Yung v Adams

(1997) 80 FCR 453

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Court:

Judge: DAVIES J

Subject References:
ADMINISTRATIVE LAW
Disciplinary proceedings for "inappropriate practice" brought against medical practitioner
appeal from decision of Professional Services Review Tribunal affirming in part a determination made by the respondent, the Determining Officer, following referral by Health Insurance Commission and decision of the Professional Services Review Committee
natural justice
whether failure by Commission to accord procedural fairness
whether failure by Committee to accord procedural fairness
whether failure by Committee to relate findings of "inappropriate practice" to identified services or to a sample of services
whether failure by Committee to clearly identify what were the findings of "inappropriate practice" made
whether failure by Determining Officer to take relevant considerations into account
whether by giving effect to findings of Committee, determination of Determining Officer necessarily incorporated and adopted flaws affecting report of Committee
function of the Tribunal to review the matter for itself and independently arrive at its own conclusions
whether failure by Tribunal to provide adequate reasons
whether findings of the Tribunal failed for lack of procedural fairness
whether failure by Tribunal to relate findings of "inappropriate practice" to identified services or to a sample of services

Legislative References:
Administrative Decisions (Judicial Review) Act 1977 (Cth) - the Act
Federal Court of Australia Act 1976 (Cth) - 22
Health Insurance Act 1973 (Cth) - 80; 82; 86; 87; 89; 101; 102; 103; 106G; 106H; 106J; 106K; 106L; 106M; 106Q; 106S; 106T; 106U; 108; 115; 118; 119; 124A
Health Insurance Amendment Act (No 1) 1997 (Cth) - the Act
Health Legislation (Professional Services Review) Amendment Act 1994 (Cth) - the Act
Judiciary Act 1903 (Cth) s 39B - 39B

Case References:
A.L. Campbell & Co Pty Ltd v Federal Commissioner of Taxation - (1951) 82 CLR 452
Brackenreg v Comcare Australia - (1995) 56 FCR 335
Clyne v New South Wales Bar Association - (1960) 104 CLR 186
Dornan v Riordan - (1990) 24 FCR 564
Edelsten v Health Insurance Commission - (1990) 27 FCR 56
Etherton v Public Service Board - [1983] 3 NSWLR 297
Forbes v New South Wales Trotting Club Limited - (1979) 143 CLR 242
Forest v La Caisse Populaire de Saint-Boniface Credit Union Society Limited - (1962) 37 DLR (2d) 440
Freeman v McCubberyFCA - (unreported, Smithers, Lockhart & Jenkinson JJ, 10 October 1985)
Freeman v McKenzie - (1988) 82 ALR 461
General Medical Council v Spackman - [1943] AC 627
Hughes v Johanson - [1977] Qd R 357
Kioa v West - (1985) 159 CLR 550
Lloyd v Marine Council - (1987) 29 IR 69
McIntosh v Minister for Health - (1987) 17 FCR 463
Minister for Health v Thomson - (1985) 8 FCR 213
Muralidharan v Minister for Immigration & Ethnic Affairs - (1996) 62 FCR 402
New South Wales Bar Association v Evatt - (1968) 117 CLR 177
New Zealand Flax Investments Ltd v Federal Commissioner of Taxation - (1938) 61 CLR 179
Otter Gold Mines Ltd v Australian Securities Commission - (unreported, Beaumont, Sundberg & Merkel JJ, 5 November 1997)
Public Service Board of New South Wales v Osmond - (1986) 159 CLR 656
R v Balfour; Ex parte Parkes Rural Distributions Pty Ltd - (1987) 17 FCR 26
R v Pharmacy Board of Victoria; Ex parte Broberg - [1983] 1 VR 211
Reg v Home Secretary; Ex parte Doody - [1994] 1 AC 531
Repatriation Commission v O'Brien - (1985) 155 CLR 422
Ridge v Baldwin - [1964] AC 40
Romeo v Asher - (1991) 29 FCR 343
Salemi v MacKellar (No 2) - (1977) 137 CLR 396
Taylor v Minister for Health - (1989) 23 FCR 53
Tiong v Minister for Community Services & Health - (1990) 93 ALR 308
Weinberger v Inglis - [1919] AC 606

Hearing date: 23 JULY 1997
Judgment date: 11 DECEMBER 1997

SYDNEY

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THE COURT ORDERS THAT:

1.

The decision of the Professional Services Review Tribunal be set aside and that the proceedings be remitted to the Professional Services Review Tribunal differently constituted to be heard and decided again.

2.

The respondent pay the costs of the proceedings.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.