The Full Court of the Federal Court of Australia (Goodman, O’Sullivan and McElwaine JJ) has allowed an appeal from a single judge of the Federal Court, and made orders quashing a report made by a Professional Services Review Committee under Part VAA of the Health Insurance Act 1973 (Cth).
The Committee’s report was made following a six-day hearing investigating the provision of services by a specialist anaesthetist. At the hearing, the Chairperson was absent from the first three of the six days, and the hearing on those days had proceeded with only other two Committee members. The anaesthetist, who had been under examination on each of the six days, did not consent to the Chairperson’s absence.
The anaesthetist sought judicial review, claiming (amongst other grounds) that the report was beyond power because the Committee had been unlawfully constituted at the hearing by reason of the Chairperson’s absence. The Full Court unanimously accepted that contention, holding that on its proper construction, Part VAA of the Act requires that all hearings be before a fully constituted Committee as prescribed by the Act. Where a Committee member is absent from a hearing, the Committee has no statutory authority to conduct the hearing, and by proceeding in the Chairperson’s absence for the first three days, the Committee had fallen into jurisdictional error.
On that basis, the Full Court made orders quashing the Committee’s report. It was not necessary to address the anaesthetist’s alternative argument that he had been denied natural justice by the making of adverse finding in circumstances where the full Committee had not been present during his evidence.
The anaesthetist was represented by Henry Cooper, led by Tom Brennan SC and instructed by Collins & Collins.
The Full Court’s judgment (Raiz v Director of Professional Services Review [2024] FCAFC 91) can be found here: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2024/2024fcafc0091.
