Hill v Keith (includes corrigendum dated 4 September 2002) [2002] FCAFC 7 (20 August 2002)

Last Updated: 5 September 2002

FEDERAL COURT OF AUSTRALIA

Hill v Keith [2002] FCAFC 7

WILVENE LESLEY EVYLINE HILL V ALAN KEITH

V759 OF 2001

BEAUMONT, SUNDBERG AND ALLSOP JJ

20 AUGUST 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V759 OF 2001

BETWEEN:	WILVENE LESLEY EVYLINE HILL APPELLANT
AND:	ALAN KEITH RESPONDENT

JUDGE:	BEAUMONT, SUNDBERG AND ALLSOP JJ
DATE:	20 AUGUST 2002
PLACE:	MELBOURNE

CORRIGENDUM

On page 3 of the Judgment delivered by the Court on 20 August 2002, solicitors for the Appellant should be changed to Goddard Elliott and solicitors for the Respondent should be changed to Minter Ellison.

Associate:

Dated: 4 September 2002

FEDERAL COURT OF AUSTRALIA

Hill v Keith [2002] FCAFC 7

Health Insurance Act 1973 (Cth) ss 3F, 82, 86, 93, 105(3), 106Q

Hill v Holmes [1999] FCA 760 cited

Health Insurance Commission v Grey [2002] FCAFC 130 followed

Tankey v Adams [2000] FCA 1089; (2000) 104 FCR 152 followed

Transurban City Link Ltd v Allan [1999] FCA 1723; (1999) 95 FCR 553 applied

WILVENE LESLEY EVYLINE HILL v ALAN KEITH

V 759 OF 2001

BEAUMONT, SUNDBERG and ALLSOP JJ

20 AUGUST 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 759 OF 2001

BETWEEN:	WILVENE LESLEY EVYLINE HILL APPELLANT
AND:	ALAN KEITH RESPONDENT

JUDGES:	BEAUMONT, SUNDBERG and ALLSOP JJ
DATE OF ORDER:	20 AUGUST 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 759 OF 2001

BETWEEN:	WILVENE LESLEY EVYLINE HILL APPELLANT
AND:	ALAN KEITH RESPONDENT

JUDGES:	BEAUMONT, SUNDBERG and ALLSOP JJ
DATE:	20 AUGUST 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 THE COURT: The appellant was at all relevant times a medical practitioner within the meaning of s 3 of the Health Insurance Act 1973 (Cth) ("the Act"). The respondent was the Determining Officer under s 106Q of the Act. On 14 August 1997 the Health Insurance Commission referred the conduct of the appellant to the Director of Professional Services Review under s 86 of the Act. On 12 February 1999 the Director established a Professional Services Committee under s 93 to consider whether the appellant had engaged in inappropriate practice as that expression is defined in s 82 of the Act. The Committee held hearings on 8 April and 18 May 1999. The appellant failed to provide responsive answers to questions. Neither she nor her family company, which asserted ownership of her medical records, complied with notices to produce them. As a result, on 19 May 1999 the Director disqualified the appellant from access to Medicare rebates and the Pharmaceutical Benefits Scheme pursuant to s 105(3). The appellant successfully appealed against the disqualification to this Court: Hill v Holmes [1999] FCA 760.

2 On 21 September 1999 the Committee held a further hearing, and on 24 February 2000 provided a draft report to the appellant for comment. The appellant responded in writing on 20 March 2000 and again on 23 March 2000. The Committee made a final report on 13 April 2000, finding that the appellant had engaged in inappropriate practice. On 15 November 2000 the Determining Officer made a draft determination and sent it to the appellant for response. The appellant made submissions to the Determining Officer on 28 November 2000. The Determining Officer made a final determination on 5 January 2001, directing that the appellant be reprimanded and counselled, and that she be fully disqualified from Medicare and the Pharmaceutical Benefits Scheme for a period of 18 months. On 7 February 2001 the appellant requested a review of the final determination. As a result the determination was stayed pending the decision of the Tribunal and any subsequent appeal. See s 106V.

3 The Professional Services Review Tribunal conducted its review on 5 and 6 April 2001. On 3 July the Tribunal handed down its decision affirming the final determination. On 27 July 2001 the appellant filed a notice of appeal with this Court. She subsequently amended the notice on a number of occasions, with the final version of the further amended notice of appeal dated 16 August 2002 abandoning all previous grounds and substituting as the sole ground what has been called the constitutional ground, which is expressed as follows:

"The authority vested by Parts VAA and VA of the Health Insurance Act ... in the Committee (under s 93), the Determining Officer (under s 106Q) and the Tribunal (under s 108) respectively was judicial power purportedly vested in a non judicial body contrary to s 71 of the Constitution and, as a result:

(a) the provisions of ss 94 to 121 of the Act were invalid as an enactment beyond the Commonwealth's legislative power; and

(b) any purported exercise of the powers thereby conferred by either the Committee, the Determining Officer or the Tribunal was invalid."

4 The legislative scheme in Parts VAA and VA of the Act is set out in detail in our reasons for decision in Health Insurance Commission v Grey [2002] FCAFC 130 ("Grey") and we will not repeat that exposition. The contention that the Committee, the Determining Officer and the Tribunal exercise the judicial power of the Commonwealth contrary to s 71 of the Constitution was rejected in Grey as it had been by an earlier Full Court decision in Tankey v Adams [2000] FCA 1089; (2000) 104 FCR 152 ("Tankey"). Mr Shand QC, who appeared for the appellant, described this as a formidable body of authority, but said that the appellant "desires to pursue the appeal in order to preserve her rights". Before us the appellant deployed essentially the same arguments as those that had been advanced in Grey. They followed the form of the written submissions that had been filed, and since they are on the Court file and the submissions did not depart from them, we need not attempt to summarise those submissions.

5 In Grey the Court dealt in detail with the arguments comparable with those advanced by Mr Shand, rejecting all of them. We do not propose to repeat here what we have so recently written in Grey. We incorporate here by reference what we said there. The appellant has not convinced us that Grey and Tankey are clearly wrong, and accordingly we should follow those decisions. See Transurban City Link Ltd v Allan [1999] FCA 1723; (1999) 95 FCR 553 at 560. It follows that the sole ground of appeal fails and the appeal must be dismissed with costs.

6 The order of the Court, therefore, is appeal dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont, the Honourable Justice Sundberg and the Honourable Justice Allsop.

Associate:

Dated: 30 August 2002

Counsel for the Appellant:	M Shand QC and M Settle
Solicitors for the Appellant:	Minter Ellison
Counsel for the Respondent:	F Hampel SC and F McLeod
Solicitors for the Respondent:	Goddard Elliott
Date of Hearing:	20 August 2002
Date of Judgment:	20 August 2002