the overall effect of the evidence. There was no other reason given why such evidence should not be accepted. Repetition of the proposition that Dr Tisdall bore the onus of making out his case did not address the necessity for the committee to deal, in a satisfactory way, with the case which he did present. As I said earlier, the committee did not say that the evidence had no weight. The committee's finding that there was no absence of services available to Dr Tisdall's patients in the relevant period seems explained by nothing else but the speculative conclusion that those services would have been made available by other practices.
[135] Senior counsel for Dr Tisdall opened his submissions by identifying the complaints he made about the committee decision as being that:
- --
- its findings were not reasonably open to it on the material before it; and
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- there was no reasonable basis for its conclusions.
[136] In my view, those complaints are well founded. The conclusion of the committee was based on an error of law. I would uphold the appeal and set aside the committee's decision.