Re Richard Edwin Peverill v Australian Minister of Health; David Leon Backstrom; Charles Akrill Mitchell; Stewart James Bryant; Ernest Humphrey Cramond; Rodney John Morris; Owen Watkin Powell; Vedella May Hinckley and Peter Elliot Gunton [1989] FCA 17 (13 February 1989)

FEDERAL COURT OF AUSTRALIA

Re: RICHARD EDWIN PEVERILL
And: AUSTRALIAN MINISTER OF HEALTH; DAVID LEON BACKSTROM; CHARLES AKRILL
MITCHELL; STEWART JAMES BRYANT; ERNEST HUMPHREY CRAMOND; RODNEY JOHN MORRIS;
OWEN WATKIN POWELL; VEDELLA MAY HINCKLEY AND PETER ELLIOT GUNTON
No. G 824 of 1988
FED No. 810
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY
Einfeld J.(1)

CATCHWORDS

Administrative Law - Judicial review - prerogative relief - prohibition - Medical Services Committee of Inquiry - investigation of specialist pathologist - excessive services - meaning and force of statutory undertaking - rendering and initiation of pathology services - whether a pathology test can be an excessive service if it has been requested by another medical practitioner - determination of medical necessity of test - whether a pathology test requested by another medical practitioner can be a breach of the statutory undertaking if the requested test was not reasonably necessary for health of patient - scope of reference to and report and recommendations of Medical Services Committee of Inquiry - whether a Medical Services Committee of Inquiry can report on whether services requested of a pathology by another medical practitioner were not reasonably necessary for the care of the patient - whether the presiding member of a Medical Services Committee of Inquiry can control the admission or reception of evidence

Health Insurance Act 1973: sections 16A, 16B and 16C, 79(1B), 80, 82, 104, 105 and 106

Health Insurance Act 1988: section 23DC

HEARING

SYDNEY
13:2:1989

Counsel and solicitors for Mr. D.M.J. Bennett QC
the applicant with Mr. R. Bain

instructed by
Morris Fletcher and Cross

Counsel and solicitors for Mr. C. Brabazon QC

the respondent with Mr. D.J. McGill

instructed by the
Australian Government Solicitor

ORDER

Declare that on the true construction of the Health Insurance Act 1973 as it stood in 1977, a pathology test or service is not initiated by the applicant if it is rendered at the request of another medical practitioner.

Declare that on the true construction of the Health Insurance Act 1973 as it stood in 1977, a Medical Services Committee of Inquiry constituted under the Act is only empowered to report on whether a pathology test conducted or service rendered by the applicant is an excessive service within the meaning of the Act if the applicant determined that it was necessary for, or reasonably necessary for the adequate medical care of, a patient.

Declare that on the true construction of the Health Insurance Act 1973 as it stood in 1977, the undertaking given to the first respondent by the applicant on 27 July 1977 with effect from 1 August 1977 does not empower a Medical Services Committee of Inquiry constituted under the Act to report on whether a pathology test is an excessive service within the meaning of the Act if the patient was referred to the applicant to perform the test, even if the referring practitioner erred in determining that the test was necessary for, or reasonably necessary for the adequate medical care of, the patient.

Declare that to the extent to which the Instrument of Referral of the fifth respondent of 3 February 1987 purports to refer to a Medical Services Committee of Inquiry the question of whether certain specified pathology services requested of the applicant by other medical practitioners and conducted by him in pursuance of those requests, were excessive services within the meaning of the Act, the Instrument is invalid.

Declare that to the extent to which the Instrument of Referral of the fifth respondent of 3 February 1987 purports to refer to a Medical Services Committee of Inquiry the question of whether certain specified pathology services complied with or were in breach of the undertaking given to the first respondent by the applicant from 1 August 1977 with effect from 1 August 1977 because they were or are alleged to be excessive services within the meaning of the Act, the Instrument is invalid.

Reserve liberty to apply in relation to any further orders or declarations needed, including any writ of prohibition which may prove to be necessary.

Respondents to pay the applicant's costs.

NOTE: Settlement and entry of orders are dealt with in accordance with order 36 of the Federal Court Rules.

DECISION

On 30 March 1988 this matter came before the Court as the urgent application, number G 790 of 1988, of Richard Edwin Peverill, a specialist pathologist, dated 27 March 1988 seeking a rule nisi for prohibition against the first respondent (the Minister), David Leon Backstrom (the second respondent), and Charles Akrill Mitchell, Stewart James Bryant, and Ernest Humphrey Cramond (the third respondents). At the conclusion of the hearing the matter was stood over part heard to 8 April 1988 on which date leave was granted to file an amended application and Rodney John Morris, Owen Watkin Powell and Vedella May Hinckley (the fourth respondents) and Peter Elliot Gunton (the fifth respondent) were joined as respondents. An amended application was filed on 11 April 1988, and on 13 April 1988 an application for orders of review, numbered G 824 of 1988, was filed. These two applications were heard together.

2. The circumstances of this application are that the applicant is being investigated by a Medical Services Committee of Inquiry for the State of Queensland (the Committee) constituted under section 80 of the Health Insurance Act 1973 (the Act). The investigation concerns pathology services rendered by the applicant which may be excessive.

3. The second respondent is the Chairman and the third respondents are members of the Committee investigating the applicant. The fourth respondents are members of the Medical Services Committee of Inquiry whose unanimous decision on 9 February 1987 under section 94 of the Act was to hold an inquiry into the matter referred to it by the fifth respondent. The fifth respondent is the delegate of the Minister who made the reference to the Committee on 3 February 1987.

4. Because the Committee's deliberations have now been suspended pending the outcome of this case, the matter no longer possesses the urgency originally conceived. I have previously drawn attention to the undesirability and unfairness of using urgency procedures when Government or Government-appointed bodies are involved. They can normally be expected to agree that, pending a Court decision on a matter going to their current activities, the activities in question will not proceed. As urgency to one litigant will normally displace another who may be equally or more deserving of a hearing, it is my opinion that applications for urgency should ordinarily be supported by evidence indicating that the body involved has been approached and refused a voluntary delay of the relevant proceedings or activity to permit the Court to consider the applicant's suit.

5. The Act is a complicated piece of legislation forming the basis upon which the Medicare system operates in Australia. It provides for the means by which medical practitioners and members of the public interact as between themselves, and between them and the Medicare health insurance scheme. One of the features of the legislation is a mechanism for controlling and preventing excessive medical services. So far as concerns pathologists, the current position arises from a series of amendments introduced into the legislation in 1976 and 1977 for the express purpose of controlling services rendered by pathologists and preventing excessive services.

6. It is obvious that difficulties have always arisen in this regard, principally for the reason that pathologists, generally speaking, do not undertake work other than by reference from other medical practitioners. The history of the legislation demonstrates the difficulty which has always faced administrators and scriveners in this regard. Although pathologists have apparently been suspected for some time of undertaking excessive testing, it has not proved a simple task to make effective provision to monitor and control the believed excesses when the tests undertaken are those requested by other practitioners. The pathologist ordinarily has no direct contact with the patient or with the medical conditions from which the patient is said to be and is possibly suffering. Again speaking in general, pathologists merely do what they are asked to do, and they do not have any specifically informed idea in advance why they are being asked to undertake any specific tests and whether the tests are reasonably necessary for the health and wellbeing of the patient.

7. In 1976, the Act was amended to add section 16A. At least one of the designs of this amendment was to put a brake on excessive pathological testing. However, it must have been quickly realised that the amendment was not effective because the government of the day later that year set up a working party to examine the problem of excessive pathological tests. The report of the working party was brought down in March 1977. Its findings and recommendations indicated that the problem in the pathology area was largely due to the fact that, unless there was a direct actual or legal connection between the referring practitioner and the pathology practice to whom the request for service was made, it was difficult, if not impossible, to sheet home to the pathologist any successful allegation of excessive testing. The recommendation of the working party was for the direction of policy in this area to head towards the referring practitioner rather than the pathologist.

8. As a result of the acceptance by government of the report of the working party, Act No. 75 of 1977 was passed, further amending the Act. Relevantly summarising for the present case, section 16A was altered and there were inserted sections 16B and 16C which made provision for undertakings to be given by pathologists and in effect for their approval by the Minister to receive Medicare benefits for pathology services.

9. The new section 16A divided pathology services into two general categories. First were those determined on, decided or initiated by a practitioner other than the pathologist to conduct the test. Second were those determined or decided on by the pathologist personally. The apparent thrust of the legislation was that the pathologist is generally not responsible or answerable for, or accountable in respect of, tests decided upon or initiated by the referring practitioner, in the sense of whether the tests were necessary or excessive. The 1977 Act is applicable to this case although it has been substantially amended since.

10. A question immediately arises for this case as to whether each of these divisions is entirely exclusive of, i.e. alternative to, the other. The resolution of the question at least partly depends on whether the words of the legislation achieved the apparent intent - a subject on which the result of the Committee's inquiry may very well turn. At this stage, it will suffice to observe that exclusivity of one from the other is one way of interpreting the legislation. It is to be emphasised, and I therefore repeat, that the Act was not primarily directed towards the registration, deregistration or disciplining of medical practitioners including pathologists. It merely decided whether medical insurance was payable under Medicare to a practitioner in respect of the service or services. However, the Act did provide for an investigation of claims, and relevantly to this case in particular, of the possibility that excessive services might have been rendered by pathologists.

11. The provisions in this regard were introduced by section 79, the apposite part of which provided definitions as follows:

"(1B) In this Division(a) a reference to excessive services is a
reference to professional services, being services in respect of
which medicare benefit has become or may become payable, and which
were not reasonably necessary for the adequate medical or dental
care of the patient concerned; and
(b) a reference to the initiation of a pathology service is a
reference to the making of the decision by reason of which the
service is rendered;"

12. There was provided in sections 105 and 106 that after the Committee had completed its inquiry, it could make a number of recommendations to the Minister, one of which was that no further Medicare benefits be payable to the practitioner who has been investigated. If this were to be the outcome of any particular investigation, and the Minister were to accept the recommendation, and the review processes provided thereafter did not alter or vary the decision of the Minister, a pathologist would have effectively ceased to be able to practise, at least as a pathologist and possibly as a doctor altogether. This is because he would have been deprived of any opportunity to claim on behalf of the patient and receive from Medicare direct, in the case of bulk billing, or otherwise to receive from the patient, any fees obtained from the Medicare scheme. This is such an important potential consequence of the activities of Committees of Inquiry as to require that their deliberations and activities be subject to close and careful attention. It undoubtedly imposes upon them a reasonable requirement to do natural justice in the relevant senses to the practitioners whose activities are being investigated. Foremost in this area is to be correct in law.

13. The applicant conducts a large pathology practice in Brisbane which consists of himself and a number of other pathologists. Material in evidence shows that his practice draws on general practitioners sited all over Queensland and the Northern Territory. The evidence also establishes that his services are provided to many general practitioners who care for people living in outlying areas subjected to the possibility of quite unusual diseases, arising from their being involved in a wide range of rural and pastoral pursuits.

14. The applicant provides a considerable service to this large number of medical practitioners. The evidence shows that he has a number of collection points all over Queensland to which samples of blood and other human tissue and produce can be delivered for the purpose of transport to and analysis by his laboratory. The applicant has published a book, in evidence, which is widely supplied to the practitioners in his catchment area and which provides information for general practitioners on the indications in patients for particular types of diseases or testing. In addition, members of his practice apparently travel around these country areas informing resident and visiting practitioners about the latest learning in various types of diseases and conditions, especially those which are more likely to afflict patients in the areas concerned, many of them tropical. When a referring practitioner first uses the applicant's practice, a person called a 'doctor liaison officer' is normally sent to the practitioner's surgery to explain which tests the laboratory performs and to answer any queries the practitioner may have. All this indicates an involvement of the applicant in the diagnosis and treatment of diseases and illnesses to a considerably greater degree than is apparently normal for pathologists.

15. One of the features of the applicant's publications and information services is that the practitioners wishing to use his services are advised, even encouraged, to ask for tests in certain groupings. A number of generic headings is given, and a series of tests for various diseases are included under the headings so grouped. For example, one group heading used for multiple tests is 'agglutination'. If a practitioner requests the applicant's pathology practice to conduct this group of tests, the performance of seventeen tests is taken to be desired. These tests include tests for such wide-ranging and differential diseases as Rubella (German Measles), herpes of two varieties, hepatitis of three varieties, chlamydia, measles, mumps and salmonella poisoning. It is not necessary to have too much medical knowledge to understand the immense difference between these diseases. A diagnosis by a general practitioner that a patient might be suffering from such a broad and varied form of diseases as those that I have mentioned (and these are only some of those listed under the heading of 'agglutination') has certainly not closely identified an actual illness of the patient. Whether this is a legitimate demonstration of the specialty of pathology is not for me to say. It does seem to call for peer or expert examination.

16. The Committee's inquiry into the applicant's affairs was energised by a reference from the fifth respondent, the Minister's delegate, which was as follows:

"I, PETER ELLIOT GUNTON, Delegate of the Minister of State
for Health, pursuant to section 82(b)(i) and 82(b)(ii) of
the Health Insurance Act 1973, HEREBY REFER to the Medical
Services Committee of Inquiry for the State of Queensland
for inquiry into, and submission of a report and
recommendations to the Minister for Health on, matters
relevant to the operation or administration of the said Act,
which arise out of whether Dr Richard Edwin PEVERILL
complied with an undertaking given by him and accepted by
the Minister under section 16C of the said Act, and which
further arise out of the rendering of professional services
in the State of Queensland after 15 April 1977, namely,
whether each professional service rendered to a patient by
Dr Richard Edwin PEVERILL, particulars of which are set out
in Annexures "B1" to "B251", being a service for which
Medicare benefit became payable, was an excessive service
within the meaning of section 79 (1B)(a) of the said Act."

17. The Committee by letter dated 16 April 1987 served a notice on the applicant pursuant to section 95 of the Act informing him that it intended to hold an inquiry. By letter dated 29 April 1987 the applicant replied to the Committee requesting that it accurately identify in what respects he may have provided excessive professional services. In other words, he sought particulars of the matters of complaint. The Committee replied by letter dated 8 May 1987 stating that

". . . the Committee is unable to provide the information you
requested. What needs to be determined by the Committee is
whether the undertaking given by you under Section 16C of
the Health Insurance Act 1973 has been complied with and
whether the professional services rendered by you to
patients and as outlined in Annexures "B1" to "B251", were
excessive services within the meaning of Section 79(1B) of
the Act."

18. By a further letter written on behalf of the applicant by his solicitors, dated 14 May 1987, the applicant made another request for details. In addition, on 21 May 1987 the applicant sought a statement of reasons under section 13 of the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act). This was furnished on 5 June 1987, and relevantly provided the following:

7. The Committee examined the documents as set out in
the Reference supplied by the delegate of the
Minister of State for Health and discussed whether
to hold a Hearing.
8. The Committee, using its own knowledge and
expertise, considered that the number of tests
claimed appeared to be in excess of those ordered by
the referring practitioner.
9. The Committee considered that the services that were
in excess of those ordered may have been rendered
excessive services within the meaning of the Act,
because such services would not have been reasonably
necessary for the adequate medical care of the
patients concerned.
10. This led the Committee to the unanimous decision
under section 94 of the said Act to hold a Hearing
to Inquire into the matter referred to it by the
delegate of the Minister of State for Health.

19. The nature and limits of the section 94 procedure are explained and described in Freeman v McCubbery & Ors (1986) 65 ALR 361 (Northrop J); and on appeal, Smithers, Lockhart and Jenkinson JJ, unreported 10 October 1985.

20. Thus the second and fourth respondents' reading of the documentation supplied by the Minister led them to believe, so they stated, that the applicant may have conducted tests not requested by the general practitioners and that those additional tests may have been excessive in the sense of unnecessary for the patients' health care. As the evidence has subsequently shown, these allegedly 'not requested' tests entirely arise from the group categorisation to which I earlier referred.

21. The Committee's hearings into the applicant's affairs commenced on 10 June 1987, and have taken place almost entirely at night. Sittings have already occurred on some nine occasions and have embraced more than one thousand professional services provided by the applicant. The applicant has been represented by counsel, including Queen's Counsel.

22. The Committee originally consisted of five medical practitioners, all of whom were appointed by the Minister. One of the fourth respondents, who had been a member, resigned during the hearing. It has already taken evidence from the applicant, and received a considerable volume of documentary material. The issue that has arisen in these proceedings relates to the legitimate scope of the Committee's inquiry. There is no dispute that the applicant in general terms does not see patients nor has anything to do with their diagnosis and treatment. The general procedure seems to be that he supplies blank forms of request to, and receives completed forms from, various general practitioners instructing him to perform certain tests. Almost invariably the tests are carried out without question, although there are occasions when he speaks to the general practitioner. In his affidavit of 13 April 1988, the applicant states that such occasions occur when a request form is ambiguous or the treating practitioner has not previously referred requests to the practice. In such cases, a telephone call is made to ascertain what precise tests are required.

23. Of the matters originally referred to the Committee, just over 130 particular requests remain open for decision. This is because the other matters have been dealt with in favour of the applicant to the satisfaction of the Committee. The two main groups still for investigation are:

1. Patients numbers 1-61 who have undergone glucose tolerance
tests. These patients have suspected diabetes.
2. Patients numbers 115-186 who have undergone viral serology tests
for suspected viral illness.

24. In particular the evidence subdivides these matters in this way:

(a) Due to the contents of the applicant's book and other
publications, the applicant's practice always conducts five
insulin tests whenever requested simply to conduct a glucose
tolerance test. The evidence establishes that on some sixty
occasions in the relevant period the applicant was asked by
different practitioners to conduct the glucose tolerance test.
The applicant's book and the covering explanatory sheet to the
request form he also hands to practitioners, indicate that if
this test is asked for, there will be conducted routinely an
insulin test. In monetary terms, the substance of the fees for
the glucose tolerance test is considerably expanded for a full
range tolerance test, is further expanded for the first three
insulin tests, and still further for the fourth and fifth tests.
Hence, what might appear to be a request for a relatively low
cost service turns out to involve the Medicare scheme in a
substantial payout.
(b) If the general practitioner asks for the viral serology tests or
the agglutination tests, what might appear to be services
costing Medicare a small sum turns out for similar reasons to
cost a far greater amount.

25. The applicant argues that he has merely been carrying out what has been requested of him by general practitioners. He says that he cannot possibly be guilty of overservicing - i.e. providing services not reasonably necessary for the adequate medical care of the patients - because he does not know about the conditions of the patients or the reasons for any testing. He therefore claims, pointing to section 16A of the Act, that the appropriate person to look to in this respect is the person who refers the patient in the first instance. He describes himself as a non self-determining pathologist with no role to play in assessing the extent of services actually needed by the patient. There is no evidence that he is even competent to do so, although I am not for a moment to be taken as suggesting that he is not.

26. It is certainly clear that the system of requests from general medical practitioners to pathologists, and the supply of pathological services, would become distorted if every time a test was requested, the pathologist had to telephone or otherwise contact the general practitioner to ascertain why the tests were requested and to obtain the full medical history of the patient. It would be impossible, especially in the geographical circumstances of the applicant's practice, and having regard to the confines of the specialty of pathology, if the pathologist had personally to interview and examine each patient. In other words, the supply of pathology services as we know them could not function if the pathologist had to make a separate independent decision as to whether all the tests requested by all referring practitioners should be carried out.

27. On the other hand, the respondents assert that the applicant is more than a remote bystander. He promotes the agglomeration of tests, he publishes the books and cover sheets to the referral form, and he prints the referral form which is governed by regulations that make it a requirement to set out the referrals in the hand writing of the referring practitioner. They point to the fact that he sends representatives around the countryside explaining, advising and inserting into the minds of the listening medically trained audience the possibilities and ranges of tests that are available and perhaps ought to be availed of. The respondents therefore argue that this is not a simple case of a referring practitioner and a totally disinterested pathologist but a much closer and more involved arrangement.

28. The problem of resolving some of these matters has arisen because of the way in which the Committee has been and is apparently proposing to go about its inquiry in these respects. The Committee's transcript shows that over and over again senior counsel for the applicant has tried to press the Committee for particulars as to whether the various tests were performed at the request of a referring general practitioner. The argument has been put that if they were all decided on by request or referral, there is no call, or statutory authority, to investigate if any or a combination of these tests were excessive services. The Committee has engaged in considerable debate with senior counsel and, after the conclusion of the last actual hearing, answered a lengthy and wordy request for some further clarification in this regard, by avoiding the issue in the form set out in Exhibit "SCS 11" to the affidavit of Suzanne Catherine Sheridan dated 27 March 1988. The relevant part states as follows:

"In your letter of 16 February 1988, you requested
information about the Committee's concerns. They are:
(i) For patients Nos. 1-61 - whether in every case serum
insulin tests were requested and whether such tests
were medically necessary.
(ii) For patients Nos. 115-186 - whether in every case
the same battery of tests were requested and whether
they were medically necessary.

29. The applicant's assertion is that if it is found that all the tests were done on request, there is no statutory warrant for continuing to investigate his activities to discover whether the tests were or were not reasonably necessary within section 79(1B). That, the applicant says, would be appropriate only in an investigation of the referring general practitioner in each case. The applicant concedes that if in any particular case or combination of cases, the Committee considered that any tests were not the subject of a request by a referring practitioner, it would then be entitled to consider whether these tests were more than reasonably necessary. In simple terms, this submission means that actual overservicing in pathology is a sin committed by the referring general practitioner unless the pathologist in fact decides personally to conduct the test on the basis of the pathologist's own opinion of the medical needs of the patient. If the applicant is correct, the apparent intention of the legislation would have failed.

30. The 1977 Act provided for the first time that Medicare benefits for pathology services would only be payable to approved pathology practitioners. Section 16B provided for the Minister to create an undertaking to be given by persons seeking approval as pathology practitioners, and to hold consultations as to the form of the undertaking. Section 16C made provision, inter alia, for the acceptance by the Minister of the prescribed undertaking from an eligible applicant who pays the appropriate fee, or its reference to a Committee of Inquiry for report on whether refusal to accept an undertaking is justified, and its subsequent rejection. Section 16C did not provide for the cancellation or revocation by the Minister of an undertaking once accepted, although it did provide for its termination by the practitioner.

31. The undertaking which the 1977 legislation permitted was given by the applicant on 27 July 1977 and came into effect on 1 August 1977. I have said that since the events now being considered, the undertaking and the Act have been substantially altered. The respondents argue that the undertaking was always intended to reflect, and that I should read the old undertaking in, the present form. I shall address this argument later. For the present I observe that any section 16C undertaking could only have been as large as or reflect the legislation. Neither of the models could either expand or contract the statute. This is because the Act provided no incorporation of the words of the undertaking into the Act and no requirement that the undertaking be observed. It seems to me from reading the Act that at least those parts of the undertaking as related to excessive treatment raise matters of moral suasion rather than that they are possessive of any special legislative effect. It is true that the legislation permitted a Committee to recommend to the Minister to reject or accept undertakings by particular practitioners at the outset before he granted initial approval. However, once an undertaking had been accepted, nothing could be done about it unless the pathologist in substance breached the Act - and the Act as it stood in 1977 was especially chary of spelling out enforceable obligations on practitioners at all, still less punishable offences.

32. On the basis of the section 79(1B) definitions, section 104 provided for a report by a Committee of Inquiry to the Minister after its investigations. The report could express an opinion, inter alia, that identified excessive services had been rendered, or that identified excessive pathology services had been initiated, by a medical practitioner. As earlier shown, section 79(1B)(b) defined the initiation of a pathology service as 'the making of the decision by reason of which the service is rendered'. This seems to be the same as the section 16A(1)(a) concept of the practitioner who 'determined' that the service was necessary. Where a report has expressed one of those opinions, the Committee could by section 105 have made one or more of a series of recommendations, relevantly including, where the opinion was that excessive pathology services had been rendered, that the Minister revoke the acceptance of the pathologist's section 16C undertaking. Apparently the acceptance of the practitioner who initiated excessive pathology services could not be revoked, presumably because this would normally have been done by another or general practitioner who was not required to give, and had not given, an undertaking. This suggests that the initiator was to be the subject of one of the other recommendations prescribed by section 105 such as reprimand etc. What it does not explain is why the renderer of excessive pathology services initiated by someone else should have been given the heaviest penalty. It is also perplexing that section 105 was posited on the expression of an opinion in a section 104 report that the investigated practitioner had either

(a) rendered excessive services or
(b) initiated excessive pathology services.

33. Its power to recommend revocation of the Ministerial acceptance of an undertaking required in turn a mixed finding or opinion of 'the rendering of excessive pathology services'. If these provisions are capable of being read intact and consistently, it means that only where the section 82 inquiry and the section 104 report was as to services self determined by a pathologist, could there even have been contemplated a revocation of the acceptance of the undertaking. In this event, the pathologist would equally have 'initiated excessive pathology services'. Despite the semantic possibility that the 'rendering of excessive pathology services' in section 105 is a particularisation of the more generalised 'rendering of excessive services' in section 104, it is thus difficult to see that the legislation could have been aiming at pathologists at all when it spoke of the 'rendering of excessive services' in section 104. In that case, there could have been no basis for the revocation of the acceptance of the undertaking, as there could have been no inquiry into the matter which would have to be found before revocation could be considered.

34. The applicant brings this case in a number of alternative forms. He has foregone an original request for a rule nisi for prohibition in the sense of seeking a primary hearing before a Full Court. He now seeks a series of declarations and various forms of judicial review pursuant to the Judicial Review Act. For the present, I do not propose to pass on any one or more of these forms of relief. After these views are made available, I will hear counsel further on what flows from my conclusions. Accordingly, I directed that the parties should agree on the fundamental issues or questions to be considered. They have agreed on three out of four questions. The three agreed questions are as follows:

1. Whether on the true construction of the Health
Insurance Act 1973, a pathology test can be an
excessive service, as defined in section 79(1B)(a)
of the Act, if it has been requested by a medical
practitioner under section 16A(1)(a) of the Act.
2. Whether, on the true construction of the undertaking
given by the applicant, the performance by the
applicant of a pathology test which had been
requested by a medical practitioner under section
16A(1)(a) of the Act could be a breach of that
undertaking if the test was not in fact reasonably
necessary for the adequate medical care of the
patient concerned.
3. Whether the Minister can, under section 82(b) of the
Act, refer to a Medical Services Committee of
Inquiry the question of whether certain specified
pathology services were not reasonably necessary for
the adequate medical care of the patient concerned.

35. The fourth question, submitted by the applicant, was:

4. Whether, on the true construction of the Act, the
reference to "the procedure for conducting the
hearing" in section 97(3) includes deciding whether
or not any particular evidence sought to be given by
or for a relevant person under section 96B(1) is or
is not to be received by the Committee."

In the light of the views I have formed on the three questions, I think that the applicant's fourth question is not strictly necessary to answer although it is raised by the applications now before the Court. In the hope that they will assist the resolution of this dispute, I shall make some brief observations on this matter later. The appropriateness of a formal or final answer can be dealt with when this matter is listed for further argument after these conclusions are made known.

36. As part of the relief sought is declaratory, and as in any event what is being sought is discretionary relief in relation to an administrative proceeding that is part heard, one possible conclusion raised in argument is that it is inappropriate for the Court to intervene at this stage. There is much authority to this effect, especially in relation to committal proceedings and other administrative hearings. However, the proceedings of this Committee of Inquiry have already been interrupted for this hearing, and the parties have jointly asked the Court to rule on these issues. In particular, counsel for the respondents, who might have taken the point, has indicated that his clients will welcome the Court's ruling on the subject. I can understand this attitude in this case, and I will act in accordance with it, although I must say that there are reasons, including considerable persuasive authority, which might otherwise lead a first instance Court in the other direction. Apart from consent, one weighty matter supportive of intervention at this stage, certainly for appropriate rulings of law, is the common ground that the hearing is likely to be substantially lengthened and very much more expensive if the Court does not rule at this time.

37. I will therefore address and rule on the three questions posed.

1. Whether on the true construction of the Health Insurance Act
1973, a pathology test can be an excessive service, as defined
in section 79(1B)(a) of the Act, if it has been requested by a
medical practitioner under section 16A(1)(a) of the Act.

38. This question as framed is actually misleading because as I see it, the critical criteria are whether the service has been rendered or initiated, and who determined necessity.

39. Section 16A(1)(a) provides:

"1. A Commonwealth medical benefit is not payable in
respect of a pathology service unless a practitioner
determined that the service was necessary,
(a) in the case of a pathology service (other
than a prescribed pathology service to which
paragraph (b) applies) - the service was
rendered by or on behalf of an approved
pathology practitioner in pursuance of a
request addressed to that approved pathology
practitioner
(i) by the practitioner who determined
that the service was necessary; or
(ii) by another approved pathology
practitioner who is not the
practitioner who determined that the
service was necessary,
being a request made in writing as prescribed or, if
made otherwise than in writing, subsequently
confirmed in writing as prescribed;"

40. It is common ground that the applicant was an approved pathology practitioner and that the services under discussion here were not requested by another approved pathologist and were not prescribed pathology services to which paragraph (b) applied. Thus, for these cases, Parliament has provided that Medicare benefits are payable to the applicant only if:

1. a medical practitioner (presumably the patient's practitioner)
has determined that the services requested of the applicant were
necessary;
2. that medical practitioner addressed a request to the applicant
to supply the services;
3. the services rendered by or on behalf of the applicant were in
pursuance of the request.

41. I think that 'necessary' in section 16A means the same as or is indistinguishably similar to 'reasonably necessary for the adequate medical care' of the patient in section 79 (1B). Thus the fundamental decision of fact posed by both sections, viz. whether the relevant pathology service was not medically necessary for the patient, is made by the requesting practitioner, not by the pathologist. However, the legislation not only poses the test of whether a medical practitioner has duly requested a service of a pathologist. It also requires that the requesting practitioner determine that the service was necessary. How the pathologist is to learn of this determination, other than by expression, implication or assumption from the bland form of request for the service, is not addressed. The Act does not require the requested pathologist to determine or even consider the necessity.

42. I have previously demonstrated how the combination of sections 79(1B) with sections 104 and 105 (which were all in the same Division of the Act) identified two different evils relevant to this case. One is of a practitioner who renders an excessive service; the other is of a practitioner who initiates, i.e. makes the decision which causes or brings about, an excessive service.

43. The applicant conceded that he may properly be investigated and dealt with for pathology services which he himself determined should be provided. As I understand it, there are no such services under discussion in this investigation in the true sense, the only allegation against him in this regard being his automatic agglomeration of tests in response to the adoption by the requesting practitioner of a shorthand or labelling expression. Whatever else can be said of this system of operation, this pre-determination is in my view not 'the making of the decision by reason of which (any) service is rendered' within section 79(1B)(b).

44. The question to be determined here is therefore whether, as the respondents argue, the first category, viz. the rendering of an excessive service, was intended for pathologists who do not make 'the decision' to which section 79(1B)(b) referred but who rendered services which were in fact probably 'not reasonably necessary for the adequate medical . . . care of the patient . . .' within section 79(1B)(a). If so, pathologists who did not self-determine the services rendered, would have been subject to the opinions referred to in both paragraphs (a) and (c) of section 104, and to a recommendation for the revocation of the acceptance of the undertaking then provided for in section 105(2)(d). In the latter case, because there was no provision for such a recommendation in the case of the practitioner whose decision brought about (i.e. who initiated) the service, the responding pathologist would suffer a 'death penalty' while the allegedly erring requester would escape comparatively if not entirely 'scot free'. The respondents do not suggest a mechanism for pathologists to determine 'reasonable necessity etc' in advance but argue that this may be established by expert evidence before the Committee of Inquiry after the event. I pass by a consideration of the possible motive for a requesting practitioner to seek excessive pathological testing - as far as I am aware, the practitioner certainly gains nothing financially from his enthusiasm, at least not honestly.

45. Sections 16A, 16B and 16C were covered in the Act by a heading 'Pathology Services'. Their phraseology appeared to indicate an intention to codify at least some of the requirements of pathologists. In other words, their purpose appeared to be to confine medical insurance for pathology services to those which were necessary for the patient's health, and to ensure that benefits were only available where an identifiable practitioner had determined the necessity in each case. The sections divided the potential responsibility three alternative ways (omitting prescribed pathology services which could apparently be claimed for by non pathologists):

(a) a general or other medical practitioner who was not a
pathologist, who determined necessity and requested the service
of a pathologist;
(b) a pathologist who determined necessity and requested the service
of another pathologist;
(c) the pathologist himself (or one of his medically qualified
employees) who made a personal determination of necessity and
then performed the service.

46. Paragraph (b) of section 16A(1) appears to have had too many words. It read:

"1. A Commonwealth medical benefit is not payable in
respect of a pathology service unless a practitioner
determined that the service was necessary,
(b) in the case of a pathology service, other
than a prescribed pathology service,
determined to be necessary by an approved
pathology practitioner (being a medical
practitioner) or by the employee (being a
medical practitioner) of an approved
pathology practitioner in the course of that
employment - the service was rendered by or
on behalf of that approved pathology
practitioner; or . . ."

47. Whatever this tortuous provision meant, it seems to me to have indicated a parliamentary intention to subject pathologists to investigation (section 104) and potential penalty (section 105) only when they made the determination of necessity themselves. If this same pathologist then conducted the test (category (c) above), there might follow adverse findings both of the initiation and the rendering of excessive services and a recommendation to revoke acceptance of the undertaking. If another pathologist conducted the tests (category (b)), the first pathologist could only be liable to a finding of initiation, and the second pathologist (i.e. the one performing the service) could not be liable to any adverse finding at all or to the revocation recommendation. Similarly, if a general practitioner determined necessity and sent the patient or the patient's tissue or blood to a pathologist for testing (category (a)), the general practitioner would be liable to a finding of excessive initiation but the pathologist could not be liable to any adverse finding at all or to the recommendation to revoke acceptance of the undertaking.

48. I therefore answer the first question: No.

2. Whether, on the true construction of the undertaking given by
the applicant, the performance by the applicant of a pathology
test which had been requested by a medical practitioner under
section 16A(1)(a) of the Act could be a breach of that
undertaking if the test was not in fact reasonably necessary for
the adequate medical care of the patient concerned.

49. I have already expressed my view about the effect of the undertaking given by the applicant and drawn attention to the absence of any express 'offence' of or penalty for breach of undertaking, similar to section 16A in relation to excessive servicing. However, section 82's provision for a Committee to inquire into and to report and make recommendations on "any . . . matter referred . . . by the Minister . . . that is relevant to the operation of this Act . . . and arises out of or relates to

(i) an undertaking accepted by the Minister under section 16C; or
(ii) the rendering of a professional service . . . or the initiation of
a pathology service . . ."

commenced a process which could have produced the result that the acceptance of the undertaking was revoked. This is what the Minister has purported to do in this case. The Instrument of Referral of the fifth respondent speaks of whether the applicant "complied with (the) undertaking given by him and accepted by the Minister under section 16C". It also seeks inquiry on matters "which . . . arise out of the rendering of professional services . . . namely whether each (particularised) professional service . . . was an excessive service within . . . section 79(1B)(a) of the . . . Act." In other words there is not suggested, and the Committee is not inquiring into, the initiation of any pathology service by the applicant. The critical questions posed by sections 79, 104 and 105 concerning 'pathology services' were simply avoided.

50. The applicant's undertaking, which is in evidence, has two possibly relevant provisions. (Clause 4 which incorporates an attached 'Code of Conduct' seems to have no relevance as the scheduled Code does not touch matters in issue here.)

1. Clause 3(a)
"The Practitioner will -
(a) comply with the provisions in relation to
applicable pathology services of the Act as
from time to time amended and of the
Regulations as for the time being in force;"
I am informed that there are no relevant regulations. As I have
shown, there are also no required acts or conduct in the Act.
So far at least as concerns this case, the Act provided for the
non payment of Medicare benefits where there are unnecessary
services (section 16A), for the acceptance or rejection (after
inquiry) of initial undertakings (section 16C), and for inquiry
(section 82), report (section 104) and recommendations (section
105) if there has been excessive servicing. There are
consequential provisions for Ministerial action on the
recommendations, and for publication and review of these
actions. Hence, it is difficult to know what is meant and
achieved by an undertaking to comply with the Act and
regulations, or how any breach can be determined. As I read it,
this clause does not avail the respondents in any way.
2. Clause 9
"Excessive Services
The Practitioner will not render, or request to be
rendered, an applicable pathology service that would
constitute excessive services as referred to in
Division 3 of Part V of the Act. (Sub-section
79(1B)(a) of the Act provides that a reference to
excessive services is a reference to professional
services, being services in respect of which
medical benefit has become or may become payable,
that are not reasonably necessary for the adequate
medical care of the patient concerned)."
Section 79(1B)(a) is a definition provision which has no effect
by itself. Relevantly to this case, the definition has effect
only in the context of sections 82, 104 and 105. In view of
what I have earlier written about sections 104 and 105, and of
the effects of section 16A, I am of opinion that the
parenthesised interpretation of section 79(1B)(a) was not only
no part of the undertaking, but was basically irrelevant to
pathologists altogether, and therefore to their undertakings.
Similarly, with the first part of the body of clause 9 itself.
Because of the parallel meaning of 'necessary' (section 16A) and
'reasonably necessary for the adequate medical care of the
patient' (section 79B), only a pathologist who had determined
necessity within section 16A could render an excessive pathology
service. He would in that case also have initiated the service.
The form of the undertaking, with some later described checks
and balances, was within the discretion of the Minister
(sections 16B and 16C). However, those sections only made
provision for the giving and accepting of the undertaking as a
prerequisite to initial Ministerial approval for the payment of
benefits to applicants, not for compliance with what was
contained in it or for penalising or addressing breaches after
initial approval. The only sanctions provided by the
legislation were contained in sections 82, 104 and 105 and what
follows, and none of them were directly for breaching the
undertaking. Hence, nothing flows at all from the undertaking
in Clause 9 not to 'render . . . an applicable pathology service
that would constitute excessive services as referred to in
Division 3 of Part V of the Act.'
The second part of Clause 9 purported to express an undertaking
that the pathologist would not 'request to be rendered' such a
service. This was quite foreign to the legislation, as has been
seen, which spoke only of initiation and rendering of
unnecessary or excessive services. In a different context, a
request for a service may sometimes, even often, co-incide with
its initiation, but this may not necessarily be so; the two are
clearly not the same concepts. There was absolutely no express
legislative sanction for a request in contravention of clause 9.
Although such a request could have been made the subject of a
section 82 inquiry, and even a section 104 report, no opinion
could have been formed in terms of section 104 and therefore
none of the recommendations contained in section 105 could have
been made - certainly none for the revocation of acceptance of
undertaking (section 105(2)(d)). Even if there was a relevant
section 104 opinion available, it was not one which could bring
about the revocation. Because this seems intended to have been
the principal, if not the only, sanction for excessive services
by pathologists, none of the other section 105 recommendations
could have been made as well.

51. I have previously noted an argument of the respondents that the applicant's undertaking had and should be ascribed the meaning contained in the new form of undertaking although it came into effect after he was approved and after this matter was referred for inquiry by the Committee. At the time the matter was before the Court, I tentatively felt that this argument attempted to draw a very long bow. However, since that time I have reviewed the submission closely.

52. Section 16B provided that any variations proposed by the Minister to the form of undertaking previously drawn up could have been referred to what is known as the Medicare Benefits Advisory Committee (MBAC), seeking its recommendations, if any. If he did make such a reference, the Minister was bound to provide a copy of both the reference and the MBAC's recommendations to the Australian Medical Association (AMA). He was bound to consult with the AMA on their implementation only when the MBAC recommended amendment to the proposed variations. These variations were then discretionary. However, if the MBAC recommended the adoption of the Minister's proposed variations without amendment, the Minister was bound to vary the undertaking accordingly, apparently without consultation with the AMA (section 16B(4)).

53. Section 16C(7) then provided:

"Where a form of undertaking is varied by the Minister under
sub-section 16B(4), an undertaking given under this section
in accordance with that form of undertaking shall be deemed,
for the purposes of this Act, to have been varied to accord
with that form of undertaking as so varied by the
Minister."

54. The applicant's undertaking contained clause 11 which provided:

"Variation of Undertaking
This undertaking is subject to variation as provided in
sub-section 16C(7) of the Act if the form of undertaking for
the purposes of the Act is varied at any time by the
Minister under sub-section 16B(4) and shall, while it
continues to be in force, be in force and have effect in the
form in which it is deemed to be varied from time to time to
accord with the form of undertaking as so varied."

55. Assuming that what has been described in these proceedings as the new form of undertaking was a variation under section 16B(4), this seems to mean that the applicant's 1977 undertaking was by section 16C(7) and clause 11 varied automatically to accord with the new form. This form is said on its face to be 'for the purposes of section 23DC of the Act'. This section replaced and considerably expanded section 16C, and came into force on 1 August 1987, approximately six months after the current procedures involving the applicant were instituted. The new form has operated from the same date and thereafter became the applicant's undertaking after the Instrument of Referral and the constitution of the Committee.

56. The two forms of undertaking are quite different. I have already pointed out the sparse ineffectiveness of clause 9 of the applicant's original undertaking. Clause 8.1 of the earlier form provided:

"The Practitioner will not knowingly enter into an arrangement with
a person whereby
(a) that person is induced or encouraged to request the
rendering of an applicable pathology service by the
Practitioner; or
(b) the Practitioner, without reasonable excuse, will be
accorded any incentive to request, or will receive
or obtain directly or indirectly any benefit, profit
or advantage from requesting, the rendering of an
applicable pathology service by the person."

57. As with Clause 9, this clause would have been significant in this case if the Act contained a requirement for its observance or if the Committee's report and recommendations could deal with a breach. As far as I can see, neither consequence existed.

58. The new form of undertaking is even more specific. Part 3, headed MULTIPLE PATHOLOGY SERVICES, contains three provisions designed to ensure that Medicare financial outlays are kept to the minimum. One of them, clause 5, is in this form:

"I undertake to render, or have rendered on my behalf, or to
request, two or more services in relation to one person so
as to cause the least possible financial imposition on the
Commonwealth. I also undertake not to enter into any
arrangement, or engage in any conduct, which will have the
result of increasing the least possible financial imposition
on the Commonwealth in relation to two or more services
rendered in relation to one person."

59. Clause 6 says:

"Under clause 5 I undertake to render services, or to have
them rendered on my behalf, in a manner which ensures that
the medicare benefit payable in relation to the services is
the minimum amount payable in the circumstances."

60. Part 4, headed EXCESSIVE PATHOLOGY SERVICES, contains clause 8 as follows:

"I undertake that I will take all reasonable measures to
avoid the provision of excessive pathology services."

61. Clause 9, which is not felicitously framed or phrased, contains an undertaking that the pathologist will not issue or permit the issue of an account or receipt, or bulk bill, without having personally rendered or supervised the rendering of the service (a provision that must be difficult if not virtually impossible to enforce) and unless:

d. the service was either
1. a pathologist-determinable service
which I have determined to be
necessary; or
2. rendered pursuant to an unambiguous
request or confirmation of request
validly made to me for the rendering
of the service and which is capable
of interpretation in terms of
generally accepted medical
terminology or is in accordance with
abbreviations listed in the Medicare
Benefits Schedule Book;

62. There was no evidence as to the relevant provisions for this case of these terms or abbreviations. However, although at first the terms 'rendered' and 'rendering' concerning pathology services, are used apparently interchangeably as between those initiated by the pathologist and those requested by another initiating practitioner, it raises for the first time in writing a clear distinction between the two and does so as true alternatives.

63. Because these clauses have no equivalent in the original form, I do not accept the respondents' submission that the applicant's first undertaking can or should be read as if it is in the new form. However, as I see the problem, this does not matter at all for the same reasons as undermine the value of the first undertaking itself. At the relevant time for this matter, the Act simply provided for the giving and acceptance (or refusal) of the undertaking, not its observance. It contained no requirement to observe the conduct prescribed by the undertaking.

64. There was no statutory requirement at the relevant time here, although there was a clear inferential intention, that services rendered should impose the minimum possible financial impositions on the Commonwealth (clause 5). The test in the Act was (reasonable) necessity in terms of the patient's health requirements. There was no statutory requirement for the pathologist who rendered the services to involve himself with their initiator, or practitioner who determined their necessity, in the context of taking 'all reasonable measures to avoid the provision of excessive pathology services' (clause 8). Even if there were, that is not what the Committee has been asked to investigate in the case of the applicant. This is also not a case of 'pathologist-determinable' services (clause 9(d)(1)). Neither the statute nor the Instrument of Referral speaks anywhere of the type of request defined so problematically in new clause 9(d)(2). Hence, even if the applicant were fixed with the new form of undertaking, it would not assist the respondents' case.

65. The cause and consequence of all this are that the form of undertaking in my opinion adds nothing to, and only confuses, the obligations of pathologists in relation to excessive or unnecessary servicing. The simple answer to the second question is therefore that the undertaking is irrelevant to the question. The substantive answer requires a number of evidentiary assumptions express and implicit in the question. These are:

1. the person to be tested is a patient of a medical practitioner
other than the applicant;
2. the patient's medical practitioner determines that a pathology
test is necessary for (or reasonably necessary for the adequate
medical care of) the patient;
3. the patient's medical practitioner requests the applicant to
conduct or perform the test; and
4. the patient's medical practitioner erred in determining
necessity (or reasonable necessity, etc) because the test is not
in fact necessary, or reasonably necessary for the adequate
medical care of the patient.

66. On these premises which appear to be the admitted facts of this case, it is my view that the performance of the test by the applicant could not be the proper subject of inquiry under section 82, report under section 104, recommendations under section 105, and action by the Minister under subsequent sections. The applicant simply cannot be held responsible for someone else's decision that tests be conducted.

3. Whether the Minister can, under section 82(b) of the Act, refer
to a Medical Services Committee of Inquiry the question of
whether certain specified pathology services were not reasonably
necessary for the adequate medical care of the patient
concerned.

67. For the same reasons as my answers to the other two questions, I answer this question: No. It would be different if this were a case of pathology services being initiated by the applicant or (its equivalent) being rendered by him following his own determination that they should be performed; but that is not alleged against this applicant.

68. One other matter is raised by the pleadings and evidence in this litigation, though not expressly by the submitted questions. As the Instrument of Referral and the supplied particulars show, the substantive objection of the respondents to the applicant's activities is his agglomeration of tests under headings. This, it is suggested, represents or constitutes an encouragement to some medical practitioners to request more tests than are (reasonably) necessary for the patient's health care. The inference the respondents seek to raise is that, virtually per se, such a procedure induces, is inherently likely to result in and has in fact resulted in overservicing, the suggestion apparently being that it is tantamount to a breach of clauses 8.1 and 9 of the applicant's undertaking or clauses 5, 8 and 9(d) of the new undertaking.

69. I can well understand the respondents' concerns in these regards; the circumstances in this case permit a reasonable contemplation of such conclusions. The applicant's system certainly throws an onerous responsibility onto the requesting practitioner to exclude tests not required or deemed necessary about which the requester may know little, despite the applicant's book and educational services. This raises two other problems. First, it perhaps involves uncomplimentary assumptions about the capacities even integrity of the requesting practitioners which may be unjustified in fact. There is no evidence of the inducement to such practitioners. The second and more serious problem, as I see it, is that although the applicant's agglomeration or categorisation procedures may involve one or more breaches of either form of undertaking, they are not contrary to the Act. With all my previously expressed convictions concerning the lack of effect of clauses 8 and 9 in the old undertaking, and of clauses 8 and 9 of the new form, I do not believe that the applicant's procedures can properly be described as the rendering (or initiation) by him of excessive services or the requesting by him that excessive services be rendered. Whilst no doubt his procedures could be inquired into under section 82, in the context that many tests have admittedly been performed under his system, it seems to me that the report would not be able to contain any of the opinions referred to in section 104, and thus that no recommendations under section 105 could be made.

70. For all these reasons, the fourth question does not strictly require answering. It relates to the conduct of the hearing by a strictly administrative body of non lawyers, and asks whether the person presiding can control the admission or reception of evidence desired to be called by the applicant. The hearing is governed by section 97(3) which provides:

"The rules of evidence do not apply in relation to a
hearing and the procedure for conducting the hearing is,
subject to this Act and the regulations, within the
discretion of the member presiding."

71. I am informed that there are no relevant regulations. Section 96A provided for the appearance and representation of the applicant. Section 96B required that the applicant be given the opportunity to give evidence, and that he or his representative be permitted to call witnesses, ask questions (presumably by cross examination) of other witnesses, and address the Committee. It seems to me that the control of the presiding member of the Committee over 'the procedure for conducting the hearing' does not permit that person alone to decide questions of admissibility of the kind referred to in the question. 'Procedure' within section 97(3) does not in my opinion include the determination of what evidence shall or shall not be received. This is a matter for the whole Committee and should not be dealt with in some legalistic or narrow sense as if in a formal court proceeding.

72. This view is supported by Woodward J in Freeman v McKenzie & Ors (unreported, 6 September 1988), a case involving judicial review of a Committee's Inquiry into alleged excessive services under the Act. Addressing the question of particulars, his Honour said at 15:

"I find it impossible to deal with this question without saying
something about the way in which, in my view, an inquiry such as
this should ordinarily be conducted. I am conscious of the fact
that it is not for this Court, in its supervisory role, to tell a
committee how it should conduct its inquiry. The Court's task is
rather to direct the committee back on the rails if it has run off
them or, in an extreme case, to stop the committee in its tracks.
On the other hand the committee is, in my view, entitled to such
positive guidance as the Court feels it can properly give. The
Court's role should not be purely negative telling the committee
what is wrong without any suggestions as to how to put it right. It
is in that spirit, and because of the need to rule on the question
of particulars, that the following comments are made. However, each
committee will have to make its own procedural decisions in the
light of the particular circumstances of the case before it. The
power to do so is specifically conferred on the presiding member of
the committee by s.97 of the Act."

73. His Honour's particular guidelines went on to make clear that the committee should proceed fairly though informally, that it should expose to the practitioner the matters which gave it concern, that it should openly particularise the matters which it wishes to investigate and that it should clearly identify the cases involving overservicing to which the practitioner should direct his attention and evidence. Northrop J also left no doubt that these were to be decisions of the whole committee, not merely its presiding member, although that member would enunciate the committee's procedural wishes on its behalf.

74. I respectfully agree with his Honour's approach. The Act does not require that the presiding officer be a lawyer or person trained in assessing such matters. In a strictly limited administrative proceeding without rules of evidence, the principal reason for the involvement of the whole Committee in this exercise is that what may be relevant or of concern to one member may not hold any significance to another. If the presiding member alone made the decisions which determined what evidence should and should not be received, or what matters should be investigated and what ignored, the interests of all the other members of the committee in this connection would be bypassed. As a result, there would be a danger of the applicant's being denied the opportunity to address issues of importance to some members of the Committee, and of a decision being made by one or more members on matters not canvassed, or not fully canvassed, by the applicant at the hearing.

75. This matter will be listed for final judgment and orders after the parties have had an opportunity to read these expressions of opinion.