Theodore T. Tang v Alan John Holmes (in his capacity as Director of Professional Services Review under the Health Insurance Act 1973 ) & Ors [1998] FCA 135 (25 February 1998)

Last Updated: 4 March 1998

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - Medicare Professional Services Review Scheme - Inappropriate practice by practitioners - Health Insurance Commission empowered to refer practitioner's conduct to Director of Professional Services Review - Within twenty eight days after receipt of referral Director required to dismiss referral or set up Professional Services Review Committee to consider whether practitioner has engaged in inappropriate practice in connection with referred services - Director's decision not invalid because not made within time - Reference by Commission - Validity - Whether specified any "conduct" of practitioner - Director's decision to set up Committee made long after expiration of twenty eight day period - Whether invalid - Whether substantial compliance required - Whether statistical material comparing practitioner with other practitioners a relevant consideration - Whether evidence to justify Director's decision - Whether decision unreasonable.

STATUTORY INTERPRETATION - Health Insurance Commission empowered to refer practitioner's conduct to Director of Professional Services Review - Within twenty eight days after receipt of referral Director required to dismiss referral or set up Professional Services Review Committee - Director's decision on referral not invalid because not made within time - Director's decision to set up Committee made long after expiration of twenty eight day period - Whether invalid - Whether substantial compliance necessary for validity.

Health Insurance Act 1973 ss 86, 88, 89, 91, 93

Tasker v Fullwood [1978] 1 NSWLR 20 applied

Yapeen Holdings Pty Ltd v Calardu Pty Ltd [1992] FCA 284; (1992) 36 FCR 478 applied

Artinian v The Commonwealth (1996) 43 ALD 235 applied

Van Reesema v Official Receiver [1983] FCA 202; (1983) 50 ALR 253 applied

TVW Enterprises Ltd v Duffy (1985) 62 ALR 63 applied

Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214 applied

Victoria v The Commonwealth [1975] HCA 39; (1975) 134 CLR 81 applied

Yates Security Services Pty Ltd v Keating (1990) 98 ALR 68 applied

Woodward v Sarsons (1875) LR 10 CP 733 considered

Yung v Adams (unreported, Davies J, 11 December 1997) considered

R v Murray; Ex parte the Commonwealth [1916] HCA 58; (1916) 22 CLR 437 applied

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 mentioned

Edelsten v Health Insurance Commission (1990) 27 FCR 56 mentioned

Northern Territory v Lane (1996) 39 ALD 527 mentioned

THEODORE T TANG v ALAN JOHN HOLMES (in his capacity as Director of Professional Services Review under the Health Insurance Act 1973), RICHARD WILLIAM FRANCIS KING, LYNETTE ANNE EDWARDS, and BRUCE WALLACE INGRAM (in their capacity as the Members of Professional Services Review Committee No 68)

VG 631 OF 1997

SUNDBERG J

25 FEBRUARY 1998

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 631 of 1997

BETWEEN:	theodore t tang Applicant
AND:	alan john holmes (in his capacity as Director of Professional Services Review under the Health Insurance Act 1973), richard william francis king, lynette anne edwards, and bruce wallace ingram (in their capacity as the Members of Professional Services Review Committee No 68) Respondents

JUDGE:	SUNDBERG J
DATE OF ORDER:	25 FEBRUARY 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

. The application be dismissed.

. The operation of the injunction granted by Ryan J on 28 November 1997 be continued until 4:30 pm on 4 March 1998.

. The applicant pay the respondents' taxed costs of the application, those costs not to include the costs reserved by Ryan J on 28 November 1997.

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	VG 631 of 1997

BETWEEN:	theodore t tang Applicant
AND:	alan john holmes (in his capacity as Director of Professional Services Review under the Health Insurance Act 1973), richard william francis king, lynette anne edwards, and bruce wallace ingram (in their capacity as the Members of Professional Services Review Committee No 68) Respondents

JUDGE:	SUNDBERG J
DATE:	25 FEBRUARY 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

PROFESSIONAL SERVICES REVIEW SCHEME

Part VAA of the Health Insurance Act 1973 , which consists of ss 80 to 106ZR, establishes the Professional Services Review Scheme under which a person's conduct can be examined to ascertain whether inappropriate practice has been engaged in. Sanctions can be imposed if the person is found to have engaged in inappropriate practice. Section 84 establishes the Professional Services Review Panel ("the Panel"), which consists of practitioners appointed by the Minister. Section 86(1)(a) empowers the Health Insurance Commission ("the Commission"), which maintains Medicare records, to refer to the Director of Professional Services Review ("the Director"), appointed under s 83, "the conduct of a person relating to ... whether the person has engaged in inappropriate practice in connection with rendering of services" for which medicare benefit was payable.

Under s 82(1) a specialist practitioner engages in "inappropriate practice" if the practitioner's conduct in connection with rendering services is such that a Professional Services Review Committee ("a Committee") could reasonably conclude that the conduct would be unacceptable to the general body of the members of the speciality in which the member was practising at the time the services were rendered. The referred services must have been rendered during the two years preceding the referral: s 86(2). Within forty-eight hours of the referral the Commission must give the person under review a copy of the referral and written notice inviting the person to make submissions to the Director, within fourteen days, stating why the Director should dismiss the referral without setting up a Committee:s 88. Section 89 is as follows:

(1) Within 28 days after receiving the referral, the Director must:

(a) dismiss the referral; or

(b) set up a Committee to consider whether the practitioner has engaged in inappropriate practice.

(2) The Director's decision on the referral is not rendered invalid merely because it is not made within the 28 day period.

Section 91 requires the Director to dismiss the referral if satisfied that there are insufficient grounds on which a Committee could reasonably find that the person under review has engaged in inappropriate practice in connection with the referred services. Unless so satisfied, the Director must set up a Committee: s 93(a).

A Committee is formed from members of the Panel: s 95. It will usually consist of a Deputy Director and two other members. All must be members of the same profession as the person under review. The Committee must hold meetings, and may convene a hearing at which evidence is given and documents are produced: s 101(1). The Committee must hold a hearing if it appears to it that the person under review may have engaged in inappropriate practice in connection with rendering the referred services: sub-s (2). The person under review is entitled to attend the hearing and be accompanied by a lawyer or other adviser, but is not entitled to be represented by the lawyer or other adviser: s 103(1). The person under review is entitled to question any person giving evidence and to address the Committee: sub-s (2). The Committee may allow an adviser, other than a lawyer, of the person under review to question a person giving evidence and to address the Committee on behalf of the person under review: sub-s (2). The Committee may require the person under review to appear at the hearing to give evidence and produce documents: s 104. A Committee member may administer an oath or affirmation, and may summon a person to appear at a hearing to give evidence and produce documents: ss 106A, 106B After inquiring into the matter referred, the Committee must report to the Determining Officer appointed under s 106Q. The report must set out the Committee's findings on whether the conduct of the person under review in connection with rendering the referred services was in the Committee's opinion unacceptable to the general body of the members of the speciality in which the practitioner was practising: s 106L(1)(a). The Determining Officer must give a copy of the report to the person under review and, if the report makes findings against the person, a draft determination containing one or more of the sanctions listed in s 106U: ss 106R, 106S. After allowing time for the person under review to make submissions, the Determining Officer must make a final determination, which may involve one or more of the listed sanctions: s 106T. The final determination will take effect unless a review is sought by the Professional Services Review Tribunal ("the Tribunal") established under Part VA: s 106V.

Part VA of the Act consists of ss 107 to 124A. The request for review is made to the Minister, who refers the matter, together with the evidence that was before the Committee, to the Tribunal: ss 114, 115. The Tribunal is limited to the material that was before the Committee and the Determining Officer, together with any addresses made to the Tribunal: s 119(1)(a). The Tribunal may affirm or set aside the final determination, or set it aside and make any other determination that the Determining Officer could have made under s 106T: s 119(1)(b)(ii). A party to a proceeding before the Tribunal may appeal to the Federal Court on a question of law: s 124A.

THE REFERRAL

The applicant is a vocationally registered general practitioner, and is therefore a "specialist" for the purposes of Part VAA: s 81(2). He carries on practice from two premises in Melbourne. On 27 March 1997 a delegate of the Commission made a written referral to the first respondent, the Director, of the conduct of the applicant in relation to whether he had engaged in inappropriate practice. On the same day the applicant received notice of the referral which invited him to make written submissions as to why the Director should dismiss "the attached referral". The attached document is described on its face as "Referral by the Health Insurance Commission Pursuant to Section 86 of the Health Insurance Act 1973". It consists of two books. The index indicates that the first contains "Referral, Summary of referred materials and Attachments", and that the second contains a number of reports. Page 1 of Book 1 contains three headings - "Referral", "Referred Services" and "Reasons for the Decision to Refer". Under the first heading the Commission refers to the Director "the conduct of Dr Theodore Ta-l Tang in relation to whether he has engaged in inappropriate practice, in connection with the rendering of services". Under the second heading is the statement that the referral relates to all services rendered by the applicant during the period 1 July 1995 to 30 June 1996. Under the third heading the document asserts that in the referral period Dr Tang provided 17,926 services, that on 119 occasions he rendered between 61 and 80 services per day, that on 10 occasions he rendered between 81 and 100 services per day, and that the number of services provided was substantially above the 99th percentile of all active vocationally registered practitioners in Victoria (16,557 services). The document then states that time calculations based on the Entry Standards of the Royal Australian College of General Practitioners (RACGP) suggest that the applicant would have to have spent between 10.2 and 16.7 hours of direct patient contact per surgery working day to provide quality care at a standard acceptable to the RACGP. The Commission believed that the appropriate level of clinical input may not be able to be maintained at this servicing rate on a regular and continuing basis. The Reasons conclude with the statement that the Commission had formed the view that "Dr Tang's conduct in connection with the rendering of Medicare services may constitute inappropriate practice".

On 8 April the applicant made a submission as to why the Director should dismiss the referral without setting up a Committee. On 17 October the Director set up Professional Services Review Committee No 68, consisting of the second to fourth respondents, to consider whether the applicant had engaged in inappropriate practice. On the same day the Director gave the applicant notice of the setting up of the Committee. On 12 November, pursuant to s 102, the Secretary of the Committee gave the applicant notice that the Committee proposed to hold a hearing on 4 December 1997 into the matters the subject of the referral, the Committee having considered that the applicant may have engaged in inappropriate practice. On 14 November the applicant applied for relief under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") and under s 39B of the Judiciary Act 1903 in relation to the Director's decision to set up the Committee.

REASONS FOR DECISION

On 9 December the Director gave reasons for his decision. Under the heading "Findings" appears the following material:

7. Dr Tang claims that 99% of his patients are from a Chinese background and are from low socio-economic areas. He claims that almost all his patients speak no English and his patients have certain specific and unusual medical problems which many general practitioners would not encounter in the same way. This is said to include psychological problems associated with coping in a foreign culture and with a language barrier and medical problems such as Hepatitis B, tuberculosis, diabetes, peptic ulcers and certain allergy problems.

...

9. The Referral states that, during the period 1 July 1995 to 30 June 1996 (`Referral Period'), Dr Tang provided 17,926 services to his patients for which benefits were claimed under the Medicare system.

10. This number is substantially above the number of services provided by 99 percent of all active vocationally registered general practitioners in Australia (the 99th percentile is 16,557 services).

...

12. Dr Tang claims that he has more than 60 hours per week of direct patient contact in his surgery. He states that he takes 15 minutes for lunch each day. He claims that he spends all of his time in the surgery in direct patient contact.

13. The Interpractice Comparison Survey conducted in Australia by the Royal Australian College of General Practitioners (`RACGP') indicates that general practitioners on average spend approximately 55 hours per week in the surgery, with approximately 39 of those hours in direct contact with patients. The average number of services per year was 6,352 and the average length of consultation was approximately 17 minutes.

14. A survey of morbidity and treatment in general practice in Australia in 1990-1991 reported that practitioners categorised as busy full-time practitioners averaged 182 consultations per week. Dr Tang averaged 338 consultations per week during the Referral Period.

15. There were 129 days in the Referral Period when Dr Tang provided more than 60 services. Criterion 1.2.2 of the RACGP Entry Standards for General Practice Accreditation states that consultation times must be long enough to allow quality care and specifies average times of not less than 10 minutes. Dr Tang claims that he complies with the standard of approximately 6 patients per hour. However, in order to maintain that standard, Dr Tang would have needed to spend between 10.2 and 16.7 hours in direct patient contact on each of those 129 days.

16. When interviewed on 10 November 1995, Dr Tang stated that he could push through 10 patients per hour if he was busy.

17. Following counselling in November 1995, there was a reduction in the volume of services provided by Dr Tang. However, he continued to provide more services than 99 percent of all active vocationally registered general practitioners in Australia.

Under the heading "Material on which the facts are based", the Director says that in making his findings he took into account all the material contained in the referral and the applicant's written submissions. Under the heading "Reasons" the following appears:

19. During the Referral Period, Dr Tang provided significantly more services than the vast majority of general practitioners in Australia.

20. The sheer number of patients seen by Dr Tang means that there is a serious doubt as to whether he would have been able to provide and maintain an appropriate level of clinical input.

21. Dr Tang claimed to spend over 60 hours per week in surgery, all of which were engaged in direct patient contact. The average general practitioner spends approximately 55 hours per week in the surgery, of which approximately 39 hours are spent in contact with patients.

22. Seeing patients is much more demanding than many other administrative and other necessary tasks which do not involve patient contact. In my opinion, a Committee could reasonably find that Dr Tang would be so busy in dealing with such a large number of patients (with such constant patient contact) as to be unable to give his patients an appropriate level of medical attention. Dr Tang has not explained how the administrative and other tasks not involving patient contact (which most general practitioners need to do in order to run a proper medical practice) are performed in his practice. These tasks all take time.

23. Dr Tang claimed that many of his patients had psychological and other complex problems. In my experience and opinion, these problems take longer to properly address than other consultations. If Dr Tang did spend the extra time necessary to adequately deal with the special problems he said his patients tended to have, he would have had less time available to see his other patients.

24. Learned Australian medical colleges and organisations, including the RACGP, consider that the provision of adequate time is an essential requirement to address patient problems, especially when the problems are complex and unusual.

25. Although Dr Tang may provide a service to the Chinese population in Melbourne which may increase the number of patients wishing to see him (he claims that there are no other Chinese-speaking doctors in his area working on weekends), a Committee could reasonably find that the standard of medical care provided by Dr Tang to his patients is inadequate and unacceptable to the general body of practising general practitioners. All Australians, regardless of their ethnic background, are entitled to receive a proper standard of medical care and attention. The fact that there is a demand for Dr Tang's services does not diminish the need for an appropriate standard of medical care.

26. It may be that, in the light of all the material before it including any additional material provided by Dr Tang, the Committee will find that Dr Tang's conduct was not unacceptable to the general body of general practitioners. I cannot say that such a finding is definitely precluded by the material before me, being the material contained in the Referral and Dr Tang's written submission. However, I was not satisfied that the material before me provides insufficient grounds on which a Committee could reasonably find that Dr Tang has engaged in inappropriate practice in connection with the referred services.

SECTION 86 CONDUCT

Section 86(1)(a) enables the Commission to refer to the Director "the conduct of a person relating to ... whether the person has engaged in inappropriate practice in connection with rendering of services". Section 89(1) requires the Director to dismiss the referral or set up a Committee. It was contended for the applicant that the decision to set up the Committee was not authorised by s 89 because the document containing the referral did not refer any "conduct" of the applicant to the Director. It was submitted for the applicant that the referral consists only of the material appearing under the headings "Referral" and "Referred Services", and since that material does not specify, describe or otherwise identify any behaviour, actions or practice of the applicant, no conduct of his has been referred to the Director. There is no substance in this submission. In my view the referral consists of the whole of Books 1 and 2. At the very least it consists of the first twenty-six pages of Book 1. It is on page 26 that the Director signs and dates the reference introduced under the "Referral" heading on page 1. When those pages are read as a whole (especially the material under the "Reasons" heading), it is clear that the applicant's conduct that is referred is described in terms of behaviour engaged in during the referral period. Indeed the contrary was barely suggested by the applicant's counsel.

DECISION MADE OUTSIDE PRESCRIBED TIME

Section 89(1) requires the Director, within twenty-eight days after receiving the referral, to dismiss the referral or set up a Committee. The Director did not set up a Committee until more than 200 days after he had received the referral. What is the consequence of the failure to act within the specified time? That depends on the intention of the legislature. The only true guide to that intention is to be found in the language of s 89 and the scope and object of the Act. The intention being sought is the effect upon the validity of the Director's action of his failure to set up a Committee within the prescribed period. It is a mistake to attempt to answer the question by asking whether s 89 is mandatory or directory in its terms. See generally Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24 and Yapeen Holdings Pty Ltd v Calardu Pty Ltd [1992] FCA 284; (1992) 36 FCR 478 at 494. A statute may disclose an intention that strict compliance is necessary, that substantial compliance is necessary together with the degree of substantiality, or that compliance is not a precondition to the validity of the act done. See Pearce and Geddes, Statutory Interpretation in Australia 4th ed (1996) 284-285; Van Reesema v Official Receiver [1983] FCA 202; (1983) 50 ALR 253 at 266; TVW Enterprises Ltd v Duffy (1985) 62 ALR 63 at 71; Yapeen Holdings at 494. The only intention disclosed by s 89(2) is the last - the decision is not rendered invalid merely because it is not made within the relevant period. Similar provisions are contained elsewhere in the Act in connection with acts required to be done within a fixed time. See for example, ss 94(4), 97(4), 106R(2), 106S(4), 106T(2) and 106X(4). The contrast between s 89(2) and those provisions on the one hand, and s 88 on the other, is striking. Under the latter the Commission must within forty-eight hours of sending the referral to the Director give the person under review a copy of the referral and a notice inviting submissions. There is no counterpart of s 89(2), and the intention to be discerned from this is that a failure to comply with s 88 renders invalid a purported decision made under s 89(1). Cf Artinian v The Commonwealth (1996) 43 ALD 235 at 240-241.

I do not accept the applicant's submission that s 89 implies that there must be substantial compliance with the time requirement. I do not think the word "merely" suggests that although the twenty-eight day period need not be strictly complied with, the degree of non-compliance must not be great. The word is, I think, tautologous. Although it features in some other "time" provisions (eg s 94(4)), it does not appear in others (eg s 97(4)). In the absence of an indication in the statute that substantial (though not strict) compliance is necessary for validity, no question of substantial compliance arises: Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214 at 247; Victoria v The Commonwealth [1975] HCA 39; (1975) 134 CLR 81 at 161; Yates Security Services Pty Ltd v Keating (1990) 98 ALR 68 at 90-91; Pearce and Geddes, op cit, 283-284. The notion of substantial compliance, which appears to have originated in Woodward v Sarsons (1875) LR 10 CP 733 at 746, is part of the mandatory/directory area of discourse - a mandatory provision must be complied with absolutely, but it is sufficient if a directory provision is complied with substantially. On the balance of modern authority, the mandatory/directory distinction has fallen into desuetude along with any concept of substantial compliance which is not by the statute made a condition of validity.

It was submitted for the applicant that the function of s 89(2) is to save unchallenged decisions made out of time and actions consequential on such decisions. It was said that if, for example, at some subsequent time an action were brought against Committee members for purporting to summon and question a practitioner when the instrument establishing the Committee had not been made within the twenty-eight day period, the Committee would be protected. Similarly, the decision to set up a Committee could found subsequent action, such as Committee meetings, hearings and reports. In my view, to limit s 89(2) to decisions which go unchallenged at the time involves an unjustified restriction of the amplitude of its language.

IRRELEVANT CONSIDERATION

It was contended that the statistics relied on by the Director are irrelevant because they fail to take into account the distinctions between the applicant's practice and that of other practitioners. In particular it was said that the statistics for all practitioners include a large number of part timers; they do not take account of practitioners who work seven days a week with virtually no holidays (as the applicant does); they do not provide a breakdown of services provided to particular ethnic and socio-economic groups (such as the applicant's exclusively Chinese patients); they provide no means to isolate the effect of hospital visits and medico-legal work which the applicant does not perform; and where there is a comparison between the applicant and busy full time practitioners, there is no "provision of the range which the comparison covers so as to determine whether or not [the applicant] is outside it".

The question for the Director under s 93 is not whether the applicant has engaged in inappropriate practice, but whether the Director is satisfied that there are insufficient grounds on which a Committee could reasonably find that the applicant has engaged in inappropriate practice. The Director's function is of a preliminary character designed to weed out cases in which there is no reasonable prospect of a finding of inappropriate practice, leaving for the Committees those in which there is a reasonable prospect of an affirmative finding. The function is to be understood in the light of the fact that, unlike a Committee, the Director lacks the power to require the provision of information and documents. The applicant may be able to persuade the Committee that his practice is so idiosyncratic, for the reasons he advances, that the statistics should be ignored. But in my view the statistics are relevant to the Director's function under s 93.

In Artinian a comparison of Dr Artinian's practice with that of other active general practitioners showed that he provided substantially more services in a year (23,706) than 99 per cent of all active general practitioners in Australia. The 99th percentile was 16,961. While general practitioners on average spent 39 hours per week in contact with patients (and worked 55 hours per week), Dr Artinian averaged 464 services per week with 70 hours of total patient contact per week, seeing an average of 6.5 patients per hour. It was contended for Dr Artinian that the Commission in referring his conduct to the Director, and the Director in acting under s 93, had taken into account irrelevant matters, namely Dr Artinian's statistical standing in comparison with other practitioners. Hill J rejected the contention. At 241-242 his Honour said:

It seems to me almost unarguable that the commission was not entitled to take into account the statistical material in determining whether or not to refer Dr Artinian's conduct in connection with his rendering of services, to the director. The time spent by Dr Artinian, even if considered without reference to the time spent by other practitioners, would seem enough to raise questions for consideration. When, however, the time he spent is compared with time spent by other practitioners, the point is even more obvious. No doubt it is possible that there could be good explanations. But this is not to say that the statistical material would be irrelevant in considering the issue under s 86.

...

There is absolutely no substance at all in the argument that reference cannot be made to the statistical material. Not only is that material relevant but it may also, in a particular case, be highly cogent of inappropriate conduct.

Although in the first of these paragraphs his Honour was dealing with the Commission rather than the Director, the argument that was rejected as having absolutely no substance was that neither the Commission nor the Director acting under s 93 was entitled to have regard to the statistics.

NO EVIDENCE TO JUSTIFY DECISION

From the document containing the Director's reasons for deciding to set up a Committee it appears that the essential point relied on is that there were 129 days in the referral period on which the applicant provided more than 60 services. The RACGP standard for quality care specified an average consultation time of not less than ten minutes ("the ten minute standard"). It was considered that, except in exceptional circumstances, this amount of time is required in order that a practitioner provide quality care to a patient. In order to satisfy the ten minute standard the applicant would have to have spent between 10.2 and 16.7 hours in direct patient contact on each of those 129 days. The Reasons paragraph of the Referral document explains how the range of 10.2 to 16.7 hours was arrived at. Between 61 and 80 services per day were said to have been rendered on 119 occasions, and between 81 and 100 services per day were said to have been rendered on 10 occasions. To perform 61 services of 10 minutes each per day would take 10.2 hours. To perform 100 such services per day would take 16.7 hours. It was contended for the applicant that on the material before the Commission and the Director there was no occasion on which 100 services were rendered. The highest number of services was 93 on one day. The next highest was 85 on one day, then 84 on two days, 83 on one day, 82 on two days and 81 on three days. Counsel for the Director did not challenge these assertions. Thus, rather than having to spend between 10.2 and 16.7 hours in order to satisfy the ten minute standard, the applicant would have to have spent between 10.2 and 15.5 hours.

It was submitted for the applicant that there was no evidence to support the decision to refer because it was based on the false premise that the applicant could not have satisfied the ten minute standard. The applicant rendered 17,926 services in the referral period. Based on his working week of 61.75 hours (giving available consultation time of 3145.7 hours or 188,742 minutes a year), he devoted an average of 10.5 minutes to each consultation. But this approach is in my view unsound. The Director's case that on numerous occasions the applicant could not have satisfied the ten minute standard is not answered by showing that if the services be spread over a whole year the standard is satisfied. That approach obscures the fact, for example, that on particular dates the applicant rendered 81 services in an available consultation time of 10.5 hours, giving an average time of 7.77 minutes.

There was material before the Director on the basis of which the view could reasonably be formed that on 89 days the applicant had rendered more services than were consistent with the ten minute standard. That represents about 34 per cent of the full days he worked in the relevant year. The Director also had before him the transcript of an interview in which the applicant said that he could "push through ten patients per hour if he was busy". On the basis of all this material it was in my view open to the Director not to be satisfied that there were insufficient grounds on which a Committee could reasonably find that the applicant had engaged in inappropriate practice in connection with the referred services. In those circumstances he was obliged by s 93 to set up a Committee.

UNREASONABLENESS

For the reasons I have given under the preceding heading, the claim that no reasonable person could have failed to be satisfied that there were insufficient grounds on which a Committee could reasonably find that the applicant had engaged in inappropriate practice fails.

YUNG'S CASE

Substantial reliance was placed by the applicant's counsel on Yung v Adams (unreported, Davies J, 11 December 1997). That was an appeal under s 124A from the decision of a Review Tribunal. In the course of his judgment Davies J made observations relevant to decisions of Committees and Tribunals. But their tasks and powers differ from those of the Director under s 93, and I have not found Yung of assistance in relation to the attack on the Director's decision in the present case.

"DECISION" UNDER ADJR ACT?

It was submitted for the Director that the decision under s 93 to set up a Committee is not a "decision" for the purposes of the ADJR Act. However counsel accepted that because each of the respondents is an officer of the Commonwealth, being a person individually appointed by the Commonwealth (R v Murray; Ex parte the Commonwealth [1916] HCA 58; (1916) 22 CLR 437 at 452, 453), the application falls within s 39B of the Judiciary Act and the applicant need not rely on the ADJR Act to found the Court's jurisdiction. Accordingly I need not decide this interesting question, to which ss 93 and 101(2) may provide the answer. See Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 337 and Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 69-70; and cf Northern Territory v Lane (1996) 39 ALD 527.

CONCLUSION

The application should be dismissed with costs.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg

Associate:

Dated: 25 February 1998

Counsel for the Applicant:	A G Uren QC and B E Walters
Solicitors for the Applicant:	F L A Partners
Counsel for the Respondent:	P J Hanks
Solicitor for the Respondent:	Minter Ellison
Date of Hearing:	16 February 1998