Hamor v Determining Authority

• Jurisdiction: Australia Federal only
• Judgment Date: 27 March 2023
• Neutral Citation: [2023] FCA 267
• Date: 27 March 2023
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Hamor v Determining Authority [2023] FCA 267

File number(s):	NSD 630 of 2021
Judgment of:	GOODMAN J
Date of judgment:	27 March 2023
Catchwords:	ADMINISTRATIVE LAW – judicial review – professional services scheme under Part VAA of the Health Insurance Act 1973 (Cth) – Determining Authority, acting on the findings of inappropriate practice by the applicant made by a Professional Services Review Committee, made decisions disqualifying the applicant for one year with respect to MBS item 12250 and requiring the applicant to pay $1,959,718.75 being the Medicare benefits that were paid for the MBS item 12250 services in connection with which the applicant engaged in inappropriate practices – decisions challenged on the bases of legal unreasonableness and findings made without evidence – application dismissed
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5 Health Insurance Act 1973 (Cth), ss 19, 79A, 81, 82, 85, 86, 93, 95, 101, 106K, 106L, 106SA, 106T, 106TA, 106U, 106ZPA, 106ZPR Judiciary Act 1903 (Cth), s 39B Health Insurance Regulations1975 (Cth), reg 13
Cases cited:	BHL19v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; (2020) 277FCR420 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 Hamor v Commonwealth of Australia [2020] FCA 1748 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 Hickey v Australian Postal Corporation [2023] FCA 57 Kutlu v Director of Professional Services Review[2011] FCAFC 94; (2011) 197 FCR 177 Minister for Home Affairs v Omar[2019] FCAFC 188; (2019) 272 FCR 589 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Navoto v Minister for Home Affairs[2019] FCAFC 135 Norouzi v The Director of the Professional Services Review Agency[2020] FCA 1524 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 Sevdalis v Director of Professional Services Review (No 2) [2016] FCA 433
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	150
Date of hearing:	28 March 2022
Counsel for the Applicant:	M Robinson SC with J Lucy and C Brain
Solicitor for the Applicant:	WorkLegal
Counsel for the First Respondent:	The first respondent submitted to any order that the Court may make save as to costs.
Counsel for the Second Respondent:	A Berger KC and D Forrester
Solicitor for the Second Respondent:	Sparke Helmore

ORDERS

		NSD 630 of 2021
BETWEEN:	GEORGE HAMOR Applicant
AND:	DETERMINING AUTHORITY First Respondent ; COMMONWEALTH OF AUSTRALIA Second Respondent

order made by:	GOODMAN J
DATE OF ORDER:	27 march 2023

THE COURT ORDERS THAT:

1. The amended originating application filed 31 July 2021 is dismissed.

2. The applicant is to pay the second respondent’s costs as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

A. INTRODUCTION	[1]
B. BACKGROUND	[2]
C. THE FINAL DETERMINATION	[28]
Summary of the Final Determination as set out by the Authority	[28]
Issues based summary of the Final Determination	[60]
(1) Concerns about the gravity of the applicant’s conduct	[63]
(2) Changes to item 12250 and to the applicant’s practice since the review period	[64]
Changes to item 12250 since the review period	[65]
Changes to the applicant’s practice since the review period	[69]
(3) The risk that the applicant would engage in inappropriate practice in the future	[75]
(4) The applicant’s submissions as to the hardship that the proposed repayment direction would cause him	[77]
(5) The availability of other practitioners to provide the services provided by the applicant during his disqualification	[78]
D. APPLICATION FOR REVIEW	[80]
Grounds of review	[80]
Legal principles	[81]
Disqualification direction	[85]
(1) Logically unsound reasoning	[87]
Changes to item 12250	[87]
Changes to the applicant’s practice	[92]
Further alleged inconsistency	[95]
Availability of other providers of item 12250 services	[98]
(2) Unlawful purpose	[107]
(3) Failure to engage with the hardship that the disqualification direction would cause to the applicant	[117]
Repayment direction	[120]
(1) The Authority erroneously assumed that it should make a direction that the full amount of the benefits paid to the applicant be repaid, unless a “reduction” in that amount could be justified	[123]
(2) The Authority otherwise employed a logically unsound process of reasoning in support of the repayment direction	[126]
(3) The repayment direction was not made consistently with the protective purpose of s 106TA and 106U of the Act and was, in effect, punitive	[133]
(4) Failure to engage with the hardship that the repayment direction would cause to the applicant	[147]
E. CONCLUSION	[150]

REASONS FOR JUDGMENT

GOODMAN J

A. INTRODUCTION

1 The applicant is a medical practitioner specialising in sleep and respiratory medicine. He seeks judicial review of decisions made by the Determining Authority on or about 1 June 2021 to make directions purportedly pursuant to 106U(1) of the Health Insurance Act 1973 (Cth). The Authority has filed a submitting appearance and the active respondent is the Commonwealth of Australia.

B. BACKGROUND

2 As a medical practitioner, the applicant is a “practitioner” for the purposes of Part VAA (ss 79A-106ZR) of the Act: s 81 of the Act.

3 Part VAA of the Act is concerned with “inappropriate practice” by practitioners. Section 82(1)(c) of the Act provides that a practitioner engages in “inappropriate practice” if the practitioner’s conduct in connection with rendering or initiating relevant services as a consultant physician in a particular specialty was such that a Committee, being a Professional Services Review Committee set up under s 93 of...